Godfrey and Bradley
[2014] FCCA 1041
•23 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GODFREY & BRADLEY | [2014] FCCA 1041 |
| Catchwords: FAMILY LAW – Interim arrangements for care of child aged eight years and ten months – nature of interim hearing – both parties make allegations of serious family violence – statutory definition of family violence – allegations of neglect and exposure to sexual abuse – need for independent children’s lawyer – implications of final family violence order – application of presumption of equal shared parental responsibility – assessment of section 60CC factors – best interests. |
| Legislation: Family Law Act 1975, ss.4AB, 60CC, 61DA, 65DAA, 67ZBB |
| Godfrey v Police (No.3) [2013] SASC 93 Godfrey v Police (No.4) [2014] SASC 41 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Godfrey v Police (No 2) [2013] SASC 50 Goode & Goode (2006) FLC 93-286 Amador & Amador (2009) 43 Fam LR 268 JG & BG (1994) 18 Fam LR 255 |
| Applicant: | MR GODFREY |
| Respondent: | MS BRADLEY |
| File Number: | ADC 1020 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 19 May 2014 |
| Date of Last Submission: | 19 May 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 23 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | SPK Legal |
| Counsel for the Respondent: | Mr Boehm |
| Solicitors for the Respondent: | White Berman |
ORDERS
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the child X born (omitted) 2005 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned to 18 July 2014 at 9.30 am for directions.
UNTIL FURTHER OR OTHER ORDER:
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:
(a)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);
(b)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
(c)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 bakery previously used by the parties to effect handover of the child.
The parties are restrained and an injunction is hereby granted restraining them and each of them from:
(a)Discussing matters relating to these proceedings with the child or with any third person within the presence of and within the earshot of the child; and
(b)Criticising or denigrating the other of them or members of their respective households or families to the child or in their presence or within the earshot of the child and from allowing anyone else to do so.
The parties communicate all necessary information relating to the welfare and day to day needs of the child including medical and educational needs, in writing, via a communications book to be exchanged between them at each handover of the child.
The father be restrained and an injunction is hereby granted restraining him 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.
Without admission, the mother be restrained and an injunction be granted restraining the mother from permitting the child from being in the sole care of the maternal grandfather Mr C.
That without admission by either of them as to the need for same, the parties be restrained and injunctions 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.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 24 June 2014 at 2:15pm, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
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 and Ms Bradley are the parents of X born (omitted) 2005. These proceedings are concerned with interim arrangements for his care.
The parties are not married. They met in 2004. The relationship between them finally ended, in difficult circumstances, on 8 October 2011 or thereabouts. Up until the stage of these proceedings, no formal orders have been previously made to regulate arrangements for X’s care.
On 19 October 2011, the mother applied for a restraining order against the father. She swore an affidavit in support of her application. I have not been provided with a copy of that affidavit. A magistrate granted the order sought on an ex parte basis – that is in the absence of the father.
The circumstances surrounding the granting of this order and what followed thereafter are highly controversial, particularly so far as Mr Godfrey is concerned. They are also the subject of separate litigation in the Supreme Court of South Australia, particularly in Godfrey v Police (No.3)[1] and Godfrey v Police (No.4).[2]
[1] Godfrey v Police (No 3) [2013] SASC 93
[2] Godfrey v Police (No 4) [2014] SASC 41
Notwithstanding these difficult circumstances, the complexity of which I have only just begun to detail, the parties, ostensibly at least, agreed on an informal regime for X’s care. It was agreed that he would live with his father for eight nights per fortnight and with his mother for the remaining six nights.
The mother’s position is that she agreed to these orders under duress. She was in debt, largely because of what she would characterise as the father’s lack of financial contributions and imprudent business affairs during their relationship.
In addition, her impecunious circumstances compelled her to work and she could not afford child care for X. As a consequence, it is the mother’s position that she could not fund Court proceedings.
Ms Bradley is a (occupation omitted) in the (employer omitted). At the time of separation she worked shifts. From her perspective, shared care, for X, was the only viable option available to her, particularly as Mr Godfrey was self-employed at the time and necessarily had more time available to him.
It is common ground between the parties that this regime came to an end in early March 2014. X has lived with his mother predominantly since that date. The father commenced proceedings, in this court, on 24 March 2014. He seeks immediate reinstatement of the 8/6 night per fortnight regime, which he asserts the mother has unilaterally ended for no good reason.
The mother asserts that X is stressed and unhappy as a consequence of the previous shared care arrangement. She says that X is apprehensive about his father, whom she (Ms Bradley) characterises as a pathologically difficult and bullying person, who has no insight into the consequences of his behaviour and the needs of a child of X’s age.
In lieu of the prior arrangements, Ms Bradley proposes that she should have sole parental responsibility for X and that he should spend Thursday overnight and day time Saturday, each week, with his father. She asserts that this much reduced time regime is the most extensive one, which X is likely to be able to tolerate at this stage.
The father disputes the mother’s evidence regarding X’s views. It is his case that X is content with the current arrangements and is used to them. Mr Godfrey also asserts that X has some considerable reservations, arising over many years, about the level of care previously provided to him by his mother, particularly arising from what Mr Godfrey would characterise as Ms Bradley’s heavy alcohol use.
These interim proceedings are designed to provide interim or provisional arrangements for X’s care. The parties need to understand that these are not final orders. Rather, they will stand until further evidence is available to the court and, if necessary, it has determined issues of credibility or truthfulness arising in respect of the many factual issues currently in dispute between them.
For very many reasons, at this early stage, this case presents many indications of being a very difficult case indeed. The various criticisms the parties have of one another are serious and have arisen over very many years. In addition to the dispute about X’s views, the parties disagree about very many other significant issues to do with their relationship together, both before separation and afterwards.
