Filders and Rafter and Anor
[2020] FCCA 2490
•14 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FILDERS & RAFTER & ANOR | [2020] FCCA 2490 |
| Catchwords: FAMILY LAW – Parenting – consideration of best interests of two children with same mother but different fathers – 10 year old boy autistic and expressing clear desire to live primarily with his father – mother seeking equal time for both children – family report writer strongly opposed to equal time – 7 year old living predominantly with father in 9/5 arrangement – Independent Children’s Lawyer seeking adjustment to 10/4 to enable 7 year old to have one clear primary residence – family report recommending 7 year old live primarily with father – orders made as sought by Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR FILDERS |
| First Respondent: | MS RAFTER |
| Second Respondent: | MR HOOKE |
| File Number: | DGC 3967 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 12, 13 & 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 14 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moore |
| Solicitors for the Applicant: | D M Valentine and Associates |
| Counsel for the First Respondent: | Mr C. Allen |
| Solicitors for the First Respondent: | Knight Family Lawyers |
Counsel for the Second Respondent: | Self-Represented |
| Solicitors for the Second Respondent: | Not applicable |
| Counsel for the Independent Children's Lawyer: | Mr Marchetti |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan and Associates Pty |
ORDERS
That all previous parenting Orders with respect to the parents, Mr Filders, Mr Hooke, and Ms Rafter be discharged.
X:
Mr Filders (“Mr Filders”) and Ms Rafter (“Ms Rafter”) have equal shared parental responsibility for the care, welfare and development of X, born in 2013 (“X”).
X live with Mr Filders.
X spend time and communicate with Ms Rafter as follows:-
(a)Each alternate weekend during all gazetted Victorian school term periods, from the conclusion of school (or 3.30pm) on Friday until the commencement of school (or 9.00am) on Monday, commencing 25 September 2020;
(b)In the intervening week during all gazetted Victorian school term periods from the conclusion of school (or 3.30pm) on Wednesday until the commencement of school (or 9.00am) on Thursday, commencing Wednesday 16 September 2020;
(c)During all gazetted Victorian school term holiday periods in terms 1, 2 and 3, as agreed between Mr Filders and Ms Rafter and failing agreement from 4.00pm on the first Saturday of the holidays until 4.00pm on the middle Sunday of the holidays;
(d)During all gazetted Victorian Long Christmas holiday periods (subject to (e) and (f) below) in December/January of each year, as agreed between Mr Filders and Ms Rafter and failing agreement, on a week and week about basis, commencing at 4.00pm on 27 December of each year;
(e)From 1.00pm on Christmas Eve to 1.00pm on Christmas Day in 2020 and each alternate year thereafter;
(f)From 1.00pm on Christmas Day to 1.00pm on Boxing Day in 2021 and each alternate year thereafter;
(g)On X’s Birthday and Ms Rafter’s Birthday from 3.30pm (or the conclusion of school) to 7.00pm if on a school day and from 10.00am to 5.00pm if such occurs on a non-school day;
(h)On the occasion of Mother’s Day, from the conclusion of school (or 3.30pm as the case may be) on the Friday prior to Mother’s Day until the commencement of school (or 9am as the case may be) on the Monday following Mother’s Day;
(i)By telephone/skype/zoom and FaceTime communication, between 5.30pm and 6.00pm on each alternate Wednesday, with Ms Rafter to place the communication to a telephone number nominated by Mr Filders and Mr Filders to facilitate the communication in a private place and uninterrupted;
(j)On such further and other times as agreed in writing between Mr Filders and Ms Rafter, by the exchange of texts or email.
X’s time with Ms Rafter be suspended (and X shall be in the care of Mr Filders as follows):
(a)On the occasion of Father’s Day, from the conclusion of school (or 3.30pm as the case may be) on the Friday prior to Father’s Day until the commencement of school (or 9am as the case may be) on the Monday following Father’s Day;
(b)On Mr Filders’s birthday from 3.30pm (or the conclusion of school) to 7.00pm if on a school day and from 10.00am to 5.00pm if such occurs on a non-school day;
(c)On such further and other times as agreed in writing between Mr Filders and Ms Rafter, by the exchange of texts or email.
(5A)Changeover take place as agreed and in default;
(a)At school for school times; and
(b)Otherwise at Suburb B Police Station.
Y:
That Mr Hooke (“Mr Hooke”) and Ms Rafter (“Ms Rafter”) have equal shared parental responsibility for the care, welfare and development of Y, born in 2010 (“Y”).
Y live with Mr Hooke.
Y spend time and communicate with Ms Rafter as follows:-
(a)Each alternate weekend during all gazetted Victorian school term periods, from 5pm on Friday until 5pm on Sunday, commencing 25 September 2020;
(b)During all gazetted Victorian school term holiday periods in terms 1, 2 and 3, as agreed between Mr Hooke and Ms Rafter and failing agreement from 4.00pm on the first Saturday of the holidays until 4.00pm on the middle Sunday of the holidays;
(c)During all gazetted Victorian Long Christmas holiday periods in December/January of each year, as agreed between Mr Hooke and Ms Rafter and failing agreement, on a week and week about basis, commencing at 4.00pm on 27 December of each year;
(d)From 1.00pm on Christmas Eve to 1.00pm on Christmas Day in 2020 and each alternate year thereafter;
(e)From 1.00pm on Christmas Day to 1.00pm on Boxing Day in 2021 and each alternate year thereafter;
(f)On Y’s Birthday and Ms Rafter’s Birthday from 3.30pm (or the conclusion of school) to 7.00pm if on a school day and from 10.00am to 5.00pm in on a non-school day;
(g)On the occasion of Mother’s Day, from 5pm on the Friday prior to Mother’s Day until 5pm on Mother’s Day;
(h)By telephone/skype/zoom and FaceTime communication, between 6.00pm and 6.30pm on each Wednesday, with Ms Rafter to place the communication to a telephone number nominated by Mr Hooke and Mr Hooke to facilitate the communication in a private place and uninterrupted;
(i)On such further and other times as agreed in writing between Mr Hooke and Ms Rafter, by the exchange of texts or email.
(8A)Changeover take place as agreed and in default at C Store, D Street, Suburb E.
Y’s time with Ms Rafter be suspended (and Y shall be in the care of Mr Hooke as follows):
(a)On the occasion of Father’s Day, from the conclusion of school (or 3.30pm as the case may be) on the Friday prior to Father’s Day until the commencement of school (or 9am as the case may be) on the Monday following Father’s Day;
(b)On Y’s birthday from 3.30pm (or the conclusion of school) to 7.00pm if on a school day and from 10.00am to 5.00pm if such occurs on a non-school day;
(c)On such further and other times as agreed in writing between Mr Hooke and Ms Rafter, by the exchange of texts or email.
Medical issues and sharing information:
Mr Filders advise Ms Rafter in the event X suffers any serious medical injury or serious illness, as soon as practicable after that serious medical injury or serious illness occurs and Ms Rafter shall be authorised to speak to any treating medical professional or specialist, in relation to any serious medical injury or illness suffered by X and this Order shall serve as authority for this.
Mr Hooke advise Ms Rafter in the event Y suffers any serious medical injury or serious illness, as soon as practicable after that serious medical injury or serious illness occurs and Ms Rafter shall be authorised to speak to any treating medical professional or specialist, in relation to any serious medical injury or illness suffered by Y and this Order shall serve as authority for this.
Each of Mr Filders and Ms Rafter and Mr Hooke do all acts and things necessary, including signing all necessary documents and forms, to register each of the parents (as the case may be) as authorised persons with respect to their child on the Australian Government My Health Record, including (but not limited to) linking the child to the relevant parent’s My Gov account AND copy of this Order shall serve as evidence that each respective parent has equal shared parental responsibility for their respective chid.
