HIRST & HEARNS
[2015] FamCA 229
•1 April 2015
FAMILY COURT OF AUSTRALIA
| HIRST & HEARNS | [2015] FamCA 229 |
| FAMILY LAW – Parenting – Further final orders – best interests principles where evidence of parents (as self-represented litigants) is limited. |
| Family Law Act 1975 (Cth) |
| Carriel and Lendrum [2015] FamCAFC 43 Marsden v Winch [2009] FamCAFC 152 Prewett and Mann [2013] FamCAFC 130 Rice and Asplund (1979) FLC 90-725 |
| APPLICANT: | Mr Hirst |
| RESPONDENT: | Ms Hearns |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 10526 | of | 2009 |
| DATE DELIVERED: | 1 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 24 and 25 March 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Elleray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
ORDERS OF THE COURT
All previous parenting orders are discharged.
The mother have sole parental responsibility for all major long-term decisions needed to be made in relation to B born … 2005 and C born .. 2008 but the mother advise the father of all such decisions.
That as and from the conclusion of the school holidays at the end of term 1 in 2015, B and C live with the mother.
The B and C spend time with the father as follows:
(a)During school terms, every third weekend from 7 pm (or as close as possible to that time as can be accommodated by the railway timetable) on the Friday to 7 pm on the Sunday; and
(b)In all school term holidays, unless the parties agree on different times, from 7 pm on the day school breaks up until 7 pm on the middle Saturday of those holidays; and
(c)On an alternating basis during the long Summer holidays, for one half, unless the parties agree on different times, from 7 pm on the day school breaks up for the holidays which commence in all odd- numbered years until 7 pm at the half way point and during the holidays that commence in all even-numbered years from 7 pm on the half way point until 7 pm on the day that concludes the second half; and
(d)and the father shall also communicate with the children by telephone on each Tuesday and Thursday at 6.00 pm with the mother ensuring the children are both able to take the father’s call precisely at that time.
That for the avoidance of doubt:
(a)In respect of 4(a), (b) and (c), the father shall collect the children from the mother at the F Town Railway Station on the Friday and the father shall return the children to the mother at the Southern Cross Station on the Sunday;
(b)Paragraph 4 (a) is suspended during all school holidays and shall resume on the third weekend of each term); and
(c)The parties each have permission of the Court to produce a copy of these orders to all schools, health providers, police or other courts for the purposes of carrying into effect the terms of these orders.
ORDERS OF THE COURT BUT MADE AT THE REQUEST OF, AND BY AGREEMENT OF, THE PARTIES:
Notwithstanding Paragraph 2:
(a) If either child becomes seriously ill or seriously injured and in either case, requires medical treatment, the parent with the care of that child shall immediately notify the other of the details including details of the medical treatment and permit attendance by that other parent on that child and the relevant medical practitioner; and
(b)In respect of education, the father shall be and be entitled to be:
(i)kept informed of all school enrolment details;
(ii)recorded on the school’s data base as a parent and as an emergency contact;
(iii)receive all information that a parent would normally receive;
(iv)attend all meetings, events and functions that parents would normally be entitled to attend,
Noting at all times that the implementation of these entitlements shall always remain the prerogative of the Principal of the children’s School.
The parties may spend other time with B and C by agreement.
Each parent keep the other informed of any change of residential address or telephone number.
Notwithstanding paragraph 4, the father shall have B and C in his care on Father’s Day and the Mother shall have B and C in her care on Mother’s Day and appropriate arrangements shall made between the parties for substitute days.
The father and the mother are restrained by injunction from:
(a)denigrating the other within children’s hearing or permitting any person to do so;
(b)discussing the proceedings or engaging in adult conversations with the children;
(c)physically disciplining the children;
(d)using illegal substances;
(e)consuming alcohol to excess when having the care of the children;
(f)travelling with the children in a car without proper restraints.
AND IT IS FURTHER ORDERED BY THE COURT:
The Independent Children’s Lawyer is discharged from the proceedings.
Save as to issues of costs, all outstanding applications are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hirst & Hearns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10526 of 2009
| Mr Hirst |
Applicant
And
| Ms Hearns |
Respondent
REASONS FOR JUDGMENT
B aged nine and C aged six are the children of Mr Hirst (to whom I shall refer as “the father”) and Ms Hearns (to whom I shall refer as “the mother”). These children have been embroiled in their parents’ dispute since 2009. When the parents separated, C was one. Thus all of their childhood has been spent in the shadow of the conflict of their parents. This is another such proceeding.
Parenting proceedings began in 2009 culminating in final orders on 19 August 2010 but there were more proceedings after that which ended in final orders on 12 June 2012. Those latter orders were made at the request and consent of the parties at a time when both were represented by lawyers. The earlier 2010 orders were reconsidered because the mother had commenced a relationship with a registered sex offender and the father overheld the children contrary to the orders. The 2012 orders put things back to the way they were in 2010.
The 2012 orders provided for the children to live with the mother and for the father to have contact either personally or by telephone, relevantly as follows:
·Each alternate weekend from Friday to Sunday;
·For one week of the first and third terms of the school holidays;
·For ten nights of the second term holidays;
·During a week-about arrangement over the summer holidays; and
·Telephone arrangements on Wednesday and alternate Saturdays for up to 30 minutes.
There were other orders that might give an indication of the low level of trust and high level of concern each parent had about the other. Those orders were injunctions relating to each parent. They may be summarised as follows. Each parent was restrained from:
·Consuming or using any “illicit” substance whilst caring for the children;
·Consuming alcohol “to excess” whilst caring for the children or for a 12 hour period beforehand;
·Denigrating each other, their partners and family during any time with the children;
·Discussing the legal proceedings;
·Physically disciplining the children;
·(In the mother’s case) bringing the children into contact with a named registered sex offender;
·Only travelling with the children in a car with proper child restraints;
·Notifying each other of changes of addresses and telephone numbers;
·Notifying the other parent of illnesses or injury to the children.
All of those orders were agreed upon in the context of the parties asking the Court to also order that they have equal shared parental responsibility. That is, each was to have the same legal responsibility to make decisions about major long term issues for the children. Section 65DAC of the Family Law Act 1975 (Cth) (“the Act”) requires that if the Court makes such an order, the parents are to consult with one another and come to a consensus about their children. There is an obvious inconsistency between a cooperative, cohesive and positive parenting arrangement based on trust and a desire to do what is good for children as against having injunctions about virtually every aspect of the protective parenting role.
Ironically, almost five years later, the parents are not only back before the Court, they are again seeking the same raft of injunctive orders. Further, ironically, they still each began the proceedings by seeking an order for equal shared parental responsibility.