It is difficult, if not impossible, for the court to resolve issues of fact at the interim stage. Affidavits cannot be cross-examined. Necessarily, due to constraints of time, the interim hearing takes place in a truncated form. In addition, as is the case here, affidavits are often hurriedly prepared, against a background of urgency and controversy. As such, they are often incomplete.
Invariably, at the interim stage, there has been insufficient time to gather together all sources of evidence. In cases like the present, the dealings of the parties with one another will be documented by many other organisations, including the police; police disciplinary authorities and the ombudsman; social welfare authorities; and possibly medical practitioners and other allied health professionals, whom the parties have consulted in respect of X.
As yet no subpoenae have been directed to these sources requiring them to disclose relevant documents to the court and the parties themselves. My impression is that the parties’ dealings with one another are likely to have left a large documentary footprint.
Most importantly, there has been insufficient time for there to have been prepared an independent and objective psychological assessment of X and his relationship with each of his parents and how they have individually provided for his emotional and physical needs.
Such a report is likely to be helpful in identifying X’s views about future arrangements for his care and what factors are impacting on those views, bearing in mind X is still not yet nine years of age, and thus must be regarded as an immature and possibly impressionable child.
Given these factors and my impression that the areas of controversy between the parties are entrenched and bitterly contested, it is apparent to me that it is imperative that X be independently represented, in these proceedings, as soon as possible.
This is particularly so given the contentious issues between the parties centre on allegations of mutual family violence; potential sexual abuse; neglect due to alcohol abuse; and, in the case of Ms Bradley, abuse of her authority as a (occupation omitted).
Against this background, Ms Bradley urges the court to proceed with the utmost caution. She regards Mr Godfrey as an abusive and manipulative person. In this context, she has suggested that Mr Godfrey is suffering from some form of psychiatric or psychological impairment of such moment that the court should direct Mr Godfrey to undertake a psychiatric assessment.
On the other hand, Mr Godfrey asserts that Ms Bradley has manipulated the truth and the authorities, including the police and Families SA against him, through her position of influence as a member of the (employer omitted).
He denies that he is the pathologically person portrayed by the mother. Rather, he asserts that he is only doing what is necessary to maintain a proper level of relationship with X, which Ms Bradley has arbitrarily brought to an end.
Issues in dispute
It is now appropriate, as best I can, to summarise the various contractual controversies between the parties. In so doing, I reiterate that I am not in a position to resolve these various issues at this stage of proceedings.
(a) Family violence
The mother asserts that the father was mentally, physically and financially abusive and controlling of her during the entire period of the relationship between the parties. This situation led to a temporary separation, in 2008.
In her affidavit, the mother concedes that these allegations were not subject to complaint and so capable of independent corroboration. It is her position that she was embarrassed to report this abuse, which she categorises as serious in nature because of embarrassment arising from her position as a (occupation omitted).
During the separation of 2008, Ms Bradley asserts that she was stalked and harassed by the father and foolishly agreed to give the relationship a second try. She also thought that this would be best for X, as he needed regular exposure to his father. However, it is her evidence that the separation did nothing to ameliorate the father’s coercive and controlling behaviour towards her.
The father accepts that his income was less than the mother’s was but asserts that he did his best to pull his weight financially. He refutes any suggestion that he was violent or controlling towards the mother. It is his case that the relationship broke down, in both 2008 and 2011, because of the mother’s alcohol abuse; her protracted attendances at hotels; her infidelity; and her abusive behaviour towards him, which was often physically violent.
In this context, Mr Godfrey asserts that, when intoxicated, the mother has frequently assaulted him, often in the presence of X. In support of his allegations, Mr Godfrey has provided a copy of a statement to police dated 22 December 2011 (obviously after the parties final separation) detailing alleged abusive incidents between 2009 and 2011. The police, I am told, have not taken action in respect of his various complaints.
The relationship ended on 8 October 2011. On this occasion, the father assaulted the mother’s current partner, Mr J. Mr Godfrey was arrested and subsequently convicted and placed on a two year good behaviour bond in 2013.
Mr Godfrey asserts that the assault on Mr J was a one off incident, occasioned by the emotional turbulence of discovering the mother’s involvement with Mr J which, he asserts, is reflected in the apparently lenient disposition of the court concerned.
At the same time, the mother alleges that Mr Godfrey assaulted her own mother, in X’s presence, which Mr Godfrey denies. No police charges were apparently laid in respect of this later incident. In any event, I have not been provided of any police documents in respect of the apparent incident.
In respect of what happened on 19 October 2011, the father says as follows:
“On Saturday the 9th October 2011 I moved out of the house… on Wednesday the 19th October 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.”[3]
[3] See police statement of the father dated 22 December 2011 being annexure G1 to the father’s affidavit filed 15 May 2014.
The mother has not as yet formally responded to these specific allegations other than that she denies, in general terms, that she was violent towards the father. As previously indicated, she asserts that it was the other way around.
What happened next is not particularly clear to me. As I indicated to the parties’ counsel, during the hearing of the application, it is my impression that there are very many documents relevant, to this chronology, which have not yet been disclosed to me. In the main, these are police documents.
It is apparently the case that it took around two years for the various family violence proceedings and other related criminal matters to be resolved in the Magistrates Court and the Supreme Court of South Australia.
It is however clear that the mother applied for a domestic violence restraining order, naming Mr Godfrey as the respondent, in early October 2011. This was granted, on an ex parte basis, on 19 October 2011.
The order prevented Mr Godfrey from being on any premises on which Ms Bradley lived or worked and prevented him from contacting her. What were the implications of this, so far as care arrangements for X were concerned, is as yet unclear to me.
Sulan J, in Godfrey v Police (No 3), provides a chronology of the intervention order proceedings. The relevant application and supporting affidavit material were served on Mr Godfrey on 20 October 2011. On 26 October 2011, the proceedings were adjourned to a pre-trial conference on 16 December 2011. At this stage, Mr Godfrey was unrepresented.
