Garvie and Anor and Garvie and Anor
[2008] FamCA 524
•2 April 2008
FAMILY COURT OF AUSTRALIA
| GARVIE AND ANOR & GARVIE AND ANOR | [2008] FamCA 524 |
| FAMILY LAW – CHILDREN – with whom a child should spend time – application by paternal grandmother and partner for shared parental responsibility for the children in relation to the children’s education – respondents are children’s parents – respondents have had a relationship marked by abuse and numerous separations – applicants have played a significant role in assisting the wife and children - respondents now reconciled – dispute over amount of time the applicants spend with the children – children unwilling to spend significant time with the applicants –whether children should be split when spending time with the applicants – whether there should be an injunction restraining respondents from altering children’s school. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC |
| 1st APPLICANT: | Ms Garvie |
| 2nd APPLICANT: | Ms Champion |
| 1st RESPONDENT: | Mr Garvie |
| 2nd RESPONDENT: | Ms Milton |
| INDEPENDENT CHILDREN’S LAWYER: | Michelle Giacomo |
| FILE NUMBER: | DNF | 32 | of | 2004 |
| DATE DELIVERED: | 22 APRIL 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 12, 13, 14 & 17 MARCH 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Ms Farmer |
| SOLICTOR FOR THE APPLICANTS: | Withnalls |
| COUNSEL FOR THE RESPONDENTS: | Ms Holtham |
| SOLICTOR FOR THE RESPONDENTS: | David Charles Story |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Giacomo |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ward Keller |
ORDERS
That save and except for paragraphs 4 to 28 inclusive of the Orders made on 17 March 2008, all previous Orders be and the same are hereby discharged.
That the Applicants spend time with the children M born … August 1996 and N born … March 1998 from 10.00 am until 5.00 pm on a Saturday as follows:-
(a)in week 1, with M, commencing on Saturday 26 April 2008 and each ninth week thereafter;
(b)in week 4, with N, commencing on Saturday 17 May 2008 and each ninth week thereafter;
(c)in week 7, with both M and N, commencing on Saturday 7 June 2008 and each ninth week thereafter
with the applicant Ms Champion to facilitate the transport of the said children to and from the home of the respondents unless otherwise agreed between the respondent mother and the applicant Ms Champion.
That copies of the reports of Mr V dated 20 July 2004, 28 May 2007 and 29 February 2008 be forthwith provided to the children’s counsellor Ms L.
That all applications be removed from the pending list.
IT IS NOTED that publication of this judgment under the pseudonym Garvie and Anor & Garvie and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNF 32 of 2004
| MS GARVIE AND MS CHAMPION |
Applicants
And
| MR GARVIE AND MS MILTON |
Respondents
REASONS FOR JUDGMENT
The applications
The respondents are the parents of the children M, a daughter, born in August 1996 and N, a son, born in March 1998. M is thus 11 ½ years of age and N 10 years of age. The mother also has a son C who was born of a previous relationship and who will be 18 years of age in May 2008. C ordinarily resides with the respondents and with the subject children.
The applicants are respectively the paternal grandmother and her partner.
At the commencement of the trial proceedings before me various orders were being sought by the applicants in relation to the children but specifically as to the spending of regular time with them and whether they ought to have shared parental responsibility for the children, specifically to cover issues related to the children’s education.
As a consequence of some preliminary intimations I gave to the parties at the conclusion of the evidence but before addresses, the issues remaining for my determination have become significantly reduced. On 17 March 2008 I made some Orders to abide the delivery of my final reasons and a large number of consent Orders. The totality of the Orders was in the following terms:-
“IT IS ORDERED, PENDING FINAL RESOLUTION OF THESE PROCEEDINGS, THAT:-
1.Paragraph 6 of the Orders made herein on 7 December 2007 be discharged.
2.The Applicants spend time with the children [N] born […] March 1998 and [M] born […] August 1996 from 9.00 am until 5.00 pm each third Saturday, commencing on Saturday 29 March 2008.
3.Judgment in relation to the trial of these proceedings is reserved to a date to be fixed.
AND BY CONSENT, IT IS FURTHER ORDERED THAT:-
4. The Respondents have equal shared parental responsibility for the children [N and M].
5. [The children] live with the Respondents.
