HAAS & BABCOCK
[2012] FMCAfam 1474
•24 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HAAS & BABCOCK | [2012] FMCAfam 1474 |
| FAMILY LAW – Interim arrangements for child aged 4 years – child has lived with mother predominantly since birth – father alleges mother has unstable lifestyle – proceedings fixed for final hearing in July and December 2012 – trial unable to proceed on each occasion due to omissions attributable to the mother – following aborted July hearing parties agreed on shared care regime – trial re-fixed for hearing in March 2013 following mother’s review of Legal Services Commission decision not to advance legal aid to her for trial – child scheduled to start pre-school in January 2013 – distance between parties’ respective homes renders shared care regime logistically impossible – both parties propose child attend kindergarten proximate to their home – matters to be considered – best interest. |
| Family Law Act 1975 (Cth) ss.4AB, 60B, 60CC, 61DA, 69ZW |
| Applicant: | MR HAAS |
| Respondent: | MS BABCOCK |
| File Number: | ADC 2948 of 2009 |
| Judgment of: | Brown FM |
| Hearing date: | 24 December 2012 |
| Date of Last Submission: | 24 December 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 24 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lindsay |
| Solicitors for the Applicant: | Legal Services Commission of South Australia |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | No appearance |
| Solicitors for the Independent Children’s Lawyer: | Barr Lawyers |
ORDERS
UPON NOTING that the mother was present to hear the orally delivered reasons in support of these orders but withdrew from the court prior to receiving the formal orders herein
THE COURT ORDERS THAT:
Order 1 of the orders of 10 July 2012 is suspended.
The father have sole responsibility for determining which pre-school the child [X] born [in] 2008 (the child) will attend from the commencement of the school year in 2013.
Order 2 of the orders of 10 July 2012 is discharged.
The child live with the father as follows:
(a)From 2:00pm on Monday 24 December 2012 until 10:30am on Tuesday, 25 December 2012;
(b)From 10:30am on Wednesday 26 December 2012 until 10:30am on Saturday, 29 December 2012;
(c)From 10:00am on Wednesday, 2 January 2013 until 2:30pm on Saturday, 5 January 2013;
(d)From 10:00am on Wednesday, 9 January 2013 until 2:30pm on Saturday, 12 January 2013;
(e)From 10:00am on Wednesday, 16 January 2013 until 2:30pm on Saturday, 19 January 2013;
(f)From Wednesday, 23 January 2013 until 10:00am on Saturday, 2 February 2013; and
(g)At all other times apart from the period specified in order 5(f).
The child spend time with the mother:
(a)From 10:30am on Tuesday 25 December 2012 until 10:30am on Wednesday, 26 December 2012;
(b)From 2:30pm on Saturday, 29 December 2012 until 10:00am on Wednesday, 2 January 2013;
(c)From 2:30pm on Saturday, 5 January 2013 until 10:00am on Wednesday, 9 January 2013;
(d)From 2:30pm on Saturday, 12 January 2013 until 10:00am on Wednesday, 16 January 2013;
(e)From 2:30pm on Saturday, 19 January 2013 until 10:00am on Wednesday, 23 January 2013;
(f)From 10:00am on Saturday, 2 February 2013 until 5:00pm on Sunday, 3 February 2013 and each alternate weekend thereafter;
The matter be re-fixed for trial on 12 and 13 March 2013 at 10:00am.
The mother file her affidavit material for trial no later than 1 March 2013.
The father file any up-dating affidavit for trial no later than 8 March 2013.
Handovers occur between the mother and the father ONLY inside the [W] Police Station.
Each party immediately advises the other of any significant health or other concern involving [X].
If the mother fails to comply with these orders, a recovery order issue forthwith and the time the child is to spend with the mother is suspended.
All things necessary be done to personally serve these orders on the mother this day and failing personal service the father is given leave in substitution to serve a copy of these orders on the maternal grandmother Ms F.
Liberty to re-list on short notice.
IT IS NOTED that publication of this judgment under the pseudonym Haas & Babcock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2948 of 2009
| MR HAAS |
Applicant
And
| MS BABCOCK |
Respondent
REASONS FOR JUDGMENT
The reasons for judgement were delivered orally. Given the significance of the decision entailed, it is appropriate that the reasons be transcribed. The reasons have been corrected from the transcript. Grammatical errors have been corrected and an attempt made to make the orally delivered reasons amenable to being read.
In addition, as these reasons were delivered on Christmas Eve, counsel for the independent children’s lawyer was unable to attend court to receive them. Unfortunately, due to a personal emergency, the independent children’s lawyer, Mr Barr, was also unable to attend. That is another reason why this judgement should be translated into a written form.
Mr Haas “the father” and Ms Babcock “the mother” are the parents of [X], born [in] 2008. [X] is four years of age. He is due to start preschool at the start of 2013.
This will be an important developmental milestone for [X]. As such it is likely to be important for him that his home environment is safe, secure and predictable.
At this stage the father wants [X] to attend a kindergarten next-door to his current child care centre, [N] [S], which is near to where he lives.