The finality of the 2012 orders was anything but that. Despite the order for equal shared parental responsibility, and as an example of the absence of trust, at Christmas in 2012, the children told the father that they had seen the mother’s brother with what was described as a “sex doll”. Rather than discuss with the mother just what that was all about, the father went to the Department of Human Services. That triggered an investigation which obviously wasted public resources because the Department found nothing of concern. The father had accepted the salacious nature of the child’s statement but did not check its accuracy with the source of the controversy. Whilst there may have been some reasonable basis for the father’s scepticism about the mother’s protection of the children because she had previously been in a relationship with a registered sex offender, that was not of sufficient concern for the father to refuse to agree to the mother having the full-time care of the children in June 2012.
In October 2012, the mother voluntarily returned C to live with the father. This was because of his “behavioural issues from a young age”. She did not want to put him on medication but thought that if he had a “male figure” in his life, it would help him. The parents signed an agreement which described a “trial” basis for C to live with the father from 8 October 2012 until Easter holidays in 2013. The agreement recorded that B was to stay with the mother. It also recorded:
At the end of the trial, if the situation is going well then there will be another agreement made in accordance.
Between October 2012 and Easter 2013, C and B spent time together under the arrangements set out in the agreement. No formal extension of the agreement was drawn by the Easter holidays 2013 and C remained with his father.
During the July 2013 school holidays, B had spent a week with the father (and C). The mother went to F Town to collect both children so that they could spend some holiday time with her. C complained to the mother that his father had thrown him across a room because he had misbehaved. The mother photographed what she described as bruises and then went to the Department of Human Services, the police and a doctor. In other words, she had done exactly what the father had done when he learned about the sex doll. The closest the Court got to understanding what investigations by the relevant authorities showed, was an observation by the family consultant that the Department of Human Services did not find any evidence to substantiate the reported injuries.
In any event, the mother did not return C to the father saying that he did not want to go home to the father. C (then aged five) told his father on the telephone of not wanting to return. In cross-examination, the father agreed that this conversation occurred but maintained that C was prompted.
Immediately after that telephone conversation, the father went to lawyers who filed an application in the Magistrates’ Court at F Town seeking interim and final orders for a discharge of the June 2012 orders and for a specific order that C live with the father. No order was sought in relation to a change of residence for B. Interim orders were also sought for the recovery of C through the police. Anything other than common sense was clearly prevailing. Not much had changed.
A State magistrate heard the interim application on 23 July 2013 with both parents attending with legal representation. Significantly, the learned magistrate ordered that C live with the mother and otherwise, the application was adjourned to the Federal Circuit Court. Indeed, it came to this Court on 8 August 2013. On that occasion, with both parents represented, a consent order was agreed upon for both children to live with the mother but that they spend time with the father on the specific date of 11 August 2013. Even those orders did not resolve matters.
On 11 August 2013, the parties met at the Southern Cross station. The father arrived with the children and B came running up to the mother crying while saying that the father was going to keep she and C. The father continued to walk towards the mother holding C in his arms. The mother asserted that he was yelling that the children were not safe in her care and that he was taking C with him. An argument ensued and the father turned, taking C and got on the train. That was clearly contrary to the orders of the Court. The orders had only been made a few days before.
The father did not address the precise nature of what happened on 11 August 2013 save to deny the mother’s version but to the family consultant, he said that C had reported to him that the mother had hit him and threatened to “kill him”. The father told the family consultant that that was the reason why he had declined to return C.
The mother then applied for enforcement of the orders and again, with the benefit of legal representation, a consensual arrangement was reached for C to be returned to the mother and he was.
The August 2013 incident reflects poorly on the father for overholding in the same way that the mother’s overholding in July 2013 reflects poorly on her because, as I find below, there was no plausible evidence that the father had injured C any more than that the mother had injured him. Both parties took the law into their own hands. Worse still, the children witnessed not only the defiance but also the appalling language and behaviour of their parents. Whilst the mother denied using language, I have little doubt in finding that the perception of the family consultant is right (paragraph 4) that the parties conceded a history of illicit substance abuse, openly denigrating each other, sending abusive text messages to each other and using foul language in front of the children.
The case returned to the Senior Registrar on 17 September 2013 where, after a contested hearing, orders were made splitting up the two children to the situation that now exists. There appears to be an error in paragraph 1 of the Senior Registrar’s reasons about who was seeking what orders but the rest of the judgment makes the determination quite clear.
The Senior Registrar said:
·There was strong secure attachments with each parent;
·The parents had extended family support;
·The children missed each other but C’s demanding behaviour may cause stress to B;
·There were practical problems with contact because of the tyranny of distance;
·B was exposed to adult issues; and
·The family consultant had considered it may be prudent to consider a resumption of the split of the children based on C’s “determined, angry and uncontained behaviours”.
The Senior Registrar then found, on balance, whilst separating siblings was not ideal, the impact of other indicea such as the mother having the two children together, the constant travel, the lack of money and the lack of a vehicle, suggested that C should stay with the father. That is how the situation has remained and the long trek for these children has continued. It was not until over a year later that the proceedings began in earnest.
All of these problems have arisen from the events of July 2013. The father denied any incident of violence towards C had occurred. No evidence was called to give even a hint that any of the relevant authorities were concerned about that incident. The observations of the family consultant as recorded by the Senior Registrar would indicate that it did not occur as portrayed by the mother because C showed no fear of returning to the father. I find there is no evidence of violence by the father towards C.
Professional help for C
On 17 September 2013, the Senior Registrar also made the following order:
That the mother and father ensure that as soon as practicable they attend their general medical practitioner to seek:
(a)A Mental Health Plan with respect to the child [C]; and
(b)A referral for a paediatric assessment for the child [C].
It is significant that that order was made by consent of the parties both of whom were represented. As I indicate elsewhere in these reasons, the father’s position before me was that he was pressured into various orders. It is hard to understand how even if he was pressured into that order, having regard to the fact that he was granted the day to day responsibility of C, his attention to that task was at best, relaxed. It is here we see a difference between the parents.
In the period between holding on to C and the September 2013 orders, the mother went to her doctor and obtained a referral to a psychologist. The evidence of the involvement of that psychologist can be seen from Exhibit ICL3. On 21 July 2013, the medical practitioner referred C to Ms D. At least two if not three appointments occurred based upon the Mental Health Treatment Plan devised by the general practitioner. The doctor recorded that the mother reported that C’s behaviour had become worse since returning to her including swearing, running away when out shopping, laughing at her when attempts were made to discipline him as well as hitting B.