6. The children [N and M] spend such other time with the Applicants as may be agreed from time to time.
7. The children [N and M] communicate with the Applicants each Wednesday between 5.30 pm and 6.00 pm and if for some reason the children are unavailable, then alternative arrangements for telephone communication will be made between the respondent [mother] and the applicant [grandmother’s partner Ms Champion].
8. In order to facilitate paragraphs 2, 6 and 7 of these Orders:-
(a)the applicant [grandmother’s partner] will facilitate the transport of the said children to and from the home of the respondents unless otherwise agreed between the respondent [mother] and the applicant [grandmother’s partner].
(b)for the purposes of telephone communication:-
(i)each parent will do all acts and things to facilitate regular telephone communication between the children [N and M] and the Applicants and will ensure that the said children have privacy during such telephone communication;
(ii)the Applicants are to telephone the Respondents’ landline (or other agreed telephone number) to speak with the said children.
9. The respondent father […] is to continue his drug and alcohol counselling at [Y Centre] for such a time as his counsellor deems necessary.
10. Once the respondent father […] has concluded his counselling at [Y Centre] the Respondents and the said children are to recommence family therapy at [S] Community Centre (to include anger management counselling for the respondent father) and attend such therapy for such a time as the family therapist deems necessary.
11. The Respondents are to forthwith obtain independent counselling with [Ms L] or such other agreed counsellor for the said children to commence as soon as is practicable.
12. The Applicants are to be solely responsible for the cost of the said children’s independent counselling unless otherwise agreed between the parties.
13. All verbal and face-to-face communication between the Applicants and the Respondents about the said children is to be via the respondent mother […] and the Applicant [grandmother’s partner Ms Champion].
14. All parties are to facilitate the use of a communication book that is to travel with the said children from each household and is to be used for the purposes of communication about the said children.
15. Each party is permitted to approach each child’s school and obtain copies of school reports, school photographs and other relevant educational information about each of the said children and is to be at liberty to discuss with the school teachers and principal the progress of each child.
16. The parties are to consult with each other and make a genuine effort to come to an agreement about the Middle School and High School each child will attend, such consultation to include:
(a)discussions with each child about his/her preference of school;
(b)discussions with each child’s teacher and principal to ascertain their recommendations;
(c)discussions about the Respondents’ preference of school, bearing in mind their locality to the school;
(d)discussions with the Applicants about their preference of school.
17. If the parties are unable to come to an agreement about which Middle and High School each child is to attend then the Respondents are at liberty to make such a decision but may only do so after the consultation period has concluded.
18. The Respondents and the Applicants are to notify each other immediately in the event of a medical emergency involving either child.
19. The Respondents are to inform the Applicants of any appointments or assessments that the child [N] has with a medical practitioner regarding the treatment and management of [N’s] ADHD.
20. The Respondents are to keep the Applicants informed of any changes in the child [N’s] medication (including but not limited to the type of medication or recommended dosage) as soon as practicable after such changes occur.
21. The Applicants are to be at liberty to discuss the treatment and management of the child [N’s] ADHD with his medical practitioner.
22. The respondent [mother] is to provide to the Applicants the medication for the child [N] at all times spent by [N] with the Applicants.
23. Each party is restrained and an injunction is hereby granted restraining each of them from:-
(a)denigrating the other party or the other party’s relationship to the said children or within the hearing of the said children;
(b)discussing these proceedings with the said children or any document filed in these proceedings with the said children.
24. If the Respondents travel interstate with the said children they shall provide to the Applicants at least twenty-one [21] days prior to departure details of the proposed dates of departure and return, and any time scheduled between the said children and the Applicants pursuant to these Orders during such period shall be suspended and time made up upon their return.
25. The respondent [mother] advise the applicant [grandmother’s partner] of any change of address or telephone number on which the said children can be contacted within three [3] working days of any such change.
26. Each party is restrained and an injunction is hereby granted restraining each of them from accessing the independent counsellor’s records in respect of the counselling provided to the said children pursuant to paragraph 11 hereof.
27. The Independent Children’s Lawyer do continue her appointment for a period of six [6] months from the date of this Order to:-
(a)monitor the respondent father’s compliance with drug and alcohol counselling at [Y Centre]; and
(b)explain these Orders to the said children; and
(c)ensure that the independent counselling for the said children is arranged by the Respondents forthwith.