The mother’s preference is for [X] to attend the preschool at [M], which is near to where she currently lives. It is a significant distance between [N] and [M]. It is clear that it would impracticable for [X] to attend two preschools and certainly not likely to be in his best interests.
Accordingly, the court must make a decision about this issue, as the parties themselves are unable to agree on the preschool. For various reasons this decision must be based on my reading of the papers, which have been filed with the court. These papers include documents which have been subpoenaed from Families SA; the South Australian police; Child and Adolescent Mental Health Service “CAHMS”; and several of the mother’s medical practitioners.
The father has recently filed a lengthy affidavit’ setting out his current personal circumstances and his concerns about current arrangements for [X], particularly whilst in his mother’s care. This affidavit, along with an affidavit from his mother, Mrs H, was filed in anticipation of a final hearing which was scheduled for 17 and 18 December 2012.
The final hearing did not go ahead. The mother had not filed any updating affidavit material. In fact, she has not filed an affidavit in these proceedings since 4 June 2012.
The hearing of 17 and 18 December did not go ahead because the mother had no legal representation. She had recently been refused legal aid, in part, because she had wanted to change solicitors.
The mother is seeking to review the decision of the Legal Services Commission of South Australia not to grant her aid for trial. The father has been granted legal aid from the Commission. Both parties have apparently exceeded the cap of funding allocated to each of them for this case.
The Commission has waived the cap so far as the father is concerned but has not done so so far as the mother is concerned. From the mother’s perspective this is unfair. The review panel, which will review the decision, regarding the mother’s legal aid, is not able to convene until late January 2013. On this basis – the absence of legal representation and the pending decision to review her legal aid – the mother applied to adjourn the trial.
At an earlier stage of proceedings, an order was made for [X] to be independently represented in the case. The independent children’s lawyer, with some reservations, supported the adjournment of the trial. The father opposed it.
It was clear to me that it would be difficult for the mother to acquit herself adequately in these proceedings without a lawyer. A psychiatrist, Dr B, whom the mother has consulted in the past, had called into question Ms Babcock’s level of literacy, although she herself has told me she has no difficulties in this area.
In all the circumstances I decided that the interests of fairness dictated the case be adjourned but for the shortest period possible. Originally I had hoped to hear the matter in mid-January of next year, but this was not enough time for the review panel to meet. The dates set now for the reconvened trial are 12 and 13 March 2013.
This is the context in which interim arrangements for [X]’s care must be determined. [X] must start preschool prior to March. The independent children’s lawyer is in favour of [X] living mainly with his father. This outcome is opposed by the mother.
It is the father’s position that he is the better placed parent to determine which preschool [X] should attend. It is his case that the evidence, which he has mustered to date, indicates that [X] is well-settled at [S] and can easily transition to the preschool, which is next-door to it.
In order to understand the controversy in the matter, it is necessary to outline the complex history of the case to date. Regrettably the recently aborted trial was not the first time proceedings in the case have been delayed.
The mother was born [in] 1989. The father was born [in] 1987. There is no doubt that Ms Babcock has been [X]’s primary carer for the larger proportion of his life to date.
This follows from how the proceedings began in the first place, in July 2009, when [X] was a baby. At this stage the mother sought a paternity declaration – that is a formal order from the court that Mr Haas was indeed [X]’s father. This was a condition of her being able to claim Centrelink benefits as a sole parent.
Accordingly it is axiomatic that the parties have had no significant history of living together or of parenting [X] as a committed couple. The parties were ordered to undergo DNA parentage testing, with [X], in September 2009. Following that scientific testing, the relevant declaration of paternity, formally naming Mr Haas as [X]’s father, was made in November 2009.
The father began proceedings, in order to achieve some form of relationship with [X], in October 2010, by which time [X] was two years of age. Up to this stage, his emotional relationship with the child was virtually non existent.
Mr Haas is a disability pensioner, who suffers from a mild level of intellectual incapacity. He describes his relationship with Ms Babcock as being a “one-night stand”. Up until the time he commenced the proceedings in October 2010, he had spent little time with [X].
Ms Babcock did not appear on the first return date of the father’s application. It was only in February 2011 that she became involved in the case. At the time she was living in a shelter with [X], as she did not have regular accommodation for herself.
At this early stage, the parties were referred to one of the family consultants employed by the court, Ms B, in a process known as a family dispute resolution conference. Ms B saw the parties in February 2011.
Her role was two fold. Firstly, to provide advice to the parties and assist them, if at all possible, to make their own arrangements in respect of [X]’s care. Secondly, Ms B was also required to report back to the court about what had happened at the conference and, if possible, provide information to help the court make any necessary decision about on-going care arrangements for [X].
At the stage of the conference, the father’s position was that he wanted to spend incremental increases of time with [X], over the next six months, so he could get to know the child better and be a reliable father figure in his life as it developed. Ms B noted that he listened appropriately to information about attachment issues.
For obvious reasons, the fact that [X] had spent all of his life up until this stage, with his mother, was a significant issue. Clearly, from the point of view of attachment, the mother was the most significant figure in [X]’s life.
At that time Ms B noted that the mother had had to leave the homeless shelter, where she had been living in and had not as yet secured alternative accommodation for herself. Ms B was concerned about a number of issues concerning [X] at this stage.
