Hall and Osborn
[2015] FCCA 1367
•27 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALL & OSBORN | [2015] FCCA 1367 |
| Catchwords: FAMILY LAW – Children – family violence – criminal history both parties – separation siblings – relationship of children with parents. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA, 62G, 65DAA & 69ZQ |
| McCall v Clark (2009) FLC 93-405 Mazorski v Albright [2007] FamCA 520 In the Marriage of Chapman & Palmer (1978) FLC 90-510 |
| Applicant: | MS HALL |
| Respondent: | MR OSBORN |
| File Number: | NCC 3350 of 2011 |
| Judgment of: | Judge Cole |
| Hearing dates: | 4, 5 & 6 March 2014, 10, 12 & 13 June 2014, 18 August 2014 and 13 October 2014 |
| Date of Last Submission: | 13 October 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 27 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Peter Hackett |
| Solicitors for the Applicant: | Evans & Company Family Lawyers |
| Counsel for the Respondent: | Paul Mason |
| Solicitors for the Respondent: | David Hunter Law |
| Counsel for the Independent Children's Lawyer: | Andrew (Brian) Balzamo |
| Solicitors for the Independent Children's Lawyer: | Burridge Harris & Flynn Solicitors |
ORDERS
That the children X born on (omitted) 2002, Y born on (omitted) 2003 and Z born on (omitted) 2008 do live with the father.
That the child W born on (omitted) 2011 do live with the mother.
Upon the commencement of family therapy, that the children X, Y and Z spend time with the mother as agreed or failing agreement:
(a)during the school terms, on alternate weekends:
(i)for four visits, from 10.00am to 2.00pm Saturday; then
(ii)for four visits, from 9.00am Saturday to 5.00pm Saturday; then
(iii)for four visits, from after school Friday to 5.00pm on Saturday; then
(iv)from after school Friday to before school Monday;
(b)during school holiday periods for the first half of each holiday period in odd numbered years and the second half of each holiday period during even numbered years;
(c)Excepting when the children are collected from or delivered to their school, changeover shall occur at (omitted) McDonalds.
That the child W spend time with the father as agreed.
That the mother and father forthwith attend family therapy as recommended by Mr N and Dr C with a view to, amongst other things, facilitating the three older children spending time with their mother; the child W spending time with the father, and improving communication and cooperation between the parents:
(a)at such times and places as notified by the Manager of Interrelate Children’s Services, (omitted), or his delegate; and
(b)with each parent to ensure the attendance of any or all children as recommended by the persons conducting the therapy.
There be liberty to the parties to provide Interrelate with a copy of these Reasons and the reports of Mr N and Dr C.
That each parent shall use their best endeavours to encourage each of the said children to spend time with the other parent.
That the father is restrained from allowing the said children to travel in a motor vehicle with an unlicensed driver.
That the parties be restrained and an injunction is granted restraining each of them from denigrating the other party in the presence of or hearing range of the children and they shall both use their best endeavours to ensure others do not denigrate or insult the other parent in the hearing or presence of the children.
That the father and mother shall forthwith inform the other parent of the names of all of the children’s medical practitioners, dental surgeons, dentists, optometrists or any other medical service provider (registered with a formal medical of other authority or otherwise) and keep informed the other parent of any changes in relation to the said medical practitioners from time to time and the mother and father are both authorised to obtain information in relation to the children from their medical service providers.
The father and mother shall provide such authorities to the other parent as may be necessary for the other parent to obtain information relating to the educational records of the children as required by the other parent.
That both parties are to keep the other parent advised of their current residential address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other parent of any changes to these details within seven (7) days of such change occurring.
That neither parent consume alcohol to excess or illegal drugs in the twelve (12) hours prior to or during the time the child or children are in their care.
The Independent Children's Lawyer take such steps as are reasonable to either:
(a)Advise the children X, Y and Z of the orders made; or
(b)Have a Family Consultant or suitably qualified counsellor advise the said children of the orders made.
The father take all steps necessary to facilitate the attendance of the said children upon the Independent Children's Lawyer or such person as is nominated by the Independent Children's Lawyer.
Upon the completion of paragraphs 15 and 16 of these orders the appointment of the Independent Children's Lawyer be hereby discharged.
The proceedings be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hall & Osborn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
NCC 3350 of 2011
| MS HALL |
Applicant
And
| MR OSBORN |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the parenting arrangements for the parties’ children X born on (omitted) 2002, Y born on (omitted) 2003 and Z born on (omitted) 2008 and W born on (omitted) 2011.
The eldest three children X, Y and Z moved to live with their father in 2011. They have remained living there since that date. W, who was born after the parties separated, continues to reside with her mother.
The mother has one child from a prior relationship namely V who is 24 and suffers from autism. V is now living with the mother.
At the conclusion of the trial, the evidence was that the elder three children were not spending time with the mother, nor was W the youngest spending time with the father and her elder siblings.
The children’s parents have a history which includes:
a)the mother having her eldest child V removed from her care and placed with the maternal grandmother in or about 1994. V was not returned to the care of the mother. He moved to live with her after he turned 18.
b)The mother being convicted of supplying a prohibited drug.
c)The parties having extensive involvement with the Departments of Child Safety or Family and Children’s Services in the States in which they were living.
d)There being serious allegations of domestic violence between the parties with the mother as the victim.
e)There being allegations in respect of the mother’s violence to the children.
f)The father being imprisoned for drug offences.
g)The father being imprisoned in respect of charges of violence.
The mother seeks orders that the children live with her and that she have sole parental responsibility for them. She seeks an order that the father’s time with the children be suspended for a period of six months, following which, the father’s time with the children be supervised at a children’s contact centre for 12 months for a period of two hours each alternate fortnight, with time to be increased to six hours 18 months from the date of the orders for a period of six months following which his time would be alternate weekends and for one week of each school holiday period.
In addition, the mother seeks an order that the father not spend time or communicate with W unless agreed by the mother.
The father amended his application to seek orders that the parties attend family therapy with orders being made until further order for W to live with the mother and the three elder children to live with the father and the children spend such time with the other parent as is agreed. A further Family Report was also sought, with the trial to resume in the next 6 – 12 months.
The Independent Children’s Lawyer supports the children remaining where they are with the parties being required to attend therapy to attempt to improve the parents’ relationship. Orders are proposed that the three elder children spend time with the mother on alternate weekends with time to move from 10am until 2pm Saturday to alternate weekends from after school Friday to before school Monday, with W to live with the mother and spend time with the father as agreed.
The parties filed extensive written submissions at the closing of this matter which I will refer to in the course of these Reasons.
As previously stated, the father filed an amended response on 15 August 2014 just prior to the hearing of this matter being concluded. In addition to the orders referred to above he sought an order for the change of the children’s names.
