Gaddis and Gaddis
[2017] FamCA 1018
•14 December 2017
FAMILY COURT OF AUSTRALIA
| GADDIS & GADDIS | [2017] FamCA 1018 |
| FAMILY LAW – CHILDREN – Best Interests – Where there are allegations of sexual abuse in the paternal household – Where those allegations were not pressed at final hearing – Where there the father and the paternal family do not pose a risk of harm to the children – Where the mother has relocated in contravention of previous court orders – Where the mother and children live a significant distance from the father – Where the mother has a substantial history of non-compliance with court orders – Where the mother has sought to undermine the children’s relationship with the father – Where the mother informed the eldest child that he was not biologically related to the father in the aftermath of separation – Where the mother has failed to facilitate the father’s time with the children in the past – Where the mother has commenced facilitating the father’s time with the children only in the five months prior to final hearing – Where the children have become involved in the parental dispute – Where the mother has indicated she will not relocate closer to the father regardless of orders made for the children’s residence – Where there is evidence the mother is unwilling to facilitate the children’s relationship with the father – Where it is in the best interests of the children to have a meaningful relationship with both parents – Orders made for the children to live with the father – Where there are practical difficulties in the children spending substantial and significant time with the mother – Orders made for the children to spend time with the mother – Where the presumption in favour of the parents equally sharing parental responsibility is not rebutted – Orders made for the parties to have equal shared parental responsibility for the children. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 65DAC, 65DAA |
| G & C [2006] FamCA 994 |
| APPLICANT: | Mr Gaddis |
| RESPONDENT: | Ms Gaddis |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 4985 | of | 2016 |
| DATE DELIVERED: | 14 December 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 23 - 27 October 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gardiner |
| SOLICITOR FOR THE APPLICANT: | Stacks Collins & Thompson |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | McNamara & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the parents have equal shared parental responsibility for the care, welfare and development of the children namely:
(a) B born … 2003 (“B”);
(b) C born … 2006(“C”);
(c) D born … 2009 (“D”); and
(d) E born … 2011 (“E”) (“the children”).
That each parent will have sole responsibility for making decisions about the day-to-day care, welfare and development of the children during the periods when the children are living with them or spending time with them except as otherwise provided for in these orders.
That the children shall live with the father from the date of these orders.
That the children shall spend time with the mother, as agreed between the parties, but failing agreement:
(a) If the mother resides in the Suburb F Public School catchment area:
(i)During school term:
A. Every second weekend from the conclusion of school Friday and if a non-school day, from 4.00pm, to the commencement of school Monday or 9am on a non-school day; and
B. Every Wednesday from the conclusion of school, or 4pm on a non-school day, to the conclusion of school Thursday or 4pm on a non-school day,
commencing 9 February 2018.
(ii)During the Term 1, 2 and 3 school holidays:
A. For the first week of the holidays commencing 4pm on the last day of school to 4pm the following Saturday in all even years; and
B. For the second week of the holidays commencing 4pm on the Saturday in the middle of the school holidays to 4pm the following Saturday in all odd years.
(iii)During the Christmas school holidays
A. For the 2017/2018 Christmas school holidays as follows except for the Christmas arrangements as set out in these Orders:
1.From 5pm on 27 December 2017 to 5pm on 10 January 2018; and
2.From 5pm on 17 January 2018 to 5pm on 23 January 2018.
B. For the 2018/2019 Christmas school holidays and continuing, one half of the long summer school holidays as agreed and in default of agreement, in fortnightly blocks, except for the Christmas arrangements as set out in these Orders.
(iv)Special Occasions
A. During the Easter long weekend, except when Easter falls during the school holidays, in which event the school holiday arrangements will apply:
1.In even years from the conclusion of school on Easter Thursday until 5pm on Easter Saturday; and
2.In odd years from 5pm Easter Saturday until the commencement of school on the Tuesday following Easter Monday.
B. If Mother’s Day falls on a weekend when the children are not already spending time with the mother, from 5pm on the Saturday before Mother’s Day until 5pm on Mother’s Day.
C. On each of the children’s and the mother’s birthdays for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non-school day.
D. At Christmas:
1.In odd years, from 5pm on Christmas Day until 5pm on Boxing Day.
2.In even years, from 9am on Christmas Eve until 5pm on Christmas Day.
(b) If the mother resides in any place other than in the Suburb F Public School catchment area:
(i)During school term:
A. On every third weekend from the conclusion of school Friday, or if a non-school day from 3pm on Friday, to 5pm on Sunday, commencing 9 February 2018.
(ii)During the Term 1, 2 and 3 school holidays:
A. For the first week of the holidays commencing 5pm on the Saturday after the last day of the school to 5pm the following Saturday in all even years; and
B. For the second week of the holidays commencing 5pm on the Saturday in the middle of the school holidays to 5pm the following Saturday in all odd years.
(iii)During the Christmas school holidays
A. For the 2017/2018 Christmas school holidays as follows except for the Christmas arrangements as set out in these Orders:
1.From 5pm on 27 December 2017 to 5pm on 10 January 2018; and
2.From 5pm on 17 January 2018 to 5pm on 23 January 2018.
B. For the 2018/2019 Christmas school holidays and continuing, one half of the long summer school holidays as agreed and in default of agreement, in fortnightly blocks, except for the Christmas arrangements as set out in these Orders.
(iv)Special Occasions
A. During the Easter long weekend, except when Easter falls during the school holidays, in which event the school holiday arrangements will apply:
1.In even years from the conclusion of school on Easter Thursday until 5pm on Easter Saturday; and
2.In odd years from 5pm Easter Saturday until the commencement of school on the Tuesday following Easter Monday.
B. If Mother’s Day falls on a weekend when the children are not already spending time with the mother, from 5pm on Saturday before Mother’s Day until 5pm on Mother’s Day.
C. On each of the children’s and the mother’s birthdays for a minimum of four hours if the birthday falls on a non-school day.
D. At Christmas:
1.In even years, from 5pm on Christmas Eve until 5pm on Boxing Day; and
2.In odd years, from 5pm on Boxing Day until 5pm on 27 December.
That in the event either party is unable to care for the children during their respective periods pursuant to these orders, then the other parent is to be given the first option to care for the children.
That changeover take place:
(a) If the mother resides in the Suburb F Public School catchment area:
(i)When time with the mother commences at the conclusion of school, the mother will collect the children from the children’s respective schools;
(ii)When time with the mother commences on non-school days, the mother will collect the children from the father’s residence;
(iii)When the mother’s time concludes at the commencement of school, the mother will deliver the children to their respective schools;
(iv)When the mother’s time concludes on a non-school day, the mother will deliver the children to the father’s residence;
(b) If the mother resides in any place other than in the Suburb F Public School catchment area:
(i)At the commencement of the mother’s time with the children on weekends during school term where the children spend time at the mother’s residence, the mother will collect the children from the children’s respective schools;
(ii)At the conclusion of the mother’s time with the children on weekends during school term where the children spend time at the mother’s residence at a mid-point between the two parent’s residences to be agreed, but failing agreement, at the McDonalds Fast Food Restaurant closest to the mid-point, but erring on the side of the parent with whom the children are about to spend time (“mid-point”);
(iii)At the commencement and conclusion of the mother’s time with the children at all other times, at the mid-point.
That the parties shall refrain from making critical or derogatory remarks about the other party or members of the other party’s family in the presence or within the hearing of any of the children and the parties shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other party or members of the other party’s family in the presence or within the hearing of any of the children.
That the parties will refrain from discussing anything in relation to these proceedings or any other proceedings between the parties in the presence or within the hearing of any of the children and the parties shall do all things reasonably necessary to ensure that no other person discusses anything in relation to these proceedings or any other proceeding between the parties in the presence or within the hearing of any of the children.
That while the children or one of them are in the day to day care and control of a parent, that parent shall do all things and make all arrangements to facilitate contact with the other parent by either telephone, Facetime or Skype each day for a reasonable period, which shall be not less than 10 minutes per child, each day and for this purpose each parent shall notify the other parent of:
(a) A mobile telephone number at which the children or one of them may be contacted; and/or
(b) A land line telephone number at which the children or one of them may be contacted; and/or
(c) A Skype address at which the children or one of them may be contacted.