These issues included his mother’s homelessness; the mother’s proprietorial attitude towards [X]; the mother boyfriend (noted to be of two weeks) being present at handovers; the mother’s propensity to allege serious misbehaviours in order to win the case; and what Ms B perceived, at this stage, to be the mother’s unreasonable wish to prevent [X] from having any proper level of relationship with his father.
It took Ms Babcock a period of about four months to file answering material. When she did file material, she proposed [X] spending up to four hours with his father. It was her position at this stage that she did not believe that Mr Haas was a competent parent. She also alleged that [X] had been bruised whilst in his father’s care.
It was at this stage that the mother filed the report dated 10 February 2009 from Dr B. She had consulted Dr B as a result of suffering post-traumatic stress disorder. It was the case that she had been a witness in the [omitted] serial murder trial. Apparently, she and her family were friends of the murderers. Ms Babcock had been eight or nine at the time of the crimes.
Dr B was of the view that Ms Babcock had been significantly traumatised by her involvement in the murder trial, particularly by the revelation that family friends had been involved in this very serious criminality. She was also significantly psychiatrically affected by having to be a witness in the proceedings.
Ms Babcock described a history of ongoing nightmares and other psychosomatic symptoms. Dr B described Ms Babcock as being affected emotionally by these serious matters, with those difficulties amplified by learning problems that she had experienced in school. He described her as being a particularly vulnerable person. Dr B outlined a history of depression; suicidal thinking; and over-dosage on the mother’s part.
In February 2011, orders were made for Mr Haas to spend brief periods of daytime contact with [X]. It is the father’s position that the mother was unreliable in providing [X] to spend time with him, pursuant to these orders and subsequent ones. It is also his case that the mother had on-going issues to do with instability, so far as her accommodation was concerned and arising from the volatility of her relationship with her own mother.
On 14 April 2011, a family report was ordered to be prepared. This report was prepared by a Mr C and was released on 5 August 2011. A final hearing for mid-2011 was deferred because of delays in the report writing process, including the fact that the mother had not made [X] available to spend time with Mr Haas. Mr C reported as follows:
“For Ms Babcock to escape the demons of her life she has to move on. To some degree the current actions are a test of what is controlling the mother’s life. The demons from her past make her suspicious and anxious about Mr Haas. These demons are standing between Mr Haas and a relationship with his son. If the demons are controlling Ms Babcock’s thoughts and her feelings on a day-to-day basis, then some serious questions need to be asked about her own ability to care for [X] in a safe and responsible manner.
Ms Babcock would appear to be living a high stress lifestyle. It is unclear where the responsibility lies for what is happening to her. At the time of the interview she was under serious pressure with the pregnancy of a relationship which had just collapsed. Ms Babcock’s coping skills appear to be under constant challenge and pressure. She presents as a young woman who needs considerable guidance and support.
Ms Babcock is struggling to come to terms with her past. Hopefully at some point she will be able to escape her past. In the meantime she is faced with the practical problem about the relationship between [X] and his father.
There is a sense of instability in the relationship that both parents have entered since their own relationship ended. The relationship that Ms Babcock was in has collapsed just before the writer had met her. Mr Haas was in a new relationship to the one he was in when he initiated his actions in the court. It remains to be seen how long Mr Haas’ relationship with Ms M will last. It remains to be seen how long it will be before Ms Babcock enters another relationship.
Mr Haas is well supported by his family. He lives with his mother, who has taken an active role in supporting him. [X] is well able to tolerate spending more time in his father’s care. Mr Haas seems well able to care for [X] and to meet his needs when the boy is in his care.
…
The amount of time that [X] spends with his father should be increased. [X] should spend two consecutive days with his father each week from 9.30 am until 5.30 pm on each day for a further six weeks. Thereafter [X] should be with his father from 9 am on the first day until 5 pm on the second day. The matter should be reviewed after six months.”[1]
[1] See Family Assessment report dated 5 August 2011 at page 13
In his report, Mr C pointed to the many logistical problems the parties had in regards to parenting [X] – neither had access to reliable transport by car; they lived a significant distance apart; as such, they were reliant on public transport; accordingly, it was difficult for them to meet to exchange [X] in the city. In all these circumstances, Mr C thought that the potential for conflict between the parents remained high. There were many potential flashpoints between them.
Mr C thought that Mr Haas presented as a timid and passive person, whereas Ms Babcock was more reactive and forceful. As such, he thought there would be ongoing confusion and conflicts between the parties. He described them as a vulnerable couple, who needed support to monitor their parenting and mediate the inevitable disputes between them.
In this regard, he recommended that Families SA or an agency such as Anglicare be engaged to provide this level of ancillary care. He noted somewhat ruefully that this level of support was likely to be available only in an ideal world. At this stage. Mr C recommended an increase in the time [X] should spend with Mr Haas.
In line with Mr C’s recommendations, on 31 August 2011, it was ordered that the father have some overnight time with [X] which was to run from 10 am on each Tuesday until 5 pm the following Wednesday. Accordingly, it was only as [X] was approaching three years of age that he began to spend overnight time with his father.
