Galbraith and Anor and Wells
[2016] FCCA 1066
•6 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALBRAITH & ANOR & WELLS | [2016] FCCA 1066 |
| Catchwords: FAMILY LAW – Parenting – application by the maternal aunt and uncle for orders that children live with them – children have lived with the maternal aunt since mother’s death – consideration of s.60CC(2) of the Family Law Act – consideration of s.60CC(3) of the Family Law Act – consideration of necessity for a consistent arrangement for the children’s long-term care – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2), 60CC(3), 69ZT |
| Cases cited: Re F: Litigants in Person Guidelines [2001] FamCA 348 |
| First Applicant: | MS GALBRAITH |
| Second Applicant: | MR GALBRAITH |
| Respondent: | MR WELLS |
| File Number: | MLC 5167 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing dates: | 1-2 February 2016 |
| Date of Last Submission: | 2 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2016 |
REPRESENTATION
| Counsel for the Applicants: | Ms R Wheeler |
| Solicitors for the Applicants: | Cahill & Rowe Family Law |
| The Respondent appeared in person |
ORDERS
That all previous Orders be discharged.
That the parties have equal shared parental responsibility for the children X and Y both born (omitted) 2011 (“the children”).
That the children live with the applicants MS GALBRAITH and MR GALBRAITH (“the applicants”).
That the children spend time and communicate with MR WELLS (“the father”) as follows:
(a)face to face each alternate weekend in 2016 from 4.30 p.m. on Friday until 4.30 p.m. on Sunday, with changeover as per Order 5 herein; and
(b)in 2017, from after school on Friday until 4.30 p.m. on Sunday with the father to collect the children from the (omitted) Primary School on the Friday and changeover on Sunday as per Order 5 herein;
(c)otherwise by telephone each Wednesday between 6.00 p.m. and 6.30 p.m with the applicants to make the children available for such contact;
(d)for Christmas each year:
(i)
from 12.00 noon on 21 December to 12.00 noon on
23 December;
(ii)for two extra days following the father’s usual weekend time pursuant to Order 4(a) herein that falls on the first weekend of January each year, concluding at 12.00 noon on the Tuesday; and
(iii)otherwise the children shall be with the applicants.
(e)as otherwise agreed in writing.
That for the purposes of the father’s time with the children pursuant to these Orders, changeover shall take place at the (omitted) Service Centre at (omitted) (omitted)of the (omitted).
That the applicants be at liberty to communicate with the children by telephone between the hours of 6.00 p.m. and 6.30 p.m. on Saturday when the father is spending time with the children during his usual weekend and for one night during and any other time the father is spending time with the children with the father to make the children available for such contact.
That the party/s with whom the children are living or spending time, immediately advise the other party/s of any health issues concerning the children that require medical treatment.
That each of the parties keep the other advised of the children’s current general medical practitioner’s name, address and telephone number and each party be able to obtain from the said practitioner all medical information regarding prognosis and treatment for the children that would normally be provided to a parent or custodian of the children at their own expense.
That, in writing, the parties keep each other informed of their current address and contact telephone number/s with any change in those details to be provided to the other party not later than one month prior to any proposed change of address and not later than 14 days prior to any change of contact telephone number/s.
That the parties be hereby restrained from making any denigrating or derogatory statements about the other party or parties to or in the presence of or within the hearing of the children.
That the father be and is hereby restrained from applying for or obtaining a passport for the children without an order of the Court or the consent of the applicants.
That each of the parties be entitled to:
(a)Contact the children’s school and request all school notices, reports, newsletters and photographs from the child’s school at his/their request and expense; and
(b)Attend all school functions to which parents are invited, including but not limited to information nights, parent teacher interviews, sports days, school plays, curriculum presentations and excursions and any extracurricular activities.
That the father:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program (“the Program”);
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program; and
(c)pay and otherwise be responsible for all costs associated with the Program.
IT IS NOTED that publication of this judgment under the pseudonym Galbraith & Anor & Wells is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5167 of 2014
| MS GALBRAITH |
First Applicant
| MR GALBRAITH |
Second Applicant
And
| MR WELLS |
Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding was commenced on 14 May 2014 in circumstances of urgency following the sudden death of Ms E (“the mother”) on (omitted) 2014. At the date of the mother’s death she was separated from her husband Mr Wells (“the father”) with whom they had twin girls Y and X born (omitted) 2011 (“the twins”).