The late filing of the application and in particular, the application for change of name was opposed by the mother’s counsel. It was noted in the written submissions that the father sought to amend his application on several occasions to include orders pertaining to the children’s names and name registrations. The application was refused during the first part of the hearing and yet the father served and sought to file an amended response between the first and second parts of the hearing contending that he would be seeking leave to file the amended application. When counsel for the mother sought to oppose the filing of the amended application on the basis that it had already been refused, the application was abandoned by the father’s counsel.
Counsel for the father refers me to the provisions of s.69ZQ of the Family Law Act 1975 (“the Act”), which he submits requires the Court to “deal with as many aspects of the matter as it can on a single occasion”. He concedes that (i) the issue was not raised in the three years it took this matter to get to trial; and (ii) that the Court expressed reluctance to hear that issue. He was in fact advised that he would have to seek leave to amend the application in the usual manner. That did not occur until these documents were filed on 15 August 2014, being the Friday prior to my hearing evidence by video link from Ms M.
The trial was otherwise concluded. At the time leave was sought during the video link on 18 August 2014, counsel for the mother did not have a complete copy of the documents. This followed a previous attempt (at the second hearing), to seek to file an amended application, which was abandoned following the objection of the mother’s counsel. The matter was left on the basis that the issue could be addressed in closing submissions.
I considered the submissions of the father and while I accept that this Court does try and resolve issues, it is not at the expense of due process and a fair hearing. The father had three years to put his case. He did not, and I consider the late filing to be inappropriate and wrong.
The father on what is now his third attempt is seeking to file and rely on the amended application. I accept the submissions of the mother’s counsel. The application to amend the orders sought by the father to include an application in respect of the children’s names is late, and to allow it now would be to deny the mother due process. The application is therefore refused.
Also filed on 15 August 2014 was an affidavit sworn by the husband’s solicitor annexing 33 documents. The mother through her counsel objected to the filing of the document. The objection included his concerns that the authors of the documents were not available to give evidence. In addition, there was some concern that reasonable efforts have not been made to provide a copy of the affidavit of the mother’s legal representatives prior to the matter being raised in court. The Independent Children's Lawyer made no submission in respect of the documents.
The concern of the mother’s counsel regarding the late provision of these documents is warranted. The failure to call the author particularly when the admission of the documents is in dispute does affect the weight that could be given to them. The matters raised in the documents have to a large extent been canvassed in the evidence before me. In view of the late filing and the objections raised I do not consider it appropriate to allow the documents into evidence.
If I am wrong in respect of that issue, I do not consider that it adds to the issues addressed at length before me, other than to corroborate the fact that this family has had a high level of interaction with the authorities in the course of their unfortunate history.
Background
The Independent Children’s Lawyer rightly submits that this matter has a complicated history which includes entrenched conflict between the parties.
The parties commenced cohabiting in either 1999 or 2000. Little turns on that issue.
The mother at the time had a child from a previous relationship, namely V who was born on (omitted) 1989.
V was removed from the mother’s care and placed with the maternal grandmother prior to the parties commencing cohabiting. Final orders appear to have been made on this in 1994, V having been returned to the mother for a short period in the interim. The mother does not address this issue in her trial affidavit. The mother’s evidence is that V came to live with her several months ago (being some time in 2013) following a disagreement with her mother. She notes that her mother does not approve and wanted him to remain living with her in Sydney.[1] I will refer to this later in these Reasons.
[1] See the mother’s trial affidavit filed on 21 February 2014, 215.
The father at the commencement of the relationship had a child U who was born in 1996 and is now aged 18. He maintains a relationship with her.
The Independent Children's Lawyer notes that both parents have lengthy criminal histories including convictions for serious drug offences, assault, driving offences, offences including dishonesty and other antisocial behaviour.[2] The father has been incarcerated several times, including for up to 12 months[3] and it is reported he has spent approximately six years of his life in prison.[4]
[2] See Exhibit C parts 11 and 20.
[3] See mother’s trial affidavit filed on 21 February 2014, 19.
[4] See medicolegal report of Dr C dated 6 of June 2013, 4, 11, 85, 86.
The parties separated in or about November 2008 following the father being arrested for assaulting the mother and being sent on remand to (omitted) Prison.
Following a two to three month period of time spent at a refuge, the mother relocated to the (omitted) to live with her sister.
In May 2009 the children were removed from the mother’s care by the Department of Child Safety under a 28 day Child Protection Order. The children were returned to the mother following a police investigation however in early July 2009 a 12 month supervision order was made.
In August 2010 the mother received a letter from the Department of Child Safety advising there were no concerns and the supervision order would be ceasing.
In October 2011:
a)the Queensland police conducted further investigations into allegations made by X about being assaulted;
b)the children were delivered to the father by the mother’s sister; and
c)the mother commenced proceedings in the Local Court at (omitted). The matter was eventually transferred to the Federal Circuit Court.
On 28 January 2012 the mother attended the residence of the father and removed Y and Z from the father’s care.
On 13 February 2012 an order was made for the recovery of the children and the return of Y and Z to the father.
On 10 May 2012 consent orders were made for the mother to spend supervised time with the children at the contact centre.
On 6 October 2012 the mother spent her first period of supervised time with the children.
In March 2013 the father moved with the children from (omitted) to (omitted). The mother’s visits with the children were deferred pending acceptance into a new children’s contact centre.
On 23 October 2013 the matter was transferred to the Brisbane Registry. On 19 December 2013 the matter was listed for trial before me on 5 March 2014 for three days.
The trial was heard on 5, 6, 7 March 2014, 10 June 2014, 12 and 13 June 2014, 18 August 2014 and 13 October 2014.
The evidence
The mother relies on:
a)her amended initiating application filed on 29 January 2014;
b)her affidavit filed on 21 February 2014;
c)the affidavit of her father filed on 21 February 2014;
d)the affidavit of Ms S filed on 21 February 2014;
e)the affidavit of Ms C filed on 21 February 2014;
f)the affidavit of Ms K filed on 26 February 2014; and
g)the affidavit of her mother filed by leave on 5 March 2014.
The father relies on:
a)his affidavit filed on 23 November 2011;
b)his affidavit sworn on 21 January 2013;
c)his affidavit filed on 24 February 2014;
d)the affidavit of Mr T, the paternal grandfather, filed on 24 February 2014;
e)the affidavit of Ms E sworn on 1 February 2012;
f)the affidavit of Mr P; and
g)the affidavit of the father filed on 11 June 2014.
The Independent Children’s Lawyer relied on:
a)the affidavit of Mr N annexing his report sworn on 21 January 2014 and filed 31 January 2014; and
b)the affidavit of Dr C annexing his report sworn on 20 January 2014 and filed on 31 January 2014.
The mother, her father, her mother, and Ms C gave evidence and were cross-examined.
The father, his father, the mother’s sister Ms E, Mr P (the mother’s landlord), and Ms M (the therapist currently seeing the children) gave evidence and were cross-examined.
Mr N and Dr C gave evidence and were cross-examined.
The applicant mother
Before I comment on the evidence of the applicant mother, it is fair to say that neither party impressed me in these proceedings.