During this period Ms Babcock was pregnant. Her daughter, [Y], was born prematurely [in] 2011. One of the reasons the child was born prematurely was difficulties the mother had with diabetes, which developed during her pregnancy.
The mother named Mr M as the child’s father. She commenced paternity proceedings against him on 8 May 2012. Mr M did not take part in the paternity proceedings and no formal order was made for DNA testing. In these circumstances, an ex-parte order was made on 22 November 2012, naming Mr M as the child’s father. It is clear that Mr M has never taken any part in [Y]’s life.
At the time of [Y]’s birth, the mother was living in a transportable cabin at a caravan park. The mother’s medical advisors, in December 2011, were concerned about this arrangement. Accordingly a letter was written from one of Ms Babcock’s medical advisers to Housing SA, presumably to assist her to access other accommodation.
The letter reported that [X] was currently sleeping in a portacot, which he had outgrown. The dwelling was described as being four by three metres and being unsafe for small children. The property on which the cabin stood had several lakes, a pool and was surrounded by busy roads, which were not fenced off.
It was noted that Ms Babcock had limited family support, and this lack of support was exacerbating a stressful situation for her. It also seems to be the case that Families SA had been extensively involved in the mother’s life since the birth of [Y], as hospital staff were concerned about her parenting skills.
In this context, the records indicate that concerns were raised that the mother lacked understanding of the needs of a child of [Y]’s age, who had been born significantly prematurely. The mother’s parenting was described as being immature.
It seems that the mother was evicted from the caravan park for not paying rent. Thereafter she moved to live with her own mother at [M]. In March 2012, Families SA were advised, by the maternal grandmother, that she had evicted the mother, the mother’s then boyfriend, Mr T, and the children ([X] and [Y]) from her home.
The mother then went and lived with her father for a period of time. In the past, Families SA has had concerns about Ms Babcock’s father due to child protection issues. On 2 March 2012 the matter was fixed for trial on 10/11 July 2012, and Mr Haas’ time with [X] was expanded to two days per week.
Mr C was asked to update his report, given his initial report was coming up for a year old and there had been significant changes in the mother’s life. It was also the case that the father had been spending more time with [X] and it was his position that his relationship with the child had strengthened.
The period leading up to the dates for trial was a period of some instability for the mother in terms of her accommodation. This instability led to more litigation between the parties but delayed the trial of mid-July 2012.
Mr C saw [X] with Mr Haas on 23 May 2012. At the time Mr Haas did not have a drivers licence. He had moved into premises with his girlfriend, Ms M, the person to whom Mr C had referred in the earlier report. Ms M’s full name is Ms M. Mr C reported as follows in terms of his observations of Mr Haas with [X]:
“…[X] interacted calmly and affectionately with his father, grandmother and Ms M. He was engaging and mannered. He presented as a well behaved and easily manageable, responsive child. Mr Haas commented, “He’s different with his mother.” Mr Haas added, “ half the time he doesn’t want to go back”.
…
At one point [X] began getting ready for bed. Mr Haas gave the little boy a bath. [X] presented as a child who is comfortable and relaxed in his father’s care. He interacts in a confident and affectionate manner with his father. It would also appear that [X] enjoys a close and confident relationship with his grandmother and with Ms M.”[2]
[2] See Family Assessment Report dated 31 May 2012 at pages 3 & 4
At the time of the family assessment review interviews, Ms Babcock was living in emergency accommodation at a motel. In her interview with Mr C, Ms Babcock claimed that Mr Haas left [X] with his mother and did not care for him actively himself. She also asserted that
Mr Haas was a paranoid schizophrenic. Mr Haas has consistently denied that he suffers from any psychiatric condition.
Importantly, Ms Babcock said that [X] had either autism or ADHD. Certainly he was described by her as being a hyperactive child, who did not go to sleep, at times, until 3 or 4 o’clock in the morning. This was in marked contrast to how the child was both described by
Mr Haas and observed by Mr C in his care.
In his interview with Mr C, Mr Haas expressed a number of his own concerns regarding the instability in Ms Babcock’s accommodation; what he saw as her history of having a series of short-term relationships with people; and her inability to provide him with any proper information about [X]. As I say, importantly, he did not observe [X] to be hyperactive in his care.
In his assessment Mr C wrote as follows:
“This is only one of a number of new elements that have been introduced into this case. Ms Babcock believes that [X] might be suffering from autism or ADHD. Mr Haas does not share her concerns. This is a very serious point of difference between the parents, and it suggests that they had very different experiences of caring for this child. A diagnosis of autism or ADHD is a serious diagnosis and label for this child. It is highly likely to have a large impact on his future. The writer does not know how
Ms Babcock will pursue her concerns that [X] has either of these conditions.”[3][3] Ibid at page 6
Mr C opined that Mr Haas needed to be involved in any medical process leading to a diagnosis of the child. He also noted that the nature and form of the conflict between the parents had changed dramatically since the writer had last seen them. It was also Mr C’s view that the living circumstances of both parents had changed.
