Godfrey and Bradley
[2015] FCCA 2597
•24 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GODFREY & BRADLEY | [2015] FCCA 2597 |
| Catchwords: FAMILY LAW – Final parenting arrangements for child aged ten years – child independently represented – high conflict – allegations of family violence and alcohol abuse – nature of family violence – coercive and controlling behaviour – allegations of sexual abuse – assessment of risk of sexual abuse – is risk unacceptable – what is proportionate response to degree of risk arising – best interests – meaningful relationship – presumption of equal shared responsibility. |
| Legislation: Family Law Act 1975, ss.4(1); 4AB; 60B; 60CA; 60CC; 61DA; 64B; 65C; 65D, 65DAA 65DAC; 65DAE; 68LA(2) Evidence Act 1995 (Cth), s.140 Intervention Orders (Prevention of Abuse) Act 2009 (SA); s.23(3) |
| Godfrey v Police [2015] SASC 101 Godfrey & Bradley [2014] FCCA 1041 Fox v Percy (2003) 214 CLR 118 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Bartel & Schmucker (No 3) [2012] FamCA 1094 N & S and the Separate Representative (1996) FLC 92-655 W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 M & M (1988) FLC 91-979 W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892 JG & BG (1994) 18 Fam LR 255 In The Marriageof Patsalou (1994) 18 Fam LR 426 Godfrey v Police (No3) [2013] SASC 93 Godfrey v Police (No4) [2014] SASC 41 Blanch v Blanch & Crawford (1999) FLC 92-837 T & N (2003) FLC 93-172 Bright v Bright (1995) FLC 92-570 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 |
| Applicant: | MR GODFREY |
| Respondent: | MS BRADLEY |
| File Number: | ADC 1020 of 2014 |
| Judgment of: | Judge Brown |
| Hearing dates: | 15, 16 & 17 April, 21 & 22 July, 27 August 2015 |
| Date of Last Submission: | 22 August 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 24 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr Boehm |
| Solicitors for the Respondents: | White Berman |
| Counsel for the Independent Children's Lawyer: | Ms Tinning |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
All previous parenting orders be and are hereby discharged.
The mother do have sole parental responsibility for the child X born (omitted) 2005 ("X").
The mother shall advise the father in writing of any arrangements she makes regarding the long term welfare of X.
X do live with the mother.
X do spend time with the father as follows and on the following terms:
(a)from after school (or 3:15pm) on Friday (so that the existing regime of weekend time continues) until the following Monday at the commencement of the school day (or 8:45am) and at the same times and on the same days in each alternate week thereafter PROVIDED THAT in the event that the Monday at the conclusion of any period of such time is a public holiday such time shall be extended until Tuesday at 8:45am (before school);
(b)that the said time in paragraph 5(a) continue throughout any period of school holidays;
(c)irrespective of the times set out in paragraph 5(a) hereof arrangements for Christmas Day each year shall be as follows:
(i)X shall spend time with the father from 3:00pm 24th December 2015 to 3:00pm 25th December 2015 and from 3:00pm 25th December 2016 to 3:00pm 26th December 2016 and at the same times and on the same days in each alternate year thereafter; and
(ii)X shall spend time with the mother from 3:00pm 25th December 2015 to 3:00pm 26th December 2015 and 3:00pm 24th December 2016 to 3:00pm 25th December 2016 and at the same times on the same days in each alternate year thereafter;
(d)in the event that the mother's birthday falls on a day when X is in the care of the father, the father's time with X shall be suspended and X shall be returned to the mother's care between 3:00pm and 7:00pm on that day;
(e)in the event that the father's birthday falls on a day when X is in the care of the mother, X shall spend time with the father between 3:00pm and 7:00pm on that day;
(f)in the event that Father's Day shall occur on a weekend when X is in the care of the mother, the father shall spend time with X between 9:00am and 5:00pm on that day;
(g)in the event that Mother's Day falls on a day when X is spending time with the father, the father's time shall be suspended and X shall be returned to the care of the mother between 9:00am and 5:00pm on that day;
(h)for the Easter long weekend in each year the following arrangements shall apply, namely,
(i)X shall spend time with the mother from the conclusion of school on Easter Thursday to 3:15pm on Easter Monday 2016 and at the same times and on the same days in each alternate year thereafter;
(ii)X shall spend time with the father from the conclusion of school on Easter Thursday to 3:15pm on Easter Monday 2017 and at the same times on the same days in each alternate year thereafter;
(iii)these arrangements for the Easter weekend in each year shall override arrangements for mid-term alternate weekend arrangements as specified in paragraphs 5(a) hereof;
(i)such further and other times as the parties may agree and in the absence of agreement as shall be determined by this Honourable Court.
Handovers shall occur as follows:
(a)during school terms and during school hours handovers shall occur at X's school;
(b)at all other times handovers shall occur at (omitted) located at (omitted) or such other place as the parties shall mutually agree in writing by text message.
The parties be restrained and an injunction is hereby granted to restrain them and each of them from:
(a)denigrating or discussing the other party in derogatory terms with the said child X or with any third party in the earshot of X;
(b)discussing the within proceedings with X or with any third party in the earshot of the said child X;
(c)discussing the friends or extended family of the other party in derogatory terms with the said child X or with any third party in the earshot of X.
The parties shall communicate all necessary information relating to the day to day needs of the child including medical needs, in writing, via a communications book to be exchanged between them at each handover of the child.
That the father be restrained and an injunction hereby be granted restraining the father from communicating with the mother by phone, SMS, email or any other means other than via the communications book except in the case of a medical emergency involving the child whereby the party with care of X is to notify the other party of the medical emergency by telephone as soon as is reasonably practicable.
The parties both be at liberty to attend at X's school events (such as but not limited to concerts and sports days) noting that the injunction contained in paragraph 7 applies notwithstanding this paragraph.
Without admission, the mother be restrained and injunction hereby be granted restraining the mother from permitting X from being in the sole care of the maternal grandfather Mr C.
Without admission by either party as to the need for same, the parties be restrained and an injunction hereby be granted restraining the parties from consuming alcohol to excess at any time that the child is in his or her care or for a period of 24 hours prior to that time.
Liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Godfrey & Bradley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1020 of 2014
| MR GODFREY |
Applicant
And
| MS BRADLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Godfrey “the father” and Ms Bradley “the mother” are the parents of X born (omitted) 2005. These reasons for judgment are directed to determining the appropriate final parenting arrangements for X.
The mother’s position is that she should have sole parental responsibility for X and he should live predominantly with her and spend time, with his father, on alternate weekends and on a number of designated special occasions.
It is her case that she finds the father impossible to deal or communicate with because of his aggressive and controlling attitude towards her. She asserts that X has been and continues to be adversely affected by the compromised relationship between his parents.
The father has acted on his own behalf during the final hearing phase of these proceedings. As a consequence, it has not always been easy for me to glean what is his preferred outcome in the case.
At one stage, the father advocated a shared care regime for X, with the child spending equal periods of time with each of his parents. It is common ground that there was such a regime, prior to the inauguration of these proceedings, which was in place between October 2011 and March 2014.
However, at the conclusion of the evidence in the case, Mr Godfrey applied for X to live exclusively with him and spend only limited supervised time with his mother, at least until such time as Ms Bradley had undergone a course of medical treatment or counselling for alcohol abuse.
The basis of this position was the father’s assertion that X was at risk of coming to serious harm, in his mother’s care, because of her allegedly continuing and untreated alcoholism and her unwillingness to accept that the child’s maternal grandfather had sexually abused X in the past.
Essentially, Mr Godfrey asserts that Ms Bradley is either incapable of or unwilling to protect X from being sexually abused and has been and continues to be a compromised parent because of heavy drinking.
In these circumstances, he asserts that he is better placed to be the main provider of care for X. In this context, it is his position that he has played a significant role in caring for the child, since he was an infant because of the mother’s work commitments as a (occupation omitted).
The mother acknowledges that, in the past, she has had serious issues to do with alcohol abuse, which led to her being convicted of drink driving, with a reading of 0.199 percent. The offence occurred on (omitted) 2011 and was associated with another charge of assaulting police. Given the mother’s occupation, she was also subject to (omitted) disciplinary actions.
It is Ms Bradley’s position that her problem with alcohol related to her unhappy and abusive relationship with Mr Godfrey. As such, upon her separation from Mr Godfrey, which occurred in October of 2011, she asserts that her drinking has come under control.
Mr Godfrey does not accept that this is the case. He asserts that X frequently reports to him that his mother continues to grind her teeth, snore and wet the bed, which on the father’s case, are indicia of the same continued heaving drinking, which characterised the parties’ previous relationship.
Ms Bradley is a (occupation omitted) in the (omitted). She has been a (occupation omitted) for over twenty years. Following the parties’ separation, she sought a family violence order against Mr Godfrey. Proceedings in respect of this order and its various successors have been ongoing in the period since 2011.
It is Ms Bradley’s case that Mr Godfrey will not accept court rulings against him and uses constant recourse to mechanism of legal review as an instrument against her. In contrast, it is Mr Godfrey’s position that there was never any basis for the family violence order to be made in the first place and it was used to intimidate him and exclude him from X’s life.
