GRANTLEY & JACQUES
[2014] FCCA 306
•30 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRANTLEY & JACQUES | [2014] FCCA 306 |
| Catchwords: FAMILY LAW – Children – applicant mother files Notice of Discontinuance ‑ undefended – consideration of proposals of Respondent father and ICL ‑ best interests. |
| Legislation: Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 Runcorn & Raine at [2008] FamCA 837 |
| Applicant: | MS GRANTLEY |
| Respondent: | MR JACQUES |
| File Number: | BRC 9586 of 2012 |
| Judgment of: | Judge Purdon-Sully |
| Hearing date: | 29 January 2014 |
| Date of Last Submission: | 29 January 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 30 January 2014 |
REPRESENTATION
| Solicitors for the Applicant: | No appearance |
| Counsel for the Respondent: | Ms K Oakley |
| Solicitors for the Respondent: | Files Stibbe Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms A Black |
| Independent Children’s Lawyer: | Rhonda Sheehy & Associates |
ORDERS
That the children, [X] born [in] 1997, [Y] born [in] 1999 and [Z] born [in] 2005 (“the children”) live with the father.
That the mother and father have equal shared parental responsibility for the children and in the exercise of that responsibility:
(a)they consult with each other about decisions to be made;
(b)they inform the other parent about the decision to be made;
(c)they consult with each other on terms that they agree; and
(d)they make a genuine effort to come to a joint decision.
That for the purpose of Order 2 hereof, the mother and father communicate in writing/by text message/by email or similar with the father to instigate the communication to the mother.
That notwithstanding the provisions of Order 2:
(a)the father be responsible for the daily care, welfare and development of the children when they are living with him; and
(b)the mother be responsible for the daily care, welfare and development of the children when they are spending time with her.
That the mother spend time with and communicate with the child, [Z] at all times as may be mutually agreed and failing agreement as follows:
(a)From 9.00am to 5.00pm each Saturday for a period of three (3) months;
(b)Thereafter, from 5.00pm Friday to 5.00pm Sunday for a period of three (3) months;
(c)Thereafter, as follows:
(i)Each alternate weekend during school terms from conclusion of school Friday to commencement of school Monday to include long weekends where those weekends fall at such times and, in particular, to commence at conclusion of school Thursday if the Friday is a public holiday and to terminate at commencement of school Tuesday if the Monday is a public holiday with changeover to occur in all instances at the said child’s school;
(ii)From conclusion of school Friday to commencement of school Monday on Mother’s Day weekend with no time to occur on Father’s Day weekend;
(iii)For one half of all Queensland gazetted school holidays to include alternate Christmas days and, in particular, for the first half in even years including Christmas Day and the second half in odd years excluding Christmas Day with changeover to occur at [omitted] Contact Centre provided that should [omitted] be unable to facilitate changeover, such changeover occur at McDonalds [omitted] at commencement and conclusion of time.
(iv)By telephone communication each Wednesday at 7.00pm with the mother to instigate the telephone call to the father’s mobile/landline at that time and with the father to facilitate that telephone call by permitting the said child to answer the telephone call provided that the child is permitted privacy without any interruption or intervention by any other party in the household provided further that the father have reciprocal telephone communication to the child when the child is with the mother on the same bases.
That the mother provide at least two (2) weeks written notice to the father (and to [contact centre omitted] for school holiday time) of her intention to exercise that time set out in Orders 5(a), 5(b), and 5(c) hereof and, thereafter, both the mother and father strictly comply with these Orders.
That in the event the other provides two (2) weeks notice aforesaid, the mother and father attend independent counselling to support and facilitate the mother’s relationship and her time with the child as herein set out such time not to be dependent upon counselling being undertaken in the first instance.
That the Independent Children’s Lawyer nominate a panel of three (3) counsellors to the father for the children to be counselled to assist him in the reconnection of their relationship with the mother.
That the parties undertake any intake procedures as may be required by [omitted] Contact Centre for changeover to occur at their joint cost and both parties comply in every respect with the guidelines of that Centre to take effect once the mother has provided the notice in Order 6 hereof.