The child and adolescent assessment undertaken by the family consultant in 2013 upon which the Senior Registrar made his decision, notes that C had been attending a psychologist but no further investigation appears to have been undertaken. In hindsight, that might have provided significant insight as to how the mother would have coped with the problems of C and what strategies she had in mind for the foreseeable future to cover the difficulties anticipated in the mother’s care of B with C on board. That is not a criticism of the family consultant but rather an indication that the mother took a responsible pathway to get C assistance for which she should have been commended. Given time, the mother’s efforts with the psychologist might have borne fruit. Instead C went back to his father and despite the order, the underlying premise of which was that C was to get help, nothing happened.
The order just mentioned above required the parties to do what was effectively already in operation from the mother’s perspective.
Notwithstanding the order was made in August 2013, it would seem from the evidence (Exhibit ICL2) the father did not attend upon his medical practitioner Dr E until October 2014. Dr E certified that she had examined C and she then wrote:
In my opinion, there is no medical reason to create a mental health plan for [C], nor does he require any referral for mental health assessment. He is a healthy well-adjusted boy.
That assessment is hard to follow bearing in mind the evidence of the family consultant. Her evidence in these proceedings was that in August 2013, C was out of control. He had a tantrum when he did not get his way. He was abusive and indeed attacked a staff member at the court in a vicious way. Ironically, the behaviour described by the family consultant was consistent with what the mother described to the psychologist Ms D at least if Ms D’s notes are any guide. Whilst the family consultant was quick to point out that in February 2015, she saw a substantially different child, she was still of the view that C had problems. In the child-responsive program memorandum dated 5 September 2013, the family consultant wrote that C’s behavioural difficulties would impact upon his entry into the formal education system whereupon he might be at risk of becoming marginalised early in his schooling with the obvious effects upon his well-being and development. She observed that neither parent seemed to have any understanding of C’s behaviours and the risk he posed to himself as well as others if his anger was not regulated. She described in detail the manifestation of that anger. She recommended that C would benefit from the formal assessment of his behaviours. That culminated in the order of the Senior Registrar. As I have indicated, that process with the mother was already underway. In February 2015, the family consultant noted that although C’s behaviour had abated, he would still benefit from a specialist assessment to determine whether the behaviour was as a result of parental separation, his subsequent confusion and disruption to his attachments or if he was at risk of a disorder that would impact on his learning and development as well as social relationships. That led to the recommendation that C be referred to the F Town Health Services.
The evidence presented by the father was that there were no such major difficulties and that he had taken some comfort from Dr E’s view as expressed in October 2014. It was only at the very end of the hearing and in a statement from the bar table that the father told the Court that he had obtained an appointment with a paediatrician for which he had been waiting six months. None of this evidence was before the Court but it was also completely inconsistent with the certificate of Dr E in October 2014. No evidence was presented from the father about this paediatric assessment nor how he obtained the referral.
Ultimately, it was counsel for the Independent Children’s Lawyer who submitted that the father was disingenuous in a number of ways but this was an indication of just that. I am not confident that I can make that finding but it is obvious that the father did nothing about the perceived problem for over 12 months and that is worrying. To the extent that the father tried to explain that on the basis that he lived in a rural area which created a disadvantage, the family consultant said that she was certain that there were health services available in the father’s location. Regardless of whether or not there were, the father maintained that his general practitioner did not see a problem with C. I find in the circumstances that of the two parents, it is more likely that the mother would endeavour to address behavioural issues quickly as she did in July 2013. I am not confident I could make such a finding about the father.
Reopening of orders
Whilst it has long been acknowledged that parenting orders can never really be final because of constant change in the lives of children, the Court has consistently said that recently-made orders should not be readily-reopened (see Rice and Asplund (1979) FLC 90-725). The basis for reconsideration is where there has been substantial change in the circumstances of the children. That requires looking at why the orders were made, whether there is a likelihood of those orders being altered, bearing in mind what is now asserted as the change and, if there is a basis to find a change of that nature, how would any new orders impact on the children. I return to this topic in respect of my determination to again make final orders.
The November 2014 incident
Neither party set out in their evidence any real indication of any problems after the September 2013 orders were made save that the mother said that there were problems. She did not elaborate. Things seemed to have come to a head however on 23 November 2014. This incident is indicative of the nature of the relationship between the parties.
On 23 November 2014, the mother and her partner went to F Town to collect B from her weekend with the father. Upon arrival at the railway station, the mother saw B and C standing by themselves on the platform. Both ran over to her and said that their father was going to him hit them with a brick and that they were scared. They then walked to a security officer standing on the platform whereupon the father appeared and went to take C by the hand. An argument ensued as to what the children had said. The father’s response to this incident was that the mother’s version was wrong. Just how wrong is contentious. He said that the children ran out of the café in which he was seated and he followed and saw the mother was addressing a security officer and making allegations. The mother’s version of what happened was corroborated by her partner Mr G. I refer to his evidence below. Neither party called upon the security officer to attend but it appears that he was not only the calming influence but that he also spoke to the police. The mother said that the security officer told the father to go and sit away from them whilst the police were called. They did not attend but apparently gave advice to the security officer over the telephone. B was described as crying and C indicating that he did not want to get into trouble with his father with whom he had to return home.
It would have been helpful if the Court had had the benefit of the evidence of the security officer. The best the father could say was that he did not know how to subpoena the records. I have considerable difficulty with that response bearing in mind that the father had legal representation up until only shortly prior to the trial commencing.
The father’s evidence was that the mother called him a “fuck head”, “cunt”, “cocksucker” and “retard”. For the mother’s part, she said that the father called her “nothing but a junky slut”. All of this was obviously said in front of the children if it was said at all. The father denied that he used the language to the mother and the mother denied she used any such language to the father. The only evidence of any corroborative sense comes from the mother’s partner Mr G. I accept his version of events which coincides with that of the mother. Accordingly, I reject the evidence of the father about the mother’s language. None of that was in his affidavit material save that in a very generalised way (see paragraph 18(c) of the husband’s trial affidavit).
The mother was sufficiently concerned about C to return home and require the police at the husband’s home area to undertake a welfare check and as indicated elsewhere, that was a waste of time and police resources.
It is hard to understand the reason why the railway incident occurred. There was no preliminary skirmish between the parties that would have explained the mother going to the security officer as described by the father. The most plausible reason for her to do so would have been because of what the children said to her and the physical absence of the father. On that basis, I accept the mother’s version and accordingly, that incident reflects poorly on the father for having caused an incident in the presence of the children. The reference to “junky slut” is indicative of the father’s view about the mother. When the family consultant gave evidence, she was not challenged by the father in cross-examination that he had presented to her as “embittered and angry” towards the mother. Whilst it is a loaded question and sometimes unfair to gauge much from any answer given to it, when the father was asked what if anything, he could say about the mother as a parent, all he could think to say was that she put herself first. He was given every opportunity to reflect upon her parenting capacity and skill but gave the very strong impression that he is lacking in trust of the mother and has little regard for her as the parent of his children.