In November 2011, Mr Godfrey prepared a written response to Ms Bradley’s affidavit and opposed the continuation of the ex parte order. On 11 December 2011, Mr Godfrey was arrested for allegedly assaulting Ms Bradley and allegedly breaching the interim intervention order. He was granted bail, in respect of these matters, on 12 December 2011.
On 16 December 2011, Mr Godfrey appeared before the Magistrates Court unrepresented. The application against him was listed for trial on 22 February 2012. On 21 and 23 December 2011, and again on 19 June 2012, Mr Godfrey appeared in the Magistrates Court in relation to his bail conditions. Sulan J does not provide any further elaboration of why these appearances were necessary.
On 16 January 2012, Ms Bradley swore a further affidavit in support of her application for an intervention order. Again, I have not provided with a copy of this document. A further pre-trial conference took place on 2 February 2012.
On 15 February 2012, Sulan J reports that Mr Godfrey was taken into custody on “separate matters”. He does not elaborate further. However, it appears to be the case that these matters related to some form of involvement or altercation between him and Ms Bradley, which in some way either breached the ex parte intervention order; breached his bail conditions in respect of the charge of aggravated assault; or related to further criminal charges against him.
On 22 February 2012, Mr Godfrey appeared before a magistrate in respect of both the intervention order application and the assault charge. He unsuccessfully applied to adjourn the intervention order proceedings. They were fixed for hearing that afternoon. Prior to the afternoon listing of the intervention order application, Mr Godfrey was able to consult his solicitor.
He was advised by his solicitor that pursuant to section 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) he was able to consent to an intervention order, notwithstanding that he disputed some or all of the grounds on which the order in question was sought. The intervention order was confirmed by the Magistrate on 22February 2012 on the basis that Mr Godfrey had consented to it without any formal admission of culpability.
The basis on which this consent was provided was the subject of the proceedings before Sulan J. It was accepted that the circumstances in which Mr Godfrey found himself, namely that he was in custody and felt unable to represent himself, when combined with the fact that his application for an adjournment had been refused, vitiated the consent given by him. On this basis, Sulan J quashed the intervention order made on 22 February 2012.
The mother contends that following 20 October 2011, the father has breached the intervention order, subsequently quashed by Sulan J, on numerous occasions. On her case, this has resulted in 12 counts of breach of bail; 12 counts of contravening the intervention order; six counts of breaching a Domestic Violence Restraining Order; and one count of aggravated assault.
I have not been provided with any specific details of any of these matters. As such, it is difficult for me to determine their individual gravity, other than that, on a prima facie basis, it must be regarded as serious if one former domestic partner breaches an order designed to protect the other partner concerned.
It is apparent that, as he was entitled to do, Mr Godfrey contested each of the charges laid against him. Again, what was the precise nature of his defence to these charges is unknown to me. In this context, I note that Mr Godfrey, prior to trial, is not required to give details of any defence on which he proposes to rely.
In addition, I have not been advised of any legal implications arising from the decision of Sulan J to quash the intervention order in question. I assume, possibly erroneously, that the mother applied for an order in substitution of this order, which again was apparently granted on an ex parte basis.
The complicated raft of charges, against Mr Godfrey, came before the Port Adelaide Magistrates Court on 10 December 2013. On this occasion, Mr Godfrey was represented by his solicitor, Mr E. What happened on this occasion is the subject of Godfrey v Police (No 4), which was heard by Kelly J in early 2014. Her Honour summarised the situation as follows:
“The 31 offences subject of the first file had been listed for trial on that date, while the intervention order was listed for mention only. The Court was informed that the matter had resolved by agreement to consent to the confirmation of the intervention order, subject to the 31 charges being withdrawn by police. The matter was briefly adjourned to enable the parties to re-write the terms of the intervention order. The intervention order dated 19 October 2011 was then confirmed by the Magistrate pursuant to s 23(1)(a) [of the Intervention Orders (Prevention of Abuse) Act].”
Mr Godfrey again chose to appeal the confirmation of the intervention order concerned. His appeal was unsuccessful as Kelly J considered that the circumstances surrounding the compromise of the various proceedings on 10 December 2013 was inherently different to that which prevailed in February 2012. She dismissed the father’s appeal and in so doing said as follows:
“It became apparent during the appellant’s submissions on appeal that the appellant maintains an ongoing deeply felt grievance against his former partner and what he perceives to be the injustice of the various legal proceedings against him which all appear to have arisen from the breakdown of the relationship with his former partner. It is this ongoing sense of grievance not any denial of any of the appellant’s procedural rights on 10 December 2013, which I find to be the real basis of the appellant’s appeal to this Court.”
The mother seizes on this comment to confirm her submission that Mr Godfrey is a difficult and querulous person. This may be so, but I do not believe that I am in a position to form my own judgment, on the basis of the material currently available to me. The fact remains that the father contested the vast majority of the charges against him, which were withdrawn.
The issue before Kelly J (and by necessity before this court) concerns the intricacies of section 23 of the Intervention Orders (Prevention of Abuse) Act. As previously indicated, pursuant to section 23(3), a person can consent to an intervention order, without admitting any or all of the facts, on which the application is based. This was purportedly what happened in the proceedings vitiated by Sulan J.
However, pursuant to section 23(1) a court of appropriate jurisdiction may also confirm any interim intervention order earlier granted. As is clear, this latter course was the effect of what happened at the Port Adelaide Magistrates Court on 10 December 2013, which was later subject to appeal by Mr Godfrey.
In respect of this incident, Mr Godfrey deposes as follows:
“At the Court hearing on 10 December 2013, I was confused as to the advice I had been given and agreed to the order. I did not however plead guilty. It was about one week later that I realised that there had been no plea bargain and that I had the right to refuse the confirmation of the order at that time. I then appealed the confirmation of the order.”[4]
[4] See father’s affidavit filed 15 May 2014 at paragraph 34
On the other hand, the mother’s contention, I think, is that the father’s actions must be taken as a confirmation, by him, that the factual circumstances raised by her warranted the granting of the ex parte order. Again, this may be so, but I have not been provided with any details of the incident in question, which is obviously highly controversial so far as Mr Godfrey is concerned.
