Finnegan and Snowden
[2018] FCCA 255
•26 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FINNEGAN & SNOWDEN | [2018] FCCA 255 |
| Catchwords: FAMILY LAW – Parenting – where serious allegations of risk of harm to children – risk assessment exercise – weight to be given to Family Report – order in best interests of the children. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: MRR v GR [2010] HCA 4 |
| Applicant: | MS FINNEGAN |
| Respondent: | MR SNOWDEN |
| File Number: | WOC 535 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 9 August 2017, 3-5 October 2017 and 5 December 2017 |
| Date of Last Submission: | 5 December 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 26 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cantrell |
| Solicitors for the Applicant: | Rebecca Bailey and Associates |
| Counsel for the Respondent: | Ms Humphries |
| Solicitors for the Respondent: | Maureen Phillips Solicitors |
| Solicitors for the Independent Children's Lawyer: | Hansons Lawyers |
ORDERS
The Mother have sole parental responsibility for the long term decisions concerning the care, welfare and development of the children X born (omitted) 2013 and Y born (omitted) 2014 except for any decision to relocate the children to live more than 30 kilometres from the father’s residence.
That the children live with the Mother.
That the children spend time with the Father as follows:
(a)For four (4) occasions (the first occasion being the second Saturday immediately following the making of these Orders) each alternate Saturday from 10a.m. to 2pm
(b)For four (4) further occasions thereafter each alternate Saturday between the hours of 10a.m. and 5pm
(c)Four (4) occasions thereafter each alternate Saturday between the hours of 10a.m. Saturday until 10a.m. Sunday.
(d)Four (4) occasions thereafter on each alternate Saturday from10a.m. until 5pm on Sunday
(e)Thereafter until the younger of the children commence school:
(i)Each alternate weekend from 10a.m. Saturday until 5pm Sunday;
(ii)Each alternate Wednesday from 4pm until 9a.m. on Thursday.
(f)Each Father’s Day from 9a.m. to 6p.m.
(g)From 12noon on Christmas Day until 6.00pm Boxing Day.
(h)Once the younger child commences school Order 3(e)(i) shall be varied to provide for the children to spend time with the Father from after school Friday until the commencement of school on the following Monday on each alternate weekend at the home of the Paternal Grandmother.
From the year 2021 and continuing thereafter the children shall spend holiday time with the Father for two (2) weeks during the holidays at the end of Term 4 (which failing agreement between the parties to the contrary shall commence at 6.00pm on Boxing Day.)
The Father’s time with the children shall be suspended from 6pm on the Saturday immediately preceding Mother’s Day until 6pm on Mother’s Day each year.
For the purposes of changeover in Order 3 above, the Father shall collect the children from a public place nominated by the Mother proximate to her home and the Mother to collect the children on the conclusion of the Father’s time at a public place nominated by him, proximate to his home.
For the purposes of changeover in Order 4 above, the Father shall collect the children from the school/preschool they attend and return the children to school/preschool on the Monday.
The time the children spend with the Father take place within 100 kilometres of the Father’s current address.
Each of the parties shall inform the other as soon as practicable of any event or incident of a serious nature relating to the children’s health and wellbeing.
The Mother shall provide all necessary consents and authorities to any school that the children may attend from time to time, to facilitate the Father being provided with school reports and school events in which the children may from time to time participate.
Each of the parties be restrained from denigrating the other party in the presence or hearing of the children and shall not permit the children to remain in the presence or hearing of any other person denigrating the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Finnegan & Snowden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 535 of 2015
| MS FINNEGAN |
Applicant
And
| MR SNOWDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain why the Court has made orders for children to spend time with their Father. There are two children: X, born (omitted) 2013 who is four years old, and Y born (omitted) 2014 who is three years old. The Applicant in this case was their Mother and the Respondent, their Father.
After considering all of the evidence the Court decided to make orders that are consistent with the orders proposed by the Independent Children's Lawyer, Mr David.
Background
X and Y's Father is 49 years old, and their Mother is 33 years old. The parents had a relatively short relationship between 2012 and 2014. They were not physically together for the entire period. Both parents live in the (omitted) region of New South Wales. Neither is employed. Both are in receipt of Centrelink benefits and, in the Father’s case, a disability pension. The Father suffers from an acquired brain injury as a result of a serious assault on him in 1997.
The Mother has two other children in her care, A who is 11, and B, who is nearly 8. Both children regularly see their biological father.
The relationship between the parents was, on either account, a short and tumultuous one. The tumultuous nature of their relationship continued after separation. At one stage it was necessary for the Mother to obtain a Recovery Order. On 11 June 2015, Her Honour Judge Sexton ordered the children return to her care.
This was a very difficult case to decide. Both parents were unimpressive witnesses. Their behaviour in the post-separation period was unbecoming of them. The Court formed the strong impression that they were both prepared to say things to each other, and do things to each other, which had little to do with the best interests of X and Y and much to do with their immaturity as adults and the dysfunctional circumstances in which they live. For example, each made very serious allegations about the other such as criminality, drug abuse, child neglect and abuse, family violence, neglectful and abusive partners, etcetera. The Court is satisfied both parties were prepared to exaggerate the reality and both prepared to take advantage of ambiguity about alleged events and records pertaining to those events. They were both highly opportunistic in terms of the present proceedings. The Court is comfortably satisfied that the Mother involved her other children, particularly A, in the present proceedings. It is clear, beyond any doubt, that the Mother dislikes and distrusts the Father, and these are feelings that she has struggled to keep to herself. The Father distrusts the Mother. He raises serious concerns about her parenting capacity which are, however, quite inconsistent with the proposal that he advanced to the Court. All of the above meant it was very difficult to establish who was telling the truth. Indeed, the Court was left with a strong impression that the truth is out there somewhere, but is not necessarily found within the evidence presented before the Court. More will need to be said about the parents, and the evidence in the reasons below.
By the time of closing submissions, the Independent Children's Lawyer’s carefully considered proposal was, in effect, that the Mother have sole parental responsibility and the children live with her, the Father spend regular unsupervised time with the children, gradually increasing from four hours each Saturday, eventually to each alternate weekend and times during the school holidays.
The Mother’s proposal was that she have sole parental responsibility, the children live with her and have no contact or communication whatsoever with their Father. Indeed, she proposed a restraining order under s.68B of the Family Law Act 1975 (‘the Act’) keeping the Father well away from any contact or communication with the children.
The Father’s proposal was that the parents have shared parental responsibility, that the children live with the Mother and spend time with the Father on an unsupervised basis, starting from six and a half hours one day per week, and eventually building up to something approximating to equal time.
The orders proposed by the Independent Children's Lawyer, and the parents, are reproduced in the first, second and third schedules respectively to these reasons.
On 16 November 2015 His Honour, Judge Monahan, having heard an interim application by the parents, decided that the children should spend time with their Father each alternate weekend at CatholicCare (omitted). From an examination of the records of that centre, tendered in evidence, there was a considerable delay in implementing this order. This was not just because of the demand on the limited facilities available at this centre, but also unexplained delay by the Mother in complying with the order that required her to do all things necessary to implement the order.