The issues remaining for my determination are:-
5.1. The amount of time the children are to spend with the applicants;
5.2. Whether or not the children should be split on the occasions that they spend time with the applicants;
5.3. Whether or not there ought to be an injunction restraining the respondent parents from altering the children’s school from the W Primary School until they commence at middle school;
5.4. What documents ought to be provided to Ms L, the nominated counsellor for the children pursuant to the consent Orders mentioned above.
Background
Given the parties’ agreement on so many issues and their agreement that the issues remaining for my determination are relatively narrow, it is not necessary for me to traverse in great detail all of the background to these proceedings which was particularly relevant at the commencement of the trial. Suffice to say the respondents have suffered a traumatic and dysfunctional relationship until relatively recently.
The father is 34 years of age and the mother 41 years of age. They commenced living together in 1994 and a little over 2 years later M was born with N following some 18 months later.
The respondents’ relationship has been marked by a number of separations, the first occurring in 1996 and the last concluding in September 2006. Each of the separations was prompted by extreme domestic violence and drug and alcohol abuse on the part of the father. Some of those incidents of violence were at the extreme end of the scale and included holding a knife to the mother’s throat, placing a gun in her mouth and threatening to kill her and the children. Locked into that cycle of abuse, the mother pursued no formal complaints to the police against the father and took no formal action to protect herself or the children. The father has further at times made threats to kill and maim the maternal grandfather and paternal grandmother.
After a number of appalling threats to the mother and her family by the father, the mother separated from the father on 17 August 2003 and moved to a refuge with the children. She secured a restraining Order against the father on 22 August 2003.
For a number of years but certainly in recent times, the paternal grandmother and her partner have played a significant role in assisting the mother and monitoring the health and wellbeing of the children.
In March 2006 the respondents reconciled their relationship but did not commence residing together until 26 September 2006 when they secured a Housing Commission home at G.
Upon the reconciliation of the respondents, the relationship between them and the applicants became more troubled and disputes arose as to whether and how frequently the applicants could spend time with the children. This prompted an Application to the Court by the applicants in November 2006.
A period of relative calm reigned in the respondents’ household until late November 2007 when the father became intoxicated at a Christmas party and assaulted and abused the mother causing her to call the police for assistance. On a plea of guilty he was subsequently convicted of disorderly conduct and fined $300 in the Magistrates Court. The applicant paternal grandmother collected him from the police station and agreed to allow him to stay with her for about a week. He then returned to live with the respondent mother and has been there ever since.
Pursuant to Orders made by me on 6 December 2007, the two children have been spending time together with the applicants each alternate weekend varying from between Thursday after school until Monday before school on one occasion and Friday after school to Monday before school on the alternate occasion.
The evidence
Pursuant to a consensual arrangement the parties participated in Division 12A proceedings before me on 6 December 2007 and on 12, 13, 14 and 17 March 2008.
Each of the parties gave evidence in support of their applications and relied upon identified affidavits filed by them.
The Court called evidence from expert psychologist Mr V who prepared three Family Reports in these proceedings dated respectively 20 July 2004, 28 May 2007 and 29 February 2008.
Given the narrow range of issues remaining for me to determine, matters of credit do not loom large in the determination of these proceedings.
Relevant Law
Significant amendments were made to the Family Law Act with the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006. I set out and deal with the relevant provisions below:
Section 60B
The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
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 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).
One matter of critical importance was not altered by the amending legislation. Section 60CA still requires the Court to “regard the best interests of the child as the paramount consideration” in deciding what, if any, parenting order to make. In making that determination as to what would represent the best interests of the children, the Court is guided by the provisions of Section 60CC which is divided into primary and additional considerations. I will deal with those matters now.
Section 60CC
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
After considering the preliminary intimations given by me at the conclusion of evidence, the attitude then adopted by the parties indicated their acknowledgment that there was benefit to the children in having a meaningful relationship with the applicants. The question for me is as to the form and duration of time the children are to spend with the applicants which would result in the maintenance of a meaningful relationship. I explore this issue in detail later in these reasons.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence.
I intimated in my preliminary observations that I was satisfied that the respondent parents had made significant positive advancements in their relationship which had resulted in the children’s exposure to violence and consequent physical or psychological harm being significantly reduced. However, the father’s drunken violence of November 2007 and his presentation during his oral evidence made it plain that it is essential that the applicants continue to play an important role in monitoring the children’s welfare and protecting them from harm.