That the mother and father forthwith arrange, enrol in, and complete a Post Separation Parenting Orders Program and provide a certificate of completion to each other within seven (7) days of receipt of same.
That the mother and father by these Orders be at liberty to attend all school functions to which all of the children attend, including but not limited to sports days, concerts, plays, carnivals, fetes and parent teacher meetings.
That the mother and father forthwith take all steps necessary with the principal/secretary of the school/s at which all of the children attend to enable the mother and the father to each receive at his/her address, and at his/her expense, copies of all of the children’s school reports, school photos and newsletters of functions.
That each party keep the other informed in writing/by text message/by email of his/her current residential address and contact telephone number/email address and of any change thereto within forty eight (48) hours of any such change.
That the mother and father by these Orders authorise all health care providers and educational experts involved with all of the children from time to time to liaise directly with the mother and father at his/her request and at his/her expense and the mother and father immediately provide the full names/addresses and contact telephone numbers of such health care providers and educational experts to each other in writing/by text message/by email.
That each party contact the other in the event of any medical or other emergency involving any of the said children whilst with him/her.
That within twenty eight (28) days of the date of these Orders the father provide to his counsellor a copy of the family report prepared by Ms B, together with the Court’s Reasons for Judgment delivered 30 January 2014, upon receipt of same.
That within twenty eight (28) days of the date of these Orders, the mother and the father provide to their respective counsellors a copy of the family report prepared by Ms B, together with the Court’s Reasons for Judgment delivered 30 January 2014, upon receipt of same.
That in the event of any dispute arising out of these Orders, the mother and father engage in family dispute resolution, with the mother to provide a panel of three (3) such Family Dispute Resolution Practitioners and the father to nominate one (1) within three (3) business days thereafter with the costs to be shared equally if applicable.
That the Independent Children’s Lawyer be discharged upon Order 8 hereof being effected.
That these Orders were made in the absence of the mother and that pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules2001 the mother may apply to have these Orders set aside.
IT IS NOTED:
A.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Attachment A and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Grantley & Jacques is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRC 9586 of 2012
| MS GRANTLEY |
Applicant
And
| MR JACQUES |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This matter involves de facto property proceedings under the Family Law Act1975, as amended (“the Act”), between Mr Jacques and Ms Grantley. The parties also seek parenting orders under Part VII of the Act with respect to their three children [X] born [omitted] 1997, [Y] born [omitted] 1999 and [Z] born [omitted] 2005.
The children are independently represented by Ms Rhonda Sheehy.
The children live with the father. It is unchallenged that the elder two children spend no time with the mother and are estranged from her.
Until October 2013, the youngest child, [Z] was spending alternate weekend time with the mother. That ceased following the father making a complaint to the police about [Z]’s treatment in her household.
The matter was set down for urgent final determination yesterday. However, the Applicant mother was not present having informed the court that she did not intend to proceed with her application. Her letter in that regard is annexed as BJ13 to the father’s trial affidavit filed 20 January 2014.
The property proceedings were adjourned to 30 April 2014 as the father was not ready to proceed.
With respect to the parenting case there were only two issues I was required to determine, the Independent Children’s Lawyer and the father otherwise reaching agreement on a range of orders and those orders which I shall read into the record can be found by reference to the Case Outline document filed by the Independent Children’s Lawyer on 23 January 2014.
The agreed orders are orders 1, 3, 4(d), 6, 8, 9, 10, 11, 12 and 13.
In relation to order 7, which is to do with the parties engaging in a post-separation parenting orders program, I was informed yesterday that both parents had completed that program, however they are yet to provide a certificate of completion to the Independent Children’s Lawyer and whilst the mother was not present to tell the Court that, the information in relation to her attendance with respect to that program was on the understanding of the Independent Children’s Lawyer.