That the parent in whose day to day care and control the children or one of them are when contact pursuant to Order (9) is made shall, once the contact has been commenced, absent themself from the immediate area in which the contacted child is and shall ensure no other person at that location interferes with the communication.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
That the parties communicate via writing and for this purpose “writing” shall include an exchange of text messages or emails.
That both parents be permitted to liaise directly with the children’s health and medical service providers, including mental health care providers, education providers and sporting bodies in relation to the children or any of them including but not limited to medical practitioners, counsellors, psychologists, psychiatrists, school staff, coaches and team managers to receive medical reports, psychological reports, school notices, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
That each party is at liberty to attend at the said children’s schools for the purposes of any function or activity normally attended by parents.
That the mother surrender the children’s passports to the father.
That the father shall hold the children’s passport and make the passports available only for the purposes of the children’s travel as agreed between the parties.
That the mother be restrained from commencing or proceeding with any application for a passport for the children from any Australian Government Department or Agency which issues or has the power to issue passports or the consulate or any other appropriate authority of any other country.
That each party take all steps required of them to ensure that the children attend therapy with a clinician experienced in providing counselling to children of separated families and this clinician not be a practitioner providing individual therapy to either party or any member of the extended maternal or paternal families.
That pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gaddis & Gaddis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4985 of 2016
| Mr Gaddis |
Applicant
And
| Ms Gaddis |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Until October 2016 four children aged between 14 and six (“the children”) had lived together with their parents (“the mother” and “the father”), their paternal grandparents and their paternal uncle for their entire lives.
Following separation in October 2016 and despite orders of this court restraining her from doing so, the children’s mother moved with the children to a location 200 km or a three hour drive away from their former home. The mother is seeking final orders that would see her share parental responsibility for the children with the father and the children continue to live with her in this new location and spend defined time with the father.
The father proposes orders that would see him exercise sole parental responsibility for the children who will return to live with him and spend defined time with the mother.
The question for me to determine is which suite of orders is in the children’s best interests.
The parties also seek property settlement orders but for reasons which will become apparent the parenting proceedings were prioritised. This judgment deals only with the parties competing parenting applications.
Background
The father who is 37 and the mother who is 41 met and formed a relationship in about May 2005. At that time the mother had the sole care of a child of an earlier relationship, B (referred to as “the eldest child”) who was then 18 months old. The father thereafter treated the eldest child as his own child for all purposes and this child was unaware of his true paternity up until a short time after separation.
A short time after the parties began their relationship the mother became pregnant and the parties’ child, a boy named C (“the second child”) was born in 2006. C was 11 at the time of the final hearing.
During the mother’s pregnancy with the second child and when he was a young infant the parties lived with the paternal grandparents and a paternal uncle Mr M (“the father’s extended family”) in their home (“the family home”).
When the second child was a couple of months old the parents and two children moved into rented premises separate from the family home. They spent about 18 months living away from the family home in three different rented homes.
The parties were married in 2008 and returned to live with the children in the family home with the father’s extended family.
A third boy, named D (“the third child”) was born in 2009 and was eight years old at the time of the final hearing.
In 2010 the paternal grandparents sold a quarter share of the family home to each of the father and the paternal uncle.
The youngest child, a girl named E (“the youngest child”) was born in 2011 and was six at the time of the final hearing.
The mother was the primary carer for the children prior to separation and the father worked in various full time positions with a government agency and also had a part-time position at a private school.
The paternal grandparents and paternal uncle also played a significant role in the children’s care.
The parties had some difficulties in their relationship though their respective perceptions as to the extent of the difficulties differ. The parties both attended marriage counselling in 2015 and although the counselling did not assist them to any great extent in their relationship they did not separate at the time.
There is a dispute between the parties about the circumstances leading up to their final separation, but there is no dispute that on 12 October 2016 the mother left the family home with the children and took them to her sister’s home in the G Town area, approximately 50 kilometres from the family home. The mother’s intentions about the duration of these arrangements at that stage were unclear.
Shortly after separation the mother informed the eldest child about his paternity.
Two days after leaving the family home the mother’s father (“the maternal grandfather”) settled on the purchase of a house in a coastal town a distance of 200 kilometres from the family home. This town is a location where the family had spent many family holidays and the mother had a longstanding interest in moving to live there.
The father was concerned that the mother intended moving to live in the coastal town with the children and commenced these proceedings in a Local Court.
On 21 October 2016 parenting orders were made in a Local Court including an order restraining the mother from moving the children to live in any place greater than a 15km distance from the suburb in which the family home was located and restraining her from changing the children’s schools.
Although those orders also provided that the children were to live with each parent in an equal time arrangement and the mother was first required to make the children available to the father at his home on 23 October 2016 the mother did not do so and the equal time regime did not eventuate.
For the first few weeks following separation the mother continued not to make the children available in accordance with the orders. Subsequently the mother decided that the father could spend time with the children for a few hours supervised by either her or a person nominated by her.
The proceedings were transferred to this court and interim orders were made on 12 December 2016 for the children to live with the mother and spend time with the father on alternate weekends and Thursday nights. There was also an order made in this court specifically restraining the mother from moving to the coastal town.
During the Christmas holidays in December 2016/January 2017 the children spent time with their mother at the home the maternal grandfather had purchased on the coast and spent time with the father generally in accordance with the interim orders made in December 2016.
On 10 January 2017 the family met with a Family Consultant as part of the Child Responsive Program. A Memorandum written by the Family Consultant was released to the parties on 19 January 2017.
On 20 January 2017 there was an interim hearing with respect to the mother’s application for relocation to the coastal town on an interim basis and arrangements for the children who were due to recommence at school on 30 January 2017.
Orders were made on 20 January that the 12 December 2016 interim orders with respect to the children’s residence and time with their father continue and that each of the parents do all things required of them to ensure that the children were enrolled in specific named schools (where they previously attended) in the area where they previously lived prior to separation. The youngest child was to commence school for the first time at the local public school with two of her older brothers. An order was also made for the father to pay into an account nominated by the mother a sum to cover the rental bond for a property for the mother and children to live sufficiently proximate to their schools and the family home to enable them to spend with their father. The father was also ordered to pay $350 per week towards the mother’s rental accommodation. The mother was to give notice to the father about the appropriate property that she had secured.
Following the 20 January 2017 hearing the proceedings were then transferred to the Federal Circuit Court, as it appeared that orders had been made which satisfactorily resolved the children’s interim arrangements in proceedings that were then not particularly complex.
The mother did not secure accommodation for the children in the appropriate area as required by the orders and did not take steps to enrol the children at the nominated schools. It appears that the mother and children continued to live about 50 kilometres from the father with the mother’s sister, though that was not entirely clear to the father at the time.
Instead of taking steps to enrol the children at the school they were to attend under the orders, the mother removed the children from the school on the first day of term and presented them to schools near her sister’s home the following day.
The children continued to attend school near the mother’s sister’s home throughout the first term of 2017.
By letter dated 2 February 2017 the mother’s then lawyer informed the father that the mother would no longer make the eldest child available to spend any time with him and would not be making any of the children available to spend time with him on Thursdays. Thereafter the mother did as she had indicated and the eldest child did not spend any time with the father at all for a number of months and none of the children spent time with the father on each Thursday overnight as ordered.
On 7 March 2017 the mother contacted the Department of Family and Community Services (“the Department”) and alleged that the third child had complained to her that he was forced to sleep with the paternal grandmother while staying at the family home on 6 March 2017 and that the paternal grandmother had touched him inappropriately. She says he also complained that the youngest child was forced to sleep with the paternal grandfather.
The mother removed the children from school early on 10 March 2017 preventing them from spending time with their father on that weekend.
When the matter was next before the Federal Circuit Court on 21 March 2017 orders were made by consent for the parents and children to attend family therapy. The proceedings were then transferred back to this Court due to added complexity since the transfer in January 2017. The family therapy did not occur.