The mother’s sister, Ms Galbraith (“the first applicant”), and brother-in-law, Mr Galbraith (“the second applicant”) (collectively “the applicants”), the applicants in this proceeding, obtained urgent parenting orders and other relief in May 2014 in relation to the twins immediately following the mother’s death. The twins have lived with the applicants ever since. Between May and the date of the trial of this proceeding the father has spent time with the twins, initially supervised and later unsupervised.
Prior to the mother’s death, the father relocated to Western Australia to pursue work opportunities. Since mid-2012 or thereabouts, the father’s involvement in the lives of the twins has been limited.
In this proceeding, the applicants sought orders that the parenting responsibilities for the twins be shared equally between them and the father and that the twins continue to live with the applicants. The father sought orders that he and the applicants have equal shared parental responsibility and that the twins live with the father.
Synopsis
For the reasons that follow, in my judgment the twins should continue to live with the applicants and the time they spend with the father should increase in accordance with the recommendations of the family report writer, Dr J (“Dr J”).
Factual background
The father was born in (omitted) 1965. At the date of the trial of this proceeding he was 50 years of age.
The mother was born in (omitted) 1969.
The first applicant (the twins’ maternal aunt) was born in (omitted) 1966, being 49 years of age at the trial of this proceeding. The second applicant (the husband of the first applicant) was 42 years of age when this proceeding was tried.
The applicants’ son A, aged eight or thereabouts, lives with his parents and with the twins in the (omitted) region while the father lives in (omitted), a two-hour drive between the two locations, traffic being favourable.
Before addressing the threshold in issue in this case, namely, with whom the twins should live, it is important to set in context certain aspects of the trial of this proceeding.
First, the father was not represented during the trial. He was given by me the detailed explanation a trial judge is required to give to an unrepresented litigant in accordance with the guidelines pronounced by the Full Court of the Family Court of Australia in Re F: Litigants in Person Guidelines (“Re F”).[1]The father conducted his case in a creditable manner having regard to the fact that he was not legally represented.
[1] [2001] FamCA 348 at [253].
Second, as this was a parenting matter, the provisions of s.69ZT of the Family Law Act 1975 (Cth) (“the Act”) applied with the consequence that many of the strictures ordinarily accompanying the application of the rules of evidence were relaxed. That factor, combined with the father’s status as litigant in person, led me to give the father a degree of latitude in his conduct of his case thereby levelling the playing field, as that phrase was used in Re F.[2]
[2] [2001] FamCA 348.
The first applicant filed affidavits in this proceeding and gave viva voce evidence. She was an (occupation omitted). Her husband worked for a time as a (occupation omitted) then later in (occupation omitted). The applicants had been married nearly 15 years at the date of the trial of this proceeding.
The second applicant also filed affidavit material and gave evidence, as did the father. A large amount of evidence in this case was not disputed.
Dr J provided two reports, the first dated 29 September 2014[3] and the second dated 21 January 2016,[4] the latter report having been written a few weeks only prior to the trial of this proceeding.
[3] Affidavit of Dr J affirmed 30 October 2014 at Annexure J-1.
[4] Affidavit of Dr J affirmed 29 January 2016 at Annexure J-1.
Following orders made in November 2014,[5] the twins have lived and continued to live with the applicants and with the applicants’ son A. The twins have spent time with the father each alternative weekend from 4.00 p.m. on Friday until 4.00 pm. on Sunday. The father has collected the twins on Fridays from their day care in (omitted) and the applicants have collected the twins from (omitted) on Sundays at the end of their time spent with the father. Those arrangements, in so far as they have involved the delivery of the twins between two locations, have worked satisfactorily.
[5] Interim Orders of her Honour Judge Whelan dated 5 November 2014.
Regular contact between the twins and the father has and remains problematic. Dr J addressed that issue in her first report.[6] In the passages below I canvass the evidence in relation to ongoing contact between the twins the father.
[6] Affidavit of Dr J affirmed 30 October 2014 at Annexure J-1.
At the date of the trial, the father worked with a (employer omitted). In his viva voce evidence the father stated that he was paid weekly and that his average weekly earnings were between $800.00 to $1,000.00, usually equating to $27.00 per hour. He said that on occasions he was required to start work at 3.00 a.m.