Within 14 days, Mr Filders do all things necessary to contact the school X attends and authorise Ms Rafter to obtain copies of periodical school reports for X, at her expense, if any and this Order shall serve as authority for this.
Within 14 days, Mr Hooke do all things necessary to contact the school Y attends and authorise Ms Rafter to obtain copies of periodical school reports for Y, at her expense, if any and this Order shall serve as authority for this.
Within 14 days, Mr Filders, Mr Hooke and Ms Rafter do all things necessary to enrol in a ‘Parenting After Separation’ Program at F Counselling aimed at improving their parental communication, at their individual cost (if any) and thereafter attend at and complete this Program and provide evidence of completion of this Program to the other parties.
Mr Filders and Ms Rafter are restrained by Injunction from:-
(a)Denigrating each other, within the presence or hearing of X, either personally or through their servants or agents;
(b)Discussing any aspect of this Court proceeding or any Final Orders or the conflict between Mr Filders and Ms Rafter, or providing any material in relating to these Court Proceedings, within the hearing or presence of X, either personally or through her servants or agents; and
(c)Consuming illicit and/or non-prescription substances 48 hours prior to during any period in which X is in their respective care.
Mr Hooke and Ms Rafter are restrained by Injunction from:-
(a)Denigrating each other, within the presence or hearing of Y, either personally or through their servants or agents;
(b)Discussing any aspect of this Court proceeding or any Final Orders or the conflict between Mr Hooke and Ms Rafter, or providing any material in relating to these Court Proceedings, within the hearing or presence of Y, either personally or through their servants or agents; and
(c)During any period in which Y is in their respective care.
The appointment of the ICL, made by Court Order on 21 December 2016, be discharged.
Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Certify for advocacy.
AND IT IS NOTED THAT:
A.For the purpose of weekend arrangements for Y and X (pursuant to Orders 4 (a) and 8(a) above) and over the school holiday periods (pursuant to Orders 4(c) and (d) and 8(b) and (c) above) it is intended that the children shall have the opportunity to spend time together in the care of their mother.
B.In the course of evidence by each of Mr Filders and Mr Hooke, each of the father’s welcomed the opportunity to facilitate and promote time between Y and X, whilst the children are in their respective care and, in particular, consideration will be given to facilitating X spending time with Y as directly arranged between Mr Hooke and Mr Filders.
C.The family consultant has provided evidence and recommendation that each of the parents should give particular consideration to Y’s expressed views and wishes when seeking to make arrangements for him.
IT IS NOTED that publication of this judgment under the pseudonym Filders & Rafter & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 3967 of 2016
| MR FILDERS |
Applicant
And
| MS RAFTER |
First Respondent
| MR HOOKE |
Second Respondent
REASONS FOR JUDGMENT
This is a parenting dispute about two children, Y born in 2010 and X born in 2013. X’s father is Mr Filders and Y’s father is Mr Hooke. The mothers’ of both Mr Filders and Mr Hooke have at one time or another participated in these proceedings but both have filed notices of discontinuance. Pursuant to orders made in February 2020, X lives with her father in a nine/six arrangement, spending alternate weekends with the mother and in the off week Tuesday to Friday. Those orders were made by consent. Y lives with his father, Mr Hooke, and spends time with the mother each alternate weekend.
The parties’ positions have oscillated from time to time but as things now stand Mr Filders, whose position is essentially supported by the Independent Children's Lawyer, seeks that X live with her father and spend each alternate weekend from Friday to Monday with the mother with a further night on Wednesday nights in the off week. Mr Hooke seeks that Y continue to live with him, spend time with Mr Filders as may be agreed, and spend time with the mother each alternate weekend.
The mother seeks that both the children live with her and her proposals for time are not wildly dissimilar to the mirror images of those proposed by the two fathers.
It should be noted that this case has taken an inordinate amount of time to come to trial. Proceedings were first commenced in 2016 and have been delayed by a number of matters. First, there was a necessity to obtain a psychiatric assessment of the mother from Dr G, which was unproductive of any significant concerns. There have been further delays caused by reconciliations between Mr Filders and Ms Rafter which went on until mid-2018. In a real sense the matter only got going thereafter. It will be a relief to bring it to an end.
For the reasons that follow I propose to make the orders sought by Mr Filders and Mr Hooke.
Agreed or Uncontroversial Matters
It should be noted that all the parties have been unrepresented for various tranches of time and this has, understandably, meant that their affidavit material has been not as precise or structured as it might have been.
From the materials filed however it is apparent that Mr Filders was born in 1980. The mother was born in 1990, and is of Aboriginal heritage. Mr Hooke was born in 1987 and is in a relationship with Ms H who has two children of her own called J, aged 5, and K, aged 3. The mother has not re-partnered but is presently pregnant with a child by a man who has been described as substantially older who does not wish to be involved with the child at all.
It seems uncontroversial that Y was conceived after what the mother described as a one night stand and, thereafter, Mr Hooke was not involved with Y for some years and only became so when he was required to take a parentage testing case which showed that he was the father. Y is autistic and has some difficulties associated with that condition.
Both Mr Filders and Ms Rafter have accused one another of family violence but it is uncontroversial that during the relationship between them it was characterised at times by significant mutual verbal abuse often in front of the children. The allegations of assaults made by the mother against Mr Filders are significant and those made by him against her are likewise also significant.
Both of Mr Filders and Ms Rafter admit that their relationship was volatile, as already indicated, and although in the original application filed by Mr Filders to the court it was asserted that separation took place on 1 December 2016 (followed by an intervention order taken out by the mother against him on 8 December 2016) they reconciled intermittently on and off right through till mid-2018. On 1 June 2018 the father was arrested by police as a result of a complaint made by Ms Rafter. Another intervention order took place contemporaneously. There are intervention orders all over this case and the most recently extended one prohibits Mr Filders from any contact with Y.
It seems uncontroversial that Mr Hooke’s involvement with Y has gradually developed and Y has, pursuant to the orders made in February 2020, lived with his father predominantly since then. Likewise X has predominantly lived with Mr Filders.
The Parties’ Affidavits
There are 82 matters filed with the court and it is apparent readily that the parties have not been slow to put on affidavit material. As earlier indicated much of it is not in a terribly helpful form, this not being a matter of criticism because of the parties’ self-representation. It is only relatively recently that the parties’ affidavits have started to become more structured although at times a certain sense of chaos pervades even the more recently filed materials. I have read and have regard to all of the parties’ affidavit materials, much of which consists of assertions and denials most particularly between Ms Rafter and Mr Filders but also to an extent on the part of Ms Rafter responding to Mr Hooke’s materials. In the particular circumstances of this case however I think it is far more productive to concentrate on what was actually said at court.
The Family Reports of Ms L
Before coming to Ms L’s reports, it should be noted that there has been a section 11 report and extensive information supplied by the Department of Health and Human Services, who have had extensive involvement with the parties. I have regard to that material but it is not necessary to set it out in any detail.
Likewise although Ms L has provided four family reports, I only propose to concentrate on the current one. I note in passing that in her report dated 21 February 2018 Ms L reported, at paragraph 30:
During their discussions it was apparent that the father became easily frustrated while the mother tended to remain calm. He wanted her to agree with him on the various matters discussed and became annoyed when she did not immediately concur with his point of view. During these discussions the mother behaved in a calm and appropriate manner.
I mention this snapshot only because the father’s demeanour when the matter was in the court before me seemed consistent with Ms L’s observations on that occasion.