The issues
The issues that remain in dispute then are as follows:
a)Firstly, what orders for sole parental responsibility should be made, the Independent Children’s Lawyer seeking an order for equal shared parental responsibility with the parties to follow a process of consultation and the father seeking an order for sole parental responsibility with the father having final decision-making power after seeking and considering the mother’s views;
b)Secondly, what time the youngest child, [Z], should spend with the mother, no orders being sought with respect to the elder two children. The Independent Children’s Lawyer proposes that on the mother giving two weeks notice, she be at liberty to spend alternate weekend time with [Z], whereas the father proposes four weeks notice and then a graduated period of time with the mother to spend daytime time with [Z] for three months and then alternate weekend time for a further three months and thereafter, alternate weekend time and half the school holiday time.
Both parties agree that on either proposal [Z]’s time with his mother should be supported by counselling which may involve the parents at the election of the counsellor.
Material relied upon
The father relies upon the material that appears at Part C, page 8 of his Case Outline document filed on 24 January 2014.
The Independent Children’s Lawyer relies upon the list of documents set out under that heading on page 9 of her Case Outline document, filed 23 January 2014.
I have had the benefit of oral submissions. I do not propose to respond to every submission made, however in reaching my decision I have considered all submissions.
The only witness required for cross-examination was Ms B, the family report writer. She appeared by telephone.
Legal principles
In making parenting orders I am required to follow the legislative pathway set out in the Act. I must have regard to the best interests of children as the paramount consideration (section 60CA). I must have regard to the objects and underlying principles of those objects with respect to Part VII of the Act which are detailed in section 60B (1) and (2) of the Act.
In determining what is in the best interests of a child I must consider and give proper weight to the primary considerations (section 60CC (2)) and the additional considerations (section 60CC(3)) of the Act.
In certain circumstances I should apply a statutory presumption that it is in the best interests for parents to have equal shared parental responsibility (section 61DA(1)). This presumption relates to the making of major decisions for the children and is not about the time a child spends with each parent.
If I apply that presumption I am required to consider whether an order for equal time or substantial and significant time is in the best interests of the child and whether either order is reasonably practicable (section 65DAA(1) and (2)).
The above principles were considered by the High Court in MRR v GR [2010] HCA 4 and by the Full Court in a number of well-known decisions commencing with Goode & Goode (2006) FLC 93-286. A convenient summary of the relevant principles has been outlined by Kent J in Heath & Hemming (No.2) [2011] FamCA 749, particularly at paragraphs [87] to [98].
Background
I do not propose to outline the background to this matter in any detail. It is covered in the family report which was filed in April of 2013 and to some extent in my published reasons of 9 August 2013.
That, of course, predated recent events which have seen the mother withdraw from the proceedings and the circumstances surrounding the cessation of [Z]’s time with his mother in October 2013.
A convenient overview of those events can be found in the chronology of the Independent Children’s Lawyer, Ms Sheehy, in her Case Outline document filed 23 January 2014.
The police records record that the father and [Z] presented at a police station on 7 October 2013 with respect to a complaint of common assault against the mother’s partner, Mr H.
They returned on 10 October 2013 with a copy of a medical report. An interview was then conducted with the child. The police records note that, at the time of the incident, [Z] and Mr H were play fighting in the backyard when Mr H squeezed [Z]’s right palm, which [Z] said hurt. No injuries were noted by the police or the doctor. [Z] demonstrated to the police the squeeze.
The father was noted to be seeking legal advice by the police. The incident was noted as minor. No further action appears to have been taken and there is no evidence that Mr H was interviewed by the police.
The police records reveal that this was not the first time the father had presented one of the children to the police. The police records note that on 15 March 2013 the father had complained to the police about the mother telling his daughter that he had raped the mother during the relationship and would do the same to her.
Whilst the father deposes to the mother having made an allegation of rape in the presence or the hearing of the children and does so in his trial affidavit, in her interview with [Y] in February of 2013, Ms B reported that [Y], who was then 13, had informed her that she became aware of the mother’s allegations of rape by reading her affidavit which the father had left unattended on a kitchen bench. She said that she did not know what the word rape meant and had to ask a relative to explain it to her.
The police record, at the time, also noted that the father had reported to the police in March of 2013 that [Z] had tried to commit suicide when his mother had left the family. The police record further noted that the father had reported similar information on 22 January 2013 which had been investigated and the record also appeared to indicate that a child – Mr Hall for the father believes that it may have been [Y] – but a child was interviewed on 17 March 2013 with no offences having been detected.