Notwithstanding this, on any objective view of the evidence, the children have greatly enjoyed their time with the Father at a supervised contact centre and this has allowed him to continue what is a good relationship with them. More will be said about the nature of the Father’s relationship with the children in the reasons below.
The Evidence
In the Independent Children's Lawyer’s case, he relied on the Report prepared by Family Consultant, Ms L dated 21 April 2017. Ms L’s report was in evidence and she was cross-examined.
In the Mother’s case, she relied on her affidavit filed 21 July 2017 and that of her partner, Mr A, filed on the same date. Both were cross-examined. In the Father’s case, he relied on his affidavits filed 11 November 2015 and 24 July 2017, as well as the affidavit of his Mother, Ms J, filed on the same date. Both were cross-examined.
Mr David, the Independent Children's Lawyer, appeared as advocate. Ms Cantrall of Counsel appeared on behalf of the Applicant Mother, and Ms Humphries of Counsel on behalf of the Respondent Father.
The following documents were tendered into evidence:
| Date | Exhibit No. | Tendered by (eg. A/W, R/H) | Description of Exhibit/MFI |
| 3.10.17 | R1 | RF | 5 x photographs of text messages between parties. |
| R2 | RF | 10 x photographs of text messages between parties | |
| R3 | RF | 5 x photographs of text messages between parties | |
| 4.10.17 | A1 | A/M | FaCS material extract |
| A2 | A/M | FaCS material extract | |
| A3 | A/M | NSW Police material – m3 to M7, pg 2 | |
| A4 | |||
| A5 | A/M | NSW Police material | |
| A6 | FACS | ||
| 5.10.17 | R4 | NSW Police | |
| R5 | NSW Police | ||
| R6 | NSW Police docs | ||
| A7 | Catholic Care | ||
| A8 | Illawarra Shoalhaven Local Court District – yellow tag | ||
| 5.12.17 | R7 | R/F | (omitted) Medical Centre letter dated 23.10.17 |
| A9 | A/M | Facebook posts |
The Applicable Law
The applicable law is, of course, Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(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 or 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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Mother’s Case Summarised
In short, the Mother’s case was that there was an unacceptable risk of harm to the children for any unsupervised contact with the Father. Ongoing supervised contact was not in the best interests of the children, and was not, in any event, practicable, given the cost and/or unavailability of a mutually acceptable independent supervisor.
The Court did not understand the Mother’s case to be that Y and X did not have a meaningful relationship with their Father. If this was an assertion in the Mother’s case, it was only faintly argued. The Mother’s case seemed to be that notwithstanding the fact that the children enjoy a meaningful relationship with their Father, the unacceptable risks to them outweighed the benefit of continuing the said meaningful relationship.
The Mother’s case about unacceptable risk of harm was framed in terms of emotional harm, exposure to family violence, exposure to drug use and criminal behaviour and unacceptable risk of harm from exposure to sexual abuse. In short, the evidence adduced in relation to these risk issues did not satisfy the Court, even on the simple balance of probabilities, that there was this unacceptable risk of harm. Indeed, at one stage Mr David summarised the evidence of risk in terms of the evidence being “more smoke than fire”. This is an accurate assessment of the evidence.
The Father’s Case Summarised
In short, the Father’s case is that he had much to do with the children before separation, after separation and since the order for supervised contact was made. He asserts that he enjoys a meaningful relationship with them and that there are no risks of harm whatsoever if the children were to be in his unsupervised care.
Indeed in his evidence, and to an extent in cross-examination (before the Court stopped this line of questioning), the Father raised serious issues about the Mother’s parenting capacity, notwithstanding the fact that he conceded that the children should remain in their Mother’s care. The irony in this is compounded by the fact that the totality of the evidence before the Court, including substantial subpoenaed documents that were tendered in evidence, in fact raise some concerns about the Mother’s parenting capacity. In reality, however, the Father was never a candidate for primary care of the children because of his life circumstances.
Indeed, the Court formed the distinct impression at times that part of the Mother’s case strategy in this matter was to focus the Court’s attention on the Father’s dysfunctional life, no doubt hoping that not too much attention would be focused on her own dysfunctional life and parental shortcomings. These matters need to be recorded, just in case there is further litigation. Be that as it may, the fact is that the Father conceded that the children should live with their Mother and so the focus was on what time he should spend with them and under what circumstances. The Father’s orders reflect his understanding of the need to gradually reintroduce some unsupervised time between him and the children. Indeed, it was certainly implicit in his case, if not explicit, that the rationale for doing so was not just for the children’s sake, but for their Mother’s sake as well.
Meaningful relationship
The Court finds that Y and X enjoy a meaningful relationship with their Father. There was little, if any, evidence in the Mother’s case that cast doubt on this. The objective records produced by the Contact Centre provide strong evidence in support of this conclusion. Ms L’s family report at paragraphs 42-44 records:
42.When X and Y first saw their father in the Court waiting area, they ran to greet him, smiling and calling out “Dad!” They ran into his arms and hugged him. They also saw their paternal grandmother, and squealed in delight as they ran to her. During the observation of X and Y with their father in the assessment room, they played together with the blocks and he read them some books. The children were observably happy and excited to see him and remained physically close to him during the entire observation, climbing on him and sitting on his lap. Y was observed to look very closely into Mr Snowden’s eyes, and hold eye contact with him throughout the observation. She did this each time Mr Snowden attempted to engage her in an activity.
43.X in particular became excitable and on several occasions, and Mr Snowden warned her in a stern tone of voice to calm down, by saying “No, you’re not B, you’re a good girl aren’t you?” and “Now don’t you be like B, like a naughty girl”. The children allowed Mr Snowden to read them some books and they paid close attention, repeating back to him some of the lines he read out. The conversation flowed easily, with the children actively initiating conversation topics. Mr Snowden helped them to identify colours in the book and to practice counting. He asked them if they had been cleaning their teeth properly. Mr Snowden gave Y a kiss and a hug, which she withdrew from after a few seconds, by saying loudly “Stop it!” She then appeared upset and began destroying the block structure they had been building. Mr Snowden noticed the sudden change in Y’s mood and addressed this immediately by getting her to sing a song with him.
44.As the children began to tire and lose concentration Mr Snowden distracted them by telling them that he would bring them some chocolate to the next visit [meaning to the contact centre], and this appeared to cheer them up briefly. Mr Snowden helped X when she struggled to dress the baby doll, by which time, Y was playing separately and appeared to disengage from the interaction. At the end of the observation, X and Y reluctantly said goodbye to their father. They appeared to want to remain with him longer, and complained about him leaving. Mr Snowden told them that when he sees them next he will bring them a special present, which appeared to cheer them up.
At paragraph 49 of the report, Ms L refers to the “emotionally robust” nature of X and Y. At paragraph 50 she describes their relationship with their Father as “a warm and affectionate relationship”.
At paragraph 51 she observes that “… X and Y appear to enjoy their relationship with their Father and that Mr Snowden is an attentive, caring parent.”
The Court concludes from the evidence that both in the past, presently, and prospectively the children have a meaningful relationship with their Father which is likely to be sustained. The Court has some concerns about the Mother’s capacity to support this into the future, and this will be discussed below. The Court could not find, objectively, any evidence before it which suggested that the children did not, or would not, benefit from a relationship with their Father.