Most recently, on 14 July 2015, Nicholson J,[1] in the Supreme Court of South Australia, dismissed an appeal brought by Mr Godfrey, in respect of a conviction entered against him, by a magistrate, for contravening the intervention order in question.
[1] See Godfrey v Police [2015] SASC 101
In the period prior to the parties’ final separation, between 2009 and 2011, Mr Godfrey characterises himself as having been the victim of Ms Bradley’s abusive and violent behaviour, which behaviour was precipitated by her habitual heavy drinking, most often at hotels.
He asserts that, because of the family violence order, he is unable to gather the necessary evidence, which would demonstrate Ms Bradley continues to drink and so is not properly placed to parent X appropriately.
It is further his case that Ms Bradley has maliciously stigmatised him as a violent, abusive and misogynistic person in order to remove him as a positive influence in X’s life. In so doing, he asserts that she has engaged members of the police in this conspiracy against him. In the past, Mr Godfrey asserts that this has led him to being wrongfully imprisoned.
On the other hand, Ms Bradley categorises Mr Godfrey as a difficult and controlling person, who has no respect for her and refuses to abide by the family violence orders made in her favour. It is her case that she finds Mr Godfrey impossible to deal with. It is for that reason that she seeks sole parental responsibility for X.
It is also Ms Bradley’s case that there is no proper basis for Mr Godfrey’s allegation that her father, Mr C, sexually abused X prior to (omitted) 2011. She asserts that Mr Godfrey is unhealthily fixated on the issue. Nonetheless, she is willing to abide by an injunction, already made, that she be restrained from permitting X to be in the sole care of his maternal grandfather.[2]
[2] See order 10 of the orders of 23 May 2014
These proceedings have been on foot since 24 March 2014. On that date, the father commenced proceedings seeking the reinstatement of the shared care regime, which have been in place since the parties’ separation on 8 October 2011. This regime had, at least in part, been a response to the mother’s onerous working hours, which involved some shift work.
At this stage, in early 2014, it was the mother’s position that this arrangement was not working for X, who was unhappy and stressed by it. It was her case that X had indicated clearly and unequivocally to her that he wanted to live mainly with her and was anxious about spending time with his father.
I was called upon to resolve these complicated issues on an interim or provisional basis.[3] At that stage, I was at pains to point out to the parties that it was difficult, if not impossible, for me to resolve the very many factual issues in dispute between them. I also indicated that, at this early stage in proceedings, I had no independent and expert assessment of X, particularly in terms of his emotional needs and how he related to each of his parents.
[3] See Godfrey & Bradley [2014] FCCA 1041
In the interim decision, I indicated that the case presented “many indications of being a very difficult case indeed.” The case raised significant issues of family violence and allegations that a child, of tender years, had been sexually abused. In addition, it was apparent to me that the respective positions of the parents concerned were polarised to an extreme degree and they had a limited capacity to communicate with one another effectively.
For these reasons, on 23 May 2014, I elected to make an order that X be independently represented in these proceedings. X’s representative is Mr Ashley Kent, an experienced family lawyer employed by the Legal Services Commission of South Australia. Mr Kent has engaged a barrister, Ms Tinning to represent him in the proceedings before me.
Mr Kent is to be regarded as a party of equal importance to the parents in this case. Pursuant to section 68LA(2) of the Family Law Act Mr Kent and Ms Tinning are required to form an independent view, based on the evidence available to them, of what is likely to be in X’s best interests and to advocate and act of that view to the court.
In the discharge of his statutory obligations, to both X and the court, Mr Kent has arranged for an independent expert, Ms A to interview X and the parties on two separate occasions and prepare reports in respect of her impressions and assessment of the family. Ms A’s two family assessment reports have been tendered into evidence before the court.[4]
[4] See exhibit A – family assessment report of Ms A dated 14 November 2014 and exhibit B – family assessment of Ms A dated 5 March 2015
In her first report, Ms A observed a significant level of conflict between the parties and assessed them to lack an effective parenting relationship. From her discussions with X, she was satisfied that X had been exposed previously to violence between his parents and was acutely aware of the tensions between them.
In interview, with Ms A, X indicated that he did not want to see his father “any time”. He expressed some anxiety, to Ms A, at the prospect of his feelings, about his father, being conveyed to him.
However, notwithstanding X’s expressed views, when Ms A observed father and child together, she noted that they engaged happily with one another, indicating a relationship characterised by “love, warmth and mutual respect.”
In all these circumstances, Ms A was gravely concerned at the prospect of X continuing to be exposed to family conflict, which she considered would leave him “emotionally burdened” and with degrees of strain on the “quality of” [his] “attachment to loved ones”.
From her point of view, the central issue in the case was how X’s apparent views and the need to protect him from emotional harm could be balanced with the desirability of him continuing to have a proper level of relationship with his father.
Ms A was also concerned by the expression of X’s view not to spend any time with his father. She did not consider that X had been actively influenced, by his mother, against his father. In addition, Ms A did not consider that X’s expressed views were congruent with how X interacted with his father, which Ms A categorised as a “meaningful father – son attachment.”
In all these circumstances, Ms A, in her first report, hypothesised as follows:
“Questions then remained at to why X felt the need to request he spend no time with his father. It was considered possible and likely that it was his way of expressing his sense of sadness and disappointment in his father’s approach to parenting at times. Whilst it was possible X was seeking to spend more time with his mother, and therefore less time with his father due to an alliance to his mother, for example perceiving his mother to be either a victim of his father’s and/or more vulnerable, there was no clear evidence to support this. X did not present as being overly aligned to his mother or to perceive her to be a victim, rather he appeared equally frank in noting her limitations, for example her past use of alcohol. For this reason, concern remained that X was genuinely feeling unhappy in his father’s care, and that this relationship needed to be strengthened and improved upon. It was considered possible that Mr Godfrey’s focus on “winning” the litigation process and criminal proceedings had inadvertently minimised his focus on listening to X’s needs objectively.”
However, Ms A was also well aware that given X’s tender years he lacked insight and understanding of the complex adult issues at play between his parents. In these circumstances, Ms A expressed reservations in respect of the court giving full effect to X’s view, particularly given her assessment of the benefits X was likely to receive from being able to maintain his relationship with his father.
In these circumstances, Ms A recommended as follows:
“Taking into consideration each of the issues before the Court, as well as each party’s proposal for parenting Orders, it was recommended that X remain in his mother’s primary care. Notwithstanding X’s expressed wishes, it was considered to be in his best interests to continue to spend time with his father, this being with the aim of allowing for their relationship to be strengthened over time. Concern was that by minimising X’s time with his father it would weaken their connection and limit Mr Godfrey’s opportunity to spend meaningful time with X and repair this relationship. It was also considered that there were likely to be positive attributes to their relationship that were worth maintaining and supporting.”[6]
[6] Ibid at paragraph 71
Ms A presented a picture of a stressed and unhappy child, who was burdened by the unacceptable level of conflict between his parents. Her first report was presented well in advance of the dates scheduled for the hearing of the parties’ competing applications. She was hopeful that the parties would take on board her recommendations and take steps to reduce the pressures of X by avoiding the necessity for a final hearing.
However, if this was not possible, Ms A recommended that she should revisit the family shortly prior to the hearing and re-engage with X and attempt to canvas his views once again. This was the background to her second family report, which was prepared in March of 2015, some weeks prior to the final hearing, which commenced on 15 April 2015.
Ms A was concerned at X’s presentation during her second interview with her. She described him as appearing “fatigued and shifted from laying flat on the floor whilst talking to walking in circles around her [Ms A’s] desk.”
X also indicated that he had two different regimes whilst in his parent’s respective households. Of some significance, given X’s earlier reported views to Ms A, in March of 2015, he again indicated that he did not “really want to see [his father] but I know I have to … I should go Sundays probably, and other days, … I don’t know.”
In all these circumstances, it was Ms A’s view that all the areas of concern, which arose from her first report, appeared ongoing and unresolved. It was Ms A’s view that the parties were unable to negotiate issues to do with X, either effectively or directly. Given these circumstances, Ms A was not minded to change her recommendation of November 2014, other than she was not in favour of X spending a week night in the care of his father.
It is Mr Godfrey’s view that Ms Bradley has either directly coached X or has in some way influenced him to express the views, which he has done to Ms A. In his forceful submission to the court, he contends that his own impression of X, when he sees him on alternate fortnights, is of a child who enjoys spending time with his father and wants more rather than less time with him.
In these circumstances, Mr Godfrey asserts that the court should give little weight to Ms A’s recommendations. In addition, he believes Ms A has failed in her professional responsibilities to assess properly the risk that Mr C senior poses for X in respect of the child being exposed to further incidents of sexual abuse.
In her report, Ms A did not consider that X’s presentation was congruent with a child who had been subjected to coaching or other direct influence. She remained concerned that X was a vulnerable child, who was not travelling well, in an emotional sense, because of his continued exposure to the acerbic conflict between his parents.
The time originally allocated for the final hearing of the matter (15, 16 & 17 April 2015) proved insufficient to complete the hearing of the case. As a consequence, the case had to be adjourned and was completed following a further two days of hearing on 21 July 2015.