Additional considerations
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;
In his report of 29 February 2008, Mr V was left in no doubt as to what were the children’s views. In paragraph 24 of that report he records:-
“As in my last report, both [children] were remarkably unambiguous in expression of their views and preferences. Basically, both of them said that they did not want to spend any significant time, especially overnights and weekends, with [the grandmother and her partner].”
Mr V was impressed with the children’s level of maturity and understanding of the issues before the Court and the role that their views should play in those proceedings. He noted that there was no evidence of the children having been influenced by their parents as the respondents had indeed proffered a different outcome, namely the children spending one weekend per month with the applicants.
The toll that these proceedings and the conflicts between the parties to these proceedings, is having upon the children was particularly evident to Mr V. He was clearly dealing with two very distressed children. At paragraph 25 of his most recent report, he records:-
“ …. [M] broke down in tears a couple of times while she was talking to me, and [N] zoned out after a while and went off to play a computer game. This might be partly due to his ADHD, but also, I sensed, due to his uneasy emotional state in talking about spending time with his grandmother. Rather than weep, he went and did something he liked to take his mind off the difficult emotion.”
Despite their preparedness to agree to the children spending some time with the applicants, it was the evidence of both the mother and the father that the children frequently expressed strong opposition to spending time with the applicants and that they regularly had difficulty in getting them to attend pursuant to the present Orders.
I am also satisfied that N strongly expressed his antipathy towards the applicant paternal grandmother, to his consultant paediatrician Dr G.
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
It was the evidence of the respondents that the children’s relationships with the applicants, particularly the paternal grandmother, were becoming increasingly strained. The children resented attending at the applicants’ premises on a regular basis and were becoming increasingly resistant to the point of it being difficult for the respondents to get them to attend. It was their view that if the applicants continued to force the children to attend visits with the applicants on a regular basis, the relationship between the children and the applicants would become increasingly strained to the point where the children would want nothing to do with them.
This position is supported by Mr V who in his third report recorded that the children had taken a very negative view of spending any time with the applicants and that their position had hardened even since his second report.
At paragraph 29 of his third report, Mr V records:-
“ … The difference between the children’s reports of how negatively they feel towards [the grandmother and her partner], and the latter’s perceived experience of the children’s pendulum of emotions from affection to antipathy indicate to me that the children are deep down very confused about how they usually feel and how they should feel towards [the grandmother and her partner]. By ‘should feel’ I mean their understanding of the necessary and appropriate sense of affection towards family members, which is challenged by what they see as constantly unfair, pressuring behaviour from those family members.”
The children’s increasingly troubled relationships with the applicants are again a matter of emphasis by Mr V in paragraph 30 of his third report:-
“In my evaluation, the children would not benefit from any parenting arrangement that involved undue complexity for them or could be seen by them as isolating or forcing each of them. Their resistance to having formalized contact with [the grandmother and her partner] is very sad given the way it appears to have come about. There is no doubt in my mind that the negatively pressuring experiences the children have experienced on their weekend visits so outweigh their positive experiences in their mind that the children could be in danger of cementing a permanently adverse and even antagonistic attitude towards [the grandmother and her partner] if the current formula for contact persists. This situation has arisen despite [the grandmother and her partner] being very genuinely committed in their affection for the children and to their welfare.”
Understandably hurt by the evidence of the respondents and the intimations of the children through Mr V that the children wished to spend less and less time with them, the applicants indicated that such a view on the part of the children did not represent their experience. They indicated that invariably, after a sometimes negatively charged atmosphere at the commencement of each period of time that they spend with the children, their experiences have been universally positive and the children have enjoyed their time with them. They referred to Exhibit 2, which is the “change over book” or “communication book” which is exchanged between the respondents and the applicants at the beginning and end of each period of time that the children spend with the applicants.
A few examples of the entries in the change over book which they say indicate a positive relationship are:-
“14 JANUARY 2008 – [Grandmother’s partner]
[Grandmother’s partner] gave [N] a tablet at lunchtime on Monday 14th. He was home with [grandmother’s partner] all day. He did get a little ratty after lunch – unable to stop fidgeting, making noises and banging things. He was more focused after the tablet. He was basically pretty good alone with [grandmother’s partner] all day while [M] was at work with grandma.”
“15 JANUARY 2008 – [Grandmother]
[N] came with me to [work] for the day. He was fine until lunchtime at 12.30 pm when he became very unfocussed and kept jumping from one topic to another and could not focus. He was not unpleasant or rude but simply could not concentrate for other than a few seconds on each topic. He had 1 tablet at 1pm and then settled well for the rest of the day and was helpful and co-operative and fun. [M] had a pleasant day at home with [grandmother’s partner].”