In her most recent report dated 22 July 2020 Ms L noted the current arrangements in the orders from 10 February 2020. She noted the relevant family background. Mr Filders continues to live with his mother while intending to move into his own accommodation after the family law issues were finalised (paragraph 6). Ms Rafter has continued to live in her Suburb B home but plans to move to Region M when she completes her current studies in about two and a half years time to be closer to the Suburb E campus and her extended family members (paragraph 7). Mr Hooke lives in Suburb N with his partner Ms H and her two sons J, aged 5, and K, aged 3, and that Y and the boys were together on alternate weekends (paragraph 8). She noted that the distance between Mr Hooke and Ms Rafter’s homes was about a 40-minute drive (paragraph 9).
Having traversed the history of the dispute and the proposals of the parties, which as I say have been amended from time to time, Ms L noted that Ms Rafter had obtained an extension of the intervention order against Mr Filders and that she continued to have concerns about Mr Filders allegedly tampering with her mail and otherwise being at her property, which Mr Filders denied (paragraph 18).
Ms L noted Mr Filders’ ongoing (and frequently expressed in affidavits) concerns about the mother’s psychological health and physical concerns relating to X (paragraph 19).
The report went on then to traverse the interviews with the parties. It is not necessary to traverse these in detail. They speak for themselves. The father reiterated his concerns about hygiene at the mother’s house, particularly relating to pets (paragraph 30).
The report noted that Ms Rafter was not in a relationship but was 11 weeks pregnant and that “When asked, Ms Rafter said she felt able to cope with the extra responsibility of her new situation and said she had told X and planned to inform Y on the following weekend” (paragraph 36).
Ms Rafter confirmed that she had acquired Aboriginal childcare agency backpacks for the children that contained various activities (paragraph 37) and that “her relationship with Mr Hooke was mostly manageable and they could continue to co-parent successfully” (paragraph 38).
Ms L noted that Mr Hooke said that Y mostly gets on really well with Ms H’s children and that he proposes to marry Ms H (paragraph 43).
Ms L interviewed the children and X stated she wanted more time with her mother and brother but enjoyed time with her father and her Nanny (paragraph 57). Y spoke of being happy and was interested in indigenous studies (paragraph 60).
At paragraph 61 the report noted:
When asked about seeing Mr Filders, Y was definite in his response, saying that he did, “Not want to see Mr Filders at all” and proceeded to refer to a list of passed allegations related to incidents between his mother and Mr Filders.
At paragraph 65, under the heading Evaluation, Ms L opined:
Mr Filders, X’s father was assessed as continuing to manage his care of X well while also utilising the assistance of the paternal grandmother. There is nothing to indicate that he would not continue to more than adequately care for X, even if he eventually sought his own accommodation and it was assessed as likely that the paternal grandmother would continue to offer ongoing support, if required.
At paragraph 66 the report continued:
Ms Rafter, X and Y’s mother, was seen to be currently prioritising her education as an important aspect in her life. While she indicated that she would be able to look after both children full-time as well as continuing her studies and also managing her current pregnancy, it was considered likely that the future looked increasingly complex for her. Added to that was her unclear relationship with the father of her expected child and the level of other support she may need, both during her pregnancy and following the birth of her child. In any event, Y and X will need to continue to spend regular time with their mother in order to maintain their close bond with her as well as developing appropriate bonds with the new baby.
Ms L noted that Mr Hooke was managing his relationship with Y very well (paragraph 67) and it was clear that Y wanted to live with his father (paragraph 68). It was noted that Y wanted to spend less time with his mother but that “at his age it would be wise for his parents to take into account, Y’s wishes from time to time” notwithstanding that it was appropriate to have orders for alternate weekends and half school holidays (paragraph 68).
At paragraph 69 the report stated:
While X stated that she wanted more time with her mother and with Y, Y’s input indicated that their time together was not always satisfactory for him. Additionally, X has also said she was happy with her time in her father and grandmother’s care. While the indication from the school was that X was doing well with the current arrangements, it was noted that concerns about Ms Rafter’s parenting abilities were still being referred to by Mr Filders. Taking into account X’s young age and her mother’s unexpected pregnancy with the additional responsibilities that will undoubtedly place on her, it may be imprudent to attribute too much weight on X’s stated preferences, particularly given the lengthy and intense pressures of the family court processes on the families.
The report went on to recommend that Y live with his father and spend time with the mother on alternate weekends and half school holidays with some flexibility according to Y’s expressed wishes. It was recommended that X live with her father and spend time with her mother on alternate weekends and on one to two days in the alternate week, such time to be with the children together but with some flexibility depending on Y’s wishes. The report also recommended all the parents attend a parenting after separation course with a view to develop and improve parental communications.
The Report of Dr G
I have already referred to Dr G’s report which was obtained in 2018. I obviously have regard to all of that report but would note the following significant paragraphs (page 15 of 17):
At interview, Ms Rafter presented a reasonably pleasant and plausible individual who described caring, insightful and committed attitudes with regard to parenting responsibilities and arrangements, and did not demonstrate any major cognitive deficits or signs of mental illness.
In the absence of further information, this examiner is inclined to not make a diagnosis of psychiatric disorder.
Upon the history available, this examiner is not of the opinion that Ms Rafter is at risk of any particular future behavioural or psychiatric issues related to a psychiatric disorder.
She does not appear to require any additional psychiatric treatment over and above the current counselling.
The Submissions Made and Evidence Given at Court
What follows is taken from my notes.
By common agreement Ms L was called first and she adopted her family report as exhibit T1. Under cross-examination by counsel for Mr Filders, Ms L confirmed that she had not seen the therapists that X has attended. She in fact was not aware that counselling was occurring. She was not aware of X being in therapy and the mother had not mentioned it. The mother had not discussed moving X’s school. She had not discussed moving to Suburb E or Region M in detail. She talked about being closer to her family and some of Mr Hooke’s family. She was not planning an immediate move. It was to take place in the next couple of years.
The mother had not told her that she was the official carer of the maternal grandfather. The grandfather’s condition was news to her. The mother occasionally said she and Mr Hooke had disagreements but overall they were on the same page. She was confident they could co-parent effectively. The mother’s most recent affidavit was incongruous with what she told her. Overall Mr Filders and the mother are overly involved in their disputes and not focused on the children. They are constantly being hostile and difficult. It was difficult to place more adherence on one or the other. The thing Mr Filders has going for him is he has his mother there and she will stay involved even if he moves out. The grandmother’s focus was mainly on the children although she was hostile to the mother. The mother’s attitude towards the parental grandmother is negative and hostile. She said she had previously been attacked by the grandmother.
When asked why she was recommending a move to a ten/four arrangement Ms L said there were a number of changes in 2020. Y was now living with his father. Y’s attitude to his mother was that he wanted less time with his mother and X. This was different to 2019. The mother is now pregnant and the relationship with the child’s father is unclear. It may not be smooth sailing. Mr Filders has also been in long-term counselling. The mother plans to move further away. There is a possibility of change of schools. Both children need consistency and one home. Particularly Y because he is autistic. The parents should avoid conflicts.
There were no complaints about the father’s care of X. There were complaints about the mother’s hygiene and animals which were supported by Mr Hooke’s comments and the children’s comments. Mr Hooke struck her as a reliable reporter. He was fully child focused, particularly for Y but also for X. There were negative comments reported by the children made by the mother about the fathers when they were in her care. Mr Filders presented as okay save for his problems with the mother. Ms L went on to say words to the effect that the reduction of time was to stop the shared care given the toxic relationship between the parents.
Ms L confirmed that one rather than two nights in the off week was better and that changeover at school was best.
Ms L was then cross-examined by counsel for the mother. She conceded that this was her fourth report and that the previous three reports had different recommendations that the children live with the mother. When it was put to her that Y had wanted more time with his mother in the 22 July 2019 report Ms L accepted that that was in the report. Y has had more time with his father since February and coped with the change. She placed reliance on Y’s views and other matters. Y’s views are important given his age.