Following the completion of the evidence, Ms Tinning indicated her support for the position advocated by the mother. It was her submission that the parties were incapable of having a viable co-parenting relationship with one another.
In these circumstances, she submitted that a consideration of X’s best interests dictated that he should live predominantly with his mother and maintain the current regime for spending time with his father, which is from the conclusion of school on Friday until the commencement of school the following Monday on an alternate fortnightly basis.
In this context, Ms Tinning supported Ms A’s view that such a regime would ensure that X had a sufficiently meaningful level of relationship with his father in what were undoubtedly very difficult circumstances.
On the other hand, it was Mr Godfrey’s position that Ms A, Mr Kent and Ms Tinning had been deceived by Ms Bradley as to the extent of her ongoing alcohol addiction and the risk Mr C senior poses to X. As previously indicated, at the end of the trial, he wished the court to make orders placing X in his immediate care, pending delivery of judgment.
Given the tenor of Ms A’s evidence, which I consider to remain unshaken and my overall impression of Mr Godfrey, arising from my assessment of him during both his evidence and presentation in court, I was not prepared to make such an order.
As at the end of the interim proceedings, at the end of the final hearing process, it remained my view that the positions of the parties remained polarised in the extreme. As such, it was largely impossible to reconcile the parties’ competing views of the nature of the relationship between them, over many years, both before and after their final separation.
However, unlike the interim hearing stage, I now am able to access the evidence available in the case in a more comprehensive way and make findings of fact in the case. In particular, the views of Ms A have been subject to testing and more significantly I am now in a position to decide who of the parties is likely to be the more insightful parent and the more reliable factual historian.
These reasons for judgment are directed to resolving the factual issues between the parties but more importantly determining what arrangement will be in X’s best interests.
The arrangements following the interim hearing
The initial interim hearing of the parties’ interim applications in respect of the care of X was vigorously contested. As such, I took the matter under consideration and later published detailed reasons. I was however persuaded that a shared care regime was not likely to be helpful for X and he needed to live more with one parent. Accordingly, on 23 May 2014, I made the following orders:
The child of the relationship X born (omitted) 2005 (hereinafter referred to as “the child”) live with the mother.
The child spend time with the father as follows:
On alternate Thursdays nominally commencing on 22 May 2014 from the conclusion of school (or 3.30 pm if school is not in session) until the commencement of school the following Friday (or 9.00 am if school is not in session);
On alternate weekends from the conclusion of school Friday (or 3.30 pm if school is not in session) until the commencement of school the following Monday or Tuesday if that Monday is a public holiday but in the event school is not in session following the weekend until 9.00 am on that Monday or Tuesday commencing 30 May 2014; and
From 8.00 am to 5.00 pm on Saturday 24 May 2014.
The child be exchanged between the parties to give effect to order 5 at the child’s school or if school is not in session at a location to be agreed between the parties and failing agreement to be at the (omitted) previously used by the parties to effect handover of the child.
At the first mention of the matter, Ms Bradley consented to an order without admission, that she be restrained from permitting X to be in the sole care of the maternal grandfather, Mr C. She also agreed to an injunction restraining her from consuming alcohol to excess at any time X was in her care or twenty-four hours beforehand.
Since these orders were made, there has been controversy regarding the workability of the alternate overnight Thursday arrangement. This was also subject to examination by Ms A. On 21 November 2014, Monday evening was substituted for Thursday evening in the hope that this would be more convenient to all concerned.
However, as indicated above, on 17 April 2015, after hearing oral evidence from Ms A and on the application of the mother, supported by the independent children’s lawyer, I elected to suspend the intervening overnight arrangement. I was satisfied that X himself was not in favour of this arrangement and it was leading him to become increasingly stressed.
The issues
At this point, it is useful to summarise the more important issues arising in the case, the resolution of which will form the major component of these reasons for judgment.
These issues can be summarised as follows:
· What was the nature of the parties relationship with one another;
Ø Was it characterised by coercive and controlling behaviour against her, by Mr Godfrey, as Ms Bradley contends; or
Ø Was Mr Godfrey the victim of the mother’s alcohol induced violent behaviour;
·What is the nature of X’s relationship with each of his parents;
·What are X’s views about the best parenting arrangements for him and what is influencing those views;
·What are the circumstances and likely reasons for X indicating to his mother that he will harm himself;
·Is it possible for the court to make a definitive finding that X has been subject to sexual abuse in the past;
Ø If not, what is the risk of his being sexually abused in the future and is the risk an unacceptable one;
Ø In this context, what is a proportionate response to the degree of risk arising;
·Who of the parties is likely to be the more insightful parent and so more responsive to X’s emotional needs.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[7] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[8]
[7] See Evidence Act1995 (Cth) at section 140
[8] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Mr Godfrey attempted to portray himself as a straight-forward, knock about sort of person, who was only interested in doing what was best for X, as he saw it. He presented himself as a decent person, who was without any guile or any particular agenda against Ms Bradley.
In this context, he asserted that he had only done what he had done, in respect of the intervention order against him and the allegations of sexual abuse concerning X, in order to protect both himself and X. He presented as being bemused that Ms Bradley had taken the steps against him, which she had and apparently did not accept that X was at risk from his maternal grandfather.
However, in my view, this persona of ostensible objectivity and reasonableness was a mask, which slipped from time to time. This occurred, most noticeably, in the following incidents:
·In his submissions on the evidence, Mr Godfrey referred to Ms Bradley as a mangy dog on heat in reference prior to the parties’ separation;
·In his affidavit material, Mr Godfrey asserted that Ms Bradley had entrapped him in order to have a child;[9]
·To Ms A, Mr Godfrey reported that Ms Bradley had been sexually abused by (omitted), during her training and was possibly bisexual. He alleged that she had developed Chlamydia from sharing sex tools with other lesbians.[10]
[9] See father’s affidavit filed 25 March 2015 at paragraph 9
[10] See family assessment report dated 14 November 2014 at paragraph 35
In my assessment, Mr Godfrey has an entirely negative and disparaging view of Ms Bradley, which he is willing to share with all manner of persons. Given that he is something of a voluble person, I am concerned that he would have difficulty in restraining himself from making known his views about Ms Bradley to X. This is particularly concerning, given that both Ms A and Ms Bradley view X as an emotionally vulnerable and sensitive child.
In addition, it is my view that Mr Godfrey is preoccupied with his view that police officers, enlisted by Ms Bradley, are out to get him. As such, he has no trust that police officers would either protect him from Ms Bradley’s behaviour or properly investigate any issues relating to X’s protection. Essentially, Mr Godfrey portrayed himself as a victim, with the official world aligned against him.
Ms Bradley has had the same solicitors acting for her throughout these proceedings. Her affidavit material is precisely expressed and carefully prepared. Mr Godfrey has prepared his own trial affidavit. It is a prolix and self-serving document, which is difficult to follow. It discloses the following themes:
·Ms Bradley wishes to restrict his time with X because she has a sense of anger because Mr Godfrey left her and she is unable to get over it;
·She does not wish to pay child support if X spends more time with him;
·Whilst Ms Bradley has caused him great harm, including facilitating his incarceration, he bears her no malice;
·As a (occupation omitted) Ms Bradley considers that she is above the law and, if she had not been a (omitted), none of her complaints against him would have got past the front desk of the local police station.
It is difficult to know whether Mr Godfrey genuinely holds these views. If he does, I have grave concerns that he is deluded.
Ms Bradley presented in the witness box as tired and worn down. It is her position that, in the past, she has attempted to behave in a conciliatory fashion towards Mr Godfrey, but her overtures in this regard have been constantly rebuffed. As a consequence, it is now her position that she cannot communicate effectively with Mr Godfrey because anything she says is liable to manipulation by him and he will not let go of any opportunity to berate her.
Overall, Ms Bradley answered questions simply. Although obviously uncomfortable at being cross-examined by Mr Godfrey, her answers were appropriate and clear. I have no doubt that she is a parent who has X’s best interests to the forefront of her mind. She did not seem to me to be vindictive. Rather, what she aspired to was a quiet and predictable life for both her and X.
In these circumstances, in my finding, Ms Bradley has not sought the protection of a family violence order for any ulterior motive related to gaining an advantage over Mr Godfrey or to attempt to excise him as a meaningful influence in X’s life. Rather, she has sought the order as a means to avoid further unpleasant interactions with Mr Godfrey, who for reasons I will detail in due course, has only contempt for her.
In all these circumstances, it is my assessment that Ms Bradley was the more objective and reliable witness, of the two parents concerned by a considerable degree. It is also my assessment that she is the more insightful parent and is far more able to distinguish between the satisfaction of her own emotional needs and those of X than is Mr Godfrey, who remains fixated on issues relating to his perception that he has been persecuted by Ms Bradley.
Mr Godfrey has little capacity to let things drop. The allegations concerning the sexual abuse of X occurred many years ago. They have been investigated by police at Mr Godfrey’s instigation. Mr Godfrey does not accept the outcome of those investigations and I suspect he never will. In my assessment, he is a person who will not accept the view of any other individual or organisation, which does not accord to his own.