Risk of harm considerations
Before setting out the evidence, particularly the Mother’s evidence, about the alleged risk that the children are exposed to in the context of spending time with their Father, it is important to make some opening observations. The Court has already foreshadowed that it found the evidence of both parents are unreliable. Due to the Father’s acquired brain injury, the Court found him to have a poor recollection of historical events, but he nonetheless did the best he could. Whilst the Mother had no such disability, the Court found her to be motivated by her dislike of the Father and thus unwilling to give him the benefit of any doubt even in the context of highly ambiguous facts and alleged facts.
In the Mother’s affidavit, filed 21 July 2017, and in support of her case that the Father had perpetrated family violence on her, often in the presence of her children, she asserts that because of the Father’s acquired brain injury he was unpredictable, and would fly into rages without any particular reason. She was the victim of this. She gave evidence of events which, if accepted by the Court, are consistent with her description of him as controlling and coercive of many aspects of her life. The Court observes there is no doubt that the Mother experienced him as such.
The Father’s case, however, was that during their relationship, even after the children were born and he suspects post-separation, the Mother had a drug problem. His case is that she was a cannabis user as well as an ice user. The Father concedes in his evidence that he was, at times, trying to limit who the Mother spent time with because he was trying to extract her, and protect her from, a drug culture. There is no issue about the Mother’s current drug use. The Court is comfortably satisfied from the objective evidence such as the drug tests that drug use is no longer a problem in the Mother’s life. Even the Mother concedes, however, that she did use drugs, but she is delightfully vague about when that drug use ceased. Therefore, if the question is a technical one: did the Father seek to control the Mother’s behaviour at times? The answer is clearly yes. However, there is also substance to the Father’s assertion that he did this in the context of trying to control the Mother’s drug use and involvement in a drug culture. The Mother’s evidence about her past drug use was vague and unconvincing. Indeed, there was an incident that eventually lead to the Father retaining the children and a recovery order being made where the Court prefers the Father’s evidence over that of the Mother. Thus, the Court accepts that the Father did, in fact, find an ice pipe in the Mother’s possession. Whether the Mother was using ice herself, or was in the company of others who used ice, is unclear. On either scenario she was exposing the children to risk. Given this finding, however, the Father’s assertion that his controlling behaviour was linked to trying to protect the Mother and their young children, from the consequences of the Mother’s drug use, has a ring of truth to it.
The Mother makes allegations, sometimes quite serious allegations, about the Father perpetrating physical family violence, as well as verbal family violence. The Court has doubts about the Mother’s evidence in this regard. Indeed, much of her case about family violence seemed to have been based on tendency, ie, the Father’s alleged violence towards other people, but even this evidence was not conclusive. The Court is prepared to find that, in all likelihood, this was a tumultuous relationship between two people who have had dysfunctional lives, and in which there was probably a high level of conflict which was certainly verbal, but possibly physical. Indeed, some of the evidence suggests that the Mother was physically violent towards the Father, especially when confronted with evidence of her drug use or at least association with a drug culture.
The Mother makes serious allegations in her affidavit about the consequences of the Father’s angry outbursts on her children, A and B. The Family Consultant placed considerable weight on the evidence in relation to this issue in her report. As will be seen below, very little weight, the Court finds, can be placed on anything that A and B said about the Father in this case and, consequentially, the Court would have to be very careful indeed about accepting any evidence the Mother gives about what A and B experienced, allegedly perpetrated by the Father.
The nature of the conflicted relationship between the parents was evidenced in many a text message between them that came into evidence. In many respects, the less said about these messages, the better. They reflect poorly on both parents. Suffice it to say that the Court concludes that some of the Mother’s concerns about the Father’s alleged violence are quite inconsistent with some of her own text messages to him.
The separation between the parents was a high point in the tumultuous relationship they had. The Court accepts that the Mother obtained a two year apprehended domestic violence order against the Father, which expired in December 2017. The Court accepts that the Father acted in a most immature fashion at the time of separation. He clearly wanted to reconcile but would not accept the Mother’s disinterest in this.
They both make very serious allegations, inferentially about the other, about slashed tires and assaults (against the Father). Given the unreliability of the evidence of both parents, the Court is not able to make findings about the incidents that each alleges occurred in the post separation period. The Court accepts that the Mother clearly believes that the Father perpetrated the events to which she refers, and the Father clearly hints in his affidavit that a serious assault perpetrated on him in his own backyard was orchestrated, indeed witnessed, by the Mother. It is neither possible, nor necessary, to make findings in this regard. The reality is that the Court cannot rule out the possibility that each was, in fact, involved in the events that the other alleges, even to some minor extent. There was certainly no love lost between these parents. However, the Court cannot rule out that some of the events to which the Mother refers may be incidental to her involvement in or association with a drug culture.
The Mother alleges that the Court should be concerned about their biological children, because of the Father’s treatment of her own children, ie, A and B. The Court does not accept this, for reasons that will be discussed below.
The focus about risk of harm now turns to the independent evidence of the Family Consultant, Ms L. Her assessment of the risk of harm to the children seems to have been predicated on the information that she discusses at various parts of her report. For example, there is no doubt that she took into account the documents produced on subpoena, which she summarised at paragraphs 45 and 46 as follows: -
45.The police records about Mr Snowden are extensive and include charges for a range of criminal offences, and multiple Apprehended Violence Orders for the protection of previous partners which extend back over many years. Most of the charges are for breaking and entering, theft and common assault. Police in his local area are recorded as saying that Mr Snowden has been known to be “active in the sale of cannabis for many years”, including “selling [cannabis] to school children in exchange for sexual favours”. There are two separate alleged incidents of sexual assault of children in the police records including one from 1978 when Mr Snowden himself was a child, for which no charges were ever laid. In 1994 police charged Mr Snowden with the offence of sexual assault of a (different) child, which he successfully defended and he was acquitted of. The police noted that the accusers in the two separate sexual assault cases made similar statements about the alleged offences, which allegedly occurred several years apart. In his affidavit and in the family report interview, Mr Snowden flatly denied sexually assaulting the children as alleged.
46.Family and Community Services (FaCS) records show that A, B, X and Y are known to them. Most of the reports that have been made to FaCS show that the children have not been considered to be at risk of significant harm, with no further investigation needed. A number of the reports include the reports Ms Finnegan made to FaCS during the period of time Mr Snowden withheld X and Y. Other reports appear to mirror the concerns raised by Mr Snowden during his interview.