From April 2013 or thereabouts, the father was in a relationship with Ms K. That relationship ended in January 2015.
After the mother and father separated, the mother formed a relationship with Mr G (“Mr G”). The applicants maintained contact with Mr G and according to Dr J’s second report,[7] the twins have been and continued to be in regular contact with Mr G.
[7] Affidavit of Dr J affirmed 29 January 2016 at Annexure J-1.
The twins refer to the applicants as ‘mummy’ and ‘daddy’ and to the father as ‘dad’. Dr J reported that the twins have called the mother “mummy in heaven” to distinguish her from the first applicant known to the twins as “mummy”.[8]
[8] Affidavit of Dr J affirmed 29 January 2016, Annexure J-1 at pp.3-4.
With that brief overview, it is necessary to turn to factual issues going to the strength of the bond between the twins and the applicants. Those issues will then be contrasted with the strength of the bond between the twins and the father. An examination of those issues necessarily involves an assessment of the direct evidence of the applicant on the one hand and of the evidence of the father on the other, when measured against the evidence of Dr J.
The strength of the bond between the twins and the applicants
No dispute arose about the parenting skills of the applicants. In
cross-examination the father enthusiastically agreed that the applicants have done a “fantastic job”[9] raising the twins. In her second report, Dr J, at page 4 and following, referred to the fondness (her words) exhibited by the applicants towards the twins. It was said, and the father did not challenge the evidence, that the applicant’s son A referred to the twins as his “little sisters”.[10]
[9] Transcript of proceedings, 2 February 2016 at p.21.
[10] Affidavit of Dr J, affirmed 29 January 2016, Annexure J-1 at p.4.
The first applicant’s mother, that is to say, the maternal grandmother of the twins, assisted in raising the twins.
The first applicant gave evidence that she does not speak to the father anymore because “communication got very difficult”.[11] While no evidence existed of overt hostilities between the applicants and the father, it is a fair distillation of the evidence of the first applicant that the two did not speak.
[11] Transcript of proceedings, 1 February 2016 at p.41.
The first applicant narrated the weekly routine adopted by the twins in considerable detail. She said in evidence that either she or her own mother took the twins to kindergarten or child care between Mondays and Fridays.[12] Dr J observed in her second report that the applicants love the twins and that each expressed pride in the fact that the twins were well adjusted having “dramatically moved through their development”.[13]
[12] Transcript of proceedings, 1 February 2016 at p.30.
[13] Affidavit of Dr J, affirmed 29 January 2016, Annexure J-1 at p.4.
To Dr J, the applicants emphasised their belief that the twins were particularly in need of a secure home environment after their experiences through the death of their mother.
Dr J reported that following her discussions with Mr G, Mr G described the twins as “adventurous and energetic”.[14]
[14] Affidavit of Dr J, affirmed 29 January 2016, Annexure J-1 at p.10.
There can be no doubt that the applicants behaved in a truly exemplary way towards the twins immediately following the untimely death of the mother. They have continued to behave in that way to this day. They provide physical and emotional support for the twins throughout, they provide a safe, loving and nurturing environment in which the twins have grown, they provide a balanced normal home life including one in which a brotherly figure is present, they are truly and deeply concerned for the welfare of the twins and they are appropriately protective towards two very young girls.
I was very impressed by them as putative parents, by them as witnesses generally and by the role they have occupied in the lives of the twins. Self-evidently, the twins are flourishing in their care.
The strength of the bond between the twins and the father
Lamentably, the same cannot be said of the relationship presently evident between the twins and the father.
Before going to the detail, let me first observe that the father impressed me as an honest witness. He made appropriate concessions to propositions put to him by Ms Wheeler, counsel for the applicants, yet he disagreed with other propositions put to him by Ms Wheeler. For an unrepresented litigant, the father conducted this case admirably.
Chronologically, it will be recalled that the father relocated to Western Australia for work in April 2012. The twins were slightly more than six months old at the time. The father and the mother separated in July 2012. After relocating to Perth, for a period of six months the father did not see the twins.[15] After the expiration of that six-month period, the father had contact with the twins on six occasions over the ensuing two years.[16] Upon learning of the mother’s death, the father returned to the state of Victoria[17] and told the second applicant that he “was coming back to take custody of the girls”.[18]
[15] Transcript of proceedings, 2 February 2016 at p.17.
[16] Ibid.