The major themes of Mr Godfrey’s conduct of the case were his conviction that Ms Bradley continued to drink to excess and that X had been sexually abused by Mr C. In respect of the latter matter, Mr Godfrey was critical of Ms A that she had not actively investigated this matter or questioned X about it.
In her evidence, Ms A endeavoured to explain to Mr Godfrey that the investigation of this allegation, which arose in June of 2011, was not part of her role as a family consultant. She explained that given the effluxion of time and X’s age, there was no utility in her conducting a forensic interview of X, even if it had been part of her remit.
Notwithstanding the obvious logic of Ms A’s position, Mr Godfrey made further application to the court that Ms A be directed to review the documentary material relating to the investigation of the sexual abuse allegations concerning X, including details of a discussion between X and Mr M, a psychologist, which had been organised by Mr Godfrey.
I dismissed this application because I did not think it would serve any useful purpose for the reasons outlined by Ms A. However, the application provided support for Ms Tinning’s submission that Mr Godfrey is fixated with the issue of sexual abuse and is unable to let it rest. I agree with Ms Tinning’s submission.
At an early stage of the proceedings, following the interim determination in the case, I referred the parties to a child dispute conference, with family consultant Mr T. He saw the parties on 25 June 2014. Mr T summarised his impression of the parties and their relationship with one another in the following terms:
“It is apparent that there is no effective communication co-parenting relationship between the parties.
Mr Godfrey presented as a confusing historian, his accounts frequently making strong statements, without substantiation. He consistently focused in interview on Ms Bradley’s alleged shortcomings. He did not identify any way in which he may have contributed to the situation. He placed full responsibility for the parental lack of communication on Ms Bradley, stating that he was prepared to work with her.
Ms Bradley did not present as vindictive, but rather herself as having no choice but to take a firm stand in order to not be subject to coercive control and manipulation.”
Mr T’s impression of the parties accords with my own. For these reasons, I find Ms Bradley to be the more reliable witness and I prefer her evidence to that of Mr Godfrey. I further accept that during the parties’ unhappy relationship, Mr Godfrey did behave in a coercive and controlling manner towards Ms Bradley and continues to do so.
This impression is heightened by what has occurred since the hearing of evidence concluded. On 29 July 2015, following the completion of five days of evidence, Mr Godfrey filed an application in a case, in which he sought to reopen the proceeding and, in the words of his application, recall Ms Bradley to the stand on the basis that he had new evidence, which was critical to the welfare of X. I did not find the evidence to be critical, rather, in my view, Mr Godfrey wished another opportunity to rehash his pre-existing fixations and badger Ms Bradley.
The basis of Mr Godfrey’s application is that X had told him that his paternal grandfather had been present at his (X’s) birthday party, which had been held on (omitted) 2015. This fact had not been disclosed by Ms Bradley to the court during her recent evidence before it. As such, Mr Godfrey characterised the omission as a “deliberate and premeditated misleading of the court.”[11]
[11] See affidavit of the father filed 29 July 2015 at paragraph 4
On the basis of this state of affairs, Mr Godfrey applied for X to come into his immediate care. The application was listed for hearing on 27 August 2015, which has led to a delay in the publication of these reasons for judgment. Ms Bradley responded to the application on 25 August.
In her supporting affidavit, Ms Bradley admitted that her father had been at X’s birthday party with seven other adults and other children. As such, it was her position, which I accept, that X had not been left alone with her father during the occasion.
She further asserted that the incident had “slipped her mind” which she attributed to her anxiety about being cross-examined by Mr Godfrey. Having observed this process, I accept that she was extremely anxious at the prospect of being questioned by Mr Godfrey in court.
I do not attribute this state of mind to any nervousness at the prospect of being potentially caught out by Mr Godfrey, in any way, in the giving of her evidence. Rather she was anxious because she was apprehensive that she would be subjected to a degree of self-absorbed hectoring by Mr Godfrey. It confirmed my impression that Mr Godfrey is something of a bully.
The incident, which I do not regard as having any importance in the overall scheme of things, came to Mr Godfrey’s attention through his questioning of X. In this context, Ms Bradley deposed that it was her perception that X was returning from his father’s care “sullen, angry and moody.”[12]
[12] See affidavit of the mother filed 27 August 2015 at paragraph 7
As a consequence of this behaviour, Ms Bradley wished the court’s imprimatur to arrange counselling for X and for his counsellor to have access to the family reports of Ms A. In the circumstances, I thought it likely to be in X’s best interests to make such an order, which was supported by Ms Tinning.
I did not consider that it would serve any useful purpose for the hearing to be re-opened and for Ms Bradley to have been subject to further cross-examination by Mr Godfrey. I accepted her explanation that she had over-looked the incident because of her anxiety at the prospect of being questioned directly by Mr Godfrey.
I accept her anxiety is real and not feigned. In her affidavit material, Ms Bradley describes Mr Godfrey as being something of a petty martinet during their relationship together, constantly undermining and demeaning her, as both a parent and a person. That was also the tenor of his evidence to the court. On the other hand, he accepted no criticism of his own behaviour or parenting.
Mr Godfrey scoffed at this description of himself, describing Ms Bradley as an emotionally tough and worldly (occupation omitted), whom he would be incapable of intimidating, even if he was inclined to do so. He attempted to portray himself as avuncular and affable.
I did not find him so. I can well believe that Ms Bradley would find him intimidating, notwithstanding her experience and standing as a (occupation omitted). Mr Godfrey did seem to me to be overbearing and obsessive, particular in respect of any issue, about which, to use Ms Tinning’s phraseology, he has become fixated. One of these issues is the alleged molestation of X by his paternal grandfather.
In my assessment, Mr Godfrey is unlikely to ever let the issue rest. I further believe that his response to the issue is grossly disproportionate and lacking in insight so far as X is concerned. Mr Godfrey seeks vindication that his view of the issue is the correct one and that of Ms Bradley and her family a fabrication and cover-up.
His temperament is such that he will not let the matter go. In my assessment he is almost pathologically obsessed with it. As such, there is a real risk that X will be interrogated about matters to do with his paternal family, particularly his grandfather, which will not be helpful to his overall emotional equilibrium.
Mr Godfrey is convinced that not only is his view the correct one but that he is morally obliged to keep on with his campaign, notwithstanding any harm it may cause either Ms Bradley or X. In this regard, he presents as both self-absorbed and self-righteous.
Notwithstanding this lapse in her evidence, which was readily admitted by her, I continue to find that Ms Bradley is the more reliable and objective witness of the parties concerned. It is also my finding that she has the greater level of insight of the two parents into the emotional consequences of her behaviour for X. This remains my view in spite of her admitted past difficulties with alcohol.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[13]
[13] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[14] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[15]
[14] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[15] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Parental responsibility
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[16]
[16] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
In this case, Ms Bradley seeks an order that she should have sole parental responsibility for X. It is her position that it would not be in X’s best interest for the presumption to be applied because of the compromised parenting relationship between the parties concerned.
It is not altogether clear what is Mr Godfrey’s position in respect of how parental responsibility is to be shared between the parties. To Ms A and in his affidavit material, Mr Godfrey indicated that his preference would be that he and Ms Bradley regularly got together to have a chat to discuss arrangements for X and that thereafter the two had a flexible parenting arrangement with one another, which changed according to X’s needs.
From this I assume that Mr Godfrey aspires to an order for equal shared parental responsibility. However, it is also clear that he acknowledges that the parties were likely to have difficulty in exercising such responsibility together, although it is his perspective that these difficulties stem more from the mother than from him. To this end, in his affidavit evidence, Mr Godfrey deposed as follows:
“I bear no malice towards Ms Bradley and am quite prepared to sit down be it with a counsellor or the like and discuss as two grown people what is the best for our child, but it appears that my offers are overrun by some mysterious force which fails to report such offers and portrays me as Jack the Ripper’s brother.”[17]
[17] See father’s affidavit filed 25 March 2015 at paragraph 81
I regard this statement as hyperbolic, insincere and lacking in insight. I consider that Mr Godfrey does bear considerable malice towards Ms Bradley. Mr Godfrey accepts no responsibility that his attitudes may make such a process of counselling problematic. I regard his offer to sit down with Ms Bradley to be insincere.
The court has authority conferred upon, through the provisions of Part VII of the Family Law Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.
Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
In this case, I have no doubt that both Mr Godfrey and Ms Bradley are deeply interested in every aspect of X’s care, welfare and development. Whatever criticisms each parent has of the other, that both parents love X very much indeed. In this context, it is a significant thing to confer parental responsibility for the child on one parent in priority over the other.
The difficulty arising in this case is that, due to the conflict between the parents, which the outcome of this case has the potential to entrench, the parties are likely to experience extreme difficulty in exercising parental responsibility for X jointly. Certainly this is Ms A’s view, given what she has identified as extreme communication difficulties between the parties and a high level of suspicion between them.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [18]
[18] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
As will become clear, as these reasons for judgment unfold, the parties relationship with one another has been fraught with all manner of difficulties. Considerations of this type are relevant, in my view, to issues to do with the conferral of parental responsibility.