In these circumstances, there appears to be at least some moment to Mr Godfrey’s contention that he has not been convicted of any of the thirty one charges against him. Certainly, it is his case that the situation between the parties, following their separation, was a difficult and tense one. In this context, it is his allegation that the mother herself breached the intent of the intervention order concerned by frequently contacting him.
For her part, Ms Bradley deposes as follows, in respect of the complex skein of circumstances, which led to the decision of Kelly J:
“The father has treated the legal system with contempt and taken the majority of these charges to trial. He is an extremely recalcitrant individual who refuses to accept authority.”[5]
[5] See mother’s affidavit filed 9 May 2014 at paragraph 29
It is trite, but true nonetheless, that those charged with criminal offences are entitled to contest those charges. Mr Godfrey exercised his rights and the charges against him were withdrawn. There has been no hearing, involving findings of fact, regarding the intervention order concerned or any of the thirty one other charges brought against him.
As is apparent from the reasons for judgment of Kelly J, the prosecution on 10 December 2013 and those advising Mr Godfrey had resolved by agreement the raft of proceedings against the father. They did so on the basis of information which was privy to each of them and indeed Ms Bradley at the time. I do not have that information.
Court cases, both criminal and civil, are frequently resolved without hearing. The reason for such resolutions are idiosyncratic to the case concerned and as such too numerous to be exclusively elaborated here. They can include pragmatism; financial and emotional exhaustion of the parties concerned; the desire, on the part of those parties for a managed and known outcome; or perhaps the realisation of deficiencies in the case concerned. To some extent, the efficient administration of justice, particularly in the civil sphere, relies on the consensual resolution of a significant number of cases.
It is true that Mr Godfrey has exercised his rights of appeal on a number of occasions. Again, he is entitled to appeal. He has been successful in three out of four of his appeals, including one in which he sought to withdraw a plea of guilty entered in respect of a charge of assault involving Ms Bradley.[6]
[6] See Godfrey v Police (No 2) [2013] SASC 50
This case arose during the period of time Mr Godfrey was in custody. The magistrate concerned apparently indicated to him that, if he pleaded guilty to a charge of assaulting Ms Bradley, the time he had already spent in custody would be considered a sufficient penalty to the charge against him. Sulan J considered that, in these circumstances, the plea of guilty in question had not been made freely. On that basis, the resulting conviction was quashed and the charge remitted for re-hearing.
As I am at pains to point out, the circumstances surrounding the parties’ separation and afterwards are complex, being characterised by allegation and counter-allegation. I cannot definitively resolve these conflicts of evidence at this stage of proceedings.
However, at this stage, in my assessment, there is a lack of documentary corroboration of the mother’s various claims of family violence, other than that she prepared two affidavits in support of her claim (neither of which have been supplied to me) and ultimately an intervention order was confirmed, against Mr Godfrey, by the Magistrates Court, in exchange for the withdrawal of numerous significant charges against him.
Notwithstanding the findings of Kelly J, the circumstances surrounding the confirmation of the order remain highly controversial. In particular, I have no evidence from any other persons regarding these various assaults, who support either the father or the mother. In addition, I have not been provided with any medical evidence corroborating any injuries sustained.
The one exception concerns the assault on Mr J. It is clearly the case that a conviction has been recorded against Mr Godfrey. However, on his case, there were extenuating circumstances. Again, whether this is so, I am unable to determine definitively at this stage.
(b) Alcohol abuse
Mr Godfrey has provided evidence establishing that Ms Bradley was apprehended driving a motor vehicle on the evening of (omitted) 2011, on (omitted), driving with a blood alcohol level of 0.199. In her affidavit material, the mother alluded to a loss of licence, but did not indicate specifically why she had lost her licence.
From the father’s perspective, the incident is emblematic of the mother’s long standing issues to do with alcohol abuse, which he asserts have had deleterious consequences for Ms Bradley’s capacity to parent X adequately.
To her credit, Ms Bradley concedes that she has had, in the past, difficulties with the overconsumption of alcohol. It is her case that she consumed alcohol to excess, as a coping mechanism, to deal with the father’s denigration and abuse of her and in response to her general unhappiness.
She further asserts that she visited licensed premises so she could talk with friends in order to have emotional support through her abusive relationship with the father. It is her case that now the relationship is over she has become a social drinker, whose alcohol consumption is under control and falls within modest limits.
The father does not agree. He asserts that the mother’s drinking was and remains out of control and Ms Bradley herself is an alcoholic. When intoxicated, he asserts that Ms Bradley is an assertive and argumentative person, who was prone to become aggressive towards him in particular.
In addition, Mr Godfrey asserts that when Ms Bradley is intoxicated, her behaviour is frightening and concerning to X. In particular, he alleges that she walks into walls and is prone to incontinence. In this latter regard, he asserts that she frequently wets the bed, a fact of which X is well aware because of the smell.
The concerns raised by the father, in respect of the mother’s alcohol consumption and its implications for her capacity to care for X, have been the subject of notifications to Families SA. The relevant notifications have apparently been found to be unsubstantiated.
In this regard, I have been provided with a letter dated 12 October 2011, which compliments Ms Bradley on her honesty to workers in respect of her drinking and recommends that she keep pursuing counselling.
This letter is significant. However, at this juncture, I am unable to resolve definitively the father’s allegations concerning the mother’s drinking. In particular, I am unable to ascertain whether the mother’s alcohol use was in response to a stressful situation and so is transitory in nature or is more deep seated. Her conviction for drink driving is necessarily concerning, particularly given her occupation.
(c) Previous care arrangements for X
The father’s case is that the mother has had a busy and demanding professional career, involving frequent shift work, both before and after X’s birth. In these circumstances, it is his case that historically, and certainly since X was 12 months of age, he has been the child’s primary or principal provider of care.