Ms Humphries cross-examined the Family Consultant. In relation to family violence, Ms L agreed that when she read the police subpoenaed documents, there was no record of family violence before 28 May 2015. Ms L explained that she also relied, however, on the Mother’s account of the relationship with the Father (a matter in respect of which the Court has already stated concerns). In explaining to the Court what the Mother told her about family violence, Ms L included the Mother’s assertion that the Father had encouraged her to use cannabis. When it was put to her that the Court might find that cannabis use was the Mother’s chosen lifestyle, rather than something that the Father encouraged her to use, Ms L explained it would not change her view about coercive and controlling violence because, for example, that view was also based on the Mother’s accounts of having her friendships controlled, and not being allowed to leave the home alone, and the Father’s close supervision of her. Ms L accepted, however, that the Court might form a different view about the Father’s actions. She agreed that if the Court accepted the Father’s account about the Mother’s cannabis use, another view might be open to it. In relation to the police documents specifically, Ms L acknowledged that she may have misinterpreted the police records. Specifically, what the cross-examination achieved was to point out that Ms L has assumed, in effect, the charges were convictions which, according to the police records, they are clearly not. She had to agree that her description of the Father as having a significant criminal record was, in fact, incorrect. Indeed, at one point it became apparent that Ms L had misread a COPS entry. Whilst at paragraph 45 Ms L records the Father’s flat denial of sexually assaulting children as alleged, she nonetheless seems to have taken the mere allegation into account in forming a view about the Father’s criminality. At paragraph 53, she clearly cast doubts on the criminal history given by the Father himself and seems to convert the mere assertion that the Father “is a well-known drug dealer” into something that, somehow, accentuates the risks to the children. On any objective basis, and putting aside the Mother’s allegations, there is no evidence before the Court to suggest that the Father either uses, or deals, illicit drugs. At paragraph 49, and referring to the period in which the Father retained the children, Ms L opines: “this may have had an adverse effect on their emotional and cognitive development.” There is no objective evidence of this. She goes on to refer to the incident during which the Father removed X and Y from the Mother’s care, but seems to unequivocally accept the Mother’s account of the incident, which the Court doubts. She also seems to ignore the motivation for the Father’s actions i.e. his concerns about the Mother’s drug use, a concern which the Court is prepared to accept was reasonably based.
Of particular concern was the Family Consultant’s apparent reliance on statements that A made in interview. There is reference to A’s account of the incident referred to above, at paragraph 48 of the report. At paragraph 54 the family consultant records: -
“The account given by A and B of their time living with Mr Snowden is incompatible with Mr Snowden’s perspective of his relationship with them. Mr Snowden said that he was a good role model to them, yet A and B could not think of anything positive to say about him. A and B shared similar accounts of experiencing regular physical abuse by Mr Snowden. If their allegations are found to be true, then this must raise questions about X’s and Y’s physical safety, should their time with Mr Snowden be unsupervised.”
Here Ms L is referring to what A and B told her in interview, which is set out at paragraphs 33 – 39 of the report. Just to give a flavour of these paragraphs, A described the Father as “a mean, fat guy”. The reason why he considered the Father mean was because he would frequently “hit, punch and throw” him and his sisters. A told the Family Consultant about having “bruise and scars” from Mr Snowden’s physical treatment of him, which he said occurred “nearly every day”. He further referred to an incident when living with the Father which involved “having hot soup thrown at him..” Likewise B described the Father as a “nasty, mean man”.
The problem with all of this evidence is that the Mother, in cross-examination, did not accept the veracity of what her own children told the Family Consultant. On a generous interpretation of the Mother’s evidence in this regard, she was saying that A and B were exaggerating, though she maintained there was some substance in what they were saying. She could not really explain why the children would be saying these things about the Father, when even on her account some of the things were clearly untrue, but strenuously denied the assertion that she had, in effect, coached the children to say these things. Indeed, the truth may be that she did not actively coach the children, but rather, that B and A have since separation lived in a home environment where any reference to the Father is laden with toxicity where the Mother’s dislike and distrust for the Father is not effectively managed, and thus these children absorb their Mother’s negative, toxic view about the Father in these proceedings. Putting that aside, the obvious issue in risk assessment is that another aspect of the Family Consultant’s foundation for her conclusions about risk of harm to the children looks very shaky. Indeed, this Court would be very cautious about accepting anything that either B or A are, relevantly, asserted to have said about the Father.
Ms L’s evaluation commences at paragraph 47. She commences, quite properly, by saying: “If Ms Finnegan’s claims of serious family violence are true, it is likely that X and Y have been adversely affected by their early life experiences.” From the Court’s perspective firstly, there is little evidence to suggest that X and Y have been adversely affected by these early life experiences and, second, the Court has serious concerns about the Mother’s account of family violence. Indeed, the Court cannot help but note the observation previously recorded as paragraph 49, where the Family Consultant finds X and Y to be emotionally robust, and to have possibly overcome what appear to have been some significant early adverse life experiences. Paragraph 51 is an important one:
It was observed by the family consultant that X and Y appear to enjoy their relationship with their father and that Mr Snowden is an attentive, caring parent. There are many unanswered questions, however, about Mr Snowden’s home environment and the children’s safety, and it is less clear as to whether the children should spend unsupervised time in his care. Due to the significant criminal history of Mr Snowden, set out in the police records, as well as the statements made by A and B during their family report interviews regarding Mr Snowden’s treatment of them when they lived with him, it is necessary to weigh X’s and Y’s right to a relationship with their father, with their right to live in a safe environment. It is also important to note that X and Y’s apparent enjoyment of their relationship with Mr Snowden, is not necessarily an indicator of their emotional safety.
On any reasonable interpretation of the Family Report, this is an important, possibly pivotal paragraph. The third sentence is important. “Due to the significant criminal history of Mr Snowden…”. The use of the word “due” imports notions of causality i.e. that the criminal history of the Father is a causative factor in making the recommendations the family consultant does make. The sentence goes on, however, to include “as well … the statements made by A and B …”. Again, the context is clearly causative.
At paragraph 53 the Family Consultant opines: “If Mr Snowden is involved in the sale of illicit drugs, then this could potentially place X and Y at risk of harm, not only from possibly being able to access the drugs themselves, but possible exposure to criminal activity.” As noted, there is simply no evidence that would lead the Court to find, let alone even to suggest that there was a risk, of the Father engaging in the sale of illicit drugs.
Paragraph 54 deals again with A and B’s account of life with the Father:
The account given by A and B, of their time living with Mr Snowden, is incompatible with Mr Snowden’s perspective of his relationships with them. Mr Snowden said that he was a good role model to them, yet A and B could not think of anything positive to say about him. A and B shared similar accounts of experiencing regular physical abuse by Mr Snowden. If their allegations are found to be true, then this must raise questions about X’s and Y’s physical safety, should their time with Mr Snowden be unsupervised. During the assessment of X and Y, X was observed by the family consultant to use the dolls and the doll’s house to enact what appeared to be an episode of violence between the dolls, which possibly raises concerns about what things X may have witnessed in her previous or current living arrangements. During the observation with Mr Snowden, Y was observed by the family consultant to constantly scrutinise her father’s face. This could possibly be a sign of hypervigilance, which is common in children who have experienced a caregiver as unpredictable.
A number of things seem to flow from this. On the evidence before the Court, it is indeed more likely than not that the Father’s account of life with A and B is to be preferred to their clearly exaggerated, and possibly fictitious, account of living with him. In this regard the concerns about X and Y’s physical safety whilst in the Father’s unsupervised care do not appear to have substance. The Family Consultant seems, with respect, to draw a long bow in the second half of paragraph 54. With respect, she does not appear to have considered alternative hypotheses but to have elevated two ambiguous events (the dolls fighting, and the child closely scrutinising her Father) into evidence suggesting unacceptable risk of abuse.