Legal considerations relating to issues of abuse
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[19]
[19] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
In respect of the issue of sexual abuse, the emphasis, in the definition, is on the sexual exploitation of children. The definition speaks of the use of a child as a sexual object. It is the clear implication of Mr Godfrey’s position, in this case, that he asserts that Mr C has utilised X as some form of sexual object.
Any case involving an aspect relating to the sexual abuse of a child must be closely examined by the court. This is because the potential detriment to a child, of being subjected to sexual abuse, represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[20]
[20] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at paragraph 94
However, in many cases, it may not be possible for the court to make a definitive finding, one way or another, whether sexual abuse did or did not occur. In some cases, as here, the allegations arose many years ago and involved a child of tender years. X was aged between five and seven when the allegations of sexual abuse arose. Necessarily, his verbal and cognitive skills are not fully developed. His vocabulary relating to and understanding of the issue concerned is limited.
However, given the structure of Part VII of the Family Law Act 1975, particularly its emphasis on protecting children from the consequences of any form of abuse, the court cannot disregard such allegations or disregard their seriousness because of evidentiary difficulties, which arise as a consequence of the court trying to establish the truth or otherwise of the allegations concerned and the circumstances in which they arose.
In addition, in some cases, allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[21]
[21]See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at paragraph 95
The leading authority, in respect of the issue of sexual abuse involving children, is the High Court decision of M & M.[22] In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is to “make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.” As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.”
[22] See M & M (1988) FLC 91-979
The court must bear in mind that proceedings, in respect of care arrangements for children pursuant to the Family Law Act 1975, are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned. Nor, where there are allegations of sexual abuse, are they criminal proceedings.
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental access. The High Court said as follows:
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”[23]
[23] See M & M (supra) at page 77,081
In W and W [Abuse allegations: unacceptable risk][24] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[25]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[24] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[25] See N & S and the Separate Representative (supra) at page 82,713-82,714
In cases involving abuse, the court’s role lies in the assessment of risk. In conducting that assessment, the court must examine all relevant evidence and put in place a response which is proportionate to the risk so assessed and which also serves the best interests of the child concerned. Clearly, if the risk of abuse is an unacceptable one for the court to countenance, it would not be in the child’s best interests to be exposed to such a risk.
It is not the court’s function to determine definitively whether abuse has or has not occurred. This is not a criminal trial and, in any event, given how allegations of abuse arise, it is frequently the case that it is impossible for the court to make either a positive or negative finding that abuse has or has not occurred.
In addition, the court must bear in mind the inherent risk of either severing or unnecessarily curtailing a potentially beneficial relationship for a child because of nebulous or uncertain allegations of abuse. Risk can often cut two ways.
Legal considerations relating to issues of family violence
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Repeated derogatory taunts;
·Stalking;
·Unreasonably denying a family member financial autonomy;
·Unreasonably withholding financial support needed to meet the reasonable living expenses of the family member concerned.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Family violence is not homogeneous in its qualities and can arise in a variety of contexts. It is also recognised that family violence is prevalent in all walks of Australian society and represent a great threat to the wellbeing of children.
It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[26] Not all incidents of family violence will be necessarily damaging for a child.
[26] See JG & BG (1994) 18 Fam LR 255 at 261
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child's parents are not appropriate psychological role models for children.[27]
[27] See In The Marriageof Patsalou (1994) 18 Fam LR 426
The issues of family violence in the present case are subtle. Ms Bradley asserts that there was a marked imbalance of authority in the parties’ relationship with one another characterised by Mr Godfrey’s verbal abuse and denigration of her and his financial irresponsibility. She also alleges specific incidents of assault, including on her partner Mr B, which resulted in Mr Godfrey being convicted.
Significantly, Ms Bradley asserts that Mr Godfrey has, in effect, stalked her unremittingly, resulting in numerous breaches of the family violence order made in her favour. In addition, she asserts that Mr Godfrey uses frequent recourse to legal mechanism of review as an instrument to coerce and intimidate her, which is behaviour which falls within the legislative definition of family violence. As such, she asserts that Mr Godfrey represents a flawed role model for X.
Findings
a)Family violence
I have little doubt that the mother’s characterisation of the nature of the parties’ relationship with one another is the one more likely than not to be the accurate one. It is her case that financial issues were a constant bone of contention between the parties and despite the fact that she was employed during the relationship, she felt financially beholden to Mr Godfrey.
Ms Bradley was employed during the entirety of the parties’ relationship. As a (occupation omitted), her salary was reliable. Mr Godfrey was self-employed during the relationship. He apparently has invented a (omitted), which he has investigated having manufactured, either in this country or overseas. I accept the mother’s evidence that, in these circumstances, the father contributed little to the parties’ joint finances, but assumed control of her salary.
It is Ms Bradley’s evidence that the parties first separated in 2008. At the time, X was about three years of age and it was the mother’s perception that the father had little interest in him and provided her with little emotional support. In his affidavit evidence, Mr Godfrey asserts that X’s pregnancy was unplanned, from his perspective. Accordingly, he believes that he was “entrapped” into having a child.[28]
[28] See father’s affidavit filed 25 March 2015 at paragraph 9
I accept that the early years of the parties’ relationship were deeply unhappy. In these circumstances, I also accept that it was Ms Bradley who instigated the parties’ first separation in 2008. I further accept her evidence that she was physically assaulted, prior to this separation, when the father punched her to the head and body.
There is no independent corroboration of this assault. In these circumstances, Mr Godfrey asserts that it must be fabricated on the basis that it is inconceivable that a (occupation omitted) would not make a report of such a serious assault. I do not think that this is necessarily so. To the contrary, I found Ms Bradley’s explanation for the lack of complaint – namely her embarrassment, as a (occupation omitted), to have been so assaulted – to be entirely plausible.
I also reject Mr Godfrey’s assertion that, if he had chosen to assault Ms Bradley, in the way alleged, he would have left her with significant injuries requiring medical intervention. That there is no such record, on Mr Godfrey’s case, is indicative of the fact that there was no such assault. Necessarily family violence occurs behind closed doors in the private confines of the home. As such, its independent verification is frequently problematic. That does not mean it does not occur.
I find Ms Bradley’s accounts of the various assaults of which she was the victim to be plausible. I did not find Mr Godfrey’s accounts of being the victim of perennial assaults to have the same level of plausibility, although I accept that Ms Bradley is more than capable of being provocative, particularly if she has been drinking.
I also accept Ms Bradley’s evidence that Mr Godfrey did not accept the parties’ first separation but pursued her to resume the relationship. The mother agreed to give the relationship another try for X’s sake. I reject any suggestion that it was Ms Bradley who had the upper hand in the relationship because she was a (occupation omitted). To the contrary, in my assessment, it was Mr Godfrey who was more in control.
It is Ms Bradley’s evidence that she was prevailed upon to go into debt to support the father’s (omitted) business. In these circumstances, it is her evidence that the parties argued frequently about financial matters and she complained that Mr Godfrey made no contributions to household bills and did little around the home.
In all these circumstances, she was compelled to keep working, during which periods X was cared for by his father. However, notwithstanding this state of affairs, it is Ms Bradley’s evidence that Mr Godfrey’s contribution to the wellbeing of the family was limited. She further asserts that Mr Godfrey was jealous, possessive and controlling of her, which behaviour was characterised by a constant monitoring of her activities.
The parties both drank alcohol in this period. In her unhappy circumstances, I accept that the mother started to drink at unhealthy levels, as a consequence of stress at both home and work. She acknowledges that her resentment and animosity towards Mr Godfrey grew. In her words, the relationship between the parties became “more and more toxic and violent”. It is the mother’s evidence that she felt trapped and powerless in this situation and guilty that, as a (occupation omitted), she was not in a position to do anything about it.
This period must have been difficult for both parties. The mother was clearly abusing alcohol and undoubtedly did not always engage appropriately with the father. She was resentful that, from her perspective, whilst she was engaged in a difficult and stressful occupation, none of the housework was done and Mr Godfrey contributed nothing, in a financial sense, to the household. She further asserts that Mr Godfrey verbally denigrated her, referring to her as a “bad mother”, “an alcoholic”, and being “worthless”.
The father characterises himself as liking a drink but not being a bad drunk. On the other hand, he describes Ms Bradley as being a Jekyll & Hyde character, who is a nice girl when sober but when drunk a nasty piece of work. This characterisation cannot be blithely dismissed, particularly given the circumstances surrounding Ms Bradley’s apprehension for drunk driving, which included a charge of resisting arrest.
In all these circumstances, I think I would be naïve if I did not consider that Ms Bradley’s drinking, which she acknowledges was out of control, contributed to a significant degree to the unhappy situation prevailing between the parties. In my view, both parties are likely to have contributed to the increasingly volatile and untenable relationship between them, which came to a head on their separation in October 2011.
The catalyst for the parties’ separation was an incident between Mr Godfrey and Mr B, which occurred at the (omitted) Hotel on or around (omitted) 2011. Mr Godfrey characterises himself as being the victim of unwanted aggression from Mr B, in respect of which he was protecting himself. The matter apparently proceeded to hearing in the Magistrates court.