The evidence of the incident in November 2014 is significant for two reasons. First, it is evidence of the father’s aggression. Secondly, the children witnessed it.
The father’s way of life
The objective evidence indicates that C was attending his local primary school without any difficulty and was fed, clean and properly dressed. The only concern related to his attendances and they were as a result of the father taking him out of school on the Friday to get him virtually across the State to have contact with the mother. The father’s explanation for the need to travel that way was that he had a 30 year old car which he did not trust and public transport was his preferred option. His solution was to have the mother change the arrangements and whilst that may save loss of school time, it would not overcome the problem of all of the travel involved for C or B.
Little was otherwise provided about the father’s personal circumstances. He had a brain tumour at 15 years of age resulting in what he now describes as an acquired brain injury. The manifestation of that problem is his inability to organise himself and he becomes forgetful. One indication of that problem was that on the day before the hearing began before me, he was provided a copy of the mother’s recently filed affidavit and despite having it for the whole day including travelling back to his home by public transport and returning the following morning, he had only read half of it. I took the unusual step of reading to him an abridged version of the various paragraphs of the mother that I thought were relevant to the proceedings and then had him respond to her allegations. As it transpired however, his cross-examination of the mother, her partner Mr G and the family consultant were well-planned, logical and in many ways, targeted to the issues that he thought were relevant. He needed very little assistance in respect of cross-examination. It was hard to see any indication of the disability he described. He conceded in cross-examination that he had applied for a disability benefit and had been rejected but had otherwise recently had allocated to him an advocate to assist him with his activities. Inconsistent with someone who was disorganised and forgetful, he had managed to obtain a taxi driver’s licence. He no longer worked and was not looking for employment. He was unable to describe friends but mentioned acquaintances and despite having a lawyer acting for him until very recently prior to the commencement of the trial, no further evidence of his capacity as a parent was produced. He was probed about his daily life. He said that after he managed to get C to school, his day until collecting C at the end of the day, was surrounded by housework and meeting friends. He gave no indication of any involvement at the school at which C attends but he did describe activities that he did with C in his immediate area. Based upon the indication that the school had no concerns (albeit it was very early in the year when the family consultant made inquiries) I have concluded that the father has the necessary parenting skills to provide for the material needs of C on a daily basis.
The two issues of concern about the father’s capacity however are seen in what was described as the bedwetting problem and the taking of C out of school. In respect of the latter to which I have already referred, the mother gave evidence as did Mr G, that the father had driven his motor car to the F Town railway station on a number of occasions for the changeover. How that would impact upon C not having to be taken out of school remains unclear but the inference I have drawn is that the use of a motor car would reduce that burden. In circumstances where the father attended his own parents’ farm at various times in the motor car, his preferred option of public transport with all of its attendant delays requiring C to be taken out of school, was hard to follow. The evidence of the school records indicates that there is significant absence.
The second problem of the bedwetting was equally perplexing. To the family consultant, the father indicated that there were occasional problems. But in his diary and in his oral evidence, the father said that there were up to 30 occasions during the previous year arising around the times of C spending time with his mother and then returning from her. Despite the description to the family consultant of occasional problems, the number was clearly much greater but more importantly, the father was identifying it as associated with the contact with the mother. Whatever was the cause, the father did nothing about it. I found it perplexing that he had not sought help. To the extent that the father endeavoured to have the Court infer otherwise, the very certificate that he obtained from Dr E in October 2014 describes a happy and healthy child. The description given by the father which is corroborated by his 2015 diary entries, would indicate otherwise. As earlier mentioned, when the mother perceived a problem in July 2013, she immediately sought help. I do not accept the father’s explanation that any delay was caused by the absence of professional services nor of any logistical problems on his part caused by what he described as his acquired brain injury.
When pressed as to how he was endeavouring to resolve the problem, the father described using nappies. The family consultant considered that at six years of age that was inappropriate for C. The father did not seem concerned about that because he described the nappies as quite large. I consider he missed the point.
In addition, to the nappy problem the mother made a complaint about the fact that she had met the father with C on the railway station and that he had been restrained by a “leash”. What was really being described was a child restraint and the father’s explanation was that he was concerned that C might run in front of a train. Again, the difficulty was C’s age. The father was quick to point out that he had not used that restraint for some ten months. All of that indicates however an inconsistent description portrayed by and to Dr E and importantly, confirms the perception of the family consultant that whilst C had certainly improved in behavioural terms, there were still problems.
I find in the circumstances, if such problems needed to be addressed, the mother is more likely to be the person to address them. She did so in July 2013 and I have no reason to doubt her evidence that she would seek professional help if problems arose.
The mother’s lifestyle
The mother’s evidence was largely uncontroversial. Certainly since 2013, she has cared for B and there was no indication of any concern about that care. No-one suggested that the school at which B attended was concerned about her ability other that the fact that there was an indication that B was behind with her reading. Just what that meant is hard to know. The mother conceded that she has a problem with mathematics and reading but then again, she had Year 9 education and some subsequent training at a TAFE college. She has had various retail employment positions but nothing of substance since the birth of the children. She has apparently had a poor choice of partners. None of those concerns could really now be raised again because of the fact that they preceded the 2012 orders to which the father consented.
For a period of some months, she was in a form of relationship with her current partner. She brought that to an end when he had to change his residential arrangements and moved to a significant distance away. They resumed their relationship almost a year ago and importantly, the partner Mr G, not only filed an affidavit but also presented himself for cross-examination when requested and also attended the appointment with the family consultant. He was not spoken to by the family consultant and when she was asked why that was so, an explanation was given that she thought the relationship was relatively short. In my view, it was much longer than perceived by the family consultant, much deeper and more meaningful than understood by the family consultant. Importantly, it appears very stable.
I had the advantage of watching the demeanour of Mr G. He is a postman by occupation who has had that positon for some eight months. He has no other children nor has he lived in a relationship with a person who has had children. He gave the impression of being a very calm and dedicated person. He earns about $3000 per calendar month and combines that sum with the mother’s modest parenting allowance from Centrelink to support the mother and B. He was cross-examined at length about how he would manage with another child in the household, and he saw no problem. He has contributed to the travel arrangements. He is sufficiently trusted by the mother to care for B when she has taken C back to his father at the conclusion of a contact weekend. Both the mother and Mr G were cross-examined about the nature of their relationship and their future plans. Nothing in the answers of either person indicated that this was an insignificant relationship or one that was unsustainable. Mr G commences work very early in the morning but he was always around in the afternoon to assist the mother in respect of the children. Mr G was able to describe in some detail the role that he played at weekends when C was in the household.