At paragraph 57, the Family Consultant notes the allegation by the Mother by A and B that the Father “is very authoritarian in his approach to parenting ..”, which was supported by the Family Consultant’s observation of the Father warning X not to be a naughty girl, even though she was not misbehaving. In cross-examination the Family Consultant explained that she thought that the Father had overreacted to what X was doing, but with respect there is a long conceptual gap between a single event observed by the Family Consultant, and the suggestion that the Father has an authoritative approach to parenting. For reasons that will not be repeated once again, the Court has serious doubts about the Mother’s, A and B’s perspective on the Father’s style of parenting. At paragraph 58 the family consultant explains the disadvantages to the children of a no-contact order:
The alternative option would be for X and Y to spend no time with Mr Snowden. If X and Y spend no time with their father, their memory of him would fade over time as would the positive stimulus they experience when they think of him and are reminded of him. X and Y may experience grief and loss about the lack of a relationship with their father and paternal grandmother, which could be heightened at particular stages in their development.
Paragraph 59 the Family Consultant opines:
There is also a concern about Mr Snowden’s reaction to this family report and the recommendations made. There may be some risk of personal safety for Ms Finnegan and the four children if Mr Snowden is capable of the dysfunctional behaviour that is suggested by Ms Finnegan. For this reason, it is recommended that this report be released, in the first instance, to the independent children’s lawyer.
Clearly the Family Consultant was concerned about the impact on the Father of the release of the report. The Court observed nothing of the Father’s behaviour during the course of a four-day hearing which indicate that there should be any concern for the Father’s reaction to the report or indeed, to these reasons for judgment.
The Family Consultant’s final conclusions at paragraph 60, and her recommendations follow:
This assessment has identified significant risk factors, which when considered alongside of X and Y’s very young ages, make the likelihood of harm to them, considerable, and would likely outweigh any potential benefits to them maintaining a relationship with Mr Snowden. This assessment does not support X and Y spending any time with Mr Snowden.
RECOMMENDATIONS
It is recommended that X and Y live with Ms Finnegan.
It is recommended that Ms Finnegan have sole parental responsibility for X and Y.
It is recommended that X and Y spend no time with Mr Snowden.
The objective evidence does not support the Family Consultant’s conclusion. There is no objective evidence suggesting considerable likelihood of harm to them. Indeed, there is no objective evidence that would lead the Court to conclude that any risk that did exist outweighs any potential benefits to the children in maintaining a relationship with the Father.
The Family Consultant was quite correct, however, in using the language of risk identification, assessment and management. This case was, ultimately, a risk assessment exercise. The Court, fortunately, had the benefit of not only spending considerable time with each of the parents and their other witnesses in Court, but also being able to examine the other evidence, including the more independent records produced on subpoena.
The Court then had the benefit of careful, considered submissions. Mr David, the Independent Children's Lawyer, was quite correct in closing submissions to suggest that the totality of the evidence does not go so far as to say that the outcome of any risk assessment exercise is that the children should not have any communication or contact with their Father.
It is quite possible that Mr David adopted a more benevolent view of the Mother’s evidence than this Court has in these reasons for judgment. He seems to have given her the benefit of the doubt, more than the Court has. But, significantly, even on his assessment of the Mother, and even on his willingness to accept more of what the Mother has asserted in her evidence than the Court has, his conclusion seems to be the same as that of the Court: the risk assessment exercise does not conclude with an order for no time.
Mr David’s closing submission about the risk of child sexual abuse to the children from their Father, based on the past allegations against him, were particularly helpful, and the Court accepts the same. He urged, as the Court does, that all the evidence about the child sexual abuse allegations be treated with extreme caution.
He submitted that such evidence clearly did not lead to a conclusion of unacceptable risk of harm. His concern, however, quite validly articulated as it turns out, was that these events may have contributed to the Family Consultant forming a negative view of the Father. Mr David urged that on any risk assessment analysis, the Court must not lose sight of the objective evidence of the good relationship that exists between the children and their Father. This, in itself, was inconsistent with the alleged risk of harm.
Ms Cantrall’s submissions about risk of harm focused on the cumulative result of the evidence supporting the allegations made by the Mother. The difficulty with this submission is that it is inconsistent with the evidence. The Court does not accept the Mother’s allegations about the violence. The Court does not accept the Mother’s view about the Father’s criminality and antisocial behaviour.
The Court does not accept, even in the context of a hypersensitive risk assessment exercise, that there is any evidence of the Father engaging in grooming behaviour in relation to these children. The mere fact that the Father, over an extended period of supervised contact at a supervised contact centre, may have said a few inappropriate things on a handful of occasions, does not exacerbate the alleged risk.
Having regard to the totality of the evidence, this Court concludes that there is no unacceptable risk of harm to these children if they spend unsupervised time with their Father.
The Views of the Children
There is no evidence before the Court about any views expressed by the children, but, in any event, even if there was, their age, and what would seem to be their exposure to this in the Mother’s household, would strongly contraindicate placing any weight on those views.
The Nature of the Children’s Relationships
The Court is comfortably satisfied that the children have an excellent bond with their Mother, with each other, and with the Mother’s other children. They seem to have an acceptable relationship with the Mother’s partner.
There is equally no doubt that the children appear to have a good relationship with both their Father, and the Paternal Grandmother. This is unsurprising, despite the Mother’s assertions in this regard. The best historian about the nature and extent of the Father and Paternal Grandmother’s involvement in the lives of X and Y is the Paternal Grandmother. Her evidence about this is detailed, cogent and plausible. It is consistent with the Father’s generalised assertions about the amount of time that he spent with the children both before and after separation, before the recovery proceedings.
The Court does not accept the Mother’s assertion that the Paternal Grandmother’s records about this were fabricated. It is clear that the Mother and the Paternal Grandmother do not get on. They mutually distrust each other. It is therefore unsurprising that the Mother would react to the Paternal Grandmother’s evidence. Objectively, the Court concludes that both children have a good relationship with their Father, and the Paternal Grandmother.
The Mother’s proposal of no contact would change this. Unless the Court was satisfied that there was the need to protect the children from the risk of harm in their Father’s care, the Court is more likely to make orders to protect and preserve this relationship.
Participating in Decision Making
This did not emerge as an issue in this case. It is clear that the Mother has made most of the decisions in relation to the children’s lives, as they have lived principally with her. When the Father decided that the children should not spend time with their Mother (before the recovery order) he was genuinely concerned about the Mother’s drug use. When the Mother decided that the children would not spend time with their Father after they were returned to her care, but before the making of interim orders, the Court is satisfied that this was an understandable response to the events in question.
Fulfilling Parental Obligations to Maintain Children
This did not emerge as an issue in this case. Both parents appear to be Centrelink dependent. If anything, what emerges from the evidence, even from the Mother’s own admissions in this regard, is that the Father did provide both financial support before and during the separation.
The Likely Effect of Any Changes in the Children’s Circumstances
This is a major issue in this Court, from the Court’s perspective. The Family Consultant’s observations of the children interacting with their Father were all positive. The Mother appeared to have no concerns about the children spending time with their Father until after separation, and even she conceded in cross-examination that the children are happy when they go, and return from, spending time with their Father at the supervised contact centre. All of this is strongly consistent with the Father’s assertions that he has a good relationship with the children, as does his Mother. Removing the Father from the children’s lives would be a very big change for them.