On the one hand, Mr Haas seemed more consolidated in his relationship with Ms M and had reliable accommodation with her. On the other hand, Ms Babcock’s accommodation was characterised by frequent changes and instability. Mr C wrote as follows:
“The mother’s living arrangements appear to have been unsettled for a period of time. She does not appear to be accepting responsibility for this. She would claim that she has been the victim of unfortunate circumstances. She would now claim that her accommodation problems have settled. She would claim that within a short time she, the children and her partner will have permanent housing.”[4]
[4] Ibid at page 7
Mr C went on to write:
“The writer is unable to support either parent with confidence. Ms Babcock is making serious claims against Mr Haas that he is leaving [X] with his mother and that he has expressed a desire not to have [X] in his care on a number of occasions. She is also claiming that he has tried to rort Centrelink by claiming to have [X] in his care for half of the time. Ms Babcock claims that
Mr Haas’ claims for [X] have been driven by financial incentives. Mr Haas claims that [X] is not safe with his mother because of her itinerant and erratic lifestyle. The claims of both parents remain a matter of evidence for the court. It would seem that there is a considerable amount of further evidence that needs to be presented to the court about the mother’s lifestyle, her homelessness and about [X] before this matter can proceed.”[5][5] Ibid at page 8
One deficit, so far as Mr C’s report was concerned, is that he did not observe Ms Babcock with [X]. This was because Mr Haas elected to retain the child around about the time the report was being compiled. The reason for this was that, on 21 May, Ms Babcock appeared on television in a news and current affairs segment. In the program, she claimed to be homeless and living in a car with [X] and [Y].
Following this television broadcast, Mr Haas commenced proceedings, on 25 May, seeking that [X] remain in his care because of what
Ms Babcock had said on television. Around about this time
Ms Babcock also changed her solicitor again.
Ms Babcock relied on this change in circumstances, in her in her responding material filed on 4 June 2012, to explain why the father had not been informed properly of her circumstances. In addition she denied that she was homeless, as had been the impression given by the television program and gave the following history of her accommodation up until that stage.
She said that she was living with her mother until early 2011, when she had had a disagreement with her mother and left her home. After she left this accommodation, she then applied for Housing Trust accommodation and was put on a category 3 waiting list.
In early 2011 she moved from her mother’s house to the [omitted] caravan park, where she lived in a cabin for about 12 months. This appears to be the accommodation which was criticised by the health care worker.
In about December 2011 she applied for category 1 Housing Trust accommodation. In early January 2012 she returned to live with her mother following the birth of [Y]. She remained living with her mother until March 2012, at which time again she moved out because of another disagreement. In March 2012 she was approved to be placed on the category 1 Housing Trust accommodation waiting list.
She lived with a friend in [omitted] over Easter 2012 before moving to her father’s house in [omitted], where she stayed until mid-May. In mid-May she moved to her younger sister [name omitted]’s house, and from 21 May she again lived at the [M] caravan park. She moved into the [omitted] Motel on 22 May 2012. This was emergency accommodation provided by the Housing Trust.
It is her case that she had been misrepresented by the television producers in respect of what she said on television and had never been effectively sleeping in her car. Ms Babcock asserts that during relevant periods, she was actively seeking assistance from Housing SA to secure appropriate accommodation for herself and her children.
Because of the deficit in Mr C’s report, regarding his observation of the child with the mother, he was asked to revisit his report and did so on 4 June 2012. Mr C observed [X] with Ms Babcock for about two hours. At that time Ms Babcock was living with a person called Mr T.
[X]’s interaction with the members of the mother’s household was described as unremarkable. Mr C said that he engaged in a variety of activities with his mother and with Mr T. [X] was said to interact with his mother and Mr T in a warm, familiar and affectionate manner. [X] himself was described as playful and active. He played soccer with is mother and played on some play apparatus in the backyard. As such, Mr C opined that [X] enjoyed a good relationship with his mother.[6]
[6] See Family Assessment Report dated 9 July 2012 at page 2
The hearing scheduled for July 2012 did not proceed. This was not due to any failing on Mr Haas’ part. He filed a lengthy trial affidavit from himself; an affidavit from Ms M; and an affidavit from his mother,
Mrs H, on 20 June 2012. He was ready to proceed with his case. The mother did not file any material and has not done so since early June of 2012.
At that stage the father’s position can be summarised as follows:
“In the course of these proceedings it has become increasingly apparent that the mother’s lifestyle is unstable and chaotic. She moves from place to place and appears to have fallen out with her family and friends. I believe that the mother’s lifestyle is impacting [X]. At the age of three and a half he is not toilet trained and appears to be delayed in his speech. In the care of the mother he has few, if any, opportunities to socialise with other children.”[7]
[7] See father’s affidavit filed 20 June 2012 at paragraph 4
As previously indicated, Ms Babcock’s then solicitors had only recently come into the matter, when the trial of July 2012 was imminent. As such, they applied to adjourn the trial on the basis they were not ready to proceed, as they had been only recently instructed and the case was one of some complexity. Mr Haas did not strongly resist this application.
As such, on 7 July 2012, a number of orders were made, with the consent of both parties, following a process of negotiation between then facilitated by their respective counsel. Firstly, it was ordered that [X] be independently represented. Secondly, the trial was refixed for 17 and 18 December 2012. Thirdly Families SA were invited to intervene in the proceedings and were ordered to provide any relevant documents regarding their involvement with the case pursuant to the provisions of section 69ZW of the Family Law Act.