[17] Transcript of proceedings, 2 February 2016 at p.18.
[18] Transcript of proceedings, 2 February 2016 at p.19.
By May 2014, the father’s then partner Ms K first met the twins at a time when the father lived in (omitted) and the applicants lived in (omitted).[19]
[19] Transcript of proceedings, 2 February 2016 at p.20.
The father’s personal history told of real hardship. The father’s own father was abusive and violent towards the twins’ father. The father’s stepmother stabbed the father. The father’s mother was a victim of abuse at the hands of the father’s natural father. At age 13, the father was placed in juvenile detention for two years, subsequently leading to a period of homelessness and thereafter a period when the father was a male prostitute. He was educated to year eight. He was a ward of the state.[20]
[20] Transcript of proceedings, 2 February 2016 at p.26.
Ms Wheeler put to the father, and he agreed, that his childhood was horrific.[21]
[21] Ibid.
Whether the father’s horrific childhood had any bearing on his present parenting skills was the subject of adverse comment by Dr J. Dr J said in her second report[22] that the father had “some unusual personality features”.[23] She said he showed an “astounding lack of child focus that suggested he [was] more concerned with his own perceived slights”[24] from the applicants. Dr J said the father struggled to understand the needs of the twins. She said in the father’s discussions with her, the father exposed “the deficits in his parenting capacity”.[25] She said that her previous opinion of the father as being someone who had good intentions towards the children was in doubt and she wondered at the father’s commitment to the relationship with the twins. Dr J was concerned about the father’s lack of child focus.
[22] Affidavit of Dr J affirmed 29 January 2016 at Annexure J-1.
[23] Affidavit of Dr J affirmed 29 January 2016 at Annexure J-1 at p.15.
[24] Ibid.
[25] Ibid.
Dr J assessed the twins and indicated that they were in the lower range of development for their age.
Dr J stated that it was clear from her observations that the twins felt “comfortable, happy and contained”[26] with the applicants. She said that their behaviour with the father indicated confidence in him and also revealed an expectation that he would provide boundaries. Dr J said their behaviour with the father “was uncontrolled and poorly organised”.[27] She said the father found it difficult to impose any boundaries or manage both children together which sometimes left them at risk. Dr J wondered what risks the children might face in a natural and more unstructured environment than that in which she observed the twins.
[26] Ibid.
[27] Ibid.
Dr J said that the father’s indications to the children about their moving to live with him was “likely to be the prime factor in unsettling them”.[28]
[28] Affidavit of Dr J affirmed 29 January 2016 at Annexure J-1 at p.16.
Dr J said that the father was kind and patient but that he showed difficulty “imposing boundaries on managing the children”[29] and children in those circumstances often showed “increased symptoms of insecurity and discomfort because the world becomes an unpredictable place where the adults present do not impose order”[30] nor invoke a sense of containment.
[29] Ibid.
[30] Ibid.
Importantly, Dr J said the children had already suffered some significant interruptions in their attachment relationships consequent upon the sudden death of their mother and all the associated changes that occurred during that time for them. She said the relationship with the applicants appeared to have been their most important attachment. Dr J said that while the children may have some affection for their father, Dr J entertained concerns about his care for them.
Dr J said that if the children were to be moved to live with the father, psychological information suggested that they would “suffer significant and dire adjustment problems”[31] due to severing a further primary attachment relationship. She said the prognosis for their future psychological health suggested that they were “likely to manifest significant problems with the development of their self-identity with the risk of significant developing short and long-term psychopathology”.[32]
[31] Ibid.
[32] Ibid.
Dr J recommended that the twins remained living with their aunt and uncle. Dr J made a tentative recommendation that the twins continue to spend alternative weekends with the father. She said the children were likely to benefit from the father “completing a basic parenting course such as the triple P program”.[33]
[33] Ibid.
In his evidence the father told me that he objected to the twins referring to the applicants as if the applicants were the parents of the twins. Dr J said that while it was not ideal for the children to call the applicants ‘Mum’ and ‘Dad’, it seemed to be a pragmatic outcome and the twins did not appear confused about their relationship with the applicants. She said that permitting the twins to use those names allowed the twins to feel settled and an integral part of the applicants’ family.
In his evidence before me, the father spoke of problems associated with telephone communications with the twins while they were in the company of the applicants. Dr J said that the telephone calls had not had the desired outcome of improving the relationship between the twins and their father but have become the focus of attention and dissention. Dr J suggested a better option for the children would be for the scheduling of a telephone call once or twice a week.