There is no evidence adduced by the father in his trial affidavit in relation to this interview. In her email communication with the court, the mother wrote this, and I quote:
“Her Honor, Judge Purdon-Sully,
It is with great sadness and reluctance that I withdraw from these proceedings.
I am unable to continue with these proceedings as I feel that my children are unfortunately put in a disadvantaged situation with their father. I am aware they suffer emotionally at his hands as a result of me continuing with these proceedings.
I am also not prepared to continue with these proceedings as it has affected me emotionally to the extent that I am seeing a counsellor on a regular basis for the stress and anxiety it has caused.
It is my belief that Mr Jacques will not amicably settle these proceedings with the children's best interests at the forefront. I have experienced just how far he will go in the past and I am not willing to be emotionally used by him again.
I am not abandoning my children and in fact, I am doing this for their sake. I do not relinquish my property entitlements but feel at this stage, I am unable to proceed with the property proceedings given the level of stress and anxiety it is causing to my children and myself.
Sincerely
Ms Grantley.”
Discussion
It is true to say that this has been a particularly conflicted piece of litigation. Whilst interim orders were made on 5 December 2012 that the three children spend time with the mother, as of yesterday, none of the children were spending time with their mother.
Further, notwithstanding consent orders being made on 15 April 2013 which, inter alia, provided that the parents equally share parental responsibility for the children, we find ourselves in a dispute about whether the father should now have sole parental responsibility in that regard.
Over and above disputes about the children, this case is a textbook example of how the tentacles of family conflict can extend far and wide. In this case, it has included not only the mother’s partner being accused of common assault of a child, but it has extended to helping professionals, including a clinical psychologist who was engaged to provide family therapy to re-establish the children’s relationship with their mother, but then subsequently withdrew from that process and the Independent Children’s Lawyer who was accused of bias by the father, the subject of an unsuccessful discharge application, then an appeal, later withdrawn.
If one measure of success is the achievement of a desired outcome - in this case an ongoing relationship between mother and children with the children spending regular periods of time with both parents - then on one view the parenting litigation has been an abject failure.
Children who appeared to have had a loving, intact relationship with their historical primary carer mother as of the date of separation are now, as at the date of trial on 29 January 2014, estranged from her. The mother has now withdrawn from the proceedings because of concerns about the stress to her and the children. The father was suffering from stress according to [Y], and stress and anxiety on his own evidence and his trial affidavit. The father was reporting to Ms B, the family report writer, that [Z]’s violent temper had worsened since December 2012 and he had been affected by the separation. He was reporting to the police that [Z] had suicidal ideation following separation and [Y] had reported to Ms B that she also had suicidal thoughts when her mother first left home. Finally, two of the three children had been the subject of police interview.
That must be considered in the context of the evidence namely that prior to separation there is no evidence that this family has ever come to the attention of the police or the welfare authorities save for the father, who had been convicted of five criminal offences between 1992 and 1997.
The precipitate for this unfortunate set of events was a family separation on 26 March 2012, an event, if the statistics published by the Australian Bureau of Statistics are to be accepted, will happen to one in four children before they turn 18 years of age.
So sadly, we are not talking about an event that is highly unusual in this country - albeit I accept deeply stressful for those involved - but an event where with appropriate support the parents and children would usually be expected to make the normal transitions that occur on family breakdown.
In that context, that is, a litigation process that has failed to achieve a desirable outcome for these children - namely the opportunity to continue positive connections with both parents, connections they enjoyed at the date of separation - it is of some relevance that the mother, the only person who has decided to get off the litigation train and remove herself from the conflict and the impact of that on her and the children, is then criticised for doing so, her removal being asserted as evidence of an inability and/or refusal to engage with the father and/or a withdrawal from the children’s lives.
Of course, she is not here to respond to that criticism. However, rather than concluding that her withdrawal evidences a lack of child focus, it is equally open to me, on the whole of the evidence, to view her withdrawal from the litigation as being child focused, evidence of a preparedness to withdraw rather than subject the children to ongoing parental conflict.