In April 2017 the mother and the children moved to the coastal town and lived in the home recently purchased by the maternal grandfather and the children commenced school in that area.
The mother did not immediately facilitate the father spending time with the children after the move.
At some point following her relocation the mother commenced a relationship with her current partner Mr H, (“the mother’s partner”) who the mother claims lives in J Town.
As the father had not seen the eldest child since January 2017 and the other children since March 2017 the father commenced contravention proceedings and also filed an application for new interim parenting orders. He subsequently decided that the more appropriate course of action was to seek an urgent final hearing date in the proceedings.
The ICL also sought an urgent final hearing and the matter was listed before me on 2 June 2017 for directions to be made in readiness for trial. On that occasion neither the mother nor her solicitor who was then engaged attended court. An order was made for the mother to present the children to Child Dispute Services the following week for the purposes of the children spending time with the father over the long weekend. Orders were also made for the mother and her then solicitor to attend in person at court on the adjourned date (9 June 2017). A Family Report was ordered and the proceedings were expedited.
On 9 June 2017 the mother made the children available to Child Dispute Services and both she and her then solicitor appeared in court. The interim orders for the father’s time with the children were suspended and in lieu orders were made with the consent of the parties for the parents to share equally parental responsibility for the children, for the children to live with the mother and spend time with the father alternating between their new home and Sydney to reduce the requirement for the children to travel to Sydney.
The father spent time with the children on the long weekend commencing 9 June 2017 for the first time in many months.
On 13 June 2017 the mother contacted the police and the Department to report that the second child reported to her that when spending time with the father over the long weekend the father tickled and grabbed the child’s testicles and penis. She says the child also reported to her that the father had watched him in the bath and shower. Following the mother’s notification to the Department the oldest two children were interviewed by Departmental caseworkers.
The mother made further complaints to the Department in a similar vein about the father’s conduct towards the children on 15 June and 17 June 2017.
On 17 June 2017 when the children were next due to spend time with the father the mother did not send the second child.
Subsequently the Department deemed it safe for the children to have contact with the father and the paternal family. Notwithstanding this decision the mother also withheld the children from the father on the next occasion on which time with him was due to occur (23-25 June 2017).
On 3 July 2017 the father filed an Application in the Case seeking an urgent Recovery Order. On that date, orders were made that in the event the mother did not make the children available to spend time with the father by 12 noon the same day she was to make the children available to Child Dispute Services at 9.15am on 10 July 2017.
The mother did not make the children available to the father on 3 July 2017. On the same day the mother notified the Department that due to the children’s reported extreme emotional reaction to being told they would have to spend time with the father she was intending to breach court orders.
On 10 July 2017 the mother did make the children available to Child Dispute Services and she also appeared in Court. Orders were made for the children to live with the father for the balance of the school holidays and until 25 July 2017 when the father was to present the children for interview by the Family Consultant for the purposes of a family report. Following the interviews the mother was to collect the children from Child Dispute Services and the father’s time with the children was to resume in accordance with orders of 9 June 2017. On 10 July the proceedings were also fixed for an expedited final hearing commencing 23 October 2017.
All of the children spent time with their father for two weeks from 10 July 2017. The family were assessed by a Family Consultant on 25 July and returned to their mother’s care on the same date.
The children have spent time with the father in accordance with the interim orders from 10 July 2017 and no further complaints have been made to the Department by the mother or any other person in relation to the care of the children in the father’s household since this time.
The mother changed her legal representation in August 2017.
At the final hearing which commenced on 23 October 2017, the mother sought orders in accordance with an amended Response. She proposed that the parents equally share parental responsibility for the children and that the children live with her in the coastal town. She proposed that the children spend time with the father every third weekend from Friday evening until Sunday afternoon and for defined time in the school holidays. This proposal changed to some extent in the course of the final hearing. In her amended Response at the commencement of the final hearing the mother included a proposed order that “if it is found by the court that the children are at an unacceptable risk of harm in the paternal household by the grandparents or the father, then the children spend no unsupervised time with the father”. By the end of the final hearing the mother did not seek that the court make a finding of unacceptable risk in the father’s household. It also became clear in the course of the final hearing that if orders were made that the children live with their father in Sydney the mother did not intend relocating from the coastal town.
The father’s proposal at trial was that the children live with him and spend every second weekend and one night during the intervening week with the mother if she resides in the area in which the father lives. The father proposed alternative orders in the event the mother does not reside near him that the children live with him and spend every third weekend with the mother. The father sought orders that he have sole parental responsibility for the children and that the children spend half the school holidays with each parent regardless of the residence of the mother. The father also sought various specific orders as to issues such as special occasion time and changeovers.
At the conclusion of the final hearing the ICL proposed orders that the parties equally share parental responsibility for the children, the children live with the father and spend time with the mother each third weekend and for half the school holidays. The ICL also sought various orders as to specific issues such as special occasion time.
Expert evidence
The family were interviewed twice by two different Family Consultants. At the first assessment in January 2017 a Family Consultant analysed the issues for the children and parents in a Child Responsive Program Memorandum (Exhibit 3).
In July 2017 another Family Consultant interviewed the family for the purposes of a Family Report (Exhibit 4) which was dated 4 September 2017 and distributed to the parties a short time later. For the purposes of that assessment the Family Consultant interviewed the father, paternal grandparents, and paternal uncle and mother and her partner as well as each of the children. The children were also observed in their interactions with members of the paternal and maternal families. The Family Consultant had access to all of the affidavits filed in the proceedings, Notices of Risk and various applications made by the parties together with documents produced on subpoena from a range of sources including the Department, Police and various schools attended by the children.
The Family Consultant’s recommendations in her report were that if the children are not found to be at an unacceptable risk of harm in the paternal household and the court finds the mother does not support the children’s relationship with the father without reason and she is unlikely to be compliant with future orders concerning the father’s time then the children should live with the father and spend time with the mother, and that time be dependent upon whether she remains living in her current location or returns to Sydney.
The Family Consultant’s recommendation if the children are found to be at an unacceptable risk of harm in the paternal household by the paternal grandparents is that they should spend no time with them. She recommends that if they are not at an unacceptable risk of harm from the father and the court finds that the mother is supportive of the children’s relationships with the father then the children should remain living with the mother and spend time with the father depending upon where the mother and father are living. The Family Consultant also recommended that in the event the court finds that the father has sexually assaulted the second child then consideration would need to be given to the children spending no time with the father.
As the mother did not pursue a case at the final hearing that the children were at an unacceptable risk of harm in the paternal household (by either the paternal grandparents or the father) the mother’s capacity to support the children’s relationship with their father is a central issue in this dispute. The Family Consultant does not recommend that the children’s residence be changed unless the court finds that the mother is not supportive of the children’s relationship with their father without reason and is unlikely to be compliant with such orders in the future.
Under cross-examination, to which I will return when considering the matters related to the children’s best interests the Family Consultant remained firm as to the recommendations in her report.
The Family Consultant is a qualified and experienced professional having tertiary qualifications in psychology and forensic psychology. She worked for 14 years as a child protection case worker and sexual assault counsellor before completing qualifications as a psychologist. As a psychologist she delivered training for Corrective Services and worked with that agency as a child protection co-ordinator. The Family Consultant has held her current position for five years and has received ongoing training in that role. The Family Consultant had access to a wide range of documents including those produced on subpoena when formulating her opinion and was cross-examined by counsel for each of the parties and the ICL. Much of the cross-examination was directed to the determination of factual matters which the Family Consultant said quite properly was a matter for the court’s determination. The Family Consultant remained firm as to her opinion and recommendations. Having regard to the foregoing I accept the opinion of the Family Consultant and attach some significant weight to it in my determination in these proceedings.
Factual matters in dispute
There are a number of factual matters in dispute to which considerable attention is given in the respective affidavits which in my view are not particularly significant in the determination of this parenting dispute and do not require resolution. In particular the parties differing perception of the state of their marriage prior to separation and the nature of each party’s role in parenting the children do not require resolution as neither parent raises issues with the other parent’s capacity to care for the children for significant time including overnight and holiday time.