Against this difficult background, it was agreed, pending trial, that the child should live in a split-care arrangement, living with his father from 10 am on Wednesday to 2.30 pm the following Sunday in each week and with his mother at all other times. The child was to be exchanged between the parties inside the [W] Police Station.
On 12 December 2012 the mother’s solicitors withdrew, leaving the mother again unrepresented. As previously indicated, the mother had withdrawn her instructions from these solicitors, being apparently dissatisfied with the services provided to her. As a consequence of this her legal aid was cancelled. She has filed no affidavit material for trial since.
The father has filed further affidavit material on 10 December. In addition, his mother has also filed an updating affidavit. Mrs H has deposed as follows:
“Since 10 July 2012, when [X] started spending three nights and three and a half days with his father each week, I’ve observed a great improvement in [X]. His speech has improved enormously. Previously he did not say much and appeared to be delayed in that area, but now he is able to communicate very well and appears to be a bright child.
On [date omitted] 2012, [X]’s first day with his father after his birthday, the father and I started teaching him from his alphabet and numbers. He already recognises all of the letters of the alphabet.
In the past [X] did not even know what a carrot was or what beans were. We have taken him around the greengrocers and introduced him to various fruits and vegetables. He now loves eating these foods.
Whilst [X] now appears to be thriving in his father’s care, I remain extremely concerned about [X]’s welfare in the care of his mother. I am still very concerned about his emotional wellbeing.”[8]
[8] See affidavit of Mrs H filed 19 December 2012 at paragraphs 3-7
As a result of the order made pursuant to section 69ZW, the court has received documents concerning [X] from Families SA, although the Department itself has declined to intervene in the case.
In his most recent affidavit, filed 10 December 2012, the father indicates his concern that Families SA found, in July 2012, that there was a substantiated and significant risk of [X] coming to emotional harm, whilst in his mother’s care.
On this basis, Families SA substantiated a notification of emotional abuse in respect of [X] because of concerns held regarding
Ms Babcock’s mental health. Families SA had written to Ms Babcock, urging her to organise a mental health care plan through the agency of her general medical practitioner.[9]
[9] See father’s affidavit filed 10 December 2012 at Annexure B
In addition, Mr Haas has provided evidence from [S] Childcare and Early Learning Development Centre in the form of a letter dated 23 November 2012 from the Team Leader of the 4-5 year old room, Ms C. [X] had started attending the [omitted] Room, at [S] from 12 July 2012 onwards, with 15 to 20 other four and five year olds.
In her letter, Ms C writes as follows:
“Upon [X]’s transition into the centre, he was quiet and simply followed the movements of other children. Seemingly timid to make decisions and do things on his own. [X] had difficulties managing toileting skills and would refuse to participate in large group events. Over a short period of time, [X] has demonstrated a growth in confidence. Undertaking and following daily routines, and completing routine tasks (eating, washing hands, putting away resources etc) independently. [X] has become confident with his personal wellbeing, seeking water when needed and no longer having toileting accidents. [X] has developed confident self help skills, needing minimal assistance and reminders from the educators working in the room.”[10]
[10] Ibid at Annexure A
Ms C’s report is, of course, positive about [X]’s progress in a fairly short period of time. She also writes that the staff members at the Centre are working with [X] on developing skills to assist in his preparation to start at school next year. He has been given assistance in number and letter recognition and is learning to write his own name.
As previously indicated, [S] is next door to the kindergarten selected by the father. Accordingly, if [X] attends this kindergarten, he will move there with children he knows. At this stage, the mother is not in a position to provide any information about the kindergarten of her preference, other than it is close to where she lives and is convenient for her.
As a result of Mr C’s concerns that there was a great deal of evidence that needed to be collected in these proceedings, both those advising Mr Haas and the independent children’s lawyer have caused a large number of subpoenae to be issued to gather relevant material regarding both [X] and Ms Babcock.
The Families SA material indicates that there have been a large number of notifications made to Families SA concerning [X]’s care, whilst in the custody of his mother. As a consequence of these notifications, in April 2012, the mother was interviewed by workers at the Department’s office in [M].
In this interview the mother raised her concerns that [X] had ADHD or autism. He was also described by her as being too skinny or having eating problems. Against this background she had taken [X] to see
Dr Z, her GP, who apparently had found nothing wrong with the child.
Again around April 2012 a worker, who’s described as a senior practitioner at Families SA, describes having a conversation with
Ms Babcock about the importance of a dialogue being maintained between Families SA and the mother. In this context, the mother was described as becoming increasingly agitated and aggressive.
The mother apparently yelled at the worker, and when asked to lower her voice in front of her children she responded, “They’re used to it”. The worker concerned advised that the mother’s behaviour was not acceptable, to which the mother replied, “I’m not being aggressive. You haven’t seen me being aggressive yet”. From the father’s perspective, this is evidence in support of his contention that the mother does not respond well to advice but rather has a propensity to become defensive and aggressive when challenged.