“17 JANUARY 2008
Both children co-operative and helpful in the garden at 9am. …”
“18 JANUARY 2008
Went to movies at 9.30. By 10.30 [N] became excessively talkative and unable to keep still, making a range of associated small jerky movements and accompanying sounds during the movie. He had 1 table at 11 o’clock, otherwise we had a great day.”
In an entry after one dated “16 FEBRUARY 2008 – [Mother]” there is the following:-
“NO DATE – [Grandmother] “
Children had a great weekend. [N] had some issues about taking his tablet when he was a little agitated when out at breakfast at the [local café]. Able to resolve after leaving a message for mum and agreeing to give him a chocolate milk shake. Had another tablet about 3.30 pm. No issues with co-operation.”
Exhibit 2 though also records some very unpleasant moments for the applicants and some examples of the occasionally fractured and troublesome relationship between the children and the applicants.
“31 JANUARY 2008 – [Grandmother]
Picked children up from school. [N] immediately very abusive. Accusing me of trying to split up his family, telling me I was ruining his life because I was a lesbian, costing his parents a lot of money by keeping going to court. He had no friends because of me. It was unnatural being a lesbian, I was a freak and a retard and as well was trying to buy him and [M]. I suggested his mother would probably not agree and he said that’s what she thought as did [M], but he was the only one who was game enough to say it. She said she was disappointed in him and he apologised (but only because mum had told him to). He then settled down and enjoyed the rest of the time with us. [M] was cautious but seemed to have a good time. …”
“03 FEBRUARY 2008 – [Grandmother’s partner]”
I spent the morning with [N]. He had 1 tablet at 10 am just before we went to meet my friend […] for coffee and then we all did the shopping. After the tablet I noticed he appeared quiet and withdrawn. He remained like that for about 2 hours when he began to become more lively and argumentative.
He was really well behaved and happy until around dinner time when he became increasingly argumentative and oppositional. When asked to do simple tasks he became at times argumentative and then abusive towards his grand mother. On ordering lunch and a request to check the internet to see what the menu was. [M] helped find the News with the web site for the school to help find the menu for lunch.
[N] was only interested in TV – however we were gentle with him as we know change overs are always fraught for him and his anxiety levels increase closer to the time. We arranged a quiet night watching TV – Robin Hood and Agatha Christie. He later at my suggestion apologised to his grand mother.”
The latter entry quoted above confirms the conflict in which the children find themselves, the stress they feel in relation to the intensity of the conflict and recognition by the applicants that the children are indeed affected by that conflict.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The respondents acknowledged in evidence that they struggled at times to ensure that the children attended for the ordered periods of time to be spent with the applicants. They spoke of the occasions as being stressful and requiring them to force the children to go. I am satisfied though that they have made it difficult for the children at times by engaging in a process of indicating to the children that they simply have to go because that is what the Court ordered. They have not engaged in much, if any, positive reinforcement of the children’s times spent with the applicants or sought to promote them as enjoyable occasions. The respondent father in particular has struggled with that process and notion. He acknowledged that if it was up to him, the children would have nothing to do with the applicants, particularly his mother. I am satisfied that he has not sought to disguise his own ill feeling for the paternal grandmother, from the children. This makes it very difficult for the children at those times and difficult for the applicants when the children arrive inculcated with the negativity so evident at home before they left.
However, I am equally satisfied that, particularly from the paternal grandmother, the children do not receive much by way of reinforcement of any positive traits of their parents, especially the respondent father, during their times spent with the applicants. The children reported as much to Mr V. In his second report of 28 May 2007 at paragraph 22 he records:-
“However, [M] said she would like to spend more time with her mum and dad, to ‘make up for lost time’. She disliked the way her grandmother spoke about her father, ‘not very nicely’, saying that he was ‘no good’. She concluded that her grandmother did not like [the father] at all. This attitude seemed to sadden her in my assessment. She said her father was fun to be with and she was enjoying his company at home and the help he gave her from time to time.”