To the extent that there are some matters of greater significance in dispute such as whether the relationship was characterised by controlling conduct by the father, these allegations are considered when discussing the relevant best interest matters.
Various claims by the mother concerning issues that she previously contended gave rise to a risk of harm in the paternal household are also considered when dealing with the matters set out in section 60CC in relation to the children’s best interests.
The Law & Discussion
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects 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.
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).
According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
Primary considerations: s 60CC(2)
The primary considerations (under s 60CC(2)) 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.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Benefit to the children in having a meaningful relationship with both parents
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[1] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[2] and has also agreed with the reasoning of Bennett J in G & C[3].
[1] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[2] (2007) Fam LR 518
[3] [2006] FamCA 994
Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The Full Court said in McCall & Clark (supra) at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
Each of the parents proposes orders that would see the children having a significant relationship with both of the parents. Given the role that each parent has played in the children’s lives there is no doubt that the children will receive a benefit from having a meaningful relationship with both parents.
However, it is submitted on behalf of the father that there is an unacceptable risk that the children will not receive the benefit of a meaningful relationship with him should orders be made as proposed by the mother. He contends that as the mother has not supported the children’s relationship with him since separation until very recent times, it is likely that she will not support and facilitate the children having that relationship with him in the future after final orders are made.
The Family Consultant expressed the opinion which was not challenged that if the children remain living with the mother and she is not enthusiastic about promoting a relationship between them and their father they would be at a high risk of losing their relationship with their father and their extended paternal family.
The father submits that each of the bases upon which the mother relied in refusing to make the children available to him in the past and her pretext for moving the children’s home contrary to orders have proven to be groundless. On the basis of the mother’s alleged failure to facilitate the children having a relationship with their father in the past he submits that it is likely that she will continue to do the same in the future if orders are made as she proposes.
It is conceded on the mother’s behalf that she “made mistakes” in various actions she took following separation over a period of about six months. It is submitted on her behalf however that the court should not attach particular weight to past events especially where it appears that the children’s relationship with their paternal family has improved since the children have spent regular time in the paternal household.
Although it is conceded by the mother through counsel that she “made mistakes” some findings must in my view be made about her past actions. These findings are necessary to consider the positions put by the parties respectively about the mother’s likely behaviour in the future and are central to the father’s contention that only the orders proposed by him will ensure that the children have a meaningful relationship with both parents in the future.
The mother’s actions following separation
The first matter to consider is the mother removing the children at the time of separation from the family home to a place 50km away without making any arrangements for the children to spend time with or communicate with the father and then failing to comply with orders concerning the father’s time when they were first made. This involves some consideration of the events leading to separation.
It is the mother’s case that she had to endure difficult circumstances in her marriage prior to and at the time of separation and that her conduct following separation must be considered in this context.
In her trial affidavit the mother paints a picture of a marriage relationship that had been deteriorating for some time prior to separation and which she suggests was characterised by intense conflict for some time. Although she does not allege that the father was physically violent to her on any occasion, it is her case that the father and paternal grandfather were financially and otherwise controlling throughout much of the relationship. The mother also deposes to herself and the father arguing about matters such as the father’s intense interest in sport and financial matters. She says that in the course of one argument the father lost his temper and threw a glass towards her which hit the wall and then punched the wall, damaging it. This allegation is denied by the father who says he has never damaged property in anger.
Although it is generally the mother’s case that she and the father argued over matters such as money, the father’s interest in sport and differing practises concerning parenting for most of the marriage she concedes that the relationship continued to be functional in some respects and that she and the father continued to have children who were planned.
It is the father’s case that the parties encountered some difficulties throughout their marriage and attended marriage counselling in mid-2009 and later in 2015 but the general tenor of his evidence is that their relationship was reasonably good.
The mother gives no evidence of any matters concerning the parental relationship after 2011 up until 2016 when she says that the parties often argued and “the issue of separation would arise”. The mother deposes that in June 2016 when she and the father were out to dinner she suggested that they should separate but the father opposed it and became “quite aggressive”. She says the following day she told the paternal grandparents that she and the father were going to separate and the paternal grandfather offered to assist them and suggested that the father move out of the home for a little while and that she and the children remain. According to the father this was suggested by the paternal grandfather in September 2016 but nothing in particular turns upon this difference in recollection.
The father deposes that at the beginning of September 2016 the mother suggested that they see another counsellor “on the National Health Scheme” but as they had “already used the scheme” the mother suggested that the father falsely create a “serious mental health issue to be able to get the free sessions with a counsellor”. The father says the mother told him to report to the doctor that he was thinking of committing suicide. The father says that he didn’t like the idea but the mother said that if he “really cared about saving [the] marriage” that he should do it and in these circumstances he agreed.
The father deposes to he and the mother attending their general practitioner and he reporting to the doctor that he needed to see a counsellor to fix their marriage as it was causing him to feel suicidal and that in this context he obtained a referral to marriage counselling. The father says that he subsequently telephoned the doctor’s surgery and told the doctor that he was not really considering committing suicide and that the doctor told him that he knew that to be the case. The father deposes to visiting his general practitioner again on 16 September 2016 and informing him that the parties marriage was much better which he says he genuinely believed was true.
It is the father’s case that the mother has held a desire to move to the coastal town for many years and she had raised this with him on a number of occasions in the last few years of the marriage. The father says that he always maintained the position that they could not move as he would not be able to find employment there which he needed to support the family.
The father deposes that for about six weeks prior to leaving the family home the mother had been contacting real estate agents on the south coast and that after her departure the paternal grandmother found a folder of documents relating to the area in which the mother now lives under one of the children’s mattresses including documents relating to properties for sale and promotional material from schools in the area dated as early as January 2014.
Under cross examination the mother agreed she had made enquiries about and had the two older children meet with the principals and teachers of schools in the area and looked into real estate and in fact attended an auction prior to separation. She made these concessions only after being shown the maternal grandfather’s affidavit in which he deposed to these events occurring. The mother agreed she had long held a desire to move to the coastal town and it did not come as a surprise to her that the father opposed her moving to this area.
The father deposes that in about September 2016 the mother asked him to seek help for anger issues which she believed he had. The father says that although he did not agree that he had “anger issues” his father convinced him that he should go through with the counselling if that is what the mother wanted him to do to help their marriage. He says that he then called the counsellor to whom his general practitioner had referred him and attended his first appointment on 26 September 2016 just prior to the parties’ separation. The father says that he has continued to see this counsellor as the sessions have assisted him to deal with the sadness of not seeing his children and the stress of the proceedings and deposes that at no stage has the counsellor suggested that he has “issues with anger management”.
The parties did not take up the paternal grandfather’s suggestion that the father move out to assist the parties in their relationship and the mother remained living in the family home.
According to the mother’s affidavit following a verbal argument in the car in the presence of the children on 8 October 2016 (in which the mother does not allege that the father swore or used abusive language or made any threats) the mother decided that she could no longer remain in the relationship. On 10 October 2016 she told the father that she wanted a divorce and although the father seemed very upset and shocked, he agreed to it.
Under cross-examination the father said that he had never gained the sense that the mother was struggling when living with the extended paternal family in the family home and denied that discussions about money were heated or that the mother complained about the way in which the paternal grandfather spoke to her. He also denied the allegations of financial control by the paternal grandfather and said that as the paternal grandfather was guarantor for the father’s loan (for his quarter share of the family home) the grandfather did discuss budgeting and the parties’ financial situation. The father did not deny that the paternal grandfather occasionally yelled at the children and that he and paternal grandfather were at times critical of the mother’s parenting.
According to the father on 10 October the paternal grandfather renewed his suggestion that the father move out which the father agreed to but the mother reiterated that she wanted to go to the coastal town. He says that in these circumstances where he could not move and she was determined to go he agreed they would have to separate. The father says he was of the understanding that at some time in the future the mother would move out of the family home but he was concerned about what would happen with the children.