The mother’s medical history has been subpoenaed. This indicates that Dr Z referred her to a psychologist, Ms O, for treatment of symptoms of anxiety and depression. Concerns were also raised that Ms Babcock was not dealing appropriately with her diabetes and was not properly monitoring her blood sugar levels.
Significantly, in the context of the mother’s report of [X] being hyperactive, she arranged a consultation with CAHMS. At the time of the consultation, Ms Babcock described herself as estranged from her own mother because of her (Ms Babcock’s) perception that her mother wished to have Families SA remove [X] and [Y] from her care.
In the history she gave to CAHMS in April 2012 Ms Babcock described [X] as being hyperactive and uncontrollable and running amok. This behaviour was characterised by the child climbing on furniture and cars, drawing on cars, having tantrums. He was also described as having threatened [Y] and kicked and pushed her and of having “tried to push a straw down her throat.”
Ms Babcock conceded that [X] had been exposed to significant levels of aggression, threats and verbal fighting, whilst she had been living at the maternal grandmother’s home. She also raised concerns that [X] may have been molested by his paternal uncle. The child was described by Ms Babcock as having a “red-raw bottom” which had necessitated medical intervention but the doctor concerned had found no evidence of molestation.
Under the heading “Clinical formulation” it was noted as follows:
“[X]’s mother, Ms Babcock, is a previous client of CAHMS and has her own emotional and family of origin difficulties. She is a young mother with two young children and appears to lack knowledge and possibly capacity in relation to parenting. She does not believe that she requires further knowledge in order to meet her children’s basic needs. However, she does recognise that [X] is experiencing difficulty with his behaviour, and has sought professional assistance with this…
It appears that [X] has been born into a family characterised by difficult and transient relationships, low levels of insight and low levels of parenting knowledge and capacity. He has been exposed to aggression, threats and fighting and does not appear to receive care or stimulation from any external source, other than 1 evening/night per week with his biological father.
It is suggested that [X] may be experiencing difficulties in forming a secure attachment relationship with his mother and that his aggressive and “out-of-control behaviours” are his way of communicating his distress and insecurity. It was also thought that Ms Babcock herself may be experiencing her own mental health difficulties.”
Since June of this year, the mother has apparently failed to engage constructively with the litigation process. She has not filed any up-to-date material. Accordingly, at this stage I must determine this matter essentially on the basis of material which has been provided by the father.
In my view, the evidence which the father has been able to muster indicates that there are worrying concerns that the mother is not coping with parenting [X], to an appropriate standard. In addition, there is evidence to indicate that the mother has a long-standing history of having unstable accommodation and of forming temporary alliances with individuals and then breaking them.
Importantly, the CAHMS material, supported by the mother herself, indicates that there are worrying signs that [X] is displaying significant signs of psychological dysfunction, whilst in her care. In contrast, the father’s position is that [X] is stable and happy in his care. This view is supported, too some extent, by Ms C, who describes a child who had issues when he started at [S] but who became more stable as time has progressed.
The hearing today is an interim hearing. At this stage the material available to me is far from complete. The reason the material is incomplete is because the mother has not filed any material due to problems with her legal representation. This state of affairs is in way attributable to any omission on the father’s part. The prima facie position appears to be that he has provided all the evidence reasonably available to him.
Two final hearings, previously fixed, have been adjourned due to difficulties relating to the mother’s case. I concede that the proper forum for the resolution of disputes – and there are likely to be many disputes of fact between the parties – is the final hearing. However [X]’s present circumstances dictate that an interim determination be made regarding his on-going care arrangements notwithstanding the provisional and limited nature of the evidence currently available to me.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act [see section 60CC].
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act the court is now directed:
“in applying the primary considerations… to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence.”
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served, by any order which the court makes, are set out in section 60CC(3). These criteria are categorised as 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.
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. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In this case, at the present time, I think the most important consideration is the need to protect [X] from being exposed to family violence, abuse or neglect. I am concerned that there is evidence to indicate that [X]’s care is compromised, whilst in his mother’s care.
There are also, I think, reasonable grounds for me to conclude that [X] has been exposed to family violence whilst in his mother’s care, particularly while she was living with her own mother. This evidence comes from the CAMHS records. Although it is difficult for me to reach a definitive view at this stage, exposure to this violent conduct may explain, at least in part, [X]’s extreme behaviour reported by
Ms Babcock.
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.”
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”.
In any event, regardless of the issue of family violence, as I have already indicated, a decision has to be made as to which kindergarten [X] will attend in the New Year. The parties cannot continue to share [X]’s care whilst he is attending kindergarten, as they have done up until this stage.
On my view, the evidence available to me at the present time indicates that [X] will be better served if he attends the kindergarten that is his father’s preference. The evidence, albeit provisional in nature, indicates that [X] is progressing well at [S], which is associated with the kindergarten next door to it.
Ms Babcock has told workers at Families SA and at CAHMS that [X] is hyperactive and violent, whilst in her care. In her expression [X] “runs amok”. One explanation for this behaviour is that he is acting out his emotional distress arising from his insecure relationship with his mother. Mr Haas deposes that [X] does not display such behaviour, whilst in his care. A view supported by the observations of Mr C. As previously indicated, this behaviour may also be referrable to exposure to the conflict which has occurred between Ms Babcock and her own mother.