The mother’s personal history at its highest is unfortunate. Her son V was taken from her and placed in the care of the maternal grandmother at an early age. He did not return to her care until sometime in 2013.
Her explanation as to how he came to be placed in her mother’s care was at best unsatisfactory. Her explanation as to why she took no steps to have him returned to her care prior to 2013 was unhelpful.
Unbeknown to me, V sat in on the first of the two days of hearing as an observer to these proceedings. V is acknowledged to have an intellectual disability. His involvement in these proceedings did not I consider, reflect well upon the mother.
Reference will be made throughout these Reasons to the criminal records of each of the parties. In addition, there appears to have been significant involvement with State authorities in respect to the care and protection of the children.
Concerns arose for me in respect of the mother’s willingness to accept responsibility for some of these matters, including the conviction for drug trafficking.
In addition, her explanation as to how she came to leave her young child W for a period of 17 days while she holidayed in (country omitted) did not assist her.
The mother’s explanation as to how she was able to fund such an extended holiday by borrowing funds from a friend whom at first she was not prepared to name, and to whom she would repay the money from the sale of beads that she had purchased whilst in (country omitted), at a market stall, was difficult to accept.
It appears this friend had also lent her a significant sum of money to assist with the funding of these proceedings. She is not in a relationship with him, and yet he was prepared to advance in excess of $20,000 to assist her.
Furthermore, she has taken steps to ensure that her property is continuously monitored by security cameras. How this was funded or what effort it took, is unclear. In the context of someone who has experienced such an unfortunate past, and who is making ends meet with the assistance of Centrelink benefits and what funds she is able to earn from her market sales, this seems an extraordinary step to take and again I had difficulty accepting her explanation.
I will refer further to the mother’s evidence in the course of these Reasons.
The respondent father
The respondent father’s past is not something that he has any right to be proud of. His criminal record and involvement with State authorities is extensive.
The Independent Children’s Lawyer criticises the father for lacking in insight. For example, when asked whether he considered himself at all accountable for the children’s relationship with the mother, he said no.
To his credit, he acknowledged that with hindsight some of his behaviours were not appropriate but at the same time appeared to maintain a view that it was appropriate for children of 6, 10 and 12 years of age (at trial) to self-determine the nature and extent of the relationship with their mother.
He did not appear to appreciate that should children fail to attend for their time with their mother, that there needed to be consequences that flowed from that action.
Furthermore, he is criticised by counsel for the mother in respect of amongst other things, his evidence regarding the purported visit of the maternal grandmother and the mother to his property and their being sighted by his neighbour. His evidence in respect of this issue was not helpful.
The father is also criticised for his late move to have the children attend upon a therapist, namely Ms M. Whilst it is to his credit that some help is now being obtained, the criticism in respect of the late action is noted.
I will refer further to the father’s evidence in the course of these Reasons.
The Reports
Two reports were obtained in the course of these proceedings. Mr N met with the family on 27 July 2012 and his report was published on 17 August 2012.
Dr C was subsequently engaged pursuant to an order of the Court to undertake a psychiatric and psychological assessment of each of the parties and assess the impact of the same on the parenting of the children.
He met with of the parties and the children on 25 March 2013 and his report was published on 6 June 2013. His report had a similar format to that of the report undertaken by Mr N pursuant to s.62G(2) of the Act.
Counsel for the mother correctly refers to the age of the reports when he notes that it had been nearly two years since Mr N met with the parties.
I note that neither party nor the Independent Children’s Lawyer chose to request an updated report from either Mr N or Dr C.
Counsel for the mother concedes that the observations of the children, parents and significant adults undertaken by the report writers are important when considering what was contended by the mother, namely that the father has caused the relationship between her and the children to deteriorate.
I accept that the observations at the time are relevant, and would note in particular, the concerns expressed about each party.
Mr N
Mr N saw the parties in 2012. He gave his evidence by telephone as he was not able to attend in person.
In this report, Mr N noted that:
It is fair to say that the best way to describe the mother’s presentation to the Family Consultant was that of being thought disordered. It remains difficult to draw any specific conclusion regarding the impact of the mother’s use of alcohol and illicit substances upon the mother’s mental capacity, but it appears evident from the subpoenaed material that there has been a significant child protection history for the subject children whilst having lived in the primary care of the mother in Queensland.[5]
[5] See Mr N’s report dated 7 August 2012, 31.
Further in the report, Mr N noted that:
whilst the father clearly outlined a range of concerns relating to the mother’s parenting capacity it is reasonable to suggest that the father’s own history of criminality does not reflect positively upon him, whilst it should be noted that the father remains under New South Wales Parole supervision until October of this year…[6]
[6] Ibid, 45.
Mr N noted that:
It is reasonable to state that the Family Consultant has a range of concerns about each of the parents and their ability and capacity to fulfil their parental obligations. There appears little doubt that the three eldest subject children, particularly X and Y have been subjected to some family violence, and it remains likely that they have been exposed to either or both parents using alcohol and illicit substances in an abusive manner.[7]
[7] Ibid, 61.
Further, Mr N stated:
Whilst the Family Consultant believes that all the siblings should be living together, the concerns that the Family Consultant has regarding both parents suggest that NSW Department of Community Services should become a party to these proceedings and provide the Court with their updated and current assessment regarding the father’s ability and capacity to provide the appropriate care for the four subject children.[8]
[8] Ibid, 67.
He noted that:
… I have concerns regarding both of the parents and it is the view of the Family Consultant that this Family Report should only be released to the Independent Children’s Lawyer at this point, prior to Community Services being joined to these proceedings.[9]
[9] Ibid, 68.
Neither the New South Wales Department of Community Services, nor the equivalent Queensland authority, were joined to the proceedings.
Mr N noted in the course of his evidence that at the end of parents’ relationships it is always significant that sibling relationships are strengthened.[10]
[10] See Transcript of proceedings dated 16 March 2014, 14.
Dr C
Dr C gave evidence by telephone link as he was overseas at the time of the trial.
Dr C in his report notes that:
On the surface it appears that Mr Osborn is a caring and loving father who wants to act in the best interests of the children. However I do have major concerns about him. He has a strong antisocial history. He may have successfully manipulated the sisters of Ms Hall to act against her and then could have been instrumental in the children coming into his care.… In essence it appears that the father could care for the children but I don’t believe that he has any motivation or inclination to support a relationship between the children and the mother.[11]
[11] See Dr C’s report dated 6 June 2013, line 665.
Dr C notes that:
I formed the view that Ms Hall was possibly able to care for the children but I would expect that she would need a great deal of support from community services.[12]
[12] Ibid, line 727.
Dr C notes that:
Ms Hall and Mr Osborn both come from disrupted backgrounds. They both had children at early ages. These older children were not in their care. They formed a relationship that was not particularly stable. It was probably a dependent style relationship where Ms Hall was rather dependent on Mr Osborn…[13]
[13] Ibid, line 803.