Final separation occurred two days later on 12 October 2016. There is no dispute between the parties that the father was at work when the mother left the home. The mother deposes to there being a heated argument in the course of which the paternal grandfather raised his voice and swore at her. The mother says she telephoned her father and told him that the paternal family were pressuring her and that she felt intimidated and that the children were frightened and crying. It is her position that the paternal grandfather “kicked [her] out” of the family home.
The paternal grandfather emphatically denies that he required the mother to leave the family home as she alleges. He says that he tried hard to convince her to stay including in the days leading up to 12 October 2016. He deposes to being upset and crying in the course of one particular conversation. On 12 October 2016 when the mother finally left the paternal grandfather deposes to feeling sad and disappointed and included the paternal grandmother in the discussions as she had a close relationship with the mother. The paternal grandfather deposes to the children crying when they left the family home and in his view “they clearly did not want to leave”.
The mother provides no evidence in her affidavit or under cross-examination about why she decided to disallow the father to spend any time with the children following physical separation except to say that until the first court date (21 October 2016) the children did not want to spend time with their father.
In her affidavit the mother also provides no evidence about her reasons for failing to comply with the parenting orders made in a Local Court on 21 October which restrained her from moving the children to live in any place greater than a 15km distance from the family home and restrained her from changing the children’s schools and instituted an equal time care arrangement.
The mother did not make the children available to the father on 23 October for the commencement of his week of caring for the children and imposed her own conditions that the father’s time with the children be supervised and occur only for a few hours. She does not provide any explanation why she felt that supervision was necessary at this time.
The father first had time with the children under these conditions on 20 November 2016 for a period of two hours. He did not agree that supervision was necessary but felt he had no choice but to accept it if he was to see his children.
On 12 December 2016 orders were made in this court that the children live with the mother and spend time with the father on alternate weekends and Thursday nights.
In her affidavit the mother expresses concern about the paternal family recording the children’s time with the paternal family and talking to the children about the court proceedings. She also deposes to an occasion when the children were spending time with the father “in December” and the older two children reported that the younger two children ran away to a neighbour’s house and made complaints that the father was swearing at them and yelling and that they felt scared. According to the mother the neighbour rang Life Line and asked for help and the father found the children at the neighbour’s home. There was no corroborative evidence from the mother about these events and the father was not cross-examined about them.
The mother also makes other complaints about the paternal family members’ conduct at this time such as the children reporting that paternal family members had discussed details of the court proceedings with them. The mother sys the children reported that the paternal grandfather said that he was also going to move to the coastal town which caused the older two children to feel “very intimidated and uneasy”.
On 10 January 2017 when the family met with a Family Consultant as part of the Child Responsive Program both parents reported a significant period of conflict prior to separation. Neither parent reported any history of physical violence perpetrated by the other party though the mother reported that the father had been verbally abusive and that he and other members of his family had been financially controlling of her. The children who were interviewed made no reports of exposure to violence or abuse though the eldest child complained about his father swearing a lot and that he did not like his parents fighting [verbally]. The eldest child denied that the father had ever hurt him. The second child reported feeling scared or worried when his father raises his voice and also referred to arguments between his parents and an occasion [final separation] when his mother and paternal grandfather were yelling at each other.
During the interview with the Family Consultant the mother said that she proposed that she and the children move to the coastal town and that the children commence schools in that area at the commencement of the school year.
The mother’s non-compliance with the 20 January 2017 orders
On 20 January 2017 there was an interim hearing in relation to the mother’s application to relocate on an interim basis which was dismissed. Orders were made in summary requiring the mother to return to the previous area in which she lived, to do all things (together with the father) to enrol the children in the schools they had previously been enrolled in. The mother was also to provide information to the father about an account into which he was to pay a sum sufficient to cover the rental bond for a property in that area and to contribute $350 per week towards the mother’s rental accommodation.
According to mother’s affidavit she spent the two days following 20 January 2017 searching the internet for houses in the vicinity of the family home for $350 per week. She provides no explanation for her reasons for looking at properties in this price bracket and elsewhere the mother appears to understand that the $350 was to be the father’s contribution and was not envisaged to cover the entire rent. The mother also sought rental properties in the vicinity of her sister’s home for reasons which she also does not explain. The mother also deposes to receiving advice from a wide range of agencies which she concedes were not legal services who she claims advised her that “they could see no other option for [her] but to live in the [coastal] home”. The mother also claims that she was advised by the Department that “the visitation (sic) should be revisited”. In this context the mother goes on to depose:
I had available to me a four bedroom home that is furnished, has all services connected, is close to schools for the children, the children have a multitude of friends close by, four job offers waiting for me to commence when I am ready, and no rent to pay. This property was in [the coastal town]. The children’s friendships have developed over a large number of years as we have visited [this town] for the holidays over the last seven years.
The mother does not address her non-compliance with the orders relating to enrolment in the specified schools in her affidavit.
Discussion – mother’s conduct following separation
In my view it is not necessary to resolve all the factual disputes between the parties concerning the circumstances of their marital breakdown, circumstances surrounding the father’s time with the children following separation and the mother’s noncompliance with various court orders between separation and 30 January 2017 when the children were to be re-enrolled in their former schools and return to live in the area close to the family home. Even if the mother’s version of events were totally accepted, she does not contend that the father perpetrated any violence towards her prior to separation other than alleged financial control. Moreover she does not connect this financial control to her decision to limit the children’s time with the father and raises no other matters that provide justification for these decisions. Whatever the mother’s motivation for her actions at the time may have been, she did not maintain at the final hearing that there was any reason to withhold the children from their father at this time, and concedes through her counsel that it was a mistake to do so.
In summary the mother has failed to explain her actions following separation up until the end of January 2017. She had a long held desire to move to the coastal town and insisted throughout this period that this location was the only suitable and appropriate place for her and the children to live despite orders made by the court. In these circumstances I draw the inference that the mother took conscious steps to limit the children’s relationship with their father at that time in a misguided but determined attempt to obtain what she wanted, a move to the coastal town with the children.
The mother’s actions concerning the children’s time with the father from February 2017
There is no dispute between the parties that the mother did not make the eldest child available to spend any time with the father from February 2017. The mother also did not make any of the children available to spend time with the father overnight on Thursdays in accordance with the January 2017 orders and took action that resulted in the younger three children having no time with their father from the second weekend in March 2017. The children were not made available to the father at all until the mother was ordered for the first time to present them to Child Dispute Services on 9 June 2017.
In her trial affidavit the mother does not clearly identify her reasons for withholding the eldest child from time with the father though she seems to suggest that it was related to this child’s discomfort with the father and paternal family after finding out about his paternity. She also says that the eldest child reported to her a belief that the paternal family had “bugged” his computer and were monitoring his behaviour and the paternal family were not providing him with the appropriate food he requires having been diagnosed as a Coeliac and requiring a gluten free diet. The mother’s affidavit concerning these matters is very general however and lacks specificity about the period to which these alleged complaints relate. She also does not clearly depose to there being a connection between these concerns and her decision to withhold the eldest child from contact with the father.
The mother’s motivation for withholding the eldest child from the father at this time can be gleaned however from uncontested matters in the father’s affidavit and documents produced on subpoena and admitted into evidence.
In a letter dated 2 February 2017 from the mother’s former solicitor to the father’s solicitor, it is stated that the mother had provided the following instructions:
·the eldest child is Coeliac which is well known in the paternal family household,
·the paternal family do not provide the child with gluten free foods and he is “forced to eat food that contains gluten which renders him quite ill”
·or he does not eat at all and that this amounts to “mistreatment of [the child] and causes him harm”.
Later in this letter the mother’s solicitor asserts that the child is “being abused in the paternal house”. The letter goes on to say that “as a direct result of the paternal families (sic) mistreatment of [the child]” he will no longer be made available for the father to spend time with him. In this letter the father is also informed that the reason the mother will not be providing all the children to spend time overnight on Thursdays with the father is because this is impracticable as the mother continues to reside in the G Town area. The solicitor then restates the mother’s instructions that she has housing and “multiple offers of employment for immediate start” in the coastal town. In this context the father is then requested in the letter to consent to the mother relocating with the children to the coastal town.