The father asked a number of questions of Mr G all of which were answered in a sensible and modest way. To some extent, the father seemed to suggest that Mr G had no real interest in the children and that he was leaving that role to the mother. I did not get that impression at all. I accept that what Mr G says about his desire to have the children, is very much part of his life.
The importance of Mr G is that he conveys stability. He provides financial support and a role model. To the extent that the mother had previously handed C to the father because she could not manage him and where she thought that he needed a male figure, if that was still necessary, I have little doubt that Mr G provides that figure. It is perhaps unfortunate that indepth questioning of Mr G could only have occurred in cross-examination rather than some investigation by the father or indeed by the family consultant. However, I accept what counsel for the Independent Children’s Lawyer suggested that Mr G came in a very raw state. The Court was able to see the true position without him being aware of what sort of questions might be asked. The cross-examination by counsel for the Independent Children’s Lawyer was probing and again, nothing I heard indicated that the Court should have any concern about the role of Mr G as a responsible adult around these children.
I am satisfied in the circumstances that the mother has stable accommodation which is adequate for herself and the children and that she can provide for all of the material needs of the children. In saying that, I am very conscious of the fact that the father’s complaint was that he did not have the financial resources to be able to provide what the mother could as a result of her relationship with Mr G. That in my view was not the problem. It was the activities around the basic needs of the children that impressed me about the mother’s household. She gets them to school which is only across the road from where she is living and there is little doubt that B takes a very significant role in assisting C with such things as breakfast. Mr G indicated that B did not dress C as seemed to be suggested by the father.
The parents’ views of each other
In the family report, which neither parent challenged, the writer wrote:
Both parents reported depression, for which (the father) was seeking assistance. The parties also conceded the history of illicit substance abuse, each alleged the other openly denigrates the other in front of the children and each sends abusive text messages and uses foul language in front of the children.
It was interesting that each parent maintained that they did not swear in front of the children. Mr G confirmed that he was very conscious of not doing so in front of the children. I accept that answer.
I have already made findings in relation to the father’s language on 23 November 2014 but more importantly, it indicates his disdain for the mother. With the combination of that incident and his poor view of the mother, I could have little confidence that anything about the mother in a positive sense would be said in front of the children in his household. Whilst the family consultant’s perception was that the parties were conceding that they each denigrated the other, Mr G denied any such thing was happening in the mother’s household. The family consultant’s reference to illicit drug use is now historical and of little relevance. C reported that Mr G hit him with a belt and his mother with a wooden spoon and spatula. That report was made to the family consultant in the presence of B who flatly rejected it. C then withdrew the accusation as to the belt but not in relation to his mother using a spatula.
Both parties complained about the discipline policies of the other but there is no evidence upon which I could make any finding that these children were at risk of physical harm from discipline.
B
The father’s application had been for both children to live with him. I had observed during the hearing that there was no evidence to support a conclusion that B’s welfare and development was in any way prejudiced in the care of the mother. The family consultant did not support a removal from the mother of B and the father provided no evidence to indicate that he would provide a better lifestyle for B than that provided by the mother. In his final address, he indicated that he was uncertain as to whether he really wanted to continue seeking that B come to live with him and because of his ambivalence, I indicated that I would treat his application as seeking both children. Importantly, as I observed, there is a very strong attachment between B and her mother and one which has now been consistent throughout B’s life. There have been two final orders and at least two interim orders during which B’s residential arrangement with the mother was unchallenged by the father. Absent any evidence from the father, there is no basis for me to remove B.
The evidence of the family consultant
Throughout these reasons I have dealt with some of the things raised by the family consultant. Ms H is a social worker who also has a Post-Graduate Diploma of Psychology. She undertook the Children and Parents’ Issues Assessment in 2013 and also the comprehensive family assessment in this case. She reported that the father did not take any medication and that he reported he was not affected in other ways despite what he had described as the acquired brain injury. The family consultant was aware of the father’s past history of depression but was very much of the view that it was past history. It was only when the father was requested to do so, that he produced scripts for his most recent medication. He is still being treated for depression and takes a number of prescribed drugs. Whilst the use of those medications is not only sensible but also important, it was the fact that these matters were not raised that causes concern. Counsel for the Independent Children’s Lawyer was troubled that the father was not frank about his use of anti-depressant medication. I did not get the sense that he was deliberately unresponsive to the family consultant but rather that he did not see it as significant. It would have been helpful to have understood the cause of the depression and its manifestation in his daily life particularly if he was to have the care of C. It would have also been of some assistance to see whether that is the cause of some of the antipathy towards the mother. The absence of evidence did not assist the father.
To the family consultant, the father described a situation in which the children were very frightened around their mother and of her behaviour. He said the children were not permitted to talk about him in the mother’s home and that B had witnessed the mother verbally abusing him. The evidence did not support any of those allegations. He went on to say that the children were neglected in their mother’s care and that it was B who was taking on the role of caring for C in the limited circumstances under which C was spending time with the mother. Again, nothing in the evidence supports those assertions. The father told the family consultant that the mother was actively seeking to undermine his role as the father of the children. The evidence of the family consultant of how the children perceive that along with the evidence of Mr G, does not support such an assertion.
The father conceded that after 2013, C had commenced school and had had difficulties in the playground where he would hit and pinch other children and call them names. Again, that is inconsistent with the perception of Dr E no doubt as a result of what was described by the father to her. The limited observations of C’s classroom teacher was that he could be challenging at times and was disruptive. All of that indicates that C still has problems albeit that that they may be improving with the natural maturation process but it still concerns me that nothing has really been done about it by the father.
The family consultant spoke to the mother who acknowledged C’s problems and indicated as I have earlier said, she would obtain professional intervention.
The family consultant opined that in observing C, she could see he had developed an ability to contain disappointment as well as his emotions but when he was refused something, became sad whilst accepting of it.
One incident that the family consultant found interesting was that during the luncheon break, she observed the parties and the children. Mr G was also present. C asked whether he could attend lunch with his mother and the best the father could do was to shrug his shoulders. The family consultant was critical of the father for not taking a positive parenting role. At the end of the day, C approached his mother wanting to go home with her but she responsibly replied that that could not happen because he had to go to school the next day.