Further in his report he noted that:
Mr Osborn probably has an antisocial personality disorder. Ms Hall probably has a dependent personality disorder. That mixture has created a significant problem. There has been a lot of disruptions and destabilisation for the children. Despite these problems the children appear to have a reasonable relationship and rapport with both parents and with each other.[14]
[14] Ibid, line 822.
When considering the possible outcomes, Dr C noted that:
Should the three children remain living with the father and W remain living with the mother on the (omitted), I believe that they will all probably continue to develop normally in the short-term. Gradually the link between W and the other children is likely to be a distant one and could become very tenuous… In the long term it is likely that the children will not have a relationship with the noncustodial parents. It is likely they will become divided…[15]
[15] Ibid, line 832, 847.
Further:
Should the four children reside with the father I believe that this would be a great loss for Ms Hall. This could also be very disruptive to W... [16]
[16] See Dr C’s report dated 6 June 2013, 851.
He did not have confidence that Mr Osborn would support a relationship between the children and the mother.
Dr C noted that should the four children reside with the mother he believed that this would probably be too huge a load for her to carry.[17]
[17] Dr C’s report dated 7 August 2012, line 865.
He further noted:
I formed the view he said that she would require significant supports to care for the children.[18]
[18] Ibid, line 869.
He did not believe that shared parenting arrangement was possible or feasible.
Although it would probably be best for the four children to reside together he could not recommend “that they be placed with the mother unless community services were able to provide enormous supports and she resided close to her parents”. He did not see that W should be removed from the mother and could not really see how the other three children could easily be removed from the father.[19]
[19] Ibid, line 882.
He therefore concluded that:
A good solution did not appear to be possible under these circumstances with these parents. The parents have significant impairment in their parenting abilities but who are not so impaired that the department of Family and Community Services are likely to intervene again. Therefore the recommendation that appears most expedient and least detrimental in the circumstances is that the current situation persists: with the children remaining with the respective parents but under the supervision of the department of Family and Community Services or a delegate service such as Brighter Futures.[20]
[20] Ibid, line 888.
Both Mr N and Dr C gave evidence and were cross-examined.
I accept the submission of the Independent Children's Lawyer that Mr N considered:
a)it would be a challenge to re-establish the relationship between the children and their mother;
b)It was absolutely not advisable that W live with the father; and
c)that if X were forced to go and spend time with the mother it might well be harmful in the short-term but have more favourable long-term consequences (subject to the significant caveats he placed on this option).
Intensive family support would be required if the children lived with the mother and he would favour a transition occurring.
I also accept his submission that Dr C had formed the view that the least detrimental solution involved no change of the primary household for the children but under the supervision of a child safety authority or service. I consider that his opinion was unchanged through the course of cross-examination.
Ms M
Evidence was also taken from Ms M, a therapist who is currently seeing the children.
Ms M conceded that:
a)She did not have the reports of Mr N or Dr C.
b)She had seen the father and it would be helpful if she could see the mother.
c)She was not aware of the mother’s allegations of violence and sexual abuse.
d)She was not aware that there had been child protection issues.
e)The referral to her came from Dr B, the children’s doctor.
In other words, she was conscious she did not have the complete picture. Care therefore needed to be taken with her evidence and in particular her diagnosis of Post-Traumatic Stress Disorder for the children.
She did however make a couple of observations that provided further information about the children which I accept. They were that:
a)The children have a special support teacher allocated to them.
b)“The children have a great deal of empathy for each other so – and they are siblings, and they’ve been through a situation that, you know, obviously has been very tough for them, so they are going to be impacted on in that way… when I’m working with the children, because I see them individually, they will say things like, ‘I’m upset because I saw this happen to X… so it’s more about empathy as opposed to ‘X told me not to see my mum’…”[21]
[21] See transcript of proceedings dated 18 August 2014, 13-14.
Other witnesses
Save for the maternal grandparents, I do not propose to comment on the individual evidence of each of the other witnesses save and except where I consider it relevant in the course of these Reasons.
The relationship between the mother and her parents has been fraught with difficulties. I accept that they are currently supporting her, however I cannot ignore the history of their relationship which includes, V being placed in his grandmother’s care, allegations of abusive behaviour of the grandfather to the mother, and long periods of no communication following disputes between the grandmother and the mother. Whilst a unified front was presented to the Court, it is difficult to predict whether that will remain and that support will continue.
The maternal grandmother
The maternal grandmother acknowledged that she suspected her daughter was using regular recreational drugs however did not see her do so.
She acknowledged she may have said to child protection services that X told her he was going to die.
She vaguely remembered an incident in November 2006 where she dropped in to collect the children and the mother was screaming and attacking her verbally.
She acknowledged that when V was removed from the mother she was a policy officer with the Department of Child Safety.
She noted that in February 2003 X was placed in care. She did not remember the details of X coming into care and thinks the complainant may have been Ms S.
With respect to page 15 of the Dr C report she has not seen Mr Osborn threaten the mother although he has made threats about her to the maternal grandmother.
She acknowledges that in May 2009 the children were not placed in long-term care.
There is no dispute that her relationship with her daughter has been volatile and involved sustained periods of no communication. She currently is not speaking with her daughter Ms S. She has resumed speaking with and supporting her daughter Ms Hall, the applicant in these proceedings.
The law
The relevant legislation is contained in Part VII of the Act.
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC of the Act.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub‑ss.(2) and (3) (per s.60CC(1)). Those matters will be addressed in these Reasons.
The significant amendments that were made to the Act in respect of amongst other things, the considerations set out in s.60CC of the Act, took effect in respect of proceedings that commenced after 1 July 2012. These proceedings were commenced in 2011.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in the circumstances of these children if they should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending equal time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.
Section 60CC primary considerations
(2)(a) The benefit to the child having a meaningful relationship with both of the child’s parents
The Full Court in McCall v Clark (2009) FLC 93-405 noted with approval[22] the decision of Brown J in Mazorski v Albright [2007] FamCA 520 Her Honour concluded that:
A meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative adjective not a strictly quantitive one.[23]
[22] McCall v Clark (2009) FLC 93-405, 122.
[23] Mazorski v Albright [2007] FamCA 520, 26.
The Full Court went on to conclude that:
The Court should consider and weigh the evidence at the date of hearing and determine, how, if it is in the child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents.[24]
[24] McCall v Clark (2009) FLC 93-405, 119 - 120.
The parties acknowledge that there is a benefit to the children in having a meaningful relationship with the other parent. They cannot however, agree on how that should be conducted.
There are however serious concerns about their respective willingness to support that relationship which I will refer to later. In other words whilst each acknowledges the benefit to the children having a meaningful relationship with both of their parents, there are strong doubts as to whether or not they would actively support that relationship.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There can be no dispute that the children in the past have been exposed to abuse and neglect and in particular, family violence. At the time the parties separated, the father was charged with assaulting the mother and had been remanded in (omitted) Prison.
The parties have each referred to the extensive involvement with State authorities throughout the course of these children’s lives.