In addition, it is his case that when the mother was not working she was frequently out socialising or was incapacitated by alcohol, in which circumstances responsibilities for X naturally devolved onto him. It is position that these factors strongly support a resumption of the close to shared cared parenting regime.
During the course of the parties’ relationship, the father was a self-employed (occupation omitted), engaged in the (position omitted) from (country omitted). It is the mother’s case that this enterprise was a financial disaster, which significantly impoverished the parties, as she was called upon to bail out the father financially and remain the family’s principle breadwinner.
Notwithstanding her concession that the father was frequently at home with X, she asserts that he did not contribute at all towards household duties and the preparation of meals. She asserts that she would come home to a house of squalor and filth, which she would have to clean. In these circumstances, it would appear to be her case that the father was emotionally absent from X and was neglectful of his physical requirements.
Again, I am not in a position to resolve this issue, which to my mind is significant. Clearly, X knows both his parents well. In addition, regardless of the criticisms Ms Bradley makes, it would appear to be the case that she concedes she was prepared to leave X in Mr Godfrey’s sole care, whilst she went out to work. In addition, one of her reasons for seeking to reconcile with Mr Godfrey, in 2008, was her view that X needed his father.
In addition and of some moment, in the context of these interim proceedings, it is also the case that the parties agreed on a shared care arrangement, for X, following their separation, in what can only be described as being complex and challenging circumstances. I appreciate that the mother now asserts that she agreed to this arrangement, against her better judgment and for pragmatic reasons, however it could also be inferred, at the time, she considered Mr Godfrey to be at least a good enough parent for X.
(d) Allegations of sexual abuse
Mr Godfrey alleges that X had disclosed that he had been sexually abused by his maternal grandfather, Mr C, in (omitted) 2011. This disclosure was apparently made to both of his parents.
From Ms Bradley’s perspective, the disclosure came about whilst X was watching television, with his parents, and a news story was broadcast concerning paedophilia. In response to this story, X said words to the effect of “that’s what grandpa does to me”.
From both parties’ perspectives, this notification of abuse was dealt with seriously. As a consequence, a report was made to the Child Abuse line and ultimately the (omitted) office of Families SA. The South Australian Police were also involved in the investigation. Ultimately, no evidence was found to substantiate any allegations against Mr C.
The father asserts that X has made a further disclosure of sexual abuse in (omitted) 2012. The authorities apparently regarded it as the same allegation, which had already been investigate and found unsubstantiated. They refused to take any further action, which from Mr Godfrey’s perspective was unacceptable.
However, the police have interviewed Mr C, who is an elderly retired (occupation omitted) in poor health. He was very upset by having to be interviewed by police, suffering a heart attack on the day of his interview. No doubt this occurrence has increased the rancour between the parties.
It is the mother’s position that the father unreasonably fails to accept the result of the investigation and continues to make scurrilous accusations against her father for no good reason. She asserts that Mr Godfrey is being disingenuous when he says that there is some basis in fact for the allegation of sexual abuse. Ms Bradley believes the matter is being pursued either irrationally or out of malice.
In this context, Mr Godfrey deposes as follows:
“…just because the abuse is not being further investigated, does not necessarily mean that it did not happen and that X is left to deal with what has happened to him and his mother’s response which is not to believe him.”[7]
From the mother’s perspective, this statement is further evidence of the father’s unreasonable attitude to all matters regarding X and demonstrative of his propensity to take an opposing view to hers.
[7] See father’s affidavit filed on 15 May 2014 at paragraph 45
The mother is concerned that Mr Godfrey has taken X to other professional people, in respect of allegations of sexual abuse by Mr C. In particular, she asserts that the father has taken X to see a counsellor, Mr R, who is not qualified to interview children in respect of such matters. She is fearful that Mr Godfrey has coached X into making further disclosures to Mr R. A fact which the father denies.
The father’s initiating application, which he prepared himself initially, was listed for its first mention on 6 May 2014. On this occasion, with the consent of each of the parties, interim orders were made restraining the mother from allowing X to come into the sole care of Mr C.
In addition, both parties agreed to an injunction restraining each of them from consuming alcohol to excess when X was in either of their respective cares. From each party’s perspective, these orders can continue for the foreseeable future.
(e) Recent events
The mother’s position is that
“…as a result of X’s wishes [she has] suspended the previous arrangements of 8 nights with the father and 6 nights with me because X has expressly told me that he does not want to stay with his father.”[8]
This unilateral suspension occurred in the late February/early March of this year.
[8] See mother’s affidavit filed on 9 May 2014 at paragraph 49
This is one of the more significant factual disputes arising in the case. The father does not accept that X does not wish to spend time with him. To the contrary, it is his position that X is happy to see him and is in fact pining for him.
Since early March, X has spent some time with his father. This occurred, on one occasion, when Mr Godfrey collected X from school and retained him for around about a week.
Clearly, there is now a pressing need to put in place some firm arrangements, for X’s care, to avoid conflict occurring between the parties in future. In my assessment, the current circumstances are highly labile, which is not likely to be helpful to X.
It is the mother’s position that X’s views have come about because he is frightened of his father and easily intimidated by him. It is her case that Mr Godfrey is mentally unstable and obsessed with her and any form of litigation in which the parties become involved. She remains fearful that Mr Godfrey will stalk her.
As to X’s views in the case, she deposes as follows:
“X is becoming increasingly insistent that he wants to reside with me. He is fearful and easily intimidated by his father. X saw his father at school one day and told his carer (Ms L), to run to the car and drive home. When he got home he ran around the house locking the doors and shutting the blinds. His carer could not believe what she say.
X will be 9 years old this (omitted) and I believe that he is already at an age where his wishes should take precedent over the rights of either parent.”[9]
[9] Ibid at paragraph 51-52
The father does not accept this evidence. To the contrary, he believes X continues to be apprehensive about his mother’s behaviour, particularly that she continues to drink to excess and wet the bed when she is drunk. As previously indicated, he also asserts that the mother has used her (omitted) contacts to harass him and to cover up her alcohol issues.