In assessing the parents, the family consultant concluded that she thought C’s improvement was a reflection of his home environment where he had predictable parenting. My concern with that opinion relates to the enuresis as well as the lack of attention by the father to obtaining the professional assistance that had been ordered in 2013. Whilst the father did get the general practitioner assessment, his evidence was confusing as to whether even he agreed with that assessment.
It was the family consultant’s view that there was a need for long term parenting arrangements and in her view, the evidence supported the continuation of the split parenting arrangement. I reject that on the basis that the Court is in a much better position now to understand the parenting environment of both sides and in my view, the mother presents a much better option.
The family consultant was critical of both parents because of their lack of demonstrated interest in educational progress of the other child not in their care. She was critical of a lack of cooperation and made reference to both C’s behaviours and B’s reading. Again, I do not accept that evidence on the basis of what I have heard I find there is a much greater attention to detail in the mother’s household. The inclusion of Mr G in that arrangement creates much greater stability than what I consider the family consultant was contemplating without having spoken to Mr G.
The family consultant reiterated what had been said in 2013 about the need for C to have specialist assistance. That having been said before, the evidence supports the conclusion that the mother is the better of the two to provide that assistance. The family consultant was concerned about the exposure of the children to foul language, lax parenting and inappropriate discipline. Whatever the concession was that was made by the mother, the only finding I can make in this case is that the father is more likely to be unrestrained in respect of language in front of the children. Mr G indicated that he did not support that sort of behaviour and did not seem to witness it in the mother’s house.
The family consultant was critical of the mother in relation to risks she had taken concerning the choice of partners but I am satisfied that is no longer a problem. In any event as I previously said, that all occurred and the father still consented to orders.
The family consultant noted that both children had formed strong bonds with each parent but that each was prepared to tell the parent what had occurred in the other parent’s household in the least positive way. I am not confident that the evidence supports such a conclusion.
Ultimately, the family consultant thought that maintaining the separated situation was in the children’s best interests but that arose out of the family consultant’s concern that B would be disadvantaged by having C around her on a much greater time basis. The presence of Mr G and the more stable environment in the mother’s home would not enable me to accept that opinion. The sibling relationship in this case is very strong and whilst B might be seen to be mothering C, nothing I find suggests that anything that B was doing was inappropriate nor more importantly that the mother was abdicating her parenting responsibilities to B. In those circumstances, I do not accept the recommendation of the family consultant that the children should be separated for their best interest.
The law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the legislative requirements for the determination of a parenting dispute.
Section 64B of the Act sets out that if an order is made, it may deal with where a child lives and what form and how often, contact and communication with each parent, may occur. It includes the power of the Court to allocate parental responsibility. In this case, I propose to consider parental responsibility for major long-term decisions as a specific topic.
Equal shared parental responsibility?
The mother and the father each initially sought orders for equal shared parental responsibility. That was also the position of the Independent Children’s Lawyer. The family consultant thought that despite the poor communication of the parents, they could work out arrangements about the children as they had done in the past. When attention was focused on the nature of their relationship as parents and their communication, it became obvious that decisions about the children were not made jointly and consultation about what was good for the children did not occur. Each did not know about the school arrangements of the other. On the B school enrolment, the father’s details were apparently left blank. Neither parent had contacted the school that the other parent had chosen. Medical issues were not discussed. The father did not know about psychologist Ms D and the mother was oblivious of the proposed paediatric attendance contemplated by the father. The mother had not contacted Dr E to discuss C. Illnesses were not discussed and whilst the mother acknowledged C’s bedwetting occurred occasionally at her house, she did not know of the father’s assertion that there were significant numbers of those events at or around the time of C’s visits with her.
When pressed, the mother thought they could do better about communication. The parents had clearly been able to work out arrangements for C in 2012 but even that required a written agreement. Since then, the history would suggest communication is perfunctory. Mr G described the father as “standoffish” on occasions when handovers took place in his presence and there was the incident at the railway station in November 2014.
Parental responsibility is defined to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. If there is no consultation or agreement, are the children likely to be caught in a vacuum where important decisions are not made?
Section 61C provides that each parent has that parental responsibility until such time as the Court orders otherwise. In 2010 and again in 2012, the parties consented to orders for the sharing of that responsibility but have not really carried it out. Each effectively ignores the other.
To remove shared responsibility now, the law requires the Court to specifically so order (s 61D) because otherwise, joint responsibility continues.
Notwithstanding the previous orders, s 61DA requires a court to apply the presumption of equal shared parental responsibility when making parenting orders.
The presumption is that it is in the best interests of the children for the parents to have equal shared parental responsibility. 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.
Abuse and family violence are now defined (s 4 (1) and s 4AB). The abuse definition refers to “serious” psychological harm and “serious” neglect”. Family violence is defined to mean a wide range of conduct that coerces, controls or causes fear in the family member. Exposure of a child to that conduct occurs where the child sees, hears or experiences the effects of the conduct.
Section 4AB(2) gives examples of family violence but it is not exhaustive. Among the examples is repeated derogatory taunts. The evidence supports the conclusion that in November 2014, an incident occurred whereby the father was abusive and taunted the mother requiring the intervention of the station’s security officer. The rare contact between the parents stops that situation being constantly repeated. The handovers are quick and simple with little or no communication and there are repeated taunts or abuse. I would therefore find on the balance of probabilities that the definition of family violence has not been satisfied.
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. The best yardstick is to examine whether the parents could meet the statutory requirements. The parents would be required (s 65DAC) to consult each other in relation to the decision to be made and make a genuine effort to come to a joint decision. In final addresses, three different perspectives were put by the parents and the Independent Children’s Lawyer as follows:
· Counsel for the Independent Children’s Lawyer had begun the case seeking a continuation of the status quo of decision making. In conclusion, she resiled from that and indicated it was unworkable;
· The mother’s position was that it was probably better for one parent who had the child or children to take on that responsibility. There was an air of resignation about that statement; that is, it had never really worked and there was little prospect of a constructive discussion;
· The father’s position was simple. He said that he was “happy” to share the responsibility but he doubted the mother ever would.
Education is a good example of the unworkability. Even factoring in the tyranny of distance, there has been no move by either parent to seek to be seriously involved in discussion. The evidence of the mother’s partner which I accept is that the father is “standoffish” so communication is naturally difficult. There is little electronic communication between the parents. The evidence supports the conclusion that the mother sees no benefit in having discussion with the father.
All agree that the concept of sharing responsibility is an ideal but it has not worked and neither really trusts the other to try and make it work. I find that it would not be in the best interests of these children that there be equal shared parental responsibility because there is little prospect that it would benefit the children for their parents to have the task of communicating and working out a solution. The presumption must be rebutted.