As Mr Godfrey contested the charge it took approximately two years for the matter to be resolved. However the charge was established and Mr Godfrey was convicted and placed on a two year good behaviour bond. It is Mr Godfrey’s position that the incident was precipitated by his discovering that Ms Bradley and Mr B had become involved with one another. It would seem given the highly emotional context of the matter and some level of extenuating circumstances, Mr Godfrey was treated leniently.
In my view, the incident is emblematic of the alcohol fuelled and volatile nature of the relationship between the parties. It seems more likely than not that both parties behaved inappropriately from time to time and both used physical force against the other or damaged property, when enraged. However, I reject Mr Godfrey’s evidence that he was more often than not the victim of the violence.
The parties’ relationship was undoubtedly complex, with many factors precipitating conflict between them. In such circumstances, it is facetious to talk in terms of simple cause and effect – one party the instigator of violence, the other its victim.
Rather, the court must consider where the balance of power lay between the parties. I accept that the father was disparaging and controlling of the mother, which led her to have poor self-esteem and to drink as compensation. This, in turn, led to confrontations and violence between them, which reflected poorly on both parties and led them to spiral downwards.
In a statement made by him to police, on (omitted) 2011, Mr Godfrey elaborates on the volatile and unstable relationship between the parties in the period from 2009 and 2011. I suspect this statement was created in an attempt to undermine the mother’s application for a family violence order against him and is not necessarily completely objective.
In the statement Mr Godfrey testifies as to being the victim of violence after both parties had been drinking together at hotels. For her part, Ms Bradley disputes the allegations made against her and asserts that it was Mr Godfrey who was violent against her. There can however be no doubt that alcohol was a factor in the various incidents.
Mr Godfrey deposed as follows in respect of the period surrounding the parties’ separation:
“On Saturday the (omitted) 2011 I moved out of the house… on Wednesday the (omitted) 2011 I received a phone call from Ms Bradley at 10:15pm, X was upset and said over the phone he wanted to come and stay with me at (omitted)’s house. Ms Bradley sounded pissed so I thought I should go and get him. I called the police to come and supervise but they weren’t immediately available. I arrived at Ms Bradley’s place and waited for police for up to 15 minutes. After that time I walked up to the front door, the door was open and I called out “I have come for X”. Ms Bradley walked towards me and took a swing at me, hitting me with a fist to the left side of my head. She said “You are just a piece of shit you are poisoning my son.” I picked up a bowl and hit myself over the head. I started to bleed. I said, “I will do a Ms Bradley and tell the police you did it. I have already rung the police.”
Ms Bradley backed away and X came out of the bedroom. I collected some clothes and left. I received a phone call from the police about 10 minutes later, they stated that they could have a car there in another 20 minutes. I thanked the operator and advised that the car was not required… Ms Bradley rang me about 12:15am to check on X. Ms Bradley sounded very pissed. I was not injured as a result of the punch I received and did not require medical attention.
There are lots of other incidents where I have been assaulted by Ms Bradley. I don’t think there is any point of reporting all of the incidents. I wish to show there is a pattern of behaviour and that Ms Bradley has a serious drinking problem.”[29]
[29] See police statement of the father dated 22 December 2011 being annexure G 1 to the father’s affidavit filed 15 May 2014.
In my assessment, Mr Godfrey has a need to control Ms Bradley. This need has been manifested by his lack of respect for the family violence order made in her favour and his use of almost continual litigation against her. In addition, it is my finding that his view of her is entirely negative and disparaging and his behaviour towards her is characterised by passive aggression.
In my view, the evidence indicates that Mr Godfrey’s behaviour towards Ms Bradley has had deleterious emotional consequences for X. He is a sensitive child, who is not presently travelling well emotionally. He is aware of the stress his father’s behaviour places on his mother. It causes him acute anxiety.
This stress has lead him to make threats of self-harm, which I accept are his cry for help and his concrete indication to those, who are responsible for his emotional well-being that his sense of pain is real. X, at this stage, is unlikely to carry through on his threats. But the court must regard them seriously. They are a manifestation of the distress X feels at the conflict between his parents, which I am satisfied originates far more with the father than the mother. I agree with Ms A that Mr Godfrey is the engine driving the conflict between the parties.
In my view, the findings arising under this criteria favour X living predominantly with his mother. In addition, in my view, these findings rebut the statutory presumption that the parties should share parental responsibility for X equally.
I am concerned that Ms Godfrey lacks insight into the consequences of his behaviour for both X and Ms Bradley. His response to Ms A’s evidence, which I found both logical and compelling, was to seek X’s placement in his immediate and predominant care. In my view, this showed little understanding of X’s emotional needs.
In addition, I consider that Mr Godfrey currently represents a flawed role model for X. In particular, the manner in which Mr Godfrey attempts to resolve conflict and engage with women – in this case X’s mother – is not a helpful model for X.
There is a real danger that children, who are exposed to family violence, will perceive that abuse is part of life for females (in particular) and become accepting of such behaviour. As a consequence, children may learn that violence is an appropriate way to resolve disputes and thus will follow in the footsteps of a violent parent, when they become parents themselves, thus entrenching a cycle of violence between familial generations.[44] This is equally damaging for boys as it is for girls.
[44] See Blanch v Blanch & Crawford (1999) FLC 92-837 – per Mullane J at 92-837
Boys may follow in the footsteps of violent fathers and become violent parents in turn. Girls may mirror the behaviour of their mothers and return to dangerous and unsatisfactory relationships, when they are mature, exposing their own children to danger. In the shorter term, children who are exposed to aggression are likely to behave aggressively themselves. Accordingly, children of violent parents are at real risk of forming disturbed interpersonal relationships, both as children and adults.
In T & N,[45] Moore J, after reference to social science research, identified the highly detrimental consequences, to the wellbeing of children, of being exposed to family violence. She said as follows:
“They are terrified and simultaneously come to accept it as an expected part of life; they may learn that violence is acceptable behaviour and an integral part of intimate relationships; or that violence and fear can be used to exert control over family members; they may suffer significant emotional trauma from fear, anxiety, confusion, anger, helplessness and disruption in their lives; they may have higher levels of aggression than children who do not have that exposure; and they may suffer from higher anxiety, more behaviour problems and lower self-esteem than children not exposed to violence. Clinical profiles for children who witness domestic violence include post-traumatic play, diminished ability to regulate affect in the forms of hyper-arousal, numbness, emotional constriction, a low frustration threshold, nightmares and other sleep disturbances, aggressive behaviours, intense and multiple fears, regression in developmental achievements, and disturbances in peer relations.”
[45] See T & N (2003) FLC 93-172 at 78,760
Ms Bradley is not immune from criticism. I find that she also behaved inappropriately and violently during the parties’ relationship. It is clearly the case that her drinking was out of control for an extended period of time, culminating in her drink driving conviction. However, in mitigation, I accept also her evidence that her drinking was a response to her unhappy situation.
More significantly, with Mr Godfrey’s removal from her domestic situation, I accept that Ms Bradley has had an opportunity to reflect and seek appropriate support, which has enabled her to change her lifestyle. In this context, I accept that she has some level of insight into her behaviour and is capable of changing it.
A major theme of Mr Godfrey’s case is that X should live predominantly with him because Ms Bradley is unable to protect him adequately from being sexually abused by his paternal grandfather. He asserts that Ms Bradley disbelieves her own son and what he regards as clear cut evidence that Mr C is a sexual predator of young children, including X. He asserts that the mother’s disbelief of X’s apparent account of abuse is, in itself, likely to be emotionally deleterious to the child.
This is a very serious allegation, which it behoves the court to take seriously. I have endeavoured to examine what evidence is available to me in order to make an objective assessment of the level of threat involved to X and thereafter fashion a proportionate response to this threat. I note that Mr C was not called to give evidence in these proceedings. Accordingly, I am not in a position to make any direct assessment of his credibility. I understand he refutes the allegations made against him and has done so consistently.
In this context, I note that the various allegations against Mr C have been investigated by both Families SA and SAPOL and found to be unsubstantiated. In addition, it is unclear when and where X is said to have been sexually assaulted. This is because X’s disclosure occurred in response to a television program, which raised issues of paedophilia, rather than in respect of some specific incident, which X raised himself. In this context, it is unclear what is the precise nature of the sexual abuse, which X is said to have suffered.
To police, over a year after the initial disclosure, X made somewhat inchoate complaints regarding his grandfather pulling his pants down. I agree with Ms Tinning that this interview provided no clear narrative and whatever disclosures were made should be regarded as low level.
In all these circumstances, it is impossible to determine whether or not X has been subjected to any sexual abuse and, if so, what form it has taken. The parties themselves took no formal action in respect of it, whilst they remained in a relationship together. From Ms Bradley’s perspective, this was because she did not take the disclosure to be a true one, although she was shocked by it.
From Mr Godfrey’s perspective, it seems to me that the magnitude of the disclosure seems to have grown in the period following the parties’ separation, which of course is a period of time which has been characterised by an extreme level of mistrust between the parties and during which they have struggled to gain the upper hand over the other, as these proceedings have unfolded. Such a state of affairs provides fertile ground for suspicions to grow exponentially. The parties now, if they ever did, have no capacity to discuss rationally the threat which Mr C may or may not pose to X.