The Independent Children's Lawyer notes that X and the other children have reported being involved with or exposed to family violence.[25] There is evidence that the mother committed physical violence against X which is denied by the mother. The incident where X alleges that he was hit by the mother with a pink fishing rod appears to have precipitated the change of households.
[25] See Exhibit 1, notes from 8 April 2014; family report of Mr N dated 7 August 2012, 49-50, 56.
There is no evidence to suggest that X has recanted on his version of these events and I consider that whether or not I find or am unable to find that the violence occurred, his perception of those events remains relevant to my considerations (particularly when considering his views on the issue).
The father’s last recorded offence was in 2012 for drug and traffic related charges where his sentence of imprisonment was wholly suspended. Counsel for the mother submits that this was most likely as a result of his having care of the children. I am unable to draw that conclusion on the evidence before me.
The mother refers to video footage dated 11 May 2012 which revealed the father engaging in criminal conduct namely driving an unregistered motor vehicle with the children and driving a motor vehicle whilst unlicensed with the children.
The video footage also she submits, reveals what appears to be a drug deal between the father and another male in the presence of the child X in the car park of the hotel. The father denied the allegation and I do not consider the evidence warrants drawing that conclusion.
The father raises a number of concerns about the mother including her brandishing a knife at a family picnic that occurred when X was approximately two years old. There are also the concerns raised in 2009 and 2011 which each involve the participation of the Department of Child Safety.
Counsel for the mother submits that the unchallenged evidence of the mother is that she commenced a casual relationship with the father in 1992 (the parties on the wife’s evidence did not commence cohabitation until (omitted) 2000). The mother had not had any criminal history prior to commencing this relationship with the father. He submits that the mother’s child V being placed in the care of the maternal grandmother coincides precisely with the mother and father commencing a relationship. This presumes that the relationship was the cause for the child being placed in the maternal grandmother’s care. This is not supported by the evidence before me.
The submission echoes the mother’s evidence that she is not to blame for the events which occurred to her. It is either the father, or in the case of the reports to the Department of Child Safety, the toxic relationship with her sisters.
It also does not explain why V was left with the maternal grandmother, only returning to the mother in 2013.
Historically, the evidence of the physical or psychological abuse the children may have been exposed to is significant. Whether that is ongoing remains another issue.
There are a number of matters, which overlap with the additional considerations that I will shortly consider and I will refer to those, including the children’s capacity for change in the course of these Reasons.
The children have been involved in counselling at their schools (noting it goes in three month blocks) since they came into their father’s care. In other words, they have been addressing what they see as their “issues” (which would include their time with their mother) for the last three years.[26]
[26] See transcript of proceedings dated 12 June 2014, 116.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
It is significant in my view, that in the course of these proceedings, and prior to the institution of the proceedings the children and in particular X, have been interviewed on numerous occasions due to the conduct of one or both of his parents and has observed that conduct. This includes the following:
a)On 22 May 2009 the Queensland Department of Child Safety filed an application for a court assessment order for X, Y and Z. The children were taken into care for a period.
b)In early July 2009, a 12 month supervision order was made with the children being left with the mother.
c)On 28 September 2011 X reported being injured with a fishhook. On 30 September 2011 he was interviewed by the child protection unit.
d)On 28 November 2011 the father alleges he is advised that the mother hit X with a fishing rod and that X left the mother’s home to go to a neighbour’s house.
e)On 28 January 2012 X witnessed the mother and her friend attend the property at (omitted) and take Y, Z, and W with a motor vehicle pursuing them.
f)The children, including X are referred to counselling at their first school after they move to reside with the father.
g)In July 2012 X is interviewed by Mr N and expresses his views. He was aged 10.
h)In or about March 2013 X is interviewed by Dr C and expresses his views. He was aged 11.
i)X subsequently attends upon a school counsellor.
j)In mid-2014 X attends upon Ms M and expresses his views. He was aged 12.
There is no dispute that X has less than average intelligence.
There is no dispute that X, who has just turned 13 this year, has expressed a wish to live with his father throughout the course of these proceedings.
X has witnessed disputes between his parents, experienced the absences of his father and mother, and has made it clear where he wishes to live.
The reasons for X expressing those wishes are rightly the subject of concern (and I note the comments of Dr C). Nevertheless, he has been given the opportunity to have a voice and has done so.
In addition, his thoughts have been provided in the context of his perception of a troubled history with his mother including that his mother hit him with a fishing rod and that his mother came and took his sisters from the property where he was residing with his father, by subterfuge. That is not to say that he is right, but simply to explain the context in which this young adult has formed his views.
As Mr N commented in his evidence “the reality is that that is probably a very significant memory for this particular child and it may have been reinforced to him over a period of time in living with his father, if he has not suffered any physical chastise(ment) or abuse, that he would equate living with his mother as being abusive towards him”.
He continues to attend upon Ms M. There are concerns about the way this was done and the information supplied to the children’s counsellor. This affects any recommendation that Ms M may provide to the Court however her observations of her interaction with the children can be of some assistance.
Much the same can be said for Y. She too is of less than average intelligence. She has been interviewed on numerous occasions. She was bundled into a car with her sisters when the mother and her friend attended the property at which she was then residing with her father. She was in the care when, on the mother’s evidence, it hit the gate on exiting the property and a Pajero (which her father conceded was driven by him) pursued them and in the mother’s words, “attempted to run her vehicle of the road”.[27]
[27] See the mother’s trial affidavit, 134.
I will refer to the father’s part in addressing the attitude taken by the children toward their mother when considering the capacity of the parents to provide for the children’s needs.
The father, without the consent of the Independent Children’s Lawyer or counsel for the mother, made arrangements for the children to attend upon Ms M.
The father’s evidence is that this was at the suggestion of the children’s school counsellor. This is not acknowledged by counsel for the mother. He submits that this is the father’s scheme to seek out an adversarial expert in Ms M.
He notes that the father who has had the children since October 2011 waited until March 2014 to engage a psychologist for the children. The mother objected to the evidence of Ms M being allowed during the course of the trial. Following discussion with counsel, the evidence was allowed as it was considered amongst other things inappropriate to ignore the fact that the children were attending upon a psychologist in the course of parenting proceedings.
The mother’s counsel concedes that Ms M presented as a psychologist with good intent but without sufficient information, expertise or skill to assist the children. He notes that she was not familiar with the term parental alienation. I do not accept that.
I accept the concerns that Ms M has not been provided with all of the information. I accept that this provides a caveat in respect of the evidence that she gave to the Court.
I do not accept that Ms M was engaged as an adversarial expert. If that was the father’s intent, then I find nothing in the presentation of her evidence that would corroborate that position.
I note the evidence of Ms M that the children still want to see the mother, however, would want time to resume slowly (at for example their football). The evidence of Ms M was that if they had to see their mother, then this is how they would want to do it.