I have already made it clear that the decision about B is one which is modestly straight forward. There is no evidentiary basis upon which I could find that it would be in B’s best interests to be removed from her mother. There is evidence to suggest that there should be contact and communication between the father and B and the parties were in agreement about the extent and nature of that save for how often it should occur because of the distance involved. I will make orders about that.
I turn then to where C should live and what time should be spent by either parent.
Section 65D provides that in proceedings for a parenting order, the court may, subject to provisions to which I shall turn, make such parenting order as it thinks proper. The Court has to exercise a discretion to do what it considers is right for C’s future. In assessing that, the Court has to look at what is needed and how each of the parents is likely to fulfil those obligations.
Those “needs” can be seen in S 60B of the Act which sets out what parents should aspire to. On the evidence, can those be met? It is the legislative object to ensure that the best interests of the children, but in this case particularly C, are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
88.Children also have the right to know and be cared for by both their parents. They have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents. That will be difficult here because of the tyranny of distance. The legislature wanted the Court to contemplate that parents jointly share duties and responsibilities. That cannot happen here.
The legislature wanted parents to agree about future parenting for the reasons set out above, that cannot happen here.
Ultimately, 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 (s 61CA). The use of the word “paramount” means that it is not the only consideration but if there is a conflict, the child’s best interests may prevail.
To determine what is in a child’s best interests, the Court is required to consider the matters set in s 60CC. That begins by distinguishing between primary and additional considerations. The former are:
(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.
The Court is required to give greater weight to (b) than (a).
The children both enjoy time with their parents. The Family Consultant thought that the children were old enough not to forget the relationship with the parents and each other. The evidence supports the conclusion that the children benefit from spending that time.
I do not consider there are issues of family violence here that should raise concerns. There is no doubt the children have been embroiled in and exposed to a conflictual parental relationship. The Family Consultant thought that the children were not adversely affected by that but I have the evidence of the children becoming distressed, crying and clingy when there has been confrontation between the parents. It was not suggested that either parent be excluded from the lives of the children so the issue is how to tailor a relationship under which the adult contact is minimal and restrained.
I find that of the two parents, the mother is the more stable in avoiding a confrontation to which B and C might be exposed.
The additional considerations in s 60CC(3) give some assistance in working out which of the two proposals of the parents is most likely to lead to the satisfaction of the matters in s 60B and s 60CA.
The Court is to consider the views of the child. C said that he wanted to live with his father but he also wanted B to live with him. That suggests that C’s strongest desire is to be with B. B is far more attached to her mother than her father. The evidence supports the conclusion that B and C play well together even if at times, they fight. The evidence of Mr G which I accept is that they ride bikes together, play ball games together and do activities inside the house together. B has shown a mothering of C but according to the Family Consultant, that is not unusual and not a problem. Thus, it is important for the children to be together.
In respect of C’s relationships with the parents and others, there is clearly a close relationship with both parents but Mr G seemed to have an important role as well. There are grandparents on both sides but I have no evidence about how significant they are in the lives of the children.
The objective evidence of Mr G was that when C arrives to spend time with the mother, he runs to her and is excited. He commented that it was not such an exciting event on the return trip. I have evidence from the mother and Mr G which was mostly unchallenged that C had been asking to stay with his mother and not return to his father. Whilst C is too young to understand the adult concepts, he is attached to his mother. That can be seen in the February Family Consultant visit where he wanted to go with the mother for lunch and at the end of the day. I consider the mother’s response particularly at the end of that day, a responsible one. What was interesting was that C seemed accepting of that. The Family Consultant noted that when challenged about boundaries, C seemed to accept those boundaries. All of that suggests that despite being absent for a significant period of time from his mother’s full time care, C will settle with her well and easily.
Section 60CC requires the Court to consider the involvement of the parents in their children’s life. As I have already indicated, there is little evidence about how important the father saw B as being in his life. Both parents have not made any significant effort to participate in the educational activities of the child who has not been in their care. I consider that if B and C were together, there is a much greater likelihood that the mother will take on those responsibilities. Nothing in the evidence indicated she has not done a good job in the care of B. The evidence of her attempt to get assistance for C through the psychologist indicates that she moves swiftly, recognised the problem and wanted it addressed. I cannot say the same of the father.
The practical difficulty and expense of maintaining a consistent relationship in this case has become untenable. Schooling for C has been affected but mostly because of the father’s choice of not driving. It is not good for C to consistently miss that much school. B too has missed some school but not as much but as she grows older, her educational demands will increase. Neither party has much money for transport but the major problem is the time involved in the travel. If C is collected on a Friday night to spend time with his mother, he does not get to her home until about 8 pm. He has, at that point, been travelling since about midday. Thus, it is not just the missed schooling but also the tiring travel. That cannot be resolved by reducing the number of weekends involved because the travel and school absences will still take their toll on that weekend. It is important however that the children continue to enjoy the existing relationship they have with their father. In my view, that can be done by trips to the father’s home every third weekend and by rearranging the travel schedule. One way or the other, it will still be a significant drain on the children on the weekend bearing in mind that they have to go to school on the next day.
Whilst the tyranny of distance is as great and there are limited available funds, I suggested electronic communication but that did not seem to be enthusiastically embraced by the father who said that he did not know what “Skype” was and his computer was old and not used. To his credit, Mr G who seemed to be technologically aware, was prepared to assist if the father wanted help. The “standoffishness” of the father will have to change for that to be successful. Despite the father’s cynicism that electronic communication in that form would simply be the same problem as the telephone which he finds frustrating because the mother is not often available, its benefit is that it requires specific endeavour to set up and lock in times. The children gain the benefit of having that face to face contact. I will not order it but I will encourage it.
The Court is obliged to consider each parent’s capacity to provide for the needs of the children. I have little information about the lifestyle of the husband but importantly, the school report discloses that C has attended clean and neat. The evidence indicates no problems with the mother’s care of B either. I have concluded that each parent can provide for the needs of the children. The father was critical of the mother and her partner for the use of junk food but I am not prepared to draw that conclusion. Whilst there was mention of a commercial take-away food chain as being the place where the children have meals when they participate in this contact travel, it was not suggested that they were just eating junk food. Concern was expressed about lollies and in particular a lolly which came out of a spray can which the father tried to compare to “chroming” but presumably if it is sold at a railway platform, it is not of concern to authorities. The father did not challenge the mother’s capacity to provide meals otherwise. I conclude that both parents have the skills and the concern about the health of their children.