When it was put to her that Y could cope with more time with the mother Ms L disagreed. She said the change she was proposing was very important for Y. Time arrangements needed to be more stable. He was happy with the father and wanted less time with the mother. He was worried about his relationship with his mother and wanted less time with his sister. Ms L said everything indicated that Y needed to stay with Mr Hooke. She went on to say words to the effect that more time with the mother or week about would be enormous for Y and detrimental for him. The relationship between the step siblings were important. It would not be more stable for the children to have seven days with their mother. Y told her whenever he went to the mother’s there were difficulties with X and Mr Hooke confirmed this. She accepted that there were problems between the siblings and this does impact upon Y wanting less time with his mother. There were no serious problems however between Y and X. If hygiene was not a problem there were other negatives at the mother’s house.
It was put to Ms L that the mother said that Ms O the grandmother’s role with X was very significant. Ms L said her finding was that the grandmother would assist as required. It was her impression that Mr Filders was the primary carer. She was not aware of allegations of family violence against Mr Hooke and had no concerns at all about Mr Hooke.
When she was asked about allegations put against Mr Filders, Ms L said she was aware of allegations during the relationship. She was not aware of any current ones. The mother was concerned that Mr Filders was attending her property but Mr Filders denied this. She did not have any ongoing concerns about Mr Filders and family violence.
Ms L confirmed she had not seen the children in person and together but she had seen them together on three other occasions. She would expect the children to be okay together.
Mr Hooke only put one question to Ms L who confirmed that she had not changed her recommendations following the mother’s reply affidavit.
Under cross-examination by counsel for the Independent Children's Lawyer Ms L confirmed that Y should live with the father and spend alternate Fridays to Sundays with the mother. She was opposed to any application for Y to live with the mother. Alternate weeks with the mother would not be successful given the circumstances. When asked if Mr Hooke and the mother would be sufficiently cooperative to enable a shared care arrangement for Y, Ms L emphatically answered “no”. She likewise emphatically answered “no” when questioned about the mother’s proposals for X, to have shared care, and was not only not recommending it but was wholly opposed to it.
Counsel put it to Ms L that the Independent Children's Lawyer had spoken to Y in July and he had said he wanted to see the mother one time per month. Ms Y thought this was constructive with a proviso that there should be more time if he wants it and Mr Hooke had agreed with this. When asked about orders for each alternate weekend for Y from Friday to Sunday, Ms L said Y should spend time with X, but if he was not happy to go every second weekend he should not be pushed. That would create the opposite effect if Y was overly pressed.
When asked about the return to P School the mother sought for Y, Ms L said this would not be good for Y in any way. She failed to understand the mother’s motivation in making such a suggestion.
It was put to Ms L that the mother’s household was complex. Ms L said she needed to concentrate on these two children. Y is already conflicted and now there is another child on the way. This would be a lot to cope with for a 10-year-old. It was not necessary that Y and X spend the same time with the mother. More time for X was appropriate.
The Opening and Evidence of Mr Filders
Counsel submitted that there was continual parallel litigation in the Magistrates Court with no concessions being made. Mr Filders wants an end to the chaos. Counsel referred to his being jailed in 2018 and undertaking counselling.
Mr Filders was called and adopted his affidavits as true and correct. Mr Hooke put a slightly lengthy question to Mr Filders. He said that Y had said he would not want to see Mr Filders, and asked would he oppose if he could have X stay with him for one day at a park or during the school holidays with the paternal grandmother. Mr Filders confirmed he had no problems with any of that.
Under cross-examination by counsel for the mother Mr Filders said the mother has serious problems in her home. He did not agree that the mother was the primary carer for X nor that she had looked after X and done the cooking for the household. He said while he was at work the mother looked after X but when he got back X was his responsibility. He denied that the mother got up at nights. He said he took X to hospital with the mother. He did not spend his time on the phone and computer. He had continuous concerns when he was with the mother and these were in his affidavits. He admitted being verbally abusive to the mother but said it was a two way street. It was not physically abusive. He was arrested once because of an allegation of assault on the mother. He denied an episode asserted by the mother when her shoulder was on the bed. He said that was not what happened. He said he put his arm on her to stop her elbowing him in the back. When it was put to him that he had told the mother, “I hope you will kill yourself”, the father said he did not believe so for he did not remember but did not think so. It was put that he was driving, sped up and then put the brakes on to frighten the mother and X and Y but he said this was not the case. He had agreed to an intervention order naming the mother, Y and X without admissions. There was an intervention order against his mother also.
It was put to him that his mother did most of the work for X. Mr Filders said his mother takes X to school. He leaves work earlier but he gets her from school. His mother gets her up because he is at work. She cooks dinner. It is completely different when he is at home. He was not reliant on his mother. He has spoken to his boss who will let him start at 10 am and finish at 2 pm. He is looking to move out from his mother. He will not struggle to look after X on his own.
Mr Filders confirmed he had read the mother’s affidavits and read her allegations of violence. There was quite a lot. Y and X need a relationship “Of course they do”. This would not be better done by the mother but better done with Mr Hooke.
Mr Filders was cross-examined about an incident at McDonald’s. It was a big deal at the time. He had brought his mother and sister because he had to protect himself from more allegations. He denied that his mother and sister Ms Q had been abusive to Ms Rafter. This was not what happened. He would have overheard. His mother was one car away and Ms Q was next to him. It was put that there was no harm to X in a seven/seven arrangement but he did not agree. X did not think it was fair but she tells him that she does not want to spend less time with him. The issue of pets at the mother’s house was a big issue for him. He has pets too. He has dogs and a rabbit lives outside. He had not exaggerated in his affidavit.
Under cross-examination by counsel for the Independent Children's Lawyer Mr Filders confirmed that X had been in his care since February but spent Friday to Monday and Tuesday to Friday with the mother. X had settled in well with that. X does not speak about Y as much as she used to. They have spoken on the phone and by FaceTime in the past. He is happy for this to continue.
When asked about the mother’s proposal for week about time Mr Filders said he did not believe it could work. The arrangement last time had not worked out. X was sick a lot more times. She was not showering. Time all in one big chunk is a worry. His relationship with the mother is not good. He had to undertake courses to find a better way to cope. He sought as minimal contact as possible with the mother so there was no contact. There was nothing he could do to improve it. When asked why his arrangement of alternate weekends and one night would be better for X, Mr Filders said it would be better and health and hygiene-wise. On any given week she would get one bath or shower per week with the mother. Since the last hearing she has only been shampooed three times with the mother. X has to clean her own vomit. She is standing in cat and dog faeces. The conflict with the mother and Y will manifest itself with him. X has a good relationship with Y and it has not deteriorated.
X is manipulated by the mother. X fears that when the baby is born she will get less care from the mother. X was alleged to have said “I don’t think Mummy will love me when the baby is born”. This was two months ago. He had told her this was not true and the issue had not arisen again. Holiday time should be shared and there should be time with the mother for X and Y. He had done FaceTime and telephone contact between the children with Mr Hooke in the past. It started a week after the last hearings. His relationship with Mr Hooke was amicable and cooperative. He had been asking to see Y. He had not proposed that X spend time with Y. I note that Mr Filders accepted that Y did not wish to spend time with him and in my view this was an insightful concession albeit one that plainly distressed Mr Filders.
Re-examination, in my view, did not take the matter further.
The Evidence of Ms O
Ms Rafter was called and adopted her affidavits as true and correct. Mr Hooke elected to put no questions to her.
Under cross-examination by counsel for Ms Rafter, Ms Rafter confirmed that she does provide a lot of assistance to her son. She gets X up and gets her breakfast and takes her to school. Occasionally she collects too. They have done a lot more things together during COVID. Normally X does a lot of things with the father. She did not think the father would struggle when he moves out. On weekends he is with her the whole weekend. She has serious concerns about the mother with X. She has not been in the mother’s house for four years. She had read the mother’s affidavits. She keeps a book and writes everything down that occurs. She is not looking for things in the mother’s house. Sometimes X says, “I miss Mummy”. X talks about concerns when she gets into the car.