The probabilities weight in favour of that view because the history here is of a parent who had child focus until separation, that is, a parent who was loving, capable and involved in the lives of the children. The father reported to Ms B a family life that was quite positive.
The evidence of Ms B, to which I attach significant weight, is that, as of February 2013, when she conducted her interviews, the children had not only been exposed to and were acutely aware of the parental conflict, but were stressed by the separation.
Ms B reported that [Y] was extremely distressed and crying during her interview. She found [Z] to be extremely distressed by the separation from his mother. Whilst only eight years of age, I accord weight to his views in February 2013 that he would like to see his mother.
I also accord weight to the assessment of Ms B that he presented as a child who appeared to be easily influenced by his siblings in relation to spending time with his mother.
She expanded upon the basis of that view at paragraph [128] of her report.
That was her assessment in April of 2013. Fast forward to October 2013. We have an allegation from the father of child abuse and between April and October 2013, a myriad of other difficulties which presented in this case.
Whilst critical of both parents, Ms B was particularly critical of the father, referring to his lack of insight and failure to support the mother’s contact with the children. There is no evidence to suggest that the father has gained insight. His trial affidavit is replete with criticism of the mother. Nowhere in some 110 paragraphs of evidence with some 118 pages of annexures is there meaningful self-scrutiny or any preparedness to take on board the comments of Ms B or even address the family report writer’s evaluation in relation to the family dynamics and his role in that.
His evidence, under the heading of family report, is a superficial response, at best, to a detailed assessment by Ms B and her recommendations.
The father presents himself, on his own sworn evidence, as being “powerless”, to use his words, in the face of [Y]’s response to her mother and notwithstanding his stated concerns about [Z]’s violent and aggressive behaviour since separation and [Z]’s presentation following the mother’s withdrawal from the family at separation, deposes to having difficulty in also encouraging [Z]’s relationship with his mother.
The incident involving [Z] and the police was covered at length in the father’s affidavit, where there is no issue on his case where he seeks that the mother have unsupervised time, that the mother presents as an unacceptable risk to the children.
If his evidence is to be accepted, his management of a complaint by [Z] that he had a sore hand as a result of the mother’s boyfriend squeezing it was to tell him he was going to - and then immediately did - take him to the police station.
It is difficult to accept that this incident was not but another example of the parental dispute emerging under yet another guise and a further example of the father’s lack of insight identified by Ms B, including the impact on [Z] of that response and evidence of the father’s rudimentary problem solving skills.
As a consequence, [Z] was presented for a police interview and underwent a police interview, as it appears did [Y] in 2013.
Regrettably, I accept the submission of the Independent Children’s Lawyer that the father has evidenced negativity towards the mother and has failed to promote a meaningful relationship between the children and her.
I accept the evidence of Ms B yesterday that if the father evidenced a changed attitude towards the mother then the mother’s attitude towards him would likely change as well. She was well placed to express that view, having interviewed both parties.
It was the view of Ms B, inter alia, in her report that the father needed to accept that the children will experience emotional harm inappropriately involving them in the dispute and that he had overtly or inadvertently denigrated their mother to them. Further, the father’s suggestions that the mother suffered from a mental health issue were unsupported on the evidence and to suggest otherwise was both untrue and severely damaging to the mother and her relationship with the children.
There is no persuasive evidence to support a conclusion that [Z] spending regular and meaningful time with his mother, as proposed by the Independent Children’s Lawyer, supported by counselling if required, would not be in his best interests and that, with some changed attitude and support by the father, he would willingly do so and that the mother would not be amenable to spending that time.
Nor is there persuasive evidence to enable me to conclude that the father’s proposal of reduced time and a graduated reintroduction is, other than a superficial response to, nor otherwise logically address, the issues that present in this case.
However, [Z] does not live in a bubble, free from the influence of his father and his siblings with whom he has acknowledged attachments. I have concluded that unless the father is prepared to support [Z] spending time with his mother by meaningful action, rather than mere words in a Family Court document, the outcome he says he seeks - namely a reparation of the relationship between [Z] and his mother - is unlikely to ever happen.
My consideration of the whole of the evidence supported by the further evidence of Ms B yesterday supports such a conclusion.