The Family Consultant in a general description mentioned drugs and language. The father did not challenge the Family Consultant about her perception of what he had told her. The language at the November incident indicates that the father is prepared to be abusive. Whilst the same general description applied to the mother because of what the Family Consultant portrayed as a concession, I found the involvement of Mr G a stabilising influence such that I am not convinced that the language is now as bad as it obviously was. There is no suggestion of current drug usage about which the Court should be concerned.
The same matters to which I have referred above can be said about the respective attitudes of the parents demonstrated by their behaviour. The mother’s attitude in joining with the father in 2012 after the agreement was reached for C to be cared for by him was sensible. The father’s attitude to parenting has question marks over it because of his lack of motivation about medical assistance for C, his language and denigration in front of C and B and his approach of taking C out of school consistently to ensure the travelling for contact was undertaken. Nothing in the evidence enables me to make similar criticisms of the mother.
I have also dealt with family violence in the details above. They do not need repetition.
In her final address, counsel for the Independent Children’s lawyer indicated her instructor had resiled from the written position at the time the trial began. She described the mother’s case as “shambolic” and the father’s conduct as disingenuous. The criticisms were even-handed. In the case of the mother, counsel submitted that the relationship of C in the mother’s household was untested. In the case of the father, it was submitted that one could have a “sanguine” view about how C’s development would progress in the father’s care. It was submitted that all agreed there was a strong sibling relationship and that life for both children together and hence with the mother would be better than the limited life that the father could offer. I have to agree with that for all of the reasons set out above.
Counsel described the case as difficult and submitted that one solution was to make interim orders until the end of 2015 and see how C had progressed in the mother’s household. Such a course would enable monitoring of the mother’s capacity as a parent to care for and encourage the development of C. His school attendances and development would then be seen. At the same time, the depth of the relationship of a weekend and holiday nature with the father and both children could be examined to see whether that best suited the children’s development or whether more time was needed.
There is a superficial attraction to a testing of the metaphorical waters but its drawback is that it flies in the face of the Rice v Asplund (supra) concepts that I mentioned earlier.
In Rice and Asplund (supra), Evatt CJ said that if the Court lightly entertained applications to very extant orders, it would be to invite endless litigation. Her Honour remarked that children ought not be subjected to repeated assessments by social scientists but I would add to that, their involvement both directly and indirectly in litigation proceedings which is an inevitable consequence of them watching and hearing their parents in high conflict situations. It is more so where there are unilateral acts of overholding of children based on what the children complain about. That certainly has happened in this case. In addition, the use by parents of state police to undertake “welfare checks” on their children is another form of “assessment” just as are investigations by and interventions from, relevant welfare authorities. Clearly those welfare authorities have a role to play. I am not advocating that parents ought not make such referrals but where parents have been charged with the joint responsibility for decision-making but do not seek responses or answers from each other before referring problems to the welfare authorities, their approaches must face questions about their responsibility as a parent. Why would a parent put a child through a police check or a Department of Human Services investigation in relation to innocuous disputes (as happened here) rather than discuss the issues with another parent particularly where that problem emanated from a complaint by the child.
Thus, before “reopening” a parenting case, there should be something of substance in the form of changed circumstances. A re-opening might be a very part of the Court making interim orders. I would be very concerned that the arrangements needed further review and assessment of these children. It is time for them to settle.
The so-called “rule” in Rice and Asplund has been examined on a number of occasions by the Full Court including in Marsden v Winch [2009] FamCAFC 152, Prewett and Mann [2013] FamCAFC 130 and very recently, in Carriel and Lendrum [2015] FamCAFC 43. Reflecting upon those principles, one can see that the orders in 2010 and 2012 were made by consent of the parties in circumstances where in both cases, allegations were being made about the mother’s parental responsibility and parental capacity. As now transpires, in each of those cases and in the orders of August 2013, the father said he was pressured on the basis that if he did not agree to the orders, he would not see his children at all. That is a difficult concept to understand in circumstances where on each occasion, he was represented by different counsel and there was never any suggestion in the evidence (at least before me) that he was to be excluded from the children’s lives on some basis. Thus, the orders in 2010, 2012 and 2013 must be seen to have been in the best interests of the children.
The circumstances under which the question of reopening the orders in 2012 arose because of the mother’s own concession that C needed a father figure and she was content to sign an agreement that the father should care for him. It would seem that that was the only basis upon which the orders were then varied by the parties yet what brought that arrangement to an end was an allegation of abuse made by the child against his father. There was a basis for the Court to reconsider those longstanding orders because the mother was conceding in 2012 that she was not able to completely care for C.
The so called “rule” in Rice and Asplund is really directed to whether or not the Court ought to permit the proceedings to go ahead with all of those attendant problems that have been concerning the Court ever since. In this case, the proceedings were reopened in 2013 and the delay in this final determination has created an added problem of C living in a settled environment to some extent for the last 18 months. The principle remains the same. Apart from the so called “rule”, s 60CC requires the Court to consider making orders that will bring an end to proceedings to give a settled life to the children. Thus, an additional issue in this case to those which I have just mentioned, is careful consideration of the prospect of any orders breaking down again requiring intervention by the other parent (as occurred in late 2012) predominantly because of C. The approach of the parents gives some insight into whether that is likely again in the future. Is the mother capable of handling C? If there is a complaint by either child about a parent, is there a likelihood that either will resort to litigation rather than trying to get the dilemma solved through professional help? Ultimately, what is in the best interests of both of these children on the basis that it should be the objective of the Court to end the litigious pathway and have the parents resolve their problems of their children in a professional way rather than litigate.
Children need certainty and security along with routine. Since C was only a year old, he has been back and forth between parents. He has been separated from B and their relationship has been disrupted. The prospect of an opportunity to revisit what is happening in these children’s lives would for these parties, encourage litigation. As counsel observed, when the mother retained C, the father’s reaction was to litigate whereas the mother’s reaction was to seek help. I consider this is a case where the Court should make final orders to avoid further turmoil in the children’s lives. If the problems of 2012 were to occur again, I have confidence in the mother that she would seek assistance from the father about C.
On balance therefore, the mother’s proposal will provide for the best interests of both children.
Issues associated with other orders were the subject of agreement. I will make those orders noting that they are agreed.
In respect of holidays, there is no indication in the evidence that the children cannot manage significant portions of time away from the other parent but in respect of the mother’s household, as they will be there most of the time and it is the area where they will be schooled, they need to also develop relationships with their friends. Thus, holidays should be shared including over the summer. I do not consider it necessary to order a week about arrangement during the summer holidays.
I will also reduce the travel to every third weekend for the reasons outlined above.
I certify that the preceding One Hundred and Eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 April 2015.
Associate:
Date: 1 April 2015
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