I am satisfied that [X] currently has a satisfactory level of relationship with his father. This has not always been so, as Mr Haas was not involved in the early period of [X]’s life. However, since these proceedings were commenced, now well over two years ago, he has gradually increased his level of relationship with [X] until the child is familiar and comfortable in his care.
On any view, [X] also has a significant relationship with his mother, with whom he has lived since the time of his birth. There is however evidence available to me from the CAHMS record to indicate that the relationship is an insecure one, which results in some form of psychological distress for [X].
Whether that is so or not will depend on what conclusions can be drawn from the evidence led at final hearing. It may also be the case that if this evidence is provided to Mr C, it will assist him to make a less ambivalent recommendation.
However, I am concerned that at present there are significant indications that all is not well in the mother’s household at present. It is undoubtedly the case that she has suffered a high level of insecurity in respect of her accommodation. It is also the case, on her own evidence, that her relationship with her own mother has at times been a fractious one.
The medical evidence also indicates that Ms Babcock’s doctors have been concerned about her psychiatric health and how she is managing her diabetes and weight. In short, there do appear to be many stressors in the mother’s life at present. I acknowledge that many of those stressors result from the mother’s significant level of social disadvantage.
It will be a significant change for [X] to come into the primary care of his father. Any transition must be carefully managed. However the evidence, particularly from Ms C, indicates that [X] was able to accommodate the change to the current shared care regime, which occurred when the July hearing could not proceed.
Once [X] starts kindergarten, such a split week regime cannot be continued for obvious logistic reasons. The father has been able to provide evidence to support his choice of kindergarten. The mother has not. The transition from [S], where [X] has friends and appears to be doing well, to the associated kindergarten next door, appears to be the most logical development for him at this stage. This factor militates in favour of [X] living predominantly with his father, at least from the start of the school year in 2013.
The evidence of Mr C is that [X] is comfortable in the care of his paternal grandmother and the father’s partner Ms M. Mrs H and Ms M are important sources of emotional support for the father. It is in my view significant that Mr Haas has been in a position to advance his case to final hearing, where Ms Babcock has not been able to do so. As such, it would seem likely that Mr Haas has more sources of external support than does Ms Babcock. Certainly Ms Babcock has indicated that her relationship with her mother has not always been an easy one.
Both parties come from a disadvantaged background. Mr Haas is a disability pensioner. Ms Babcock is financially disadvantaged. As a child she was apparently involved herself with Families SA. Neither party is to be penalised for their respective difficulties in life. Rather the court’s focus must remain on [X]’s best interests.
Up to this time, the evidence available to me indicates that [X]’s care, whilst with his mother, has been marked by frequent changes of accommodation; fractured relationship; and other forms of instability. On the other hand, the father has been largely stable in his accommodation and relationships.
[X] is likely to benefit from having a stable and predictable home setting. In my view, Mr Haas is currently better placed to provide such stability and predictability, particularly once [X] has started at kindergarten.
At this stage, it is my view that it is not appropriate for the parties to continue to share parental responsibility for the child. Their relationship is dysfunctional to a significant degree. They are currently incapable of making consensual decisions about the child. At this interim stage, given the parties’ difficult history with one another, it would not be appropriate for the presumption to apply.
The final hearing can take place in a comparatively short period of time. As such, any errors arising from this provisional decision are capable of rectification at the final hearing stage. However, I acknowledge that in the extremely short term – that is the next few weeks or so – it would be prudent not to embark on a radically different regime for [X]. Both he and the mother will have to adjust to a change of circumstances.
Accordingly, I will make arrangements for the child to spend time with each of his parents over the period of Christmas. I will then continue the current shared-care arrangement until 23 January. Thereafter, in my view, [X]’s best interests will be served if he lives predominantly with his father.
I am making orders for the next two and a half months. I am satisfied that any proper consideration of [X]’s best interests dictates that he must live more with one parent than the other, particularly from the end of January onwards.
I am well aware that [X] has a sibling, [Y]. Again, the CAHMS records indicate that there are problems with that relationship in that [X] is described as having been violent towards his sister in the past. Whether that is so or not and if so what are the reasons for that violent behaviour are unclear to me.
At this stage, I do not think that [X]’s relationship with his sister is a strongly determinative factor. More important is the desirability of him having a secure start to his pre-school life. I consider that Mr Haas is currently better placed to provide such a secure base, particularly given the support available to him from Ms M and his mother.
The evidence of [X]’s paternal grandmother and of the father himself indicates a happy and well-settled child whilst in the father’s care. This was also Mr C’s observation of the child. The observation is in marked contrast to the mother’s description of the child and what appears in the CAHMS records, which largely come from the mother’s own description of her circumstances.
If [X] is a hyperactive child, as the mother described, I am satisfied that there is evidence to indicate his psychological welfare may possibly be in jeopardy whilst he is in her care. Whether this is so or not must await final hearing. However, in my view, it would not be in [X] best interests to allow him to remain at risk of such psychological harm pending final hearing, once he has begun pre-school.
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 thirty-four (134) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date: 24 December 2012
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