The legal principles applicable
Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage.
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important 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 s.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.
The recent changes to the Family Law Act, relating to family violence, are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[10]
[10] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
The recent amendments have also inserted new definitions into the Act. In particular, 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;
·A sexual assault;
·Stalking;
·Repeated derogatory taunts;
·Unreasonably withholding financial support.
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 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”. Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
These examples include the overhearing, by the child, of threats or family member; seeing or hearing an assault of a family member by another member of the child’s family; the child comforting or providing assistance to a family member who has been assaulted; and observing the physical sequellae of assault or damage to property, such as clearing up after such incidents or being present when police or ambulance officers attend an incident involving family violence.
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.[11]
[11] 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 …”[12] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[13]
[12] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[13] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
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)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In the case of Goode & Goode[14], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[14] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
In this case both parties assert that X has been exposed to family violence. In the father’s case, he alleges that the child has also been exposed to some form of sexual abuse. It is also apparent that the parties communicate poorly and mistrust one another to a significant extent.
In all these circumstances, I do not consider that it would be in X’s best interests nor appropriate, at this interim stage, for the presumption of equal shared parental responsibility to be applied. Accordingly, I do not intend to turn to section 65DAA directly and consider whether either a shared care or substantial and significant time regime should be ordered subject to an overall consideration of his best interest and whether such an outcome is reasonably feasible to implement.
In any event, given the parties’ poor relationship with one another and the extreme levels of animosity between them, it is, I think axiomatic that both such regimes are not objectively achievable pursuant to criteria created by section 65DAA(5).
I concede however that it remains open to me to make the orders sought by Mr Godfrey if I consider they are supported by my overall assessment of the relevant factors arising pursuant to section 60CC alone notwithstanding the lack of applicability of sections 61DA and 65DAA, bearing in mind the truncated nature of these proceedings.
I have attempted to summarise, as best I can, the competing proposals of the parties and the very many factual disputes between them. As previously indicated there are currently few issues which are not controversial, apart from the fact that X has lived in a regime in which he has spent significant and extended periods of time with each of his parents.
As I am nature pains to point out to the parties, the orders I will make at this stage are provisional in pending the appointment of an independent children’s lawyer for X and, it is hoped, the provision of further evidence to the court, particularly in the form of further documents. It is in the light of what is be regard as a truncated hearing that I turn to consider, as best I can, the applicable section 60CC factors.
Section 60CC factors
(a) Primary Considerations
The recent changes to the Family Law Act, regarding family violence, are significant ones, with clear public policy implications relating to child and parent safety. This does not mean that allegations of family violence are not to be closely scrutinised by the court or uncritically accepted. Nor does it mean that the court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns pertaining to family violence.
The rational for the amendments is to safeguard children from coming to harm as a result of exposure to family violence. Section 60CC(2)(A) makes this the court’s priority. 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.”
This ethos is picked up by the provisions of section 67ZBB, which requires the court to take prompt action in respect of allegations of family violence, including putting in place forensic steps to gather evidence about such allegations, including the appointment of an independent children’s lawyer or the commissioning of a family report.
As previously indicated, I will appoint an independent children’s lawyer for X, who in time will consider who is the appropriate expert to be commissioned to prepare a family report in respect of him. Another function of the independent children’s lawyer is to arrange to subpoena appropriate documents. In this case, there are likely to be many documents relating to the issue of family violence, particularly in the records of the police.
In this case each party asserts that the other has exposed X to family violence and due to prior behaviour is an inappropriate role model for him. If the contented of Mr Godfrey’s statement to police of December 2011 is ultimately found to be correct, he has been the victim of a number of assaults, at Ms Bradley’s hands, whilst she has been drunk and which X has witnessed.
Similarly, if Ms Bradley’s evidence is ultimately accepted, there can be little doubt that Mr Godfrey’s behaviour towards would readily fit within the definition of coercive and controlling family violence contained within section 4AB(1) of the Act.
As matters currently stand, there is little independent corroboration available to support the father’s claim of suffering family violence at the mother’s hand, apart from his statement to the police, which they do not appear to have actioned. In addition, there is no evidence of him having sought medical attention in regards to any assault.
In the case of the mother’s various complaints of having suffered family violence during the course of the parties’ relationship, she concedes that she did not report her concerns to the appropriate authorities because she was embarrassed and ashamed to do so, given her own position in (employer omitted).
Since the parties separated, she has made numerous complaints to the police, all of which have been rigorously refuted by the father. The one exception being the confirmation of the intervention order by the magistrate in December 2013 after the withdrawal of all the criminal charges against him. This is hardly a ringing confirmation of the allegations of family violence.
However, it is rarely the case that one party can irrefutably prove his or her allegations of suffering violence at the interim stage. This does not absolve the court of its responsibility to deal with allegations of family violence stringently.[15]
[15] See Amador & Amador (2009) 43 Fam LR 268
Very often family violence arises within the private confines of a family home, in the absence of independent witnesses. Its victims may suffer a range of emotional responses, such as embarrassment, shame and indeed fear, which render the reporting of the violence to appropriate authorities difficult and accordingly its independent verification problematic.
In addition, the victims of family violence are intimately connected with the perpetrator of the violence concerned. This situation, of itself, creates emotional conflict and doubt. It is however now generally recognised that family violence is prevalent in all social settings and walks of life and represents a corrosive threat to the emotional well-being of children.
Accordingly, I am required to closely consider the parties’ competing claims of family violence. It is true that more often than not men, rather than women, are the perpetrators of family violence. But there can be no hard and fast rule in this regard and I must be careful of the danger of stereotypical judgements.