At paragraph 58 of her report, the Family Consultant explained that on a no-contact scenario “their memory of him would fade over time as would the positive stimulus they experience when they think of him and are reminded of him. X and Y may experience grief and loss about the lack of a relationship with their Father and Paternal Grandmother, which could be heightened at particular stages in their development.”
Given the Court’s conclusions about the absence of evidence as to the risk of harm to the children, even in unsupervised contact, the Court concludes that the Mother’s proposal, which would see a severance of X and Y’s relationship with their Father, and thus the Paternal Grandmother, is such a significant and unnecessary change in the children’s lives, that it not be in their best interests.
Issues of Practical Difficulty and Expense
Subject to the formulation of precise orders which deal with a changeover, there are no real issues of practical difficulty and expense. The parents and the children all live in the (omitted) region, reasonably proximate to each other. Whilst the nature of their relationship means that changeover needs to be carefully managed, there is certainly no other practical issue standing in the way of the children spending time with their Father.
Issues of Parental Capacity
There is a significant gap in the Father’s case about his capacity to adequately manage the care of the children, with or without his Mother’s assistance, given his acquired brain injury. From the Court’s perspective, it is unfathomable that the Father’s case did not include evidence about whether, if at all, the Father’s acquired brain injury means that his parenting capacity is somehow compromised. The Court must simply do the best it can, in the circumstances, looking to other facts and inferences to be drawn from facts.
Thus, for example, perhaps the strongest indication that the Father’s parenting capacity is sufficient is the recognition that the Mother allowed both children to spend time with their Father before and after separation, with or without the Paternal Grandmother. This was at a time when they were very young indeed. This reflects the Mother’s confidence that the Father’s parenting capacity was at least adequate for those relatively short periods of time.
In addition, the subpoenaed documents raise few, if any, issues about reports of inadequate parenting capacity on the Father’s part. Indeed, on any objective assessment of the FACS files, they actually raise more questions about the Mother’s parenting capacity in relation to her older children, than they do about the Father in relation to the younger children.
Nonetheless, the Court still has concerns. The Father may well be able to meet the children’s physical needs over a weekend, and possibly, as they grow older, during school holidays for a period. What the Court does not know is anything about his capacity to meet their intellectual needs – indeed there must be concerns in this regard given admissions made by the Father in his case. He struggles with literacy, as was plainly apparent from the evidence.
The even greater unknown factor is the Father’s capacity to meet emotional needs of the children. One of the Mother’s concerns about him, for example, was that (at least by comparison to her) the Father was a stern disciplinarian of the children. As the children grow older, and individuate, this poses potentially greater problems in terms of managing their emotional needs, notwithstanding the fact that individuation generally means greater capacity to assert the child’s needs, and protect themselves.
Once again, the Court records its consternation about the absence of relevant evidence about the Father’s parenting capacity, having regard to his acquired brain injury, in his case. The Court will therefore need to proceed quite conservatively in formulating an order for the children to spend time with him.
Whilst some comments and observations have been made about the Mother’s parenting capacity, the fact is that the Father concedes that the children should live with her. He thus concedes that she has adequate capacity in that regard.
The Maturity, Sex, Lifestyle and Background of the Children and Their Parents
The overall impression created by the evidence is that both parents have experienced significant dysfunction in their lives. Both parents appear to have had disrupted, indeed possibly quite chaotic lives as children and young people. The Father’s acquired brain injury as a result of the assault he suffered changed the course of his life. The Mother has had a series of unstable relationships which have produced children. Despite her protestations to the contrary, it is far more likely than not that she has struggled with drug abuse, indeed beyond the use of marijuana, from time to time.
The overall impression formed is that the lifestyle of both parents involves association with people and culture that may be tempted, at times, to take the law into their own hands. The slashed tyres that they both experienced, and the assault that was perpetrated on the Father after separation, reflect the darker culture and lifestyle in which they lived in the past. Notwithstanding this, and much to the Mother’s credit, she has managed to bring considerable stability into the lives of these children and their siblings. Notwithstanding the dysfunction that the Court has observed, the Family Consultant found X and Y to be emotionally robust. This reflects very well on the Mother’s parenting capacity.
Parental Attitudes
There is much to be critical of as regards both parents in this case when it comes to their attitudes to the children, and to their responsibilities of parenthood. As mentioned in the background comments earlier in these reasons for judgment, both parents appear at times to have acted in an immature fashion, saying and doing things to and about the other at times when emotion was allowed to overtake reason, and when both lost their otherwise proper focus on what was best for their children. Adversarial proceedings seem to bring out the worst in parental attitudes. The Father was immature, and insensitive in seeking to pursue, and resume the relationship after separation in circumstances when it should have been apparent to him that the Mother was disinterested. The Mother’s ambivalent communications to the Father in this period may well reflect her own insecurity, and immaturity.
Both failed to understand the potential impact on the children of all of this. Both parents were guilty of exposing their children to conflict, indeed probably violence, but the Court does not accept the Mother’s contention that the violence was described by her, either in frequency or intensity. Indeed, especially at the time of separation, the violence seems to be characterised as reactive and resistant on both sides. The Father demonstrated much lack of parental insight when he retained the children until the recovery order was made. Even if his concerns about the Mother’s drug use were vindicated, there were other options available to him. Despite her protestations to the contrary, the Court forms the view that the Mother has involved her other children in this dispute, a strategy that ultimately did far more harm to her case than good. Their mutual dislike of each other, and distrust for each other, is an obstacle to the continuation of these children’s good relationship with their Father. This will have to change. The Court hopes that the end of this proceeding will assist the parents in this regard.
Family Violence, and Family Violence Orders
The family violence order that was in place has now expired. The Mother asks the Court to make an injunction under section 68B of the Family Law Act, but the Court declines to do so. There is not the evidence to justify the making of orders sought by the Mother. In any event, the Court believes that a far more effective and flexible remedy is the state apprehended violence order which the Mother should seek, if there is justification for doing so. On the basis of the evidence before the Court, however, the Court can see no reasonable apprehension for any fear that she holds. There probably was family violence, but not since the end of 2015, even when the Mother’s case is taken at its highest. She may well fear family violence, but on the evidence before this Court, there is no objective basis for that fear.
The Order Least Likely to Lead to Further Proceedings
This Court believes that the prospect of further proceeding in relation to the children is in fact greater if the Mother’s proposed order were made. On the evidence before this Court, it doubts whether an order for no contact would survive the critical scrutiny of the Full Court on appeal. There is, of course, the obvious chance of further litigation to implement or enforce any order for the children to spend time with their Father. Contravention proceedings are possible. This is something that will need to be managed as best as possible. Neither parent seems well enough resourced to pursue litigation unnecessarily.
Parental Responsibility
The Mother, the Independent Children’s Lawyer, and the Family Consultant all proposed that the Mother have sole parental responsibility for X and Y. In the Independent Children’s Lawyer’s proposal, however, the caveat was added as regards decisions to relocate the children to live more than 30 kilometres from the Father’s residence. The Father’s proposal was for equal shared parental responsibility.