Whatever the father may view as the rights and wrongs of his situation and how hurtful to him he may view the mother’s allegations of rape, which he denies, [Z] has a right to a relationship with his mother and he has every right to expect the adults who are responsible for his care to put aside their adult issues and focus on him.
It is an inescapable fact that on the father’s watch, that is, whilst in his sole care and under his predominant influence and after a single expert has pointed out what she views as the barriers that need to be addressed - one of those barriers being the father’s insight - we now have three children spending no time with their mother. They are attached to their father. They have a warm relationship with him. There is no evidence to suggest that he is not in a position to influence their response, notwithstanding his evidence to the court that he appears to be a helpless player in the face of what a 13 year old and an 8 year old child are allegedly telling him.
It cannot be suggested that a 13 year old girl and an 8 year old boy are mature enough to understand the long-term consequences of not seeing a parent, and yet, things have gone from bad to worse whilst they have been in the care of the only parent who is in a position to influence them.
This is a finely balanced matter. I admit that I have wrestled overnight with what is an optimal outcome for this little boy, in the less than optimal circumstances that present.
The question for me is what is likely to be a workable outcome for [Z]? Whilst the court does not have a crystal ball, I am able to view the past as some predicator of the future. I have more confidence in the mother re-engaging with her children in the future than I have in the father’s ability to navigate a pathway towards re-establishment of their relationship with her. The fact that the mother may not choose to avail herself of time with [Z] is a separate issue. If she did after a period of time, then there would be counselling to support [Z] and his parents, if needed. A great deal of argument was spent yesterday on shadowboxing.
Regrettably, I have come to the view that unless the father has some investment in the process and is supportive of the outcome, then it is unlikely to happen and, whilst acknowledging that theory and practice may diverge, what greater investment could he have, I ask, than in an order that he asked the court to make, because he viewed that order to not only be in [Z]’s best interests, but workable - or else why ask for the order to be made in the first place?
Whilst I place weight on what the Independent Children’s Lawyer asks the court to do, given her independent statutory role and her experience, there is an evidentiary basis to support the father’s proposal, albeit not for the reasons advanced by him, but for the reasons advanced by Ms B yesterday in response to a question posed by me.
Whilst supportive of the proposal of the Independent Children’s Lawyer, she also saw benefits in the father’s proposal for no other reason than the fact that, if he supported it, it may have some chance of success, in the context of the history here, where nothing else appears to have worked.
Ultimately, I have concluded that I can make all the orders I want as to time, as I have done to date, but it will not ensure that [Z] sees his mother without the father’s support. Yes, there are risks. I understand that. The father has previously consented to orders for the children to have time. They have not worked.
Also, there is some merit in the submission of the Independent Children’s Lawyer that this is just more of the same by the father: more delay and more potential for dispute. However, having determined, on the balance of probabilities, that it is more likely than not that the mother, given her history, will re-engage with [Z], a view shared by Ms B, my misgivings as to what can be realistically achieved here are greater with respect to the proposal of the Independent Children’s Lawyer, on balance.
In making the order sought by the father, the ball, then, will squarely be in his court.
On the mother giving notice, the outcome which he seeks in the best interests of [Z] - and tells the Court is in his best interests - will largely be in his hands.
In informing my discretion on what outcome is likely to meet the best interests of [Z], as I said, I must follow a pathway and many of the matters I am required and view as relevant I have already addressed under section 60CC. However for the sake of completeness there is no issue here that there are not benefits for [Z] in developing a meaningful relationship with both his parents.
On Ms B’s evidence there is nothing to suggest that he does not already have a relationship of meaning with either parent. On her evidence, he is attached to both parents.
On Ms B’s evidence there are no unacceptable risks for [Z] in spending time with his mother other than the emotional risks that arise from the parents’ contribution to the dispute and his father’s lack of support, lack of insight and his influencing of the children’s views and the influence of his siblings. I refer to paragraph [151] in this regard.
There is also no persuasive evidence that the mother’s partner poses an unacceptable risk of risk to [Z]. I refer to the police records in that regard.