These remarks must be seen in the context of this matter over the last three to four years. In 2011 the children moved to live with the father. The mother in January 2012 collected the two girls. They were returned to the father pursuant to a recovery order. From then until 2014, they saw their mother at a Children’s Contact Service. Those visits were problematic. The arrangements for them to spend time with their mother were broken. For them to resume spending time, they needed to be rebuilt.
Save that I have noted the close relationship between the three elder children I have not addressed Z’s wishes noting she turned seven this year.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
Counsel for the mother submits that the father has had little or no involvement with W and has no relationship to speak of. This is not the subject of controversy.
The mother’s counsel also submits that that since the children came into the father’s care in or about September/October 2011, their relationship with their mother has deteriorated to the point where there is now little or none.
He refers to amongst other things:
a)The observations contained in the report of Mr N conducted in July 2012 whether the children were observed to be “affectionate with their mother and also with W”.[28]
b)The observations of Dr C who observed during the interviews conducted on 25 March 2013 that “the children all appeared happy and relaxed with their mother and grandparents… X said he likes spending time with his mother and grandparents”.[29]
c)That all three children attended visits with the mother whilst time was occurring at (omitted).
d)On 28 September 2013 being the first scheduled visit in (omitted), X refused to spend time with the mother.
e)Y’s first refusal to spend time with the mother occurred on 21 December 2013.
f)Z refused to spend time with the mother on 4 January 2014.
[28] See Mr N’s report dated 7 August 2012, 59.
[29] See Dr C’s report dated 6 June 2013, line 420, 424.
Counsel for the mother further notes that orders were made by consent that the children spend time with the mother in March 2014. He is critical of the father’s support of those arrangements and in particular, the father’s moving of the time to a Saturday so as not to interfere with the football commitments of X on the Sunday.
Whilst there is some substance to the general criticism of the father’s failure to facilitate the mother’s time, I do not accept that taking steps to ensure that the football commitments did not get in the way (in the eyes of a then 12 year old) is warranted.
It is clear by this time that the relationship between the children and their mother was in some trouble. It is also clear that the father had not given thought to how he should proceed to facilitate the handover or what the consequences should be should the children refuse to comply.
The attempt to transition the children between the mother and the father on 16 March 2014 was recorded. The transcript of the recording was accepted as true and accurate by the father. It is submitted that the transcript reveals amongst other things no words of encouragement being used by the father at any stage of the attempted handover. I will refer again to this later in the Reasons however I note that following the failed handover the father and paternal grandfather took the children bowling which the father conceded could be considered as a reward by the children.
There is no dispute that the three elder children at present do not have a good relationship with their mother.
While the paternal grandfather and the maternal grandmother and grandfather gave evidence I did not consider in view of the history of the matter over the last three to four years, that a lot turned on their evidence when considering this topic.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I have concerns about both parties on this issue. The father, during the course of the trial, appeared to abdicate his responsibility as a parent in favour of the children determining whether or not they saw their mother.
The mother on the other hand proposes that W spend no time with the father and seeks to reassure the Court that after a suspension of the father’s time she will support a gradual reintroduction of the father into the children’s lives.
Having regard to her evidence, and the allegations raised by her, I have no confidence that this will work. Furthermore, I cannot exclude the prospect that her position will harden, if possible, after she has had to face the difficulties she will no doubt encounter should the children be placed with her.
In addition she sees no benefit in W having a relationship with the father. A direct contrast to her position that she would ensure the other children would, under appropriate conditions, maintain a relationship with the father.
While the father is criticised for his failure to encourage a meaningful relationship I do not consider that either party on the evidence before me is able to carry out this task unless they commit to some significant intervention.
I accept the submission of counsel for the Independent Children's Lawyer who noted Dr C’s evidence was that this family would need some time under the supervision of an outside agency to properly address the deficiencies in the parents’ attitudes before change could be effected.
Counsel for the mother submits that following the parties separation in 2008 in circumstances of serious family violence, while the children were in the care of his client the father had little or no involvement with them.
Following the children being placed with the father in 2011, it is notable that he has not included the mother in any significant decisions involving the three children in his care.
The submissions provide an apt example of the parlous state of the parties’ relationship.
Similar criticisms could be levelled against the mother whilst the children were under her care, and following the resolution of the paternity issue with W, whilst W was under her care.
This is recognised by counsel for the independent children’s lawyer who notes it was due to the lack of effective communication between the parents.
Counsel is also critical that the father taking several months to complete intakes at the contact centre is delaying the mother’s time with the children. I consider that criticism is warranted.
Counsel notes that both parties have missed times at the contact centre, telephone communications have been problematic and the father’s demand for paternity testing in respect of W.
There does not however appear to be any comment on each party’s propensity to apportion blame to the other and not accept responsibility for events that occurred over the period of their tumultuous relationship.
The history of the parties and their parenting is appalling and yet, given the opportunity to address this, there was no clear admission from either of them that they had got it wrong and were going to work on getting it right.
The mother’s evidence in respect of her son V suggested it had been others (her mother, her father), who had affected the handing over of her son to her mother’s care until he was 18.
In respect of the drug trafficking charges, it had been someone else who was to blame and in respect of her relationship with the children it had been the father (noting her assertion that X for example had told lies against her).
The father was equally culpable. He appeared, for example, to only during the course of the trial acknowledge that it was not enough for him to tell the children they had to see their mother. Consequences such as taking the children bowling or to the beach after they had refused to spend time with the mother were not appropriate.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Each expert considered the optimal arrangement would be for the four children to be together.
Neither expert saw the removal of W from the mother as a first option.
Dr C noted, “I can’t really see how the other three children can be easily removed from the father”.
Counsel for the mother submits that the evidence supports a conclusion that the long term benefits of the children in having a relationship with W and their mother outweigh any short-term disruption or distress.
Save for a concession that the children will be distressed, I do not however have any submission nor is my attention drawn to any evidence that would gauge how significant that distress would be, or allay any concerns that it would be of such a level that it would irreparably damage any chance the children and the mother may have of resuming the relationship.
The orders sought by the mother remove the children from the father, stop contact for six months, restrict time to contact centre for 12 months, and then proceed with alternate weekends and school holidays. No provision is made for specific therapy other than a general assurance for the fallout that may be expected from the children.
Counsel for the Independent Children's Lawyer notes that Dr C had expressed concerns about the mother’s ability to cope with the four children. It was not put to him whether the adverse effect of any change would increase her difficulties.
There is no dispute that the children will react badly. This has to comprise an extra and difficult layer of complexity to the logistics of managing for young children. That does not account for the unfortunate and troubled history that the three elder children have endured and the issues that brings to the table.
To promote such a change where it is acknowledged that there will be a strong reaction without comprehensive evidence on how that would work is concerning. The solution proposed of simply isolating them from the person they are said to have become aligned with while promising therapy with no evidence of what that means, does not assist.
It is conceded that the mother had been having problems prior to the children moving to live with the father. I have for example referred to X reporting that he had been hit with the fishing rod and the involvement of the Queensland Child Protection Service. I will refer further to this when considering the parents’ capacity.