Rather, the issue has become emblematic, from Mr Godfrey’s point of view, as to why X should live predominantly with him. It is his case that he would be a negligent parent, if he did not do whatever he could to protect X from Mr C. I am concerned that, in objective terms, Mr Godfrey is more likely than not to have over-reacted to the issue and the degree of threat involved.
This over-reaction has been manifested by his complaints that X has attended social occasion, at Christmas and on his birthday, which Mr C has also attended. I accept Ms Bradley’s evidence that other members of her family were present on these occasions and the child was not left unsupervised, at any time, with Mr C.
Ms Bradley does not accept that X has been abused by her father. She is entitled to her view, which does not appear to me to be an irrational one, given the state of the evidence. As such, I do not consider that she is in a state of denial or self-delusion.
Rather, Ms Bradley finds herself in an extremely difficult position. The child’s disclosures shocked her and left her with a sense of disquiet – an understandable reaction – although she did not necessarily think they were likely to be true. She has also had to deal with Mr Godfrey, a person with whom she finds it close to impossible to have a rational discussion. Mr Godfrey is also a person who, in my assessment, has the propensity to become fixated with issues.
Ms Bradley has not dismissed Mr Godfrey’s fears about her father out of hand. She has endeavoured to follow a middle course in these difficult circumstances. This middle course is the injunction, to which she consented, which prevents X coming into the unsupervised care of Mr C. I am satisfied that Ms Bradley has honoured the injunction and will continue to do so.
She proposes its continuation as a mechanism to achieve a balance between assuaging Mr Godfrey’s concerns, on the one hand, which cannot entirely be discounted, whilst, on the other, ensuring that X has some sense of his relationship with his wider maternal family, including his grandfather, and where he fits in within that family.[46] In my view, this is a proportionate response to the inchoate degree of risk to X, represented by his maternal grandfather.
[46] See Bright v Bright (1995) FLC 92-570 at 81,658
The major difficulty, arising in this case, is that X knows each of his parents well. As such, his relationship with both his father and his mother is full of meaning. Both parents have played an active role, in X’s life, from his earliest recollection.
Ms A paints a picture of a child in X, who is struggling to come to terms with his love for his father and what he perceives to be unacceptable pressures, placed on him, by his father. In Ms A’s opinion, this is the explanation as to why X indicated to her initially that he only wanted to spend limited time with his father, which then became no time at all, by the stage of the second family report.
I agree with Ms A’s assessment that X’s relationship with his father needs to be supported, in the hope that it can be remediated, over time. The question for the court being what is likely to be the best time spending framework to allow this to occur, if it is possible.
The rationale of section 60CC(2)(a) is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
Although I appreciate that this comment may be hurtful to Mr Godfrey, the impression which I have gained is that he and X are not particularly simpatico in respect of many of their interests. Mr Godfrey likes rugby; X is not so keen. X prefers riding his bike, rather than the minibike hired by Mr Godfrey. Significantly, X has some antipathy for some of Mr Godfrey’s friends, particularly Mr D.
In this context, X has complained that he finds the rugby club boring and there is nothing to do, at his father’s house. In these circumstances, in my view, there is nothing to be gained by extending X’s time with his father, in the hope that this will lead to an improvement in the relationship between the two. Rather, in my estimation, the court needs to adopt a more gradual and incremental approach, which gives some credence to X’s views.
In these circumstances, I consider that Ms A’s most recent recommendation, which envisages X spending time with his father from after school on Friday until the commencement of school the following Monday, on alternate weekends, represents the mechanism most likely to ensure that X maintains a sufficiently meaningful relationship with his father.
I agree with Ms A’s view that it would not be helpful to augment this regime with extended block periods of time, during school holidays. However, it is important that X spends special occasions with his father. In this regard, Ms Bradley is to be criticised for not facilitating X engaging with his father on his (X’s) recent birthday. It is not acceptable for Ms Bradley to say that she simply forgot it.
The additional considerations
a)The child’s views
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[47]
[47] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56
Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[48]
[48] See H v W (1995) FLC 92-598 at 81,944
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[49]
[49] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
Ms A regards X as a mature child. I agree with that assessment. I am also satisfied that X has an understanding of the difficult dynamic between his parents and in the expression of his views, as reported by Ms A, is responding to it. Significantly, I do not think that X’s current views, as encapsulated by Ms A, are the subject of any direct influence or coaching from Ms Bradley.
The same cannot be said of Mr Godfrey, who has unsuccessfully tried to prompt X as to what he is to say to Ms A. For what I regard as readily explicable reasons, X currently wishes his relationship and time with his father to be circumscribed. In this context, it is telling that he indicated to Ms A that he did not appreciate being told what to say by his father and rebuffed his attempts at influence.
From Ms A’s perspective, which I accept, it was a brave thing for X to express his views so forthrightly to her. X was well aware that this would upset his father and he feared blow back from it as a consequence. To my mind, this state of affairs serves to underline the genuineness and conviction of X’s views.
As such, the court is required to give them real weight. X is around ten years of age. Although young, he is articulate. He was aware of the moment arising from his meetings with Ms A. His views would be canvassed and, as such, it was necessary for him to consider what his preferences were. In difficult circumstances, he expressed a preference.
In addition, I accept Ms A’s evidence that X’s views stem from his discomfort at the stress he sees in his mother, as a consequence of the difficult relationship he has observed between her and his father. In this context, X feels protective of his mother and perplexed by his father’s behaviour. For obvious reasons, this has influenced his preferences in the case.
Overall, I am satisfied that X’s views are valid and, as a consequence, should be accorded significant weight by the court. In addition, significantly, I accept Ms A’s evidence that, if X perceived that his views have been ignored, this will have deleterious consequences for his self-esteem and long-term emotional development.
He will understandably feel that his views are easily discounted and therefore he himself has no value. For obvious reasons, this will not be helpful to how he feels about himself, particularly given the courage it took him to express a view, which he knew was likely to upset his dad.
b)The nature of the child’s relationship with each of his parents and significant others
Notwithstanding the controversy between Mr Godfrey and Ms Bradley, regarding care arrangements for X, when he was an infant, I find that currently the mother is X’s major source of emotional security. This is a significant finding. Essentially, X is just more comfortable with his mother.
This state of affairs, in my view, is most eloquently summarised in what X said to Ms A, when he indicated that going to bed at 8:00pm, in his mother’s household, was not much fun but he liked it anyway. To my mind this neatly indicates an appropriate and comfortable parenting relationship between mother and child. Ms Bradley is able to exercise appropriate authority over X, which the child appreciates.
In contrast, I am satisfied that the evidence, currently available to me, indicates that X’s paternal relationship is somewhat problematic. Undoubtedly X loves his dad, but there are tensions between them. Essentially, X does not have the same degree of comfort, with his father, which he has with his mother.
This was not a case which focussed on where X fits in in his wider extended family. Clearly, X has maternal grandparents and, on his father’s side, some adult half-siblings. Apart from the focus on Mr C, these relationships have not been examined in these proceedings.
Given the allegation of sexual abuse, concerning Mr C, and the mother’s agreed response to it, it seems likely that this relationship will be circumscribed in future. What are the implications of this, in respect of X’s relationship, with his maternal grandmother and other maternal family member is unclear to me.
For the reasons provided above, it seems to me that it is likely to be helpful to X if he attends family occasions, such as the celebration of Christmas and the like, so he is aware of where he fits in within the broader structure of his family.
c) The extent to which each of the child’s parents have taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
Both parents have a deep interest in everything to do with X. There is no suggestion that either Mr Godfrey or Ms Bradley have ever failed to take up an opportunity to spend time with X. In this context, I accept that financial necessity dictate that Ms Bradley continue in the workforce. I reject any suggestion, implied or otherwise, that she has prioritised her career over the needs of X.
The particular difficulty of this case is that the parents’ past history; their different parenting values and disparate personalities; and their struggle for advantage over each other; renders it extremely difficult for them to agree about many things likely to be important for X’s care and development.
Accordingly, Mr Godfrey and Ms Bradley are likely to share the generic aspiration that everything be done to ensure that X has a happy and secure childhood, which prepares him for a fulfilling adulthood, but they are likely to fundamentally disagree about the means through which this is to be achieved.
There is no easy answer to this dilemma. The parties are not disinterested parents. They are each likely to be interested in every decision which is likely to arise in respect of X, but when any such issue arises, they will disagree about how it is to be resolved.
ca)Provision of financial support for X
I am satisfied that it is Ms Bradley who provides the bulk of financial support for X. Mr Godfrey has been somewhat cagey about his financial situation. However, at present, he is not in the paid workforce and it is uncertain when, if at all, he will return to paid employment.
Mr Godfrey portrays himself as being something of a self-employed entrepreneur, particularly in respect of his invention and manufacture of (omitted). For her part, Ms Bradley is critical that, during the parties’ relationship, these activities left her in debt and with the responsibility of supporting X financially.