Balancing and weighing those considerations, my findings marginally support the proposal as to time with the father for the reasons that I have earlier identified at length.
With respect to the additional considerations that I view as relevant, I have had regard to [Z]’s views expressed to Ms B that he would like to spend time with his mother. Whilst only eight, I place some weight on [Z]’s views which were uninfluenced by his siblings.
On both proposals he will be afforded time with his mother if his mother chooses to engage.
There is no evidence that either parent lacks capacity to meet the children’s needs, save that the father was criticised for an ability to support the children’s relationship with the mother.
With respect to the mother’s failure to spend time with [Z] and the relevance of that with respect to the extent that the parents have taken or failed to take the opportunity to participate in decisions and spend time with and communicate with children, I have also addressed that earlier.
Whilst I accept that there may be impacts for [Z] if the mother did not immediately engage and there was a lengthy period of no engagement, I accept that these concerns are possibly more imagined than real. The court cannot cover every possible eventuality in the affairs of this family. Parents are expected to act for themselves rather than be acted upon. They are expected to use common sense and seek professional assistance if needed in their parenting of children to make informed decisions. They are expected to take responsibility for their problems rather than expect lawyers or the court to micromanage their life for them.
The proposal with respect to counselling provides a common sense response to that dilemma and whilst it is clearly in the interests of parents to resolve matters without litigation, sometimes matters regrettably need to come back to the court. The desirability of that not happening is but one factor that I must take into account in this case.
I am unable to conclude that four weeks notice as opposed to two weeks notice is called for. The focus here should not be on ensuring that time happens, not putting another hurdle in the way.
Further, if counselling is sought, it is to provide support for [Z]’s time with his mother, not a pre-condition to that time occurring.
I have had regard to the Protection Orders and the allegations that have been made by the mother with respect to the father in relation to family violence. I have earlier addressed and acknowledged that the parties have a poor relationship.
With respect to the other additional considerations, I have addressed in the context of my discussion of the issues that inform my discretion, parental attitude, capacity, family violence issues and family background issues which have been canvassed in the family report.
The father identifies as Aboriginal. I have taken into account the evidence in that regard, however it is not a matter that impacts of my consideration of competing proposals. Nor did it loom large in the detailed submissions that were made yesterday. I have covered parental attitude. I have had regard to existence of the Protection Order.
There are no practical difficulties and expense for the children spending time with a parent. The parties live reasonably close to each other and geography does not impact on my considerations.
I have considered the likely effect of any change.
That then brings me to the issue of parental responsibility. There is little doubt that the 2006 amendments to the Act focussed on the importance to children of parental engagement, not only with respect to time, but also with respect to decision-making. I refer in this regard to the objects of Part VII of the Act and the principles that underpin those objects that clearly reinforce that view.
I accept that the parents have a problematic and conflicted relationship. I accept that they would likely need assistance in resolving any disputes that may arise on matters to do with the children. I accept that there are allegations of serious family violence which may impact on issues of trust, power and balance and parental capacity to engage. I accept that it is in the best interests of children that parents are able to engage without further litigation and that orders should be made where possible, that are least likely to lead to further litigation. However, in considering this matter I have had regard to a number of matters as follows:
a)It is in the best interests of children that they have the input of both parents, if possible;
b)There is no evidence to indicate failed attempts at family dispute resolution, the fundamental tenant of the Act being that it is a process that is available to parents and the parents should engage in that process - a facilitated process to assist them in reaching decisions about their children when they are unable to do so themselves;
c)Whilst the father’s proposal enables some consultation, he has recently completed a parenting orders program;
d)The parenting proceedings will be at an end and with the property proceedings soon to be determined, the parents will hopefully be able to move on with their lives;
e)I have had regard to the history in the context of the parents’ ability to parent these children for a lengthy period of time up until their separation, without the interventions of the authorities or the police;
f)I have had regard to the family report which was critical of the level of insight of the father and his support of the mother’s role and I have addressed that;
g)Whilst the mother has evidenced a desire to withdraw from these proceedings, I am unable to conclude that she intends to withdraw from the lives of the children. The evidence is to the contrary. She tells the court that she is not abandoning the children, but protecting them. She did not have to write to the court at all, but she did. Further, while she may have said that she did not want to communicate with the father or his lawyer, there is no persuasive evidence to suggest that she would disobey a court order if that required her to engage in a family dispute resolution process in the event of dispute. It is not a process that requires the parties to come into contact with each other and indeed it often takes place on the telephone or with the parties in separate rooms. If the parents cannot reach agreement, for example, with respect to [Z]’s high school and like – after pursuing family dispute resolution, then like many other litigants, they may have to approach the court to assist them in that regard; and
h)Finally, an order for sole parental responsibility is a most serious order to make. In that regard, I have had regard to the decision of Runcorn & Raine at [2008] FamCA 837, a decision of Murphy J where His Honour said at paragraphs [36] to [39] the following:
“The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
Thus, as it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
Thus, the circumstances of particular children may, for example, require the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not.”