I do consider the evidence supports a conclusion that if the elder children were moved to live with the mother the effect of the change would be so significant as to possibly irreparably damage the children’s relationship with the mother. That concern is heightened by the lack of any detailed plan to cope with the expected backlash.
The mother in her evidence referred to reconnecting X with boys’ groups in the area and seeking assistance from her support network in counselling. From the evidence before me, I consider this needs more than that and without a detailed and strategic plan, there is a high potential for it to fail.
I have also noted the mother’s position in respect of the father and her evidence of his behaviour during their relationship. It is difficult to accept that she will be able to keep this from the children and they will not be aware of her attitude. This must surely increase the complexity of the issues they and the parents would face.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The father resides near (omitted), while the mother resides on the (omitted). At trial the father did not have a licence (being disqualified until 2025) however contended he would be able to get a special license in 2015. Pending that occurring he is able to rely on assistance from his father when available.
The mother has a significant amount ($10,000) in unpaid fines. She was unclear as to what these were for. Her evidence on this aspect, taking into account the quantum of the fines, was unsatisfactory. Nevertheless, she has a licence and a motor vehicle, a BMW four wheel drive.
The practical difficulty and expense of the parents to facilitate the children spending time is not insurmountable.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There are obvious concerns, having regard to the history of this matter, about the capacity of either parent to provide for the emotional and intellectual needs the parties.
Counsel for the mother notes Dr C questions the mother’s capacity to care for four children. He submits there is uncontested evidence that the mother:
a)has an excellent parenting capacity (based on seeing her with W);
b)has access to subsidised housing and financial support;
c)can be provided with ongoing support by her current support network; and
d)has planned measures to assist the children in a transition in returning to the mother.
It is conceded that the transition will cause the three elder children to be distressed.
The difficulty I have with Counsel’s submissions are that:
a)the observations and evidence were of the mother with W only not with the four children (three of them are likely to be highly distressed should her orders be granted)
b)the financial support is questionable particularly when the mother’s evidence is that she has received from family and friends over $80,000 and over $20,000 from a friend Mr P. The particulars of these loans, on the mother’s evidence, is very unclear, including but not limited to the relationship the mother has with her benefactor. Her evidence for example was that her friend Mr P paid for her 17 day (country omitted) trip which cost her on her estimate $1,000. She repaid him by giving him half of the beads she bought in (country omitted) (costing about $1) which she said were worth $15 in Australia. I found her evidence on this point unsatisfactory and consider that it raised more questions than it answered.
c)The mother confirmed that V is now living with her. Her evidence was that he had moderate intellectual impairment. Her evidence suggested he was incapable of living independently when for example she said “I’m still guiding him and teaching him skills to be independent for if – if he needs to look after himself”.[30]
d)She said he needed job training for people with disabilities. It is hard to accept that his presence does not add an extra layer of responsibility for her.
e)The decision of the mother to accede to his wish to sit in the Court particularly when knowing the issues that would be covered included her allegations of domestic violence, sexual assault by the father against her, V’s mother, and the reasons for him being placed in the care of his grandmother, raises concerns. Particularly after hearing the mother’s evidence of his capacity and functioning.
f)In addition her evidence confirmed that inter alia:
i)X was interviewed by the police in 2010 in respect of his allegations that he had been hit on the leg by a cricket stump by the mother and that she had pushed him and he had fallen down stairs.
ii)X told her one morning that he was going to call the cops on her.
iii)That X told untruths to the “Docs”. That his dishonesty was partly an issue if he was to return home.[31]
iv)That X “won’t always do what he is told to do and he will just walk out the door”.[32]
[30] See transcript of proceedings dated 7 March 2014, 220.
[31] Ibid, 235.
[32] Ibid, 235.
The solution, she proposed, included getting him back into groups at (omitted) kids and boys groups. She says she will find more tools and ways to address the issue. She said “I want him to express himself honestly, to be able to approach me maybe and you know, with anything. He needs to manage his anger and frustration as well”.[33]
[33] Ibid, 236.
In addition the mother informed the Court that she had at a cost of $1,200 installed security cameras at her house with the help of an unnamed friend. One camera covers the interior of the house and the other three cover the exterior. Her evidence was, “If there are any allegations made against me now, well I have the cameras”. I asked, “If your children make any allegations against you, such as X, you will be able to replay the footage?” She replied ‘Yes”. She conceded the children would be aware of the cameras. One has to wonder the impact this would have on a 13 year old boy forced to live with his mother.[34]
[34] Ibid, 236.
The mother concedes that X and his sisters are close.[35] Her evidence is that it would have a big impact to split them. If they remained together and are made to return to the mother then it is reasonable to assume that X perception of events will colour that of his sisters.
[35] Ibid, 265.
With respect to the father’s capacity, it is noted that at the time of the parties seeing Mr N he commented “it would appear on the surface that the father may well be better placed to provide the care of the subject children”.[36]
[36] See Mr N’s report dated 7 August 2012, 15.
Dr C however did have some concerns including signs that alienation of the mother was spreading to the children. His evidence was however that “he didn’t believe there was an unacceptable direct risk to the children from the father unless he was affected by substances or alcohol.[37]
[37] See Dr C’s report dated 6 June 2013, 18(675 – 676).
These proceedings have been before the Court for some time. Over that period of time, it would appear that the children’s attitude to spending time with their mother has hardened. The father is rightly criticised in respect of this. His attitude and behaviour which enabled the children to self-determine whether to spend time with the mother has led, in the submission of the Independent Children's Lawyer, to the current position where the children have refused to spend time with the mother at the Children’s Contact Service.
It would appear that the father has had difficulty accepting his role as the parent in determining whether or not the children should or should not see their mother. I have commented previously in these Reasons on the fact that there did not appear until relatively late in the piece to be any consequences of significance to the children, should they fail to follow his direction to spend time with the mother. Actions such as taking them bowling or to the beach after a failed visit with the mother did not assist.
The father has engaged support services in the local community. There is criticism of him engaging them late, during the course of the trial, but they are engaged nonetheless.
He was criticised as having lacked the insight necessary to appreciate the effect his behaviour and attitude had on the children. It is an open question as to whether or not he is now more aware of his responsibilities in respect of the children’s relationship with their mother.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
X was born on (omitted) 2002 and is now aged 13. Y was born on (omitted) 2003 and will be aged 12 this year. Z was born on (omitted) 2008 and is aged 7.
They have, save for a short period when the mother took Y and Z, been together. When consideration is given to the history of the parents and the events that have occurred whilst the children have been in their care, there is reason to say that the children’s relationship with each other has been one of the few constant factors in their life.
The children have witnessed a lot in their lifetime and at various times in the history have been seriously let down by both parents.
W was born on (omitted) 2011 and is aged 4. W’s experience is living with her mother. There are no submissions of any weight that would suggest that she should be removed from the mother and live with her siblings.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
This is not relevant to these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I consider each party failed in their attitude to the children and to the responsibilities of parenthood during the period of their relationship. Post separation, there continued to be significant concerns including but not limited to the involvement of the Department of Child Protection in Queensland.