Records produced by the Department also indicate that the mother made complaints about circumstances in the paternal household on 31 January 2017 and 17 February 2017 including that she had withheld the elder child from attending visits with his father as he is a Coeliac and the father “was found not to be adhering to his dietary requirements and therefore placing his health at risk”. Departmental records indicate that an investigation into these complaints was conducted but the Department took no further action.
In his trial affidavit the father describes the mother’s allegations about feeding the eldest child inappropriate food as “hurtful and ridiculous and totally unfounded”. He deposes that the paternal family have been well aware of the child’s condition for about five years and have always cooked and bought the appropriate food for him and strongly denies ever withholding food from the child.
The paternal grandmother deposes that when the eldest child was first diagnosed with Coeliac disorder in about 2012 she and the mother attended a coeliac information night to gain information concerning appropriate food for the child and also attended an exhibition weekend to learn how to prepare gluten free food. The mother conceded under cross-examination that the paternal grandmother’s evidence in this regard was correct. The paternal grandmother also says that both she and the father have an application on their phones which assists in finding appropriate foods for the child when he is in their care and not at home and maintains that she has always bought appropriate food for the child.
It is also noted during the assessment with the Family Consultant in January 2017 both parents reported that the eldest child had Coeliac disease which is managed by diet. The mother did not make any allegations against the father on this occasion only weeks before she alleges that the father had abused the child by withholding appropriate food or forcing the child to eat inappropriate food.
Discussion – the eldest child’s dietary needs
Given the mother’s concessions in court and information provided to the Family Consultant, I am satisfied that the paternal family did not fail to provide appropriate food for the eldest child or withhold food from him as contended at the time by the mother. In my view having regard to the tenor of the letter written on her behalf on 2 February 2017 the mother used this as a pretext to withhold the child from the father which in turn was used as leverage in an attempt to have him consent to her relocating with the children (even though application to do so had already been dealt with by the court and dismissed).
I am also satisfied that none of the other complaints the mother makes concerning the father’s conduct at this time provide a valid explanation for withholding the eldest child from the father. According to information given by the mother to the Family Consultant in January 2017 it is she who advised the elder child of his true paternity. Under cross-examination the mother agreed that she informed the eldest child about his parentage when relations were acrimonious between herself and the father and the child knew she was not getting on with the father. She also agreed that there was a very real possibility that telling the child that the father was not his biological father could negatively impact on the child’s relationship with the father. In these circumstances the discomfort the child felt in the paternal household after he became aware of his paternity was brought about by the mother herself and cannot reasonably be attributed to the paternal family.
The mother’s explanation for withholding the other children from the father from the second week of March appears to be based upon an allegation that the paternal grandparents acted inappropriately towards the children when they spent time in the paternal household on the first weekend in March 2017.
Under the heading “risk of harm” in her trial affidavit the mother complains that when she lived in the paternal household either the paternal grandfather or grandmother would “caress” the children which the mother said “involved lifting up the children’s top either at the front or the back and stroking their flesh, and then doing the same on their legs and feet”. The mother also complains that at times the paternal grandparents would lie on one of the children’s beds with them for up to an hour “caressing” them under their pyjamas until the child fell asleep.
The mother said that when she lived in the paternal family household she found this conduct “quite disconcerting” as it appeared to her to be “too intimate” for adults to engage in with children and she takes particular objection to the use of the word “caress” in the paternal household. The mother claims that she raised the issue with the father and it caused a great deal of tension between them and that rules she says she wanted to put into place about bed time and managing the children were often overridden by the paternal grandfather and the father would go along with what his father wanted to keep the peace.
In her affidavit the mother deposes that on Monday 6 March 2017 when she collected the three younger children from school following weekend time with their father they all seemed withdrawn and upset. She says that during dinner the third child “blurted out” that over the weekend he was required to sleep with the paternal grandmother in her bed and the youngest child was required to sleep with the paternal grandfather. The mother deposes that the third child said he didn’t want to sleep with his grandmother but “she made me” and that the child also told the mother that his grandmother “caressed me”.
The mother claims that on the night following the children’s return both of the younger two children wet the bed and woke up with nightmares and that the bed wetting and nightmares continued for about three weeks. The mother says that she sought help from the Department as she feared for her children’s safety and that something terrible had happened to them. She says that as a result of the third child’s heightened anxiety she suspended the father’s time with the children as she was “extremely worried about the safety [of her] children”.
According to the father’s affidavit the family have always used the word “caress” to describe patting or lightly drawing with the fingers on the children’s backs or faces to soothe and calm them. The father deposes that this form of touching is on the outside of the children’s clothing except for the youngest child who prefers it on her face. The father says that the mother has never raised concerns about this conduct prior to March 2017.
The father also deposes that both the second and third children are afraid of the dark and that if any of the children had a bad dream or had matters of concern in the night time they would come to himself or the mother for comfort but the mother would not allow the children into their bed. He says that the children would go to the paternal grandparents’ room and sometimes one of the family members would lie on the child’s bed and soothe them until they fell asleep. The father maintained that this was normal behaviour and did not have any sexual connotation.
The father and paternal grandmother both depose that when the second child spent time in the family home without the first child [as had occurred on the first weekend in March 2017] the paternal grandmother offered to sleep in the eldest child’s bed in the same room as the second child as she knew the second child was scared of sleeping by himself.
The father also deposes that during the marriage the mother slept in one of the children’s beds occasionally to comfort and soothe them until they fell asleep. He also says that when the eldest child was young the mother sometimes put him in bed with the father for an afternoon nap together or put the eldest child in bed with the paternal uncle. The father annexes a photograph which the mother had printed onto a computer mouse pad depicting the eldest child as a toddler in bed with the paternal uncle.
Under cross-examination the mother maintained that the paternal grandparents engaged in inappropriate touching of the children. She conceded however that this complaint was a spurious and awful thing to say but denied saying it to gain an advantage in the proceedings. The mother could not explain why she was pursuing an application that would see the children spend significant time in the paternal grandparents home if she genuinely believed that the touching was inappropriate. Initially, she referred to a finding that she may ask to court to make of unacceptable risk in the paternal household. Later, she agreed that she now knew that there was absolutely no risk to the children of any sexual abuse or inappropriate conduct in the care of the paternal grandfather but said that she still wanted the “caressing” to end.
Under cross-examination by the mother’s counsel the paternal grandfather said that he did not understand why the mother says she found the practise of “caressing” the children or the children sharing the grandparents bed concerning. He said that at times when the mother lived in the family home she and paternal grandmother would sit next to each other and each would be “caressing” one of the children. He said that there were also occasions when the children would ask the mother to “caress” them and she would tell the children to ask the paternal grandparents to do it. The paternal grandfather also said that the mother was aware that the younger two children on occasions would come into the paternal grandparent’s bedroom if they were having nightmares and would sleep at the bottom of the bed or he would sleep at the bottom of the bed.
The mother also told the Family Consultant that the paternal grandparents stroked the children’s backs prior to separation and she had found this “sick”. She also said that the children enjoyed it and asked for it but she saw it as sexual behaviour.
When the paternal grandfather was being cross-examined about sharing the bed with the children however, it was specifically put to him that “this question is not intended to suggest anything of a gratification” (sic). Similarly when cross-examined about “caressing” the question included the words “I’m not suggesting that the nature of this question – that is sort of gratification” (sic). The paternal grandmother was not cross-examined about either “caressing” or children sharing the bed with adults.
Documents produced by the Department indicate that the mother contacted the Department on 9 March 2017 expressing concern about the children being required to sleep with their grandparents. The records indicate that the complaint was “screened out” that is no action was taken in relation to the mother’s complaints.
The records of the Department also indicate that the mother again made contact on 21 March 2017 being a date on which the records indicate (and the mother confirmed under cross-examination) the proceedings were before the court and the mother made the telephone call during a break in the proceedings. It is recorded that on this occasion the mother advised that the coming weekend “is the father’s weekend” and that she “is meant to send the kids back”. The mother repeated her complaint about the children being forced to sleep with the grandparents and that the grandparents “caressed” the children. According to the records the mother told the departmental officer that there was “new information” being that the children are still refusing to go back to the father and [paternal] grandparents. It is recorded that the mother informed the departmental officer that she “will be withholding the kids” as she “doesn’t think it is safe to send them back there”. At this court event orders were made by consent for the parents and children to attend family therapy, though this therapy did not ultimately occur.