In his evidence before me, the father was asked what he cooked for the children when they were in his care. He said that he cooked for the children as he cooked for himself and that they ate the same as he ate including spaghetti bolognese and sausages and vegetables. While the point was not pressed by Ms Wheeler, it struck me that the father did not have a developed appreciation of the dietary needs for children. In a frank yet disarming admission, the father said he was not the best parent in the world but that he did the best he could and that he accepted that doing his best may not be good enough. He recognised that he had never been forced to get the children to school or to kindergarten or to childminding facilities. It concerned me that the father’s work day, on occasions, commenced in the very early hours of the day. The practical reality of his inability to get the children to school became patently obvious to me.
I recognise that the father has expressed a genuine love for his daughters and that he genuinely wants to develop and build a substantial foundation for a proper relationship between the three of them. However, to my mind there is real force in the observations of Dr J that the father does not presently have the necessary parenting skills to enable him to advance the best interests of the children. On the other hand, the applicants do. They have done so since the mother’s death. Nothing suggests they will not continue to do so as they have an abiding and unconstrained sense of deep commitment for the twins and their development and their ongoing welfare.
In addition, the observations of Dr J about the risk of dire consequences if alterations are made to the living arrangements for the children have resonated loudly with me, especially the risk of psychopathology.
In those circumstances, to my mind the evidence overwhelmingly balances in favour of the twins remaining with the applicants and for the father to spend time with the twins in accordance with a structured regime. Put differently, I refuse the father’s application for orders that the twins live with him. In my judgment, he simply does not have the skills to advance their best interests.
Precise stipulations of the Act require me to expressly consider certain factors set out in s.60CC of the Act. In the passages below I address each such stipulation.
The best interests of the twins – s.60CC of the Act
In determining what is in the best interests of the twins, I am required to consider the matters in ss.60CC(2) and 60CC(3) of the Act.
Section 60CC(2) of the Act has two components to it. Both are called “primary considerations”. The first primary consideration is the benefit to the twins having a meaningful relationship with the applicants and with the father.[34] The second primary consideration is the need to protect the twins from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence.[35] Neither the applicants nor the father contended the second of the two primary considerations applied.
[34] Family Law Act 1975 (Cth), s.60CC(2)(a).
[35] Family Law Act 1975 (Cth), s.60CC(2)(b).
So far as the first of the two primary considerations was concerned, that is to say, the benefit of the twins having a meaningful relationship with the applicants and father, I have set out above the manner in which they currently enjoy a meaningful relationship with the twins.
The Act requires me to take into account the very many elements set out in s.60CC(3) of the Act. They are called “additional considerations”, that is to say, they are additional to the two primary considerations recorded in s.60CC(2) of the Act. Section 60CC(1) of the Act is expressed in mandatory terms (by the use of the word “must”) requiring the primary considerations in s.60CC(2) to be taken into account along with the additional considerations in s.60CC(3) of the Act.
Any views expressed by the child – s.60CC(3)(a)
The twins are of an age that the views they expressed to Dr J must be taken to carry little probative value. For that reason no doubt, Dr J expressed hesitance in placing weight on those views having regard to the age and level of maturity of the twins as at the date of the second interview.
The nature of the relationship of the twins with the applicants, the father and other relatives – s.60CC(3)(b)
To a large degree the matters that this sub-section of the Act requires me to consider have been addressed above. Importantly, the twins enjoy a very favourable relationship with the applicants, the first applicant’s mother and even with Mr G. Each of those persons has demonstrated a commitment to the welfare of the twins the depth of which I do not presume to gainsay.
Conversely, as Dr J reported, the father is at the early stages of attempting to establish, in his own way, a worthwhile relationship with the twins. At present, that has been a relatively embryonic activity and one that has encountered early teething problems. In many ways that is to be expected in view of the fact that for a portion of their lives, the twins had little exposure to the father whereas the applicants had
day-to-day ongoing constant and detailed involvement with the twins. I make no criticism of the father in saying that. However, it must be acknowledged (as the father appeared to do in the trial before me) that the father must henceforth devote a significant amount of time, care and application to not only forging but successfully forging strong bonds with the twins. The applicants have already undertaken that task, successfully, the result of which being presently evident by the twins enjoining a happy, harmonious and loving home life in the home of the applicants with their son A.