Further, in his third report at paragraph 25 he records:-
“Their reasons were focussed on the negative experiences of their visits over the last few months. Both said they have felt pressured greatly and often by [the grandmother] in particular, with lots of questions about their home life, [C] and their parents. They reported that arguments often followed on from this questioning pressure, which [M] found very difficult to manage with [the grandmother …”
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Following the preliminary intimations I gave at the conclusion of evidence, this does not now loom as an issue for the parties. Each agrees that at least one of the children should spend some daylight hours with the applicants on one occasion every three weeks. They cannot agree on whether or not the children should attend together or separately on different occasions.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No issues of relevance emerge for my determination pursuant to this sub-section.
(f)the capacity of:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that each of the parties believes that the approach they have urged upon the Court reflects the best interests and hence the needs of the children. I am satisfied that the applicants are properly motivated in their applications before the Court in that they see the children as still being exposed to violence and abuse in the respondents’ household and are hence concerned as to their safety and wellbeing. They believe that the children need a “safety net” and that they are the persons best placed to provide that support for the children.
For their part, the respondents believe that their tight knit family unit is being put at risk by the applicants’ intervention and interference. They believe that, despite the past, they are now able to deal with all pressures upon their relationship and that the children do not need a “safety net” outside of the counsellors which have been agreed and put in place by the consent Orders made by me on 17 March 2008.
I have no difficulty in believing and hence finding that each of the parties is properly motivated. They do though have very different perceptions of what is appropriate for the children and what represents the children’s best interests and needs. The consequence for the children is that their emotional needs are presently not being met to the fullest extent. Each of the parties is doing their best but the impact of the conflict upon the children is palpable and disturbing. Mr V makes reference to this conflict and the appallingly difficult situation in which it places the children, in each of his reports. In his second report of 28 May 2007 he notes, in the last sentence of paragraph 32:-
“The children are caught up in their own emotional and loyalty complexity of being exposed to the conflict clearly evident to them over the amount of time they spend with their parents or [the grandmother and her partner].”
In the concluding sentences of paragraph 25 of his third report, Mr V records:-
“ …. She [(M)] commented that [the grandmother and her partner] would often swap roles, so that when one was being ‘mean’ the other would be ‘nice’. She found this behaviour very confusing. [M] broke down in tears a couple of times while she was talking to me, and [N] zoned out after a while and went off to play a computer game. This might be partly due to his ADHD, but also, I sensed, due to his uneasy emotional state in talking about spending time with his grandmother. Rather than weep, he went and did something that he liked to take his mind off the difficult emotion.”
The children need to be shielded from the significant emotional turmoil in which they find themselves. It is the obligation of all parties to do something about that. I am comforted by the seeming recognition of their joint responsibilities in that respect by their agreement to a raft of appropriate counselling orders in the consent Orders made on 17 March 2008.
The evidence of all four was also generally in agreement to the effect that once Orders had been imposed by this Court, it would assist the children in understanding that they did not have a role to play in assisting the adults to arrive at a conclusion, but rather that a conclusion had been imposed upon the adults by this Court. It is to be hoped that this is true.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
No party raised matters of particular relevance for the Court’s consideration pursuant to this sub-section, save as to their differing views about the children’s level of maturity in being able to express views about which the Court ought to have regard.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture): and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
No matters of relevance emerge for my consideration pursuant to this sub-section.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
No additional matters emerge for my consideration pursuant to this sub-section. I have dealt with relevant issues above in my treatment of sub-sections (b), (c) and (f).
(j)any family violence involving the child or a member of the child's family;
and
(k)any family violence order that applies to the child or a member of the child's family; if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The father’s track record in this regard is shameful. He has been guilty of the most appallingly violent, abusive, aggressive and threatening behaviour, particularly towards the respondent mother. However, the evidence is also clear that his conduct in that regard had a severe emotional impact upon the children from which they are only now recovering. I have detailed some of the worst examples of the father’s conduct in that regard in passages above.
Significant progress though has been made by the respondents in their relationship. I am satisfied that the father has undertaken a number of very positive changes in his outlook, approach, demeanour and lifestyle. I am further satisfied that the programmes of treatment and counselling undertaken by him to date and those outlined in the consent Orders of 17 March 2008, will further assist the respondent father in his path to recovery.
However, that journey is not yet complete. His drunken, angry and violent behaviour towards the mother after the Christmas party he attended in November 2007, is evidence of the fact that he still has some way to go in his recovery. He acknowledged that he needed to continue his treatment at Y Centre for the alcohol abuse of which he has been so guilty in the past. He further refreshingly acknowledged that he had an anger management problem which he needed to work on as well.