Upon the children moving to live with the father, there continued to be concerns. They included but are not limited to the father unilaterally changing the location and moving to (omitted), and his subsequent failure to facilitate and encourage the children’s relationship with their mother.
There is little or no current communication between the parents. Each blames the other. Neither appears to have made any constructive step to rebuilding that communication.
There are many concerns in respect of their respective parenting capacity that I have canvassed throughout the body of these Reasons with each party providing a far from perfect solution at the conclusion of this trial.
(j) any family violence involving the child or a member of the child's family
The issue of family violence has been addressed when considering the risk the children of physical or psychological abuse or being exposed thereto amongst other things.
The father’s criminal history speaks for itself, as does that of the mother.
The mother in turn has been the subject of a number of investigations from departments such as the Department of Child Protection in Queensland.
Her first child was removed from her and placed in the care of the maternal grandmother and no effort was made to have him returned to her. He eventually returned to live with her as a young adult.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order:
There are no current family violence orders in place.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Neither party, nor the children win in these proceedings. The legacy these parents have given their children is one of conflict, intransigence, and high levels of involvement with the police and with State authorities charged with looking out for the best interests of children.
In the course of these proceedings, the children have moved to a position whereby they are objecting to spending time with their mother.
I have commented on their ages and the issues they faced.
The position has not been helped by the attitude of the father and the manner in which he has either expressly or implicitly left it to the children to, as the Independent Children’s Lawyer puts it, self-determine whether or not they will spend time with their mother.
At the same time, I accept that the children have a perception of the events that have occurred over the course of their life. I have commented in particular upon X and his perception of his mother’s actions.
I have formed the view, taking into account amongst other things, the history of X with his mother, the mother’s perception of X telling lies, and the current position of X, that to move X and his sisters to live with their mother would be extremely distressing for the children and extremely difficult for the mother to manage.
I have noted the concerns about the mother’s capacity to handle four children. I have noted her efforts to obtain support and have also noted the lack of any cohesive plan to deal with what I consider to be a significant fallout should the children be forced to live with her.
I have noted her evidence that if X does not wish to undertake a task he will simply walk away.
All of this must be considered in the context of his close relationship with his two sisters.
The alternative is to leave X and his sisters with the father. While for a number of reasons including the father’s history and his inability or unwillingness to foster a relationship between the children and their mother, it is not an attractive alternative, it does I consider provide less potential for further litigation.
Conclusion
This is one of those cases where none of the options presented to the Court are particularly attractive.
The history of each party, combined with their evidence, raises significant concerns about both parents.
The children have expressed their views on a number of occasions and it would appear from the evidence of Ms M, that there may be some light at the end of the tunnel.
If however they are forced to live with their mother, then I have no doubt that the ramifications of such a move would be serious. I accept that the children would be highly distressed. I accept that there would be a high probability of X walking away from his mother, and there being a significant impact upon his siblings.
I am not convinced that it would work without significant resources being applied in a carefully planned strategy and note again that there is no evidence that suggests this is in place. I also note the concerns of the Independent Children's Lawyer that the mother has in the past disengaged from her support network.
Separation of siblings is a concern. The history of this matter however shows that they had little if any time together.
W, due to the circumstances of the parties, has had minimal contact with her siblings and does not know her father.
Pending the issue with the older children being resolved, I have difficulty accepting that she should be made to cross the “no man’s land” between the parties.
If time can be resumed between the three elder children and their mother then it is quite likely that W may become part of that momentum. To have her otherwise singled out would I consider place an extraordinary amount of pressure on this young child.
Parental responsibility
The Independent Children’s Lawyer notes the history of family violence between these parents and the fact that the presumption of equal shared parental responsibility is rebutted.
Each parent seeks sole parental responsibility for the children that will live with them. The parties’ inability to communicate however is noted as destructive by the Independent Children’s Lawyer.
His submission that the Court should be extremely wary of requiring them to communicate regarding the children due to their enmeshed relationship and their psychical pattern of attraction and separation is noted.
His submission however that Mr N and Dr C recommended the family attend family therapy to attempt to improve the communication sufficient to allow effective shared responsibility, and the recommendation of Dr C for shared parental responsibility is also noted.
I do not consider this a case where sole parental responsibility is the appropriate order. I do not have faith in either parent to properly carry out that function with any reference to the child’s other parent.
At the same time, an order for equal shared parental responsibility requires the parties to consult the other person in relation to the decision to be made about major long-term issues for the child and to make a genuine effort to come to a joint decision about that issue. For the reasons I have previously canvassed, I am not confident that this is a workable solution.
Section 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child.
I have already found that the presumption of equal shared parental responsibility is rebutted by the family violence in this matter.
Pursuant to s.61DA(4) of the Act I consider that it is not in the best interests of the children for the children’s parents to have equal shared parental responsibility for the child. The parents therefore each retain parental responsibility in their own right.
Change of name
In the Marriage of Chapman & Palmer (1978) FLC 90-510 the Full Court of the Family Court comprising of Evatt CJ and Asche and Marshall JJ summarised the factors to be taken into account in determining applications about the surname of a child as follows:
(a) The welfare of the child [now the best interest] is the paramount consideration.
(b) The short and long terms effects of any change in the child’s surname.
(c) Any embarrassment likely to be experienced by the child if its name it different from that of the parent with custody or care and control [now residence or spend time with orders].
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
The parties have led virtually no evidence regarding any of the above.
In addition as set out at the commencement of these Reasons, the application to amend was filed so late as to raise some serious concerns about affording the other party the right to respond. I therefore confirm the application is denied.
I am asked by the father to consider making interim orders and resuming the hearing after the parties have attended on family therapy. I cannot accept that proposal.
These proceedings were commenced in 2011. They were preceded by an unfortunate dysfunctional history of events.
At all times it was and remains open for the parties to reach some agreement on the business of parenting. They have not. This matter was listed for three days and went for seven. There is no cause for the Court to continue to parent the matter. A decision has to be made, and I consider a version of the Independent Children’s Lawyer’s proposal to “rebuild” the children’s time to be the best of what I consider to be “ordinary” choices.
I am uncertain as to whether the Independent Children's Lawyer has met with the children in this matter. I note her firm is based in Grafton while the children are near Lismore. If they have not met after three years of litigation then I consider that to be unfortunate.
Nevertheless, after protracted litigation such as this, I do consider it appropriate that the Independent Children's Lawyer or a suitably qualified person nominated by the Independent Children's Lawyer meet with the children to tell them the outcome of these proceedings.
The children and in particular the three elder children have through their involvement with the Family Consultants, Children’s Contact Services and school counsellors to name a few, have had a high level of interaction with the family law system and I consider it appropriate that they have the conclusion of the matter explained to them by someone other than their parents.
I therefore make the orders as set out at the commencement of these Reasons.
I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of Judge Cole
Date: 26 May 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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