The father’s case is that the mother was violent to him when she was intoxicated. For his part, he concedes that he behaved violently towards the mother’s current partner, in the immediate circumstances of the parties’ separation, which was emotionally traumatic for him and precipitated an extreme response from him.
Family violence 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.[16] Not all incidents of family violence will be necessarily damaging for a child.
[16] See JG & BG (1994) 18 Fam LR 255 at 261
Given that family violence is not homogenous in its qualities and can arise in a variety of context, at the interim stage, it is necessary for the court to assess the degree of risk which may come to any child concerned, if he or she comes into contact with the perpetrator of the alleged violence. It may also be necessary for the court to assess the consequences of such an outcome for the other parent and victim of the alleged behaviour.
In addition, there may be risk arising from unnecessarily curtailing a viable relationship for a child on the basis of uncertain claims of family violence. These various considerations must be balanced against one another, bearing in mind the parameters of an interim hearing.
Notwithstanding the inconclusive nature of the mother’s complaints of family violence, her allegations, if true, are of serious coercive and controlling family violence, including stalking. They cannot be easily disregarded.
However, many of her complaints are historical in nature. It is, I think, significant that, notwithstanding her concerns of coercive behaviour, she was amenable to what was tantamount to a shared care regime in the period after the parties separated. This suggests that she saw some benefits of X interacting extensively with his father and conceded that the child had a meaningful level of relationship with him.
The father also complains of being the victim of family violence. He would characterise the incident involving him and Mr J as being situational violence or an unfortunate response to a stressful situation. He would also assert that, at least at one stage, the mother remained emotionally enmeshed with him and contacted him on numerous occasions, notwithstanding the existence of the interim restraining order.
What I glean from this complicated set of circumstances is that the parties’ complaints of actual violence are now somewhat historical in nature. It is also the case that there was a shared care regime for X for a significant period of time. In these circumstances, I think I must be cautious before unduly truncating X’s relationship with his father because of family violence concerns, particularly given the contradictory and competing claims of the parties in this regard.
X clearly knows his father well. The mother was content, both before and after separation, to allow Mr Godfrey to provide a significant level of care for X, although she is now highly critical of the standard of that care.
It seems to me that the service of X’s best interests, at this stage, demand that he should live more with one parent than the other. However, it also seems to me that he is likely to benefit from spending reasonably extended periods of time with the other parent, given what has occurred up to this stage.
In this regard, I have concerns that the mother’s proposals for X to spend time with his father are inadequate at this stage. I am also concerned that the father’s view that the previous regime can be reinstated, without trauma for X, is somewhat unrealistic.
Although I suspect that Mr Godfrey will regard it as unfairly sexist, at this stage, I consider that more weight should be given to the mother’s allegations of family violence, unsubstantiated though they are. However the fact remains an intervention order has been made in her favour and the father was charged with a number of serious criminal offences, albeit these charges were withdrawn.
However, if the parties do not come into direct or extended contact with one another and X can be exchanged between them at some neutral or controlled location, such as his school or a shopping centre, the prospects of him being exposed to further family violence seems to me to be acceptably low.
Both parties assert that the other has exposed X to some species of neglect – the father as a consequence of the mother’s alcohol abuse; the mother because the father is a poor homemaker. Again these are difficult issues to substantiate in the absence of independent corroboration. The same is true of the father’s allegations of sexual abuse at the hands of Mr C.
Families SA has investigated some of these matters and found them to be unsubstantiated. The mother was prepared to place X in Mr Godfrey’s care, after separation, so she could continue in the workforce. In my view, a proximate protective response to the complaints raised by each party is to continue the injunctions made earlier by consent.
(b) Additional considerations
X’s view about what should happen for his care is controversial and, as such, unclear to me. I bear in mind that he is not yet 9 years of age. He must be regarded as an immature child, who is unlikely to understand the full implications of his current situation. Given that he may be subject to a conflict of loyalty, between his parents, any expression of a preference by him must be treated with caution.
The most appropriate way to ascertain X’s view about what sort of parenting regime he would prefer is through a family report. Such a report will also examine the factors impacting on the formulation of X’s views, including his overall level of insight and whether he has been influenced by any other person.
Given these factors, I do not think that X’s purported views can be a strongly influential factor, at this stage. The father is suspicious of the mother’s actions and does not believe that she is likely to be either an objective or reliable conduit for expressing what X’s actual views to the court are. At this stage, I share these reservations.
X knows each of his parents very well. Prior to separation, he shared a household with them. Since separation, now almost three years ago, he has lived in close to a shared care regime, moving regularly between his parents’ respective households.
The father’s case is that he is to be regarded as X’s primary carer, particularly because when X was an infant, his mother was in full time employment. The mother acknowledges her employment but asserts, in effect, that she should be regarded as X’s main carer because she has provided more emotional support for him and is the more consistent parent.
At this stage, this is a difficult issue to resolve. In my view, I must regard X as having a significant level of relationship with each of his parents and should fashion orders in response to such a finding. In this context, it seems to me that the mother’s proposal for X to spend time with his father is inadequate.
Ms Bradley is critical of Mr Godfrey for failing to support X financially. He says that he has done the best that he can, in this regard and has always been interested in all issues to do with X. Again, this is a difficult issue to resolve at this stage. However, given the vehemence with which these proceedings have been conducted, it seems to be to be unlikely that either party can be described as a disinterested parent of X.
The decision taken by Ms Bradley to end the 8/6 night per fortnight regime, in my view, constituted a significant change of circumstances for X. He stopped seeing his father as regularly and as extensively as he had previously done for the past few years.
One of the significant advantages of Mr Godfrey’s proposal is that it would restore the previous status quo in respect of X’s care. This status quo must be regarded as longstanding. It is also clear that it was brought abruptly to an end by the unilateral parenting decision of Ms Bradley. This decision seems to have exacerbated the already tense relationship between the parties.