This state of affairs remains a bone of contention for her. I can understand why this would be so. It seems to me to be improbable that Mr Godfrey will make any significant contribution, in respect of X, for the foreseeable future, particularly given his deep and abiding antipathy for Ms Bradley.
d)The likely effect on the child of any changes in his circumstances
Mr Godfrey proposes a significant level of change in the parenting arrangements for X. In my view, the evidence is unequivocal that X is unlikely to cope well with such change. I accept Ms A’s view that X is not emotionally robust and, as such, he should not be exposed to any necessary degree of change in arrangements for his care, unless there is a compelling reason to do so.
It seems that X is well settled in his mother’s care, which is also his preferred outcome. In my view, there is no compelling necessity to change this arrangement to any significant degree. Certainly, I do not consider the father’s concerns about Mr C provide such a reason. In addition, for reasons upon which I will expand upon, I do not think a shared care regime is a viable outcome for X at this stage.
e)The practical difficulties and expense of the child spending time and communicating with each of his parents
Mr Godfrey and Ms Bradley live in reasonable proximity to one another in suburban Adelaide. Although Ms Bradley has finished the period of her licence disqualification, she has not as yet recommenced driving due to the expense of having an alcohol control lock fitted to her motor vehicle. Mr Godfrey does drive.
In my view, there are few practical impediments to X spending regular periods of time with his father. That is not to say that there will not be problems arising from such a regime. The chief of which is the parties’ poor relationship with one another and the need for X to be exchanged at a safe and neutral location.
f)The capacity of the parents to provide for the child’s emotional and educational needs
In my assessment, Ms Bradley is far better placed than Mr Godfrey to meet X’s emotional needs. I accept Ms A’s assessment that she is more emotionally in tune with X, at present. Given my view that X is not an emotionally resilient child, this adds support to my view that X’s best interests will be served if he remains in his mother’s predominant care.
In general terms, I accept that both parties are interested in ensuring that X does as well as possible at school. However, given the manner in which the case was conducted, this is not a strong determinative factor in the matter.
g) The child’s maturity, sex, lifestyle and background
h) Aboriginality
These are not relevant considerations in this case.
i)The attitude that each parent has demonstrated to the responsibilities of being a parent
I accept that both Mr Godfrey and Ms Bradley aspire to being the best possible parents for X. However, during their relationship, they did not live up to this aspiration. This was because of the perennially troubled relationship between them.
Since exiting her relationship with Mr Godfrey, I accept that Ms Bradley has reappraised her parenting responsibilities, so far as X is concerned. I find that she does not currently have a drinking problem. Rather, I accept that, with the assistance of counselling, she has been able to put her life in order, which has been beneficial to X.
Mr Godfrey remains fixated on getting even with Ms Bradley because of his perception that he was wrongly the subject of a family violence order, which she instigated, leading to his unjust and unwarranted detention. His animus in respect of this issue, in my view, impedes upon Mr Godfrey’s capacity to parent X effectively. I agree with Ms Tinning’s assessment that Mr Godfrey is fixated with the issue.
Mr Godfrey bristles with ill feeling for Ms Bradley, although he asserts otherwise. His view of her is negative, as revealed when his demeanour slipped in court and he referred to her as a mangy dog on heat. In these circumstances, I have great reservations that Mr Godfrey will not be able to protect X from his (Mr Godfrey’s) abiding antipathy for his (X’s) mother. The evidence of Ms A is that X is already stressed by his wish to protect his mother and have a better relationship with his father.
It is part of the responsibility of being a good parent to encourage and support a child to have the best possible relationship with the other parent concerned. Both parties, in this case, can do better in this regard. As previously noted, it was inappropriate that Ms Bradley did not enable Mr Godfrey to speak to X, on his birthday. However, of the two parties concerned, I am satisfied that it is Ms Bradley who has the better level of insight into what it is to be a responsible parent and so is more likely to support X’s relationship with his father than vice versa.
j) Family violence
k) Any family violence order
I do not propose to repeat my findings regarding family violence issues in this case. There continues to be a family violence order applicable to Mr Godfrey. As recently as 18 December 2014, Mr Godfrey was found to have breached this order, with his subsequent appeal being dismissed. In my view, there is sufficient evidence available to me to indicate that Mr Godfrey has scant regard for such orders.
Ms Bradley is entitled to the production ensuing from the family violence order made in her favour. The order envisages that Mr Godfrey will be restrained from contacting or communicating with her, in any way whatsoever, apart from in relation to specific issues to do with X.
In my view, the transcript of the interaction, between Mr Godfrey and Ms Bradley, related in the appeal decision of Nicholson J which Ms Bradley recorded is indicative of the hectoring and bullying persona of Mr Godfrey, which the order in question is intended to prevent.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Mr Godfrey has demonstrated himself to be a determined litigator. Whatever is the outcome in these proceedings, it does not seem improbable that there will be further proceedings between the parties. This is not likely to be helpful to X, who has been reported by both his mother and Ms A to be demonstrating symptoms of stress. This stress relates to the conflicted relationship between the parties, of which intense and vitriolic litigation is a feature.
Conclusions
Having considered all the factors arising under section 60CC of the Act, I have come to the conclusion that X’s best interests will be served if he continues to live predominantly in the care of his mother and spend time, with his father, on alternate weekends. In my view, this regime is the one best calculated to protect X from the worst aspects of his parents’ conflicted relationship, whilst ensuring he has the best opportunity to maintain a viable relationship with his father.
In reaching this conclusion, I am strongly influenced by my finding that it is Mr Godfrey, who is the parent more responsible for driving the conflict between the parents. I am also highly cognisant of X’s own views as to what he would like, so far as his parenting arrangements are concerned.
I do not consider that it would represent an unacceptable risk to X, if he remains living predominantly with his mother, because she may not appropriately protect him from being sexually abused by the paternal grandfather, Mr C. In my view, it is a proportionate response to the degree of risk entailed by Mr C if the previously made injunction, to which Ms Bradley consented, is continued on a final basis.
Given the extremely conflicted nature of the relationship between Mr Godfrey and Ms Bradley, characterised by vitriolic proceedings over the family violence order made in the mother’s favour, I do not consider that it would be in X’s best interests for the presumption of equal shared parental responsibility to be applied to his care. In addition, I consider that there are reasonable grounds for me to believe that Mr Godfrey has engaged in family violence involving Ms Bradley.
In any event, when I consider the evidence available to me, it is patently the case that the parties do not have the capacity to make either an equal time or a substantial and significant time regime work for X. Their relationship is marked by severe communication difficulties. They have close to no capacity to resolve any issues or difficulties, which will inevitably arise in respect of X’s care, consensually. Regrettably, there seems no end in sight to the conflict arising between them.
In my view, the evidence indicates there has been nothing joint or consensual about the parties parenting of X for a very long time. It is telling that Mr Godfrey arranged for X to attend on Mr M unilaterally. Mr Godfrey remains suspicious of Ms Bradley and believes that she is unable to protect X appropriately, notwithstanding earlier findings made by Families SA and SAPOL.
Mr Godfrey’s suspicions, in this regard, are unlikely to abate any time soon. He does not accept the findings of either Families SA or SAPOL. He does not trust any aspect of Ms Bradley’s judgement, so far as the issue is concerned. It would seem likely that he will look for any pretext to re-open the issue, if at all possible.
The evidence also indicates that X is a child who is likely to require counselling in future. Ms Bradley has arranged this counselling, without input by the father. Ironically, one of the precipitating factors for X’s counselling is the conflict between his parents. In such circumstances, it is highly improbable that the parties will be able to agree about such counselling and their respective involvement in it.
Regrettably, although Mr Godfrey portrays himself as a reasonable but put upon person, it is my impression that he is liable to disagree, either actively or passively, with nearly everything Ms Bradley is likely to propose in respect of X’s long-term care, no matter how reasonable or praiseworthy that proposal is. I acknowledge that this is a sad and extreme conclusion.
In all of these circumstances, I agree with the submissions of the independent children’s lawyer and counsel for the mother, Mr Boehm that it is essential both for X’s well-being and in order to ensure that appropriate decisions are made in respect of his care that one of his parents should be conferred with responsibility for exercising parental responsibility in respect of X. Given that X will be in the predominant care of his mother, she is obviously the person best placed to exercise such authority.
That is not to stay Mr Godfrey will be totally excised from X’s life, including his education. The orders, I propose, which are essentially those put forward by the mother, envisage Mr Godfrey being able to attend X’s school in order to take part in the sort of school based activities, which are routinely attended by parents, such as school concerts, sports days and parent/teacher interviews.
I will also put in place the orders proposed, which formalise communications between the parties to a written form, utilising a formal communication book. Given the unusual circumstances, I accept that it is only in genuine emergencies that other forms of communications such as SMS messages or the telephone be used. This is because of the extreme level of dysfunction in the parties’ relationship with one another.
The formal injunctions relating to alcohol abuse; non-denigration; and Mr C; should also be continued on a final basis. I am satisfied that these orders will serve X’s best interests.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and twenty (420) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 24 September 2015
[5] See family assessment report dated 14 November 2014 at paragraph 68
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