The mother next contacted the Department on 24 March 2017 when she reported that the children were all displaying persistent and profound anxiety related to spending time with their father. The third child was reported to be so anxious that he had vomited at school.
The children were again withheld from the father for his weekend time with them at this time.
Discussion – allegations against the paternal grandparents
I am of the view that the mother did not hold genuine concerns that the paternal grandparents had behaved inappropriately when caressing the children or allowing the younger children to share the grandparents bed on occasions for the following reasons.
Although the mother claims that she had concerns about the paternal grandparents’ conduct prior to separation she did not ever raise this with the paternal grandparents herself. At times in her evidence the mother asserts that she had raised the issue with the father and he dismissed it and generally asserts that she felt overborne and could not raise any complaints about the conduct of adults in the paternal household. So far as the paternal grandmother is concerned this is completely at odds with the evidence of the paternal grandmother and mother that they shared a close relationship with each other when the mother lived in the family home and it appears clear that they approached the parenting of the children in a collaborative manner.
Further, the paternal grandmother was not cross-examined to suggest that her conduct was in anyway inappropriate. Moreover, under cross-examination of the paternal grandfather it was specifically put to him that there was no suggestion of sexual gratification in either caressing the children or having them share the grandparent’s bed from time to time. The mother also did not challenge the assertion that she and the paternal grandmother had together caressed the children when the family all lived under the same roof, or that sometimes she would encourage the children to ask the grandparents to caress them.
I am also of the view that there is nothing sinister or inherently sexual in the use of the word “caress” in the paternal household to describe this conduct. According to the third edition of the Macquarie Concise Dictionary caress means “to touch or pat gently to show affection”.
The mother’s complaints to the Department about this issue which were regular and persistent demonstrate in my view an element of exaggeration. For example the mother alleged in at least one phone call that the paternal grandfather had previously been investigated for inappropriately touching his niece which is both a factually incorrect and a matter that she did not pursue in these proceedings.
It came to light in the final hearing that this allegation (which was also made in the context of family breakdown) was that the paternal grandfather had tickled his six year old niece causing her to wet her pants and the child’s mother felt this was inappropriate. The paternal grandfather understood that the child’s mother had made a complaint to police but he was not interviewed or investigated by police and no other action was taken. The paternal grandfather said once he was aware of the complaint he promised not to tickle the child again and did not do so. It is noted that when interviewed by the Family Consultant for the purposes of the Family Report in July 2017 the mother reported that the paternal grandfather “had a history of indecently assaulting a two year old girl” though she did not think that formal charges had been laid against him. (emphasis added)
In assessing the mother’s credit I make an adverse finding on the basis that the mother also contacted the Department informing them that she did not intend to comply with the court orders on the same day she consented to orders for the entire family to engage in family therapy and was legally represented. In other words she had no intention of complying with the orders she consented to on the day they were made.
The context and timing of events associated with the proceedings must also be considered. I attach weight to the fact that at around the same time as she made these complaints about the paternal grandparents the mother was proposing to the father that he pay for her rent on premises in the area near where her sister lived, which, it is noted, is not contemplated in any of the court orders. The mother says that as the father did not engage with this proposal she had no alternative other than to move with the children to the coastal town (despite a court having twice made orders restraining her from doing so).
For these reasons I do not accept that the mother genuinely was concerned about any risks of harm in the paternal household that could justify withholding the children from the father. In her determination to persist with her long held desire to move with the children she concocted an excuse to ground her withholding the children from their father (that they were not ‘safe’ in the father’s care) and thereby make it easier to change their residence.
The mother and children relocate – April 2017
Although the mother’s account of her relocation with the children in her affidavit is somewhat unclear there is no dispute that by the commencement of the second school term in 2017 she and the children were living in the home the maternal grandfather had purchased on the coast 200 kilometres from the family home and the children were enrolled in schools in that area.
Although the mother does not clearly address in any detail in her affidavit the reasons for doing so, there is no dispute that she continued to withhold the children from the father from his time with them after she had moved. The mother does depose generally to there being many occasions when “we were on the way to changeovers” and “the children were either physically unwell or upset”.
The mother then goes on to say that it was “not easy for her to abide by the orders” when the children either told her about alarming things that had happened at the paternal house or when the children reported that she had been spoken about in a disparaging manner in the paternal household. She then proceeds in her affidavit to describe an instance on an unidentified date when she collected the children after their time with the father. The mother deposes that the children were upset as extended members of the paternal family were said to have made insulting comments about her appearance and encouraged the children to make disparaging remarks about her. There is no indication in her affidavit as to when this event occurred and whether it was related to her refusal to make the children available to the father on any occasion.
The practical difficulty of the children spending time with their mother if orders are made that they live principally with their father is exacerbated by the mother’s determination to remain living in her new home rather than return to the Sydney area. When the proceedings began it was the mother’s position that if the children were to live with the father in the future she would live nearby. The father’s proposal continued to be that in the event that the mother did return to Sydney and the children were to live with him, they could spend more time with the mother than if she remains in her current location. This would also reduce the difficulty and expense involved in spending time with the mother in her current location.
On the second day of the final hearing however, the mother indicated through her counsel and later confirmed under cross-examination that if the children were to reside with the father in the future she would not move from her current location.
Capacity of each parent and any other person to provide for the children’s needs
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Up until separation the parents together and with some assistance from the paternal grandparents demonstrated that they were capable to meet all of the children’s needs and the children appear to have progressed well. The only exception is that the third child appeared to the Family Consultant to possibly have a developmental delay which the parents do not appear to have identified themselves. Further, although the Family Consultant recommended that this child be assessed by a paediatrician neither parent had taken any steps towards this occurring following release of that report a number of months ago. The parents had however been concerned about this child’s presentation and some aspects of his behaviour at school and had arranged for him to have some counselling in this regard.
Each parent and the grandparents demonstrated their capacity to meet the eldest child’s particular dietary needs associated with his coeliac condition.
Following separation some concerns about the mother’s capacity in my view have come to light. Her relocation to the south coast while the proceedings were pending involved another change in the children’s schools when they had already experienced significant change in their lives in the previous few months. The Family Consultant opined that this “may be an example of [the mother] prioritising her needs above the children’s needs to maintain their schooling and their relationships.”
It appears that the children may even have taken on board themselves the prioritisation of the mother’s needs over their own. The eldest child in particular was very conscious that the mother was happy living in her new location and expressed a willingness to move to another place if his mother wanted to move.
I also have some concerns about the mother’s determination to remain in the area in which she is now living even if the orders are made for the children to live with their father because she finds the prospect of being “forced to live in Sydney” as very stressful. In the mother’s opinion this stress may impact upon her parenting and if she were to remain where she is living she could provide better “quality time” with the children as opposed to greater time with the children at a diminished capacity. As previously noted the Family Consultant was of the view that the children may find this confusing and may prefer “quantity” over “quality” when it comes to time with their mother.
It is also apparent that the mother has been experiencing some difficulties in ensuring the children’s attendance at school since they have been in her sole care. All the children have experienced diminished performance at school since relocating with their mother and of particular concern is the attendance of the eldest child at school in 2017. At the time of the final hearing this child had been absent from school on 17 days and had 70 partial day absences on his record. When cross examined on this issue the mother appeared to be unaware of the eldest child’s record of attendance in 2017.
The Family Consultant expressed the view with which I agree that informing the elder child of his paternity seems to have been handled poorly. The mother maintains that she told the eldest child of his paternity because of something a more distant member of the paternal family had said to the child first which is denied by the father. Regardless of exactly why the mother told the child about his paternity in the aftermath of separation without support for the child or planning is in the opinion of the Family Consultant “unlikely to have been in his best interests” and the child “is likely to experience issues with trusting one or both of his parents [as a result]”.