Counsel for the Independent Children's Lawyer did not elect to put any questions to Ms Rafter who I should interpolate and say was a good and measured witness in her answers.
The Opening and Evidence of Mr Hooke
Mr Hooke made an opening which, in my view, shows very clearly that he is very child focused. He said he would like to keep a good relationship with the mother but that Y remain in his care. Y wants to live with him and visit his mother. Y came to him on 7 January 2020. He thought they should wait but Y persisted. He did not want to tarnish his relationship with the mother. He has got two small boys, who are his partner’s, living with him.
Mr Hooke adopted his affidavits as true and correct. Under cross-examination by counsel for Mr Filders he said he had text messages which confirms the material in his affidavit. He had texts to support every single matter he had recited in his affidavits.
Under questioning by the counsel for the mother, Mr Hooke said he just wants to get along with the mother for Y’s sake. He could have put a lot more into his affidavit but did not do so to avoid ruining his relationship with the mother. He said it was not about what he wanted. It was about what Y wanted. He just wanted what was best for Y. He had read the mother’s further affidavits. Until the start of this year there was a good relationship between Y and X but Y says X is rude to him and swears at him and the mother does not intervene. It is important they are close. Y talks readily about how he feels. In the past he has wanted to see Mr Filders and Mr Hooke was not sure why he did not now wish to see him. He and Mr Filders were trying to have the children catch up. It had been a rough year for Y. The time the children spend together is important and it does not matter where. He was not opposed to X and Y talking. He was not trying to shut the mother out, quite the opposite. Y needs his mother. Most of the time his (Mr Hooke) relationship with the mother is okay. There is just paranoia that they feel each is lying to the other and it has its moments.
Under cross-examination by counsel for the Independent Children's Lawyer, Mr Hooke was asked why he sought sole parental responsibility. Mr Hooke said he knew this would come up. He had sought legal advice. He did not want to have to stop doing what was appropriate because of the mother. He would always advise the mother. He did not want to trump the mother. The mother had some views he did not agree with. There are times when Y wants to stay home. He does not mean to cut Ms Rafter (Ms Rafter) out. He did not think once a month would be good. They should give some weight to Y’s views. Week about had been mentioned in the very beginning before Y went to live with him.
On 3 August the mother agreed that Y should live with him. He only had heard about week on, week off in the previous day. Before that he thought the mother wanted Y to live with him. The mother told him she was only seeking more time with Y to get more time with X. The mother had contacted him on 3 August when he was in his office. She sent a text message saying she wanted to talk about things. She asked if Mr Hooke would like Y’s double bed from her house. Y is quite upset at changeovers. He wanted more time with the mother. He had told Y that he had to home school. On another occasion after the February court date Y was very upset. His mother had told Y that if he chose to live with Mr Hooke she would lose X.
This time Y told him the mother had said she would lose everything and would only have the baby. Y had been reluctant to tell him this because he said his mother would yell at him. This was at changeover on Sunday, 2 August. The next day he got a text. On the Monday the 3rd he had got a message to call the mother and she called him back. She asked him if Y would like the double bed but Y did not want it. The mother was happy to proceed on the basis of Y’s wishes. The mother had never said she did not want Y. She was concerned it would affect her chances of more time with X. Shared care for Y would be counterproductive. It is not what Y wants and does not reflect the last nine years. Y has come a long way.
Mr Hooke said that Y had really improved with him. He was a bit firmer than the mother. Since January a lot of cleanliness issues had been pointed out by Y. Once there was cat poo under his bed. The pets do not use the kitty litter. Y said once there was poo under his bed drying out. When Y came into his care he was surprised to shower every night. He had to make Y change his underwear. The mother’s house had more flexibility but the father was more strict on bedtimes and with routine. The mother had not spoken to him about sending Y to P School but he understood she wanted both children at the same school. Suburb N is Y’s new school and is well funded. Most of the time he and Mr Filders (Mr Filders) arrange contact between X and Y.
I should interpolate that Mr Filders presented to me as an absolutely straightforward and honest person. He was very precise about dates and plainly did have text messages to support everything he was saying. He was an excellent witness and it is greatly to his credit that he was visibly reluctant to make any criticisms of the mother other than those that the questions put to him compelled him to make.
The Opening and Evidence of the Mother
Counsel noted that the mother’s position had varied from time to time but she now seeks equal shared parental responsibility and week about time for both children. She seeks change of school to P School.
The mother was called and adopted her affidavits as true and correct.
Under cross-examination by counsel for Mr Filders, the mother said she had no idea Mr Hooke would refuse to return Y. She asked Mr Hooke to take Y for a short amount of time. She had said to Mr Hooke that her anxiety was getting raised because Y was becoming more aggressive. Y saying he did not want time with her was upsetting her. She expected Y to come back to her after the last court hearing. She was aware the matter did not proceed in February to trial because it was discovered that Y was not living with her.
Counsel cross-examined about the incidents which had given rise to an Intervention Order after separation. It should be noted that the mother said the incident did happen. The police should have done something because Mr Filders put his hands around her throat. It should be noted in passing that the police records do not appear to be entirely consistent with the mother’s account.
It was put to Ms Rafter that her father was moving in with her and she had not discussed this with anyone. Ms Rafter said she had a brief discussion with her father and that is as far as it went. She said she had had mail going missing and had therefore applied for an extension of the Intervention Order. When it was put to her that she accused Mr Filders of stealing her mail and, in effect, entering unlawfully into her house because the door was open when she returned, Ms Rafter says she does not breach him.
She tells him when he breaches. She did not recall breaching the parental grandmother last year. She had told the family reporter she was considering moving houses. She felt that if Mr Filders did not have her address she would be safe. She has however signed her lease until next August (i.e. 2021). She had not applied to change X’s school till the day before. She had told Ms L that X was resilient. When it was put to her she had not disclosed to Ms L that X was undergoing counselling there was no direct answer. Then Ms Rafter said that X saw someone at school then Ms R (I may have noted this incorrectly) but no one recently.
It was put that she had taken X on numerous occasions to medical practices. When taxed with medical records brought under subpoena, Ms Rafter said X was not with her on one Monday, and she did not recall various other dates.
It was put to Ms Rafter that she is currently studying. She said her placement was now on hold. She will be studying during school hours. She fell pregnant towards the end of March or start of April. She had been seeing someone for almost a year. He wants no involvement with the child but will support her financially. He is currently in a new relationship.
In January, Y was getting more aggressive. She is five foot one and he is as tall as her. She calls her father every day or second day for 20 minute calls and sees him once or twice a week. She takes him to his appointments. He was in fact looking after X while she was at court.
When asked if she could say anything positive about Mr Filders, Ms Rafter says he adores X and X adores him. She believes it should be shared care. Mr Filders has never been violent to X. She is fearful of Mr Filders and week about would be best.
Brief cross-examination by Mr Hooke did not advance the matter.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms Rafter said that X wants to live with her. When it was put to her that as recently as March 2020 she had sought an eleven/three regime she said she did not remember. The orders made on 10 February were for an eight/six arrangement in the father’s favour and counsel asked why it was good for X to have less time with the father. Ms Rafter said Mr Filders works full-time and his mother does the care. She, herself, cares for X and X wants to live with her.
What was most important is that is what X wishes for and she is available. She is her mother. She has taken care of her since she was born. There is also the relationship between X and Y. It was put to her that she was seeking that Y live with her from Friday to Sunday and Ms Rafter said this was mostly due to distance. That was one of the main reasons. Week about for Y would be viable if one of them was to relocate. If not, it was not viable because Y could not go to two schools. When asked if she planned to move to Suburb E, Ms Rafter said she would need to break her lease. She would also find someone to take care of her father. When asked when she had decided upon equal time, Ms Rafter said this was when she discussed it with her barrister a couple of days previously.