The extent to which each of the applicants and father has taken or failed to take certain opportunities – s.60CC(3)(c)
Understandably, the father is keen to take advantage of an opportunity presently available to him to have a meaningful relationship with his children. Sadly, for the first two and a half years of their lives, that was not the case. The applicant pursued work opportunities interstate and had little involvement with the lives of the twins for the first two and a half years of their lives. In making those observations I make no criticism of the father for pursuing work opportunities interstate. However, in making that choice of necessity the father parted company with and thereby left in the state of Victoria his twin daughters. The “opportunities” to which this sub-section of the Act is directed includes the opportunity for a parent to enjoy or be involved in a full and meaningful relationship with one’s children. For almost two and a half years the father missed that opportunity. That is a factor that must be included in the matrix of factors which this section of the Act requires me to consider.
The extent to which each of the applicants and the father has fulfilled or failed to fulfil maintenance obligations – s.60CC(3)(ca)
In cross-examination Ms Wheeler obtained an admission from the father that the father contributed next to nothing in the form of maintenance towards the children. Conversely, every single outgoing referable to the children and their welfare, including maintenance, has been met by the applicants.
The likely effect of any changes in the twins’ circumstances from separation from either the applicants or the father or any child with whom the child has been living – s.60CC(3)(d)
Dr J described the likely effect on the twins if their current living arrangements were altered as being “dire”.[36] To my mind, that conclusion corresponded with common sense as well as good psychology. For the whole of their lives the twins have lived with the applicants and their son A. The twins refer to the applicants in the way a child would refer to his or her natural parents. The twins referred to the applicants’ son A as their brother. Understandably, deep bonds have been formed between the twins and their putative parents.
[36] Affidavit of Dr J affirmed 29 January 2016, Annexure J-1 at p.16.
Dr J was critical of the fact that the father demonstrated poor parenting skills. She recommended that the father attend a parenting course. While the children were in the father’s care during Dr J’s assessment of the interaction between the three, Dr J observed a chaotic approach to parenting exhibited by the father. The likely effect on the twins of orders altering the existing living arrangements so that the father had day-to-day care of the twins is, to use Dr J’s expression, dire.
I will not make any such order nor countenance one being made.
The practical difficulty and expense of the twins spending time with and communicating with the father and whether that difficulty or expense will substantially affect their right to maintain personal relations and direct contact with both the father and the applicants on a regular basis – s.60CC(3)(e)
The evidence revealed that the father currently lives in (omitted) whereas the twins, with the applicants, currently live in the (omitted) region. True, a substantial drive is involved commuting between those two places. In and of itself, the magnitude of any such commuting is not determinative of the outcome of the application in this case. The inconvenience in travelling between (omitted) and the (omitted) region will be mutual as between the father and the applicants in that the father will endure that drive in order to collect the twins each Friday whereas the applicants will endure that drive to collect the twins each Sunday.
The capacity of the father and the applicants and any other person (including grandparents or other relatives) to provide for the needs of the twins including emotional and intellectual needs – s.60CC(3)(f)
On behalf of the applicants Ms Wheeler submitted that the father lacked the insight to provide for the needs of the twins on an emotional and intellectual level. When properly understood, Dr J’s second report is to like effect. That submission does not overstate the position, in my judgment.
The reference in this sub-section of the Act to “any other person” providing emotional and intellectual support to the twins incorporates, in the case of the applicants, the first applicant’s mother, A and Mr G, all of whom have demonstrated a significant commitment to the welfare of the twins. Conversely, sadly, the father was unable to point to a network of persons capable of providing for the emotional and intellectual needs of the twins. The father’s relationship with Ms K came to an end prior to the trial of this proceeding. No evidence was adduced that father’s current living arrangements in a shared house with others remotely approximated satisfying the issues contemplated by this sub-section of the Act. While the father correctly denied a proposition put to him in cross-examination that he had participated in several relationships after the death of the mother, no evidence was led of the identity and capacity of any person or persons capable of providing for the emotional and intellectual needs of the twins as they grow older.
To my mind, the applicants are best placed with the extended network that they possess to provide for the emotional and intellectual needs of the twins as they grow up.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the twins and of either of the father and the applicants, and any other characteristics of the twins that the court thinks are relevant –s.60CC(3)(g)
This sub-section invites an examination of the lifestyles of the father and of the applicants and an assessment of each.