Whilst His Honour in that particular case went on to determine that his ultimate findings sounded against the making of an order for equal shared parental responsibility, I am not satisfied in the circumstances of this case that the best interests of these children would be served by an order that would repose all of the duties, powers and responsibilities and authority which by law parents have in relation to the children, only with the father.
I am not satisfied that the evidence has met the high bar for the making of that order, or that the parents have done near enough to evidence an incapacity to do so, such that the potential for conflict and the disadvantages that that poses the children, outweigh the benefits to children of having meaningful input from their mother as an equal partner with their father in that decision making.
The mother’s asserted disengagement does not entitle me, as I have said, to conclude that she has disengaged as a parent. I can infer from the orders that the father himself asked the court to make, that there is some expectation that the mother will engage in the future.
Nor does the issue of high conflict, per se, enable me to so conclude. If that was the case, then orders for equal shared parental responsibility would be the exception rather than the rule in this court.
In the particular circumstances, supported by the Independent Children’s Lawyer and in line with the unaltered recommendation in that regard by Ms B, the family report writer, in whose evidence I attach significant weight and particularly for the reasons identified by her at paragraph [160] of her report, I find that the best interests of the children are supported by both parents, rather than one having that responsibility - supported however by a process of family dispute resolution if, after consultation and the process identified by the Independent Children’s Lawyer in her proposal, the parents are unable to reach an agreement.
I find that the presumption in favour of equal shared parental responsibility is not rebutted by the evidence of child abuse. Nor ought the presumption not apply in the circumstances of this case based on a best interests analysis.
Having made that order section 65DAA is triggered and the court must consider whether an order for equal time is in the best interests of the child and is reasonably practicable and if it is, consider making an order for or containing a provision for equal time and if not, whether an order for substantial and significant time would be in the child’s best interests and is reasonably practical and if it is, consider making an order for or containing a provision for substantial and significant time.
Based on my best interests findings under section 60CC, neither outcome is in the best interests of [Z] nor reasonably practicable.
The orders then that I propose to make are as follows:
a)An order for equal shared parental responsibility in line with the orders proposed by the Independent Children’s Lawyer with the parties to engage in family dispute resolution in the event of dispute, such dispute resolution be conducted at a community-based centre, with the mother to provide to the father the names of three community based centres and the parties to equally share the costs if there are any costs of attending same;
b)That both parties provide a copy of the family report of Ms B and a copy of these reasons to their respective counsellors and do so within 28 days of today’s date;
c)That the children on the recommendation of Ms B are to access therapeutic counselling. It seems to me if they are not having it they should be having it and that the Independent Children’s Lawyer is best placed to provide the father with the names of three counsellors to undertake that counselling. I shall make that order; and
d)I make an order that the mother spend time with [Z] as proposed by the father but on giving two weeks’ notice that on the mother notifying the father she intends to spend time with the child that changeovers be effected at the contact centre and that both parties undertake any requirements of the contact centre to facilitate that.
I find that these orders are in the best interest of the children and I intend to publish my reasons.
As the mother did not engage in the process yesterday, I intend to make an order that she may seek the court’s leave to set aside these orders and be heard.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Purdon-Sully
Associate:
Date: 24 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Jurisdiction
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Natural Justice
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