When asked about her relationship with Mr Filders, Ms Rafter said she tries to communicate but she does not get much back. They do not have good relations. There is minimal communication. It is very hard. She had asked to swap a weekend and he never responded. She distrusts him and is wary of what she says to him. She fears him. He frightens her. She had been abused for some years although she had done her best to put this behind her. Week about does not need cooperation. There could be changeover at school so they do not have to meet. She tried to communicate with Mr Filders and they had both failed. She is not sure what goes on in his household except his mother looks after X. The changeover at the police station is routine to X.
When asked about options for Y, Ms Rafter said she would like him to live with her and spend more time with his sister. She would like to move to fifty-fifty if they lived closer together. She would be willing for Y to spend three out of four weekends with Mr Hooke if Y lived with her so long as she could have family birthdays. Counsel put it that Y wants to live with the father. Ms Rafter said when Y is with her he cries when it is time to go back to Mr Hooke. He does not want to leave and says it is unfair.
Counsel put it to Ms Rafter that she had a lot on her plate. She said she does not believe it is a lot for her. She has a lot of support from friends. She does not need services and the provider who had visited knows how she is with her household. Counsel put it that both children had reported animal poo and that Y said there was cat poo under his bed. Ms Rafter said as soon as she became aware of it, she cleaned it. There has been occasional cat poo in the past. Counsel cross-examined about bath times for X. Ms Rafter said she sets a timer. She washes her hair, which is long, every night. She shampoos her hair every two days. X has her own special soap. They use Dettol body wash. Y likes Lynx body wash and shampoo.
The Independent Children's Lawyer put it that the children said there was a timer and the mother said “yes”. It is connected to her computer. When it was put that she did not monitor the children’s washing, Ms Rafter said she checks if they had washed. She tells Y it is shower time and tells him to wash if he says no. Her room has a cot and dresser in it. It is not correct that she has said she would only have the baby.
In re-examination the mother confirmed that moving was the only thing that would make equal time for Y practicable.
Final Submissions of the Independent Children's Lawyer
Counsel said that sequencing had been in place since February. Mr Hooke has two other children and wants the times for Y changed accordingly. If there was to be time it should start the forthcoming weekend.
In respect of Y, the Independent Children's Lawyer’s view was that the case had changed. Y is soon to be 10 and X was seven the day before. Y has mental health problems but has made good progress. He has had a number of counselling sessions. He has lived with his father in 2020 and goes to Suburb N Primary. From paragraph 60 of the family report it is apparent that Y is happy at Suburb N . The Independent Children's Lawyer spoke with Y three weeks ago and Y was very happy. Counsel submitted it was troubling that Y was triangulated by adult conflict and particularly his relationship with X which has led to changeover problems.
The mother’s response on 17 March 2020 was that the children should live with her and Y spend alternate weekends, Friday to Sunday, and half school holidays with Mr Hooke. The mother then changed to week about for both children. This is impossible for Y. There would be a likely change of school again and the distance was impracticable. The mother would have to move but her lease is set till August next year. Y has expressed clear views. While these are not determinative, Ms L has said it is significant that Y should have a settled environment and school. There have been four separate reports from Ms L since February 2018. The Independent Children's Lawyer submitted that Y should live with the father and spend alternate weekends with the mother Ms Rafter. Changeover, if not at school, should be at an agreed police station.
Turning to X, counsel noted that since 2016 X had been living with the father and spending time with the mother. This was Tuesday to Friday in one week and, since February 2020, alternate weeks from Friday to Monday being an eight/six configuration. X wants time with the mother but X wants fairness. There are pressures on the mother’s household. She is in the second trimester of pregnancy and is studying and has care of her father. The arrangements for the children at the mother’s household are loose. There are problems with hygiene and showering. Ms L has said there are intense pressures in the mother’s household. For this reason, Ms L had given emphatic evidence. It was better that X have less time with her mother and only one night in the off week and Friday to Monday and Wednesday to Thursday.
Turning to medical issues, Mr Hooke seeks sole parental responsibility for Y but the evidence shows that he wants to have the mother involved. The evidence shows the cooperation of these parents. With X, there are some difficulties in medical issues but both parents seek parental responsibility. Counsel addressed a form of orders sought and the notation is likewise sought. Counsel noted that if Y was forced to spend time with the mother and X this would be counterproductive. For X, changeover should be at Suburb B Police Station if not at school. It should be house to house for Y. The court should sequence in the aspect of Mr Hooke’s partner’s children which were out of sync at the moment.
Submissions of Counsel for Mr Filders
Counsel addressed the minute of order sought by Mr Filders. If the mother moves more than half an hour from school then overnight should cease at 7 pm. Changeover was agreed. Some orders need to be mutual. Additional orders were sought in relation to the provision of medical information in the light of past difficulties. Counsel submitted that shared care for X would not work. There was an Intervention Order even against the grandmother. The parents were in a battle for control and there was no trust and the mother was fearful. X needs one home.
Mr Filders raised Y as his own son but the mother says that Mr Filders did not want to see Y (something patently untrue given Mr Filders’ labile state when the matter was being discussed in evidence). Counsel noted the allegations of family violence but the family report had no concerns. The police have things to say inconsistent with the mother’s accounts. Mr Hooke was straightforward and diplomatic but the mother had accused Mr Hooke of being threatening because he was not prepared to lie to the court. There was no collusion between Mr Hooke and Mr Filders.
There were hygiene problems. Mr Filders was arrested and bailed. It was not clear that the mother would be able to care for X. Mr Filders accepts the Independent Children's Lawyer’s position on time. Telephone and Skype are aspirational. The mother would not support a relationship with the paternal grandmother. Counsel noted that nothing had been said about the mother’s application for a change of name and therefore did not address that matter further.
Final submissions of Mr Hooke
Mr Hooke dealt with swap overs for Y. Originally, he did all the driving but they agreed a halfway point. He wishes for Y to remain with him. He would prefer to proceed by agreement but would otherwise support the positions of the Independent Children's Lawyer and Mr Filders.
Final Submissions of Counsel for Ms Rafter
Counsel submitted that parental responsibility was not really in dispute. Family violence is contested as to physical assaults but Mr Filders admits he was abusive verbally. Ms L has been involved for a long time. Her first three reports, including that in December 2019, recommended both children live with the mother. What has changed is Y’s views. Y’s views, however, are not compelling given he is only 10. The February consent orders were contrary to Y’s earlier views. Y and X’s difficulties are just siblings arguments. There is no reason to reduce the time they spend with the mother and not to increase it.
There is so-called chaos and lack of hygiene in the mother’s household. The one independent person who saw the house was Ms L in 2019 and the house was clean and tidy. The July 2020 report of Ms L was hearsay. The mother’s evidence was contrary to assertions of chaos. The mother says she bathes the children every night and Y likes Lynx. The mother did suggest a move to Region M but this was hypothetical and might take place possibly in two and a half years, if ever.
The mother said she might move to make things easier. Mr Filders says he will move out from his mother’s and Ms L did not take this into account. Ms Rafter sought fifty-fifty for X. It is not uncommon for parties to change their positions late in proceedings. If not fifty-fifty, the court should not reduce the current time. Ideally, the children should be together. This would be easier if they were with their mother.
There is a clear preference for Y at the moment not to see Mr Filders. There are other children in Mr Hooke’s house. Ms Rafter seeks the orders sought by the Independent Children's Lawyer except time with the mother for X. She seeks the same for Y. Her lease is extended till August 2021. There will be no problems during COVID. There is no unacceptable risk in the care of any of the parties in the matter. The mother’s motivation is just that of a parent who wants the children and recognises the value of their fathers. She is still fearful of Mr Filders but says he is a good father. Shared time is appropriate despite the problems with Y. The assertions as to the police’s position were not supported by evidence.