It was for these reasons that I expressed in my preliminary intimations to the parties, the view that the evidence pointed quite clearly to the need for the children to have a “safety net” and reliable level of support outside of the respondents’ family unit. I was and am satisfied on the evidence that the appropriate people to provide that “safety net” or support are the applicants.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
As I said earlier, the parties and the Independent Children’s Lawyer, all agreed that Orders made by me and imposed upon the parties would deliver to the children the best prospect of relief from conflict and the avoidance of further litigation. The time is rapidly approaching when the children will be old enough, mature enough and forceful enough to impose their views of what is appropriate in terms of their continuing relationships with relevant adults, upon the parties.
(m)any other fact or circumstance that the court thinks is relevant.
No other matters of relevance emerge for my consideration pursuant to this sub-section.
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child;
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
The applicants have throughout remained keen to be involved in the lives of the children and provide what they deem to be appropriate levels of support. They have taken advantage of almost every opportunity that has been provided to them by the respondents or by Court Order.
For their part, despite the difficulties which they described at times when the children are due to go to the applicants, the respondents have always complied with the Orders of this Court.
Conclusions on outstanding issues
The amount of time the children are to spend with the applicants; and
Whether or not the children should be split on the occasions that they spend with the applicants.
57.1.It is convenient and appropriate to deal with these two issues together. There is general agreement between the parties that it is appropriate for the applicants to spend some time with at least one of the children every three weeks. The respondents, supported by Mr V, believe that the children should not be separated on the occasions that they spend with the applicants. I accept that there is evidence suggesting that the children gain mutual support from each other when spending time with the applicants. Given their emotional distress caused by the conflict between the adults in their lives, that consideration should not be dismissed lightly.
57.2.However, just as compelling is the evidence of the applicants, supported by entries contained in Exhibit 2, that the children have a more enjoyable, fulfilling and relaxing time when not competing with each other for the attention and support of the applicants. The evidence makes it clear that the children are very different and have very different interests. The applicants can provide more “quality time” for the children individually when not distracted by the needs or behaviour of the other child.
57.3.The other advantage to the children of attending on one occasion with the applicants separately and independently is that, pursuant to the regime I propose as outlined below, they will only attend at the applicants’ once every six weeks. Such an arrangement best meets their expressed desire to spend less time with the applicants and frees up more of their weekends to spend time with their parents and pursue their own interests and peer friendships and activities.
57.4.I am satisfied that the best way to meet the children’s needs for both mutual support from each other and the benefits of “one on one” time with the applicants, is to order a regime which combines both over a series of three week blocks, that is:-
(a)in week 1, M would attend and then each ninth week thereafter;
(b)in week 4, N would attend and then each ninth week thereafter;
(c)in week 7, both children would attend and then each ninth week thereafter
with week 1 commencing on Saturday 26 April 2008.
57.5.Given the children’s strongly expressed views, the level of conflict experienced by the children over an extended period of time and their ever increasing outside interests and peer activities, I am satisfied that the evidence does not support overnight periods with the applicants and that it should be confined to the hours of 10.00 am to 5.00 pm each Saturday.
Whether or not there ought to be an injunction restraining the respondent parents from altering the children’s school from the W Primary School until they commence at middle school.
58.1.I am satisfied that this should be a decision left solely to the respondent parents. M is a talented student. I am satisfied that the applicants are not alone in recognising the need to maximise the potential and educational opportunities for both children. I believe that, within their means, the respondents will make decisions that reflect the children’s best interests and not their own needs. However, there is significantly less money in the respondents’ household than there is in that of the applicants. As they no longer qualify for Housing Commission premises, the respondents need to find new accommodation and thus choices of educational institutions for the children will be impacted to a degree by that factor. An injunction limiting their options is not supported on the evidence.
What documents ought to be provided to Ms L, the nominated counsellor for the children pursuant to the consent Orders mentioned above.
59.1.The parties agree that copies of Mr V’s three reports ought to be provided to the children’s counsellor, Ms L. The applicants further wish copies of the affidavits filed to be provided. However, I am satisfied that Mr V’s reports collectively provide an adequate summary and overview of all relevant issues impacting upon the children to enable Ms L to fully attend to her responsibilities to the children without needing to have regard to the very partisan affidavit materials filed herein.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr
Associate:
Date:22 April 2008
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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