This Court does not believe, on the evidence before it, that an order for equal shared parental responsibility is in the best interests of the children, and it certainly is not reasonably practicable. These parents cannot communicate, and do not communicate. Even with the cessation of proceedings, it is doubtful that their level of maturity will increase sufficiently to change this. The only practical outcome for these children is for their Mother to be able to make the major decisions in relation to their lives, but the Court agrees with the Independent Children’s Lawyer’s proposed restriction as to relocation.
An Order in the Best Interests of the Children Question
It should be apparent from the above that the Court will thus order that the children live with their Mother, who is to have sole parental responsibility except in relation to decisions to relocate the children to live more than 30 kilometres from the Father’s residence. The issue is: what time the children should spend time with their Father? For reasons explained above, the Court does not accept that there should be a no-contact order. So what time should these children be spending with their Father?
The Mother’s proposal, and indeed her evidence did not address this. In an earlier iteration of her application, she had sought supervised contact. Both the Independent Children’s Lawyer, and the Father make proposals as set out in their respective minutes of order described earlier in these reasons, and reproduced in the first schedule.
Both proposals have in common the gradual implementation of unsupervised time which increases over a period. The Court accepts that it would be best for these children to be eased back into unsupervised time with their Father. They currently spend two hours each alternate weekend with him, in a supervised contact centre. Moving to unsupervised time, outside of the centre, will be a change for them, but arguably an even bigger change for their Mother whose interests must be taken into account in formulating an order.
The Court believes that the Independent Children’s Lawyer’s proposal is more sensitive to the needs of both the children, and their Mother. The Independent Children’s Lawyer proposes Saturday contact from 10 am to 2 pm on four occasions, and 10 am to 5 pm for a further four occasions. He then proposes a Saturday 10 am until 10 am Sunday on four occasions and thereafter Saturday 10 am until Sunday 5 pm for a further four occasions. This would mean that in nine weeks the children would start spending overnight time with their Father.
The Independent Children’s Lawyer then proposes that once the youngest child has commenced school, they should spend time with their Father each alternate weekend from 10 am until 5 pm Sunday, and each alternate Wednesday from 4 pm until 9 am on Thursday.
Whilst the Court agrees with the general pattern proposed by the Independent Children’s Lawyer, it is concerned that the children would be spending time with their Father every weekend, thus depriving the children of the opportunity to spend weekend time with the Mother, her partner and the Mother’s other children. A more gradual implementation of unsupervised contact is preferable, and in any event assist the Mother to adjust to the change. The pattern described by the Independent Children’s Lawyer above will be adopted, with the significant variation that the Father spend time with the children each alternate Saturday. The Court agrees that overnight time should be introduced after eight daytime visits on an alternate Saturday. However, the overnight visits on a Saturday night should also be on alternate weekends.
The Court also agrees that the order for regular weekend contact commence once Y commences school. The Court also accepts the rationale for the alternate Wednesday evening contact. The extension to alternating weekend contact on commencement of school described at order 4 of the Independent Children’s Lawyer’s proposal is also acceptable.
Because of the lack of evidence about the Father’s parenting capacity, however, the Court will proceed conservatively. Thus, the Father’s time with the children should take place within a hundred kilometres of the Father’s current residence. In addition, the children should be sleeping in the Father’s home which, in accordance with the evidence, is a home shared with the Paternal Grandmother who, from the Court’s perspective, is a safety net for these children. Whilst the Court accepts that there is little trust between the Mother, and the Paternal Grandmother, the Court is nonetheless satisfied that she would zealously protect the interests of these children. The 100-kilometre travel restriction is warranted, from this Court’s perspective, because it will make it easier for both the Paternal Grandmother, and the Mother, to intervene should a crisis arise in relation to the children that the Father is not able to manage on his own.
The Court is also going to proceed conservatively so far as school holiday time is concerned. Whilst, on the evidence, the Court is satisfied that the Father has requisite parenting capacity to look after these children for a weekend, indeed ultimately from Friday evening to Monday morning in due course, the Court does not have adequate evidence to satisfy itself about longer periods. Accordingly, there will be no separate order for school holiday contact, with the existing order described above to continue. In order to give the Mother the opportunity to have school holiday time with the children, however, she will be entitled to have the children on her own for one week during any mid-year school holiday period, and two weeks during the end-of-year school holiday periods, and irrespective of whether the children are at school or not. This is intended to be her special time with the children and to give them the opportunity to travel and have holidays if she so desires.
The Independent Children’s Lawyer’s proposals for special days seems appropriate. The provision of information to the Father is appropriate, given the order for sole parental responsibility. The restraining order proposed in terms of discussion and denigration, is also appropriate.
The changeover arrangement was not something that received detailed consideration in evidence, or during submissions. When both children are at school, changeover should be at the school. For the considerable period before then, however, given the nature of the relationship between the Mother and the Father, unless they otherwise agree, a changeover should not be at their respective homes and can either be at a public place, or facilitated by a third person who is known to the children. If the parents cannot agree, then the Father should collect the children from any public place nominated by the Mother proximate to her home, and then the Mother should collect the children at the end of the Father’s time with them at any public place nominated by him, proximate to his home.
The Court believes that these orders are the best it can do under the circumstances. These orders should commence on the second Saturday following the making of these orders and publication of these reasons.
Orders
The Orders that the Court makes are:
1.The Mother have sole parental responsibility for the long term decisions concerning the care, welfare and development of the children X born (omitted) 2013 and Y born (omitted) 2014 except for any decision to relocate the children to live more than 30 kilometres from the father’s residence.
2.That the children live with the Mother.
3.That the children spend time with the Father as follows:
a.For four (4) occasions (the first occasion being the second Saturday immediately following the making of these Orders) each alternate Saturday from 10a.m. to 2pm
b.For four (4) further occasions thereafter each alternate Saturday between the hours of 10a.m. and 5pm
c.Four (4) occasions thereafter each alternate Saturday between the hours of 10a.m. Saturday until 10a.m. Sunday.
d.Four (4) occasions thereafter on each alternate Saturday from10a.m. until 5pm on Sunday
e.Thereafter until the younger of the children commence school:
i. Each alternate weekend from 10a.m. Saturday until 5pm Sunday;
ii. Each alternate Wednesday from 4pm until 9a.m. on Thursday.
f.Each Father’s Day from 9a.m. to 6p.m.
g.From 12noon on Christmas Day until 6.00pm Boxing Day.
4.Once the younger child commences school Order 3(e)(i) shall be varied to provide for the children to spend time with the Father from after school Friday until the commencement of school on the following Monday on each alternate weekend at the home of the Paternal Grandmother.
5.From the year 2021 and continuing thereafter the children shall spend holiday time with the Father for two (2) weeks during the holidays at the end of Term 4 (which failing agreement between the parties to the contrary shall commence at 6.00pm on Boxing Day.)
6.The Father’s time with the children shall be suspended from 6pm on the Saturday immediately preceding Mother’s Day until 6pm on Mother’s Day each year.
7.For the purposes of changeover in Order 3 above, the Father shall collect the children from a public place nominated by the Mother proximate to her home and the Mother to collect the children on the conclusion of the Father’s time at a public place nominated by him, proximate to his home.
8.For the purposes of changeover in Order 4 above, the Father shall collect the children from the school/preschool they attend and return the children to school/preschool on the Monday.