Brief Observations about the Witnesses
I have already said, and more than once, that Mr Hooke was really a quite outstanding witness whose every utterance struck me as being child-focused and springing from a genuine desire not only to be a loving father to Y but was fully accepting not only of the role of the mother in his life, but also in principle, and to the extent practicable, that of Mr Filders.
Mr Filders was, in my view, an unremarkable witness. I note that he had sufficient insight, although it plainly pained him, to concede that Y does not wish to see him at the present time. He struck me as being somewhat tense (even making every allowance for the strain of giving evidence), and his answers about the violence between him and Ms Rafter were not wholly convincing. As earlier indicated Ms O was an excellent witness.
The mother, Ms Rafter, was at times unconvincing. I have recorded some questions where she did not appear to me really to answer the question as it was put. Some of her answers, for example those about her father moving in and her role as his carer, were completely unconvincing and demonstrably inaccurate. She presented with somewhat dull effect. Nonetheless and having said this she was in the main, in my view, generally commendably composed despite her clear perception that the cards were somewhat stacked against her. I have no doubt that her fear of Mr Filders is continuing and genuine and springs from his conduct towards her during the relationship. Having said that I found her answers about the cleanliness of her household and the showering arrangements for her children were not convincing. I will return to these matters in due course.
Given that Ms L was cross-examined, and that her conclusions are in issue I should record that Ms L’s evidence was given with emphatic conviction. She was plainly fully master of the materials with which she had had to deal. Although it is not generally necessary to make such a comment about a professional witness I should make it clear that Ms L was an excellent witness who was not only clearly telling the truth, but was giving answers well within her field of expertise.
Statutory Pathway
Against this background I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
The Independent Children's Lawyer seeks orders for joint parental responsibility in respect of both X and Y, albeit obviously with their different fathers. That is the position of Mr Filders also in respect of X. Although Mr Hooke appeared to suggest that he was opposed to the mother having equal shared parental responsibility, this was really only very faintly put, and taking his demeanour as a whole, and what he had to say more generally, it is plain that he is not in truth really opposed to equal shared parental responsibility with Ms Rafter in respect of Y.
There is no doubt that there has been family violence in the past. As already indicated I have no doubt that Ms Rafter is genuinely scared of Mr Filders, and in the light of his concessions about his verbal assaults upon her I have no doubt that this is justified. Nonetheless the evidence of Ms L, which I repeat I accept, is that for her the family violence is now sufficiently in the past to not weigh heavily in the scheme of things. In these circumstances, noting that both Mr Filders and Ms Rafter seek joint parental responsibility, it is plainly in X’s best interest that this obtain. Likewise it is equally in Y’s best interests that each of his parents have shared parental responsibility. It is not really necessary in these circumstances to say more than that.
The Spend Time Regime - The Primary Considerations
All of the multiple parties in this proceeding agree that it is Y and X’s best interest to have a meaningful relationship with both of their parents. Given what I have already had to say about violence, there is no inhibitor to the children spending time with their parents on that score. The only question is whether or not there is a need to protect either child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. This is, of course, a matter to which the court is required to give greater weight (section 60CC(2A).
In respect of Y there is no suggestion that Y is likely to be subjected to family violence in either household. The only question is whether he is subject to neglect when with the mother. As I find, the mother is not sufficiently attentive, both to the general cleanliness of her household, and to the bathing and care of both of the children. As earlier indicated I found her evidence about these matters unsatisfactory. Nonetheless, the litany of complaints made by Mr Filders, in particular, are in my view probably overstated. I think they owe as much to his ongoing difficulties with Ms Rafter as they do to reality. He thinks the worst of her and this causes him to exaggerate.
Nonetheless, the mother would do well to take the question of the washing and bathing of these children somewhat more seriously than she does. Having said this, however, both Y (who does so with really no reservations), and Mr Filders propose that the children spend relatively significant amounts of time with the mother on any view of the matter. This puts these concerns in their proper context. There is nothing in the mother’s, albeit slightly substandard, care of the children sufficient to suggest that the children should not have the benefit of a meaningful relationship with their mother.
The Additional Considerations Section 60CC(3)(a)
Y has made his views clear. He likes living with his father and wants to go on doing so. He does not, at the present time, wish to see Mr Filders. The mother puts Y’s views in issue to an extent, but I think the report and recommendations of Ms L are clear and compelling.
X has expressed, from time to time, that she wishes to stay with the mother, but once again I accept Ms L’s qualifications to that expression of view, given her age and the conscious or unconscious tendency of both of her natural parents to seek to influence her views.
Section 60CC(3)(b)
Y has a very warm and affectionate relationship with Mr Hooke. It appears quite clear that he also has a warm and affectionate relationship with the paternal grandmother, Ms O. Indeed, Ms Rafter, at least at present, has a significant role in Y’s day to day life. Y appears to love his mother, but to an extent to be triangulated by the adult dynamic. This is most unfortunate. It seems clear on Ms L’s evidence, that while he loves his mother he has, at the moment at least, some reservations about his relationship with X and some concomitant reservations about his relationship with his mother, even though he loves her.
X appears obviously to have a very loving relationship with both Mr Filders and Ms Rafter. She loves Y but appears at times to have been rude and unpleasant to him. Whether this is more than usual sibling contentions and rivalry or whether it is more serious it is not possible to say. All one can say is that X appears to love Y a lot despite any present problems between them.
There is no meaningful evidence beyond perhaps general assertions about Y’s relationship with Ms H save that Mr Hooke has said without challenge that he appears to have an unexceptionable relationship with her, and a very good relationship with her children, particularly K the younger one.
So far as X is concerned there is no evidence of her relationship with other persons, save that I note she has been very excited to hear of the likely birth of her new step sibling.
Section 60CC(3)(c)
All these parents, at least of recent times, have sought to participate in making decisions about major long-term issues in relation to the children, and to spend time and communicate with them. Mr Hooke was not much on the scene in early years but he has well and truly stepped up to bat now. Mr Filders and Ms Rafter have always been closely involved with the children’s lives, and in my view there is no room for pertinent criticism under this heading.
Section 60CC(3)(ca)
No complaint has been made by any of the parties in this case that any parent is alleged to have failed to fulfil their obligations to maintain the children. It is not necessary to say more than that.
Section 60CC(3)(d)
Self-evidently the changes sought by both Mr Filders and Mr Hooke, supported as they essentially are by the Independent Children's Lawyer, will involve a measure of change for both Y and for X. Not only will they spend less time with their mother, but they will spend less time with one another. Nonetheless, it is important to remember that it is Ms L’s position that these changes are likely to be ameliorative for both Y and for X. In Y’s case he is autistic and Ms L has suggested that it is in his best interest to have one primary home as it were, and a more settled routine. I accept that, and, indeed, would have made that observation myself.
Likewise, as the Independent Children's Lawyer pointed out, the mother has a lot on her plate. Her study may be temporarily in abeyance, but she has all the challenges of her forthcoming and further parenthood. None of this is, of course, a matter to be held in any way against her, but it is, in my view, unarguable that the mother will, indeed, have a lot to occupy her time. It is clear that the mother feels, in a sense, that she has been ganged up on by all concerned, and I accept that she is anxious that the end result may be that she has only one child in her fulltime care. Nonetheless this fear, while understandable, is not, of itself, a matter really directed to the interest of the children, but rather the mother’s own personal needs and requirements.
The recommendations of Ms L once again are entirely clear. It is utterly inappropriate to move these children to equal shared care arrangements. The reasons in respect of Y have already been expressed. In respect of X, she has lived in the predominant care of Mr Filders for some time, and I accept that given the entirely acrimonious and, indeed, on the mother’s part, fearful, nature of the interrelationship between X’s parents, equal time is plainly unworkable.