In the paternal household the caring and parenting for the children appears to be carried out by the father and other members of his family. This pattern of shared caregiving is considered in relation to the parents’ cultural heritage to which I will return.
The Family Consultant expressed the view that it is important that the father does the majority of the care for the children while they are in his care. She noted that although the arrangements may have been that the extended paternal family shared the care of the children prior to separation it has now become a point of contention. The Family Consultant opined that this does not mean that the extended family cannot care for the children on occasion but the paternal grandparents should in her view not try to emulate a parenting role but adopt their appropriate role as grandparents where there is a parent available.
With the exception to which I have already referred regarding child support, the father has been a responsible parent to the eldest child and treated him in the same manner as the other children despite the lack of biological relationship.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
The father’s paternal grandparents migrated to Australia in the 1960s. The father deposes to their parenting style being based on the tradition of the whole village collaboratively raising children. The father says that this tradition has been carried on by the paternal family with his extended family being very close knit and often living together in the one household.
The children were raised in this cultural framework prior to separation and the father would like to return to following this tradition in the care of the children in his household. His evidence as to his cultural heritage and parenting practices was not challenged under cross examination.
The Family Consultant had a clear opinion that it would be preferable for the children to be primarily cared for by the father than his extended family because that issue is a point of conflict between the parents (rather than it being based on an opinion concerning their capacity).
The cultural traditions and heritage of the mother are unknown.
Family violence relating to the children or a member of the children’s family
Although the mother deposed to an incident in her affidavit of the father damaging property and throwing a glass in her direction many years ago, she did not pursue the position that the father had ever been physically violent towards her. Further, her only allegations of controlling conduct that may fall within the definition of family violence are related to financial control. It also appeared that the more serious allegations in this regard related to the paternal grandfather.
As discussed elsewhere in these Reasons it appears that the mother’s case in relation to allegations of financial control is put forth to provide context for her actions following separation. For the reasons given earlier I am of the view that even if her evidence were accepted as to this matter the financial control is not of the magnitude that would provide an excuse or justification for her not providing the children to spend time with their father and the paternal family.
In my view the allegations of financial control are also somewhat exaggerated and made in a similar vein to the other complaints made by the mother about the alleged risks of harm in the paternal household. For this reason I am not of the view that family violence is a weighty consideration in these proceedings.
No family violence orders have been sought or made in the proceedings.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In my view in light of the history of the proceedings it is more likely that further proceedings including contravention applications and applications for a recovery order would be instituted in the future if the orders are made as sought by the mother. She has a significant history of non-compliance with orders in relation to the father’s time which may continue especially where there is no longer the pressure of the final hearing and in circumstances where she and the children live a significant distance from the father.
The father has not failed to comply with orders in relation to returning the children to the mother’s care in the past and for this reason is unlikely to do so in the future.
This is a matter to which I attach some weight and which favours the father’s proposal.
Any other relevant fact or circumstance
Although I am not of the view that family violence is a significant matter of concern for this family, there seems no doubt that the children have been exposed to conflict at least for the past 12 months from the time of separation. The Family Consultant expressed the view that exposure to conflict, particularly when it is of an ongoing and chronic nature is harmful to children and can negatively affect their mental health, undermine the children’s relationship with one or both parents and can lead to the children becoming parentified. Exposure to conflict can also have a negative impact on the children’s own relationships with their peers and when they become older with future intimate partners and can also negatively affect their own ability to resolve conflict in their current and future relationships in a civil and pro social manner.
The Family Consultant is of the view that all of the children may benefit from counselling to assist them with anxiety/or coping with the parental separation and the impact of exposure to conflict on them. She recommended that the children attend a service or clinician with experience in providing counselling to children of high conflict, separated families and not be a person providing individual therapy to either party.
Under cross-examination the Family Consultant said that she thought it was important how the children were informed of the orders and any decisions that had been made by the adults in their lives, such as the mother’s decision to remain in her current location even if orders are made that the children live with their father.
The Family Consultant agreed that there were positive and negatives in relation to the children being informed that their mother had chosen to remain in her current location even if orders were made for the children to live with their father. She felt that the children knowing “some age appropriate truth about the situation” is likely to be in their best interests.
The Family Consultant expressed a willingness to play a role in explaining the orders to the children but stressed that care should be taken not only about how the children are informed of the orders but also with “any future conversations that are had with them by other adults in their lives after this is all finished”. The Family Consultant was of the firm opinion that the family and in particular the children ought to receive some family therapy.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[5] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[5] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The mother proposes that the parents equally share parental responsibility for the children and the father proposes that he have sole parental responsibility.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
As I am not of the view that there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in any abuse of the children or family violence the presumption that equal shared parental responsibility is in the best interests of the children applies unless it is rebutted by evidence which satisfies me to the contrary.
The mother’s record of significant failure to support the children having a meaningful relationship with their father, the steps taken by her to effectively shut the father out from participating in long term decision making regarding the children and the parents’ inability to communicate with one another or jointly make any decisions for the children following separation does not auger well for them equally sharing parental responsibility in the future.
However, although it is not clear that the mother has completely ceased undermining the children’s relationship with their father, she has complied with orders with respect to the children’s time with the father for five months and has not made any complaints concerning alleged ill treatment of the children in the paternal household during that period. There has also been a slight improvement in communication between the parents.
Ultimately having regard to each of these matters and in particular considering the Principles underlying the Act and the serious nature of any order which would remove a parent from all which is involved in the exercise of parental responsibility, I am not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them and accordingly the presumption is not rebutted.
As an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in their best interests, and whether such an order is reasonably practicable.
Neither parent proposes that the children spend equal time with each of the parents so they can be taken to agree that such an arrangement would not be in the children’s best interests or be reasonably practicable. As indicated at the completion of the final hearing the mother was clear that she would not return to live in Sydney regardless of the orders with respect to the children’s residence. Accordingly, such an order is not reasonably practicable.
I am then required consider under s 65DAA(2) whether the child spending substantial and significant time with each of the parents would be in their best interests and reasonably practicable.
Subsection 65DAA(3) sets out that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with a parent includes both days that fall on weekends and holidays and days not falling on weekends and holidays, and allows the parent to be involved in the child’s daily routine and occasions and events of particular significant to the child and/or the parent.
I am of the view that it is in the children’s best interests for them to spend substantial and significant time with each of the parents having regard to the nature of the children’s relationships and the pattern of parental caregiving to date. Further, if the parents are to live in close enough proximity to one another that such an arrangement could be practically implemented this would in my view significantly reduce the capacity of the mother to undermine the father’s relationship with the children and successfully withhold them from him.
However, there has never been a proposal under consideration for the father to reside in the same area as the mother on the coast and there is no evidence to suggest it is practicable for him to do so. The mother has also made the position clear that she will not move to Sydney even if she could spend substantial and significant time with the children. In these circumstances an order which provides for the children to spend substantial and significant time with both parents is not reasonably practicable.
Conclusion
I have regard to all of the matters in relation to the best interests of the children and attach particular weight to the benefit to the children in having a meaningful relationship with both parents which in my view is much more likely if orders are made as proposed by the father.
Although the views of the children and the likely effect of change may be seen to favour the mother’s orders I do not attach significant weight to the former matter for the reasons given.
I also attach weight to the nature of the children’s relationships, the capacity of each of the parents and the attitude to the children and responsibility of parenthood demonstrated by each parent.
I am of the view having regard to these matters and attaching additional weight to the practical difficulty and significant expense involved in spending time with and communicating with the other parent under each parent’s proposal that it is in the best interests of the children for the mother to return to reside in Sydney. The mother has however made her position clear in relation to that matter.
In all of the circumstances attaching due weight to all of the “best interests” matters I am of the view that the orders proposed by the ICL are in the best interests of the children with some slight adjustments related to practicability. I also consider it in the best interests of the children to make an order in relation to family therapy not sought by any party. Accordingly I make the orders as set out at the forefront of these reasons for Judgment.
I certify that the preceding three hundred and twenty-four (324) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 December 2017.
Legal Associate
Date: 14 December 2017
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