As far as I know, the parties live in reasonable proximity to one another in suburban Adelaide. As such, apart from the mistrust between them, arising from these proceedings, there are few, if any, logistical difficulties, which affect X’s right to spend regular periods of time with his parents. Obviously the parties do not communicate particularly well. However, in this regard, I note that they have not previously sought court orders and have been able to implement the shared care regime for X.
One of the more significant areas of factual dispute between the parties concerns their respective capacities and insights into the responsibilities of being a parent. The father categorises the mother as an extremely compromised parent, who subjects X to neglect as a consequence of her alcoholism. On the other hand, for her part, the mother asserts that the father is a poor home maker, who lacks insight into both the emotional and physical needs of a child of X’s age and is axiomatically a person who lacks parental insight.
Again, in the context of a limited interim hearing, it is difficult to assess accurately the parenting capacity of either of the parties. However, the evidence indicates that following their separation, both Mr Godfrey and Ms Bradley were willing to agree to an arrangement in which X spent extensive periods of time with the other parent. This arrangement cannot be described as transitory in nature or to have originated at a time when relations between the parties were less problematic. Rather, it suggests that, at least since 2011, each party has regarded the other parent as a good enough parent for X.
There is a relevant family violence order applicable to the mother. Pursuant to s.60CC(3)(k) I am required to examine the circumstances in which that order was made and any relevant inferences which may be drawn from those circumstances. In this regard, I note that it is a final order. I have not been provided with any evidence, which was admitted to the court which made it.
Significantly, I also note that there was no examination of this evidence by the court in question, as the proceedings were, ostensibly at least, consensually resolved between the police officers concerned and those advising Mr Godfrey.
As such, it seems to be the case that no specific finding of family violence has been made against Mr Godfrey. In this regard, I do not think that the comments of Kelly J can amount to such a finding, nor do I think Mr Godfrey’s consent to the order, which he now contends was mistakenly given, can be taken as an admission in respect of the commission of family violence against Ms Bradley.
Conclusions
For all these reasons, it is inappropriate that the presumption of shared parental responsibility should be applied to X’s care pending final hearing or further order. I am satisfied that X has a significant level of relationship with each of his parents, both of whom have provided him with a substantial level of care since they separated in October 2011.
However the animosity between the parties and the serious criticisms each has levelled at the other, particularly in regards to drunkenness; family violence; sexual abuse; and emotional and physical neglect of X; render a regime in which the child’s care is essentially shared between them unworkable. I accept that X is currently in a vulnerable position because of the poor and mistrustful relationship between his parents.
In these circumstances, he must live more with one parent than the other pending the appointment of an independent children’s lawyer and the gathering of more evidence, particularly from SAPOL; Families SA; and possibly X’s school and general medical practitioner. In addition, I hope that the independent children’s lawyer, when appointed, will consider the best mechanism through which to obtain a family report, either through the court or externally.
On balance, I consider that Ms Bradley should be the parent charged with providing more of the required care for X. As the parties will appreciate, one of my functions is to make a decision. It is not my responsibility to be fair to either or both of the parents. I must remain focussed on what I think is best for X himself.
Although the issues of family violence are far from being fully determined, the structure of the Family Law Act requires me to give allegations of family violence close consideration and some level of pre-eminence in the decision making process.
The mother categorises the father’s behaviour towards her as coercive and controlling violence. It is her case that the father remains fixated on her and what he perceives to be his entitlements to the exclusion of what is best for X. If true, these are serious matters in deed, which in my view, at this interim or provisional stage tip the balance in favour of the mother being X’s main provider of care.
However, I also accept that until recently X also spent significant periods of time in his father’s care. Instability and changes in arrangements for his care should be minimised as far as is possible in what are obviously very difficult circumstances currently.
Balancing all these factors together, as best I can, I have come to the conclusion that X should spend 8 days per fortnight with his mother and 4 days per fortnight with his father. The aim of this regime being to protect X from harm but also ensure that he has a meaningful level of relationship with each of his parents.
I am aware that X and his father engage in a sporting activity on Thursday evenings. This can continue on alternate weeks. In the other week, the order will be that he spends time with his father from after school on Friday until the commencement of school the following Monday.
These orders will enable X to be exchanged between the parties, in effect, at his school. As such, the parties will not need to come into direct contact with one another on most handover occasions. When school is not in session, he can be exchanged at the bakery as has been the practice up to this stage.
X’s birthday is on (omitted). This year it falls on a Thursday. If the alternate Thursday overnight is deemed to commence on 22 May 2014, it will mean this will coincide with X’s birthday. The weekend arrangement is to commence a week on Friday, being 30 May 2014. In the short term, for this weekend only, I propose that X spend from 9.00 am to 5.00 pm on Saturday 24 May 2014.
I will continue the injunctions on which the parties have previously agreed. I will also make injunctions restraining each of them from discussing these proceedings with X or from denigrating the other to him. The aim of such orders being to emphasise to the parties that the dispute currently before the court is their dispute not X’s.
It seems to me to be sensible that the parties exchange necessary parenting information regarding X in writing. The best mechanism, at present for this seems to be in the physical form of a communication book rather than through emails or the like.
Given this decision, I will also make the orders sought by the mother which will prevent Mr Godfrey contacting her in any other ways in respect of X. This is intended to minimise the potential for the parties to fall into further disputation with one another with potentially disadvantageous consequences for X.
I will make the necessary order appointing an independent children’s lawyer. I will adjourn the matter for approximately eight weeks to allow the appointment to be effected. On the adjourned date, I hope I will be in a position to fix the matter for final hearing, if necessary and put in place the required arrangements for the preparation of a family report.
The mother wishes an order be made for Mr Godfrey to be psychiatrically examined. I decline to make such an order at this stage. I will seek the input of the independent children’s lawyer into that issue. I appreciate it has the potential to be controversial.
Although I have some reservations about its utility, as the parties seek it, I will confirm the appointment for the child resolution conference scheduled for 2.15 pm on 24 June 2014.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgement.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 23 May 2014
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