Section 60CC(3)(e)
The mother’s proposal for equal time for Y is beset with practical difficulties that she, in fact, acknowledges herself. There would be, in my view, considerable practical difficulties in terms of an equal shared care arrangement for X as well. Having seen and heard the parties give their evidence, and paid careful attention to the materials they have filed, I feel that any kind of equal shared arrangement is likely to have both of her parents endeavouring subtly and possibly even subconsciously to align X with them.
Section 60CC(3)(f)
Although the mother’s capacity to care for the physical needs of the children is compromised to a degree, as I have already indicated the very proposals of the fathers themselves suggest that this is not a matter to which, overall, much weight should be given, although in my view it should not be entirely ignored. Subject to that caveat each of these parents appears to have entirely adequate capacity to provide for the needs of the children, including their emotional and intellectual needs. Both Mr Filders and Ms Rafter are properly, in my view, the subject of some measure of criticism for their incapacity to put X’s needs first and their own squabbles second. In the case of the mother, however, her concerns spring from an understandable fear of Mr Filders, which is something she has tried, but by no means entirely successfully, to overcome.
Section 60CC(3)(g)
Mr Hooke, I repeat yet again, impressed me extremely favourably. He is in employment with a partner, who I understand, is also in employment, and their co-mingled household seems to work generally very well. He struck me as a man with keen insight into the dilemmas that his circumstances involve as a parent, and very attuned with his slightly firmer style of parenting to a child such as Y with his various difficulties.
Ms Rafter seems to have a slightly more unsettled lifestyle. She conceived Y during a momentary relationship with Mr Hooke, and she is now pregnant to another gentleman with whom she has had only a relatively fleeting and non-continuing relationship. It is, of course, not in any sense unlawful or reprehensible to conceive children in this fashion, and I would not wish to suggest that for a moment. Nonetheless, there is something slightly worrying in the mother’s somewhat uncoordinated world. Her household is not kept fully adequately clean. She is, as I find, slightly insouciant about the children’s grooming. She appears to have a lot on her plate.
Mr Filders, as Ms L pointed out, has going for him the very substantial and likely continuing support of his mother, who impressed me strongly as a measured personality. It should be noted that Ms Rafter does have a negative view of the mother and this is unfortunate and may to an extent impact upon the way in which Y sees his mother. Nonetheless, there is nothing in this negative quality sufficient to elevate it to any great degree. Mr Filders’ lifestyle otherwise appears to be reasonably well settled. He has not re-partnered and proposes once these proceedings are over to live on his own. I may not have said so already, but I fully accept that he is the predominant carer for X when she is living with him, and entirely looks after her on the weekend. Plainly his parenting capacity is more than adequate.
Section 60CC(3)(h)
Ms Rafter is, of course, of Aboriginal heritage. I did not comment on this matter under section 60CC(3)(g) because it arises directly under this subsection. The mother has taken steps to bring the children into contact with, and be made more aware of, their Aboriginal heritage, something one can only applaud. Her steps to do so appear to have been relatively small steps, and the materials do not suggest a particularly accented emphasis upon Ms Rafter’s activities in this regard. Nonetheless, the children are aware of their Aboriginal heritage, and Y, in particular, seems interested in it, and it is to Ms Rafter’s credit that she is meeting that interest and fostering it, and will no doubt continue to do so in respect of both children.
Section 60CC(3)(i)
All of these parents love the children. I have no doubt that Mr Filders has very strong feelings for Y, notwithstanding Y’s present disinclination to see him. Mr Hooke is at the very least prepared to have X in his care should this be able to be agreed with Mr Filders so that X and Y can spend time together. Ms Rafter clearly loves her children, and indeed the prosecution of her case to judgment shows the genuine concern to be a parent. Where both Mr Filders and Ms Rafter are, in my view, rightly the subject of some criticism is their failure to think about the children and to put their own interpersonal difficulties to one side.
It should be noted, however, that putting interpersonal hostilities to one side is a lot easier for a judge to say, than for a party who has had the sort of history that these parties do, to do. It is too glib just to say that somebody, a victim of family violence, should just get over it. To say this would be to minimise and give insufficient weight to such violence and its sequellae. Nonetheless, any steps that the court may foster to assist these parents to reach a position where, at least, they are able to behave courteously to one another would be of assistance, and I will be ordering the post-separation parenting course recommended by Ms L.
Section 60CC(3)(j)
There is no question that there has been family violence in the past. Mr Filders admits it, albeit in the form only of verbal abuse. Whether or not he has assaulted the mother as severely as she says in the past is open to question. The police records appear to be somewhat equivocal when contrasted with Ms Rafter’s own evidence. I am not able, looking backwards at this stage, to be satisfied one way or the other as to the extent of any physical violence. I note that Ms Rafter is only five foot one, and Mr Filders is a lot bigger than that. If there were highly pitched verbal abuse being thrown around, I would strongly suspect that Ms Rafter would be a lot more scared of Mr Filders than the other way round. She is still scared of him now, and that speaks for itself.
Section 60CC(3)(k)
There have been all too many Intervention Orders, and while, of course, they reflect the march of events at the time, they are not, perhaps, now of any particular significance in the circumstances.
Section 60CC(3)(l)
It is plainly entirely desirable to bring these long-running proceedings to an end. These proceedings have been on foot for a very long time, and must represent a massive drain on the finances and wellbeing of the parties. It is plainly in the children’s best interest that the parents be relieved of the burden of litigation, and be given the opportunity to move on, as indeed Mr Filders has professed he will.
Section 60CC(3)(m)
In a sense this brings us to the nub of the matter. I have already made it plain that an equal shared care arrangement is quite clearly not in the best interests of the children. I need not repeat what I have already said. The question then becomes in whose primary care each of these children should live. In Y’s case the answer is easy. It must plainly be with Mr Hooke. I accept the evidence of Ms L that alternate weekend time should be ordered, but with a clear understanding that if Y, from time to time, does not wish to go then he should not be forced to do so. I accept that this is only likely to be counterproductive. Mr Hooke candidly referred to possible mistrust between him and Ms Rafter, but I would hope that having seen Mr Hooke give his evidence, in which he did his level best to avoid being critical of her, Ms Rafter might realise that he is, in truth, more of an ally than an enemy. It is to be hoped that this judgment will enable her and Mr Hooke to progress Y’s time with her and X in a fashion that does not place too much pressure on Y, such that he seeks to withdraw further.
In respect of X, Ms L really had reservations about both parents, but noted as a decisive factor that Mr Filders had the support of his mother. Although in a sense it puts the matter somewhat shortly, I agree. Mr Filders plainly has the capacity to care for X effectively, and he obviously loves her very dearly. Ms Rafter also obviously loves X very dearly, but her emphasis upon self (I will have nobody left but the baby), while understandable, reflects a lack of child focus. She has, as the Independent Children's Lawyer has pointed out, and I have said more than once, a lot on her plate.
It should be noted that the orders that will be made will not be that radical a readjustment for X. She will move from eight/six to ten/four. This will obviously seem a very considerable amount to Ms Rafter, but in the scheme of things it is a relatively minor adjustment but one that will give X the benefit of having a primary home and carer which all the material suggest is in X’s best interest. It is not possible to make both parents the primary carer, and on balance and for the reasons given, in all the circumstances I think it should be Mr Filders.
Conclusion
This has been a long running case by no means devoid of complexities. All three parents impressed me as being thoroughly decent, honourable people who adore their children and want the best for them. It is to be hoped that this judgment, when fully absorbed, may assist the parents to cope better with the difficulties that have plagued them in the past, and to enable them to be the parents who will assist Y and X in their forthcoming developmental years.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 14 September 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Statutory Construction
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