Both of the applicants work, their occupations involve predictability and certainty. To the extent that they may not be present on an as-needs basis to address the requirements of the twins (educationally and while in care, in particular), the first applicant’s mother has historically occupied that role. With their son A, the applicants present as a normal, balanced, well-adjusted loving family unit in which the twins presently live.
The same cannot be said for the father. Presently, he lives in rented accommodation in a shared house the number of occupants of which fluctuates. In relatively recent times he has formed a new relationship with a new partner. His hours of work fluctuate, including sometimes at least, very early morning starts. The father did not present as a man of means or substance. Common human experience tells that as the twins grow, satisfaction of their needs or wishes, to be met out of discretionary spending, will place a burden on the resources of the father no matter how well-intentioned he presently is. I accept that the father is a hard-working man who genuinely wants to provide the very best for his twin daughters. Equally, I recognise that his capacity to do so is likely to be stretched.
Having considered the matters to which this sub-section of the Act are directed it seems to me that the applicants, rather than the father, satisfy the necessary criteria.
Whether the child is an Aboriginal child or a Torres Strait Islander child– s.60CC(3)(h)
It is not necessary to address this consideration in the circumstances of this case.
The attitude to the twins, and to the responsibilities of parenthood, demonstrated by the applicants and the father – s.60CC(3)(i)
As is canvassed above, the father demonstrated a limited appreciation for the responsibilities of parenthood. That was the genesis of Dr J’s recommendation that the father attend a parenting course. Dr J appeared satisfied that the father had a limited understanding of best practices when it came to parenting. She made no such observation in relation to the parenting skills of the applicants.
So far as the twins’ attitude was concerned as to the parenting skills demonstrated by the father on the one hand and by the applicants on the other, Dr J observed that while in the care of the father the twins behaved in an unstructured borderline chaotic manner. She made no comparable observations when the twins were in the care of the applicants.
It cannot be denied that the twins exhibited love for their father as well as for the applicants. That alone is not determinative for the purposes of this section of the Act, however.
The attitude of the twins, as manifested by their behaviour, was very different when in the care of the applicants as opposed to their behaviour when in the care of the father. A fair reading of Dr J’s evidence provided comprehensive support for a conclusion that the applicants demonstrated a more positive attitude towards responsibilities of parenthood and that the twins exhibited a positive attitude to those manifestations of parental responsibilities as displayed by the applicants. The same cannot be said for the father.
Any family violence – ss.60CC(3)(j) and (k)
In her final submissions, Ms Wheeler pointed to evidence that a final intervention order in favour of the mother and the twins was granted on 1 October 2012 for a period of 12 months, the order being directed to the father. I have taken that matter into account despite the fact that the events to which it related were more than three years ago soon after the separation between the mother and the father and shortly after the father relocated to Perth. It is fair to say that any such intervention order did not feature prominently in Ms Wheeler’s cross-examination of the father, which to give weight to this submission, one would have expected would have been the case.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation of the twins – s.60CC(3)(l)
Self-evidently, it would be beneficial for the applicants and the father to not be involved in further litigation between them in respect of the twins. That said, whether or not the father and the applicants engage in further litigation is beyond me at the present time. An end to hostilities between the father and the applicants is obviously desirable in the interests of the twins. However, only the father and the applicants can control that matter.
Any other fact or circumstance the court thinks is relevant – s.60CC(3)(m)
Neither the father nor the applicants urged upon me any other fact or matter beyond the foregoing.
Parting observation
In her opening Ms Wheeler described this as a “sad case”.[37] There is a degree of truth in that submission. From the little described above, it is readily apparent that the father has had a hard life. No doubt the orders made in this case inflict yet further hardship upon him. But the legislation that binds me calls for orders to be made, in circumstances where the conflict that manifests itself in this case are present, that are in the best interests of the children. The interests of parents or persons in the shoes of parents as are the applicants in this case, are subordinated to the best interests of the children. First and foremost I am required to prefer the interests of the children above all else. I have done that in this case.
[37] Transcript of proceedings, 1 February 2016 at p.10.
For the reasons stated above I make orders in accordance with the minute accompanying Ms Wheeler’s outline and handed to me on the first day of the trial of this proceeding.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 6 May 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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