9.The time the children spend with the Father take place within 100 kilometres of the Father’s current address.
10.Each of the parties shall inform the other as soon as practicable of any event or incident of a serious nature relating to the children’s health and wellbeing.
11.The Mother shall provide all necessary consents and authorities to any school that the children may attend from time to time, to facilitate the Father being provided with school reports and school events in which the children may from time to time participate.
12.Each of the parties be restrained from denigrating the other party in the presence or hearing of the children and shall not permit the children to remain in the presence or hearing of any other person denigrating the other parent
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 26 February 2018
Schedule 1
Orders Sought by the Applicant
- That the Mother have sole parental responsibility for the children X born (omitted) 2013 and Y born (omitted) 2014
- That the children live with the Mother.
That the father shall have no contact with the children.
The Father is restrained, pursuant to Section 68B of the Family Law Act 1975, from:-
4.1 Attempting to contact the children by any means whatsoever, including through a third party;
4.2 Approaching, or coming within 100 metres of any place where the children might from time to time reside;
4.3 Approaching or coming within 100 metres of any day care centre or school which the children might attend or at which they are enrolled; and
4.4 Pursuant to Section 68C of the Family Law Act 1975, if a Police Officer believes on reasonable grounds that the Father against whom the injunction is directed, has breached the injunction by causing or threatening to cause bodily harm to the children, or harassing, molesting or stalking, that person may arrest the Father without a warrant.
Schedule 2
Orders Sought by the Respondent
IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG
FILE NUMBER (P) WOC535/2015
BETWEEN
MS FINNEGAN
Applicant Mother
AND
MR SNOWDEN
Respondent Father
MINUTE OF ORDERS PROPOSED BY THE RESPONDENT FATHER
That the parents have equal shared parental responsibility for X born (omitted), 2013 and Y born (omitted), 2014 (the children) limited to -
* Education, health and where the children live if it makes it more difficult to spend
time with the other parent.That the children live with the mother.
That the children spend time with the Father as follows:-
(a) for one day per week supervised by the Paternal grandmother from 9.30 a.m. to 4 p.m for a period of one month;
(b) then two days per week supervised by the Paternal grandmother from 9.30 a.m. to 4 p.m. for a period of one month;
(c) then each alternate week unsupervised from Friday 9.30 a.m. to Sunday 4 p.m.
(d) In the alternate week unsupervised for one day from 9.30 a.m. to 4 p.m.
(e) When X the older child commences school the father to spend with the children from after school Friday until 4 p.m. Sunday.
(f) When both children commence school the father to spend unsupervised time with the children from 3 p.m. Friday until the following Tuesday at 9 a.m.
(g) On father's day from 9 a.m. to 6 p.m.
(h) From 12 noon on Christmas Day until 6 p.m. on Boxing Day.
(i) On Easter Sunday from 12 noon to 6 p.m.
(j) That upon the younger child commencing school, the children shall spend holiday time with the father as follows:
(i) One week in the holidays at the conclusion of Terms 1, 2 and 3 in each year (which failing agreement between the parties in writing to the contrary shall be the first week thereafter commencing at the conclusion of school on the term immediately preceding such holidays.)
(ii) One week during the holiday period at the conclusion of Term 4 in each year (which failing agreement between the parties to the contrary shall commence at 12 noon on Christmas Day.
That from the year 2021 and continuing thereafter the children shall spend holiday time with the Father for two (2) weeks during the holidays at the end of Term (which failing agreement between the parties to the contrary shall commence at 12 noon on Christmas Day)
(k) On each of the children's birthdays, the father's birthday and the paternal grandmother's birthday for a minimum of two hours on each occasion.
Until both children commence school all changeovers to take place at McDonalds at (omitted) or at Catholic Care in (omitted) or as agreed in writing.
5. Thereafter all changeovers to be at the school or as otherwise agreed in writing.
6. That the mother be restrained from moving out of the (omitted) area with the children.
7. That each of the parties shall inform the other as soon as practicable of any event or incident of a serious nature relating to the children's health and well being.
8. That the mother shall provide all necessary consents and authorities to any school that the children may attend from time to time, to facilitate the father being
provided with school reports and school events in which the children may from time to time participate.That each of the parties be restrained from denigrating the other party in the presence or hearing of the children and shall not permit the children to remain in the presence or hearing of any other person denigrating the other parent.
NOTATION:
A. The parties acknowledge that the father and paternal grandmother reside in a divided house and that the paternal grandmother will be present when the children are spending time with their father.
B. The father wishes to inform the mother that he is happy and willing to provide any extra respite care for the children if and when required.
Schedule 3
Orders Sought by the Independent Children’s Lawyer
The Mother have sole parental responsibility for the long term decisions concerning the care, welfare and development of the children X born (omitted) 2013 and Y born (omitted) 2014 except for any decision to relocate the children to live more than 30 kilometres from the father’s residence.
That the children live with the Mother.
That the children spend time with the Father as follows:
a.For four (4) occasions (the first occasion being the first Saturday immediately following the making of these Orders) each alternate Saturday from 10a.m. to 2pm
b.For four (4) further occasions thereafter each alternate Saturday between the hours of 10a.m. and 5pm
c.Four (4) occasions thereafter each alternate Saturday between the hours of 10a.m. Saturday until 10a.m. Sunday.
d.Four (4) occasions thereafter on each alternate Saturday from10a.m. until 5pm on Sunday
e.Thereafter until the younger of the children shall commence school:
i. Each alternate weekend from 10a.m. Saturday until 5pm Sunday;
ii. Each alternate Wednesday from 4pm until 9a.m. on Thursday.
f.Each Father’s Day from 9a.m. to 6p.m.
g.From 12noon on Christmas Day until 6.00pm Boxing Day.
Upon the younger child commencing school Order 3(e)(i) shall be varied to provide for the children to spend time with the Father from after school Friday until the commencement of school on the following Monday on each alternate weekend at the home of the Paternal Grandmother.
From the year 2021 and continuing thereafter the children shall spend holiday time with the Father for two (2) weeks during the holidays at the end of Term 4 (which failing agreement between the parties to the contrary shall commence at 12 noon on Christmas Day.)
The Father’s time with the children shall be suspended from 6pm on the Saturday immediately preceding Mother’s Day until 6pm on Mother’s Day each year.
For the purposes of changeover in Order 3 above, the Father shall collect the children from a public place nominated by the Mother proximate to her home and the Mother to collect the children on the conclusion of the Father’s time at a public place nominated by him, proximate to his home.
For the purposes of changeover in Order 4 above, the Father shall collect the children from the school/preschool they attend and return the children to school/preschool on the Monday.
The time the children spend with the Father take place within 100 kilometres of the Father’s current address.
Each of the parties shall inform the other as soon as practicable of any event or incident of a serious nature relating to the children’s health and wellbeing.
The Mother shall provide all necessary consents and authorities to any school that the children may attend from time to time, to facilitate the Father being provided with school reports and school events in which the children may from time to time participate.
Each of the parties be restrained from denigrating the other party in the presence or hearing of the children and shall not permit the children to remain in the presence or hearing of any other person denigrating the other parent
Key Legal Topics
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Family Law
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