Hood & Cormack and Anor
[2008] FamCA 774
•12 September 2008
FAMILY COURT OF AUSTRALIA
| HOOD & CORMACK AND ANOR | [2008] FamCA 774 |
| FAMILY LAW – PARENTING ORDERS – CHILDREN’S BEST INTERESTS – Since mother’s death, children cared for by Great, Great Aunt and Uncle – allegation against 1st applicant of sexual and physical abuse of children – children previously spending substantial time with 1st respondent prior to mother’s death – 1st respondent seeks children be cared for by him – 1st respondent and 2nd respondent have built co-operative relationship and live close-by to each other – acrimony between the applicant and the two respondents – growing relationship between children and fathers – consideration of emphasis on parents in object, principles and primary considerations of the Act – consideration of meaningful relationships – consideration of facilitation of other parent’s involvement in the children’s lives – children to live with 1st respondent and spend time with 2nd respondent and applicant |
| Family Law Act 1975 |
| Godfrey & Sanders [2007] FamCA 102 Mazorski & Albright (2007) 37 FamLR 518 D & T [2007] FamCA 1383 M v M (1988) 166 CLR 69 |
| APPLICANT: | Ms Hood |
| 1st RESPONDENT: | Mr Cormack |
| 2nd RESPONDENT: | Mr Roscoe |
| INDEPENDENT CHILDREN’S LAWYER | Ms Burgess |
| FILE NUMBER: | CAF | 97 | of | 2006 |
| DATE DELIVERED: | 12 September 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATES: | 5, 6, 7 December 2006 29, 30, 31 January 2007 15 August 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Brzstowski |
| SOLICITOR FOR THE APPLICANT: | Stuart Cameron |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Nicholson |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mr Webb |
| COUNSEL FOR THE 2ND RESPONDENT: |
| SOLICITOR FOR THE 2ND RESPONDENT: | Self represented |
Orders
The children S born … September 1997 and J born … March 2002 live with Mr Cormack.
This Order and those which follow will commence as and from the first day of the second half of the September /October 2008 school holidays unless the parties otherwise agree.
Mr Cormack and Mr Roscoe share equally parental responsibility for S.
Mr Cormack have sole parental responsibility for J.
Any Order providing that the Great, Great Aunt have parental responsibility in relation to either child is discharged.
S and J spend one weekend each month with the Great, Great Aunt (unless the parties otherwise agree) such weekend to be the last weekend of the month.
Unless the parties otherwise agree, the fathers will deliver the children to the Great, Great Aunt at 5.30 pm on the Friday of each weekend the children spend with the Great, Great Aunt and the Great, Great Aunt will deliver or cause the children to be delivered to Mr Cormack at 7.30pm on the Sunday.
Nothing prevents the parties agreeing to extend the weekend time that the children spend with the Great, Great Aunt by an extra day for time to time (even if the extra day is a school day).
So far as possible the parties will arrange for the weekends when the children spend time with the Great, Great Aunt to fall on a proclaimed long weekend instead of the last weekend of the month.
The weekend time for the children with the Great, Great Aunt will be suspended during school holidays.
Unless the parties otherwise agree, the children will spend one half of all school holidays with the Great, Great Aunt alternating between the first half in years ending in an even number or zero and the second half in years ending in an odd number.
Notwithstanding any other orders the parties will arrange for the children to spend fathers’ day with their respective fathers and Mothers’ Day with the Great, Great Aunt.
The children may telephone and receive telephone calls from any party at any reasonable time.
The children may send and receive letters, e-mails or SMS messages to or from any party at any reasonable time.
Each party will facilitate such communications so far as it lies within his or her power to do so.
The parties will so far as it is reasonably possible to do so facilitate the children spending some time with each of the parties on his or her birthday.
The parties will so far as it is reasonably possible to do so facilitate the children spending some time with each of the parties on each of the children’s birthdays.
Each party will advise the others of any medical attention received by the children when the children or either of them is in his or her care (other than for routine or everyday ailments or illnesses.)
Each party will advise the others of any ongoing medical or like treatment recommended by any professional to be undertaken by the children.
Each party will advise the others of any accident which may occur to either child while that child is in his or her care.
Each party will authorise and direct any school either child attend to provide copies of all school reports about the children and any school notices to each of the parties at that party’s expense if there is any such expense.
Each of the parties may attend any school function of either of the children irrespective of whether any other party is present or had indicated that he or she proposed to be present.
The matter is removed from the Pending Cases Inventory.
All material produced subpoena will be returned to the person producing it (or destroyed at the option of the person producing it) by the Registry at Canberra at the conclusion of the Appeal period.
Any exhibits tendered in the proceedings will be returned to the person from whose custody the material came, or if tendered from subpoenaed material, to the producer of such material.
IT IS NOTED that publication of this judgment under the pseudonym Hood & Cormack &Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAF 97 of 2006
| MS HOOD |
Applicant
And
| MR CORMACK |
First Respondent
| MR ROSCOE |
Second Respondent
REASONS FOR JUDGMENT
Foreword
The proceedings were instituted by the Great, Great Aunt filing both an Application for Final Orders and an Application in a Case in the Local Court at Griffith on 24 February 2006. Those orders sought, in summary:
§Residency orders in her favour, in respect of the children S, a daughter born in September 1997 and J, a son born in March 2002;
§For the second respondent, Mr Roscoe, to have contact with S for one half of each of the school holidays;
§For the first respondent, Mr Cormack, to have contact with J for one half of each of the school holidays, subject to an injunction that J not be left alone with Mr Cormack’s son, G born in August 1990;
§For the Great, Great Aunt to have joint responsibility for the long term care, welfare and development for both of the children, together with the each of children’s respective fathers;’ and
§For the hearing to proceed on an urgent ex-parte basis.
The first respondent filed a Response to both Applications in the Family Court at Canberra on 9 March 2006. In those orders he sought, in summary:
§For the Great, Great Aunt to return the children to him;
§For both children to reside with him;
§For the second respondent to have contact with S, the details of same to be agreed;
§For the Great, Great Aunt to have contact with the children for one week in each of the school holidays.
The Great, Great Aunt subsequently filed an Amended Application on 27 September 2006 wherein she sought, in summary:
§For both of the children to live with her;
§For the second respondent, Mr Roscoe to spend time with S for one half of each of the school holidays, each alternate weekend and on special days;
§For the first respondent, Mr Cormack, to spend time with J for one half of each of the school holidays, each alternate weekend and on special days, subject to an injunction that J not be left alone with G; and
§For S to spend time with Mr Cormack only when she expresses a desire to do so.
The first respondent, Mr Cormack, filed an amended Response to Application for Final Orders on 11 October 2006. He sought, in summary:
§For the Great, Great Aunt to return the children to him;
§For both children to live with him;
§For the second respondent to spend time with S, the details to be agreed; and
§For the Great, Great Aunt to spend time with the children for 3 consecutive days each week of the school holidays and on one weekend each term.
The Great, Great Aunt filed a further amended Application for Final Orders on 15 November 2006, wherein she now additionally sought that “[Mr Cormack’s] time with [J] be supervised by a person to be agreed and in default of agreement by the Children’s Contact centre at [G].”
On 15 November 2006 the Great, Great Aunt additionally filed a Form 4 Notice of Child Abuse or Family Violence, wherein she made allegations against the first respondent, involving 11 allegations of inappropriate behaviour by him in respect of and/or in the presence of J commencing on or about 2 May 2006.
The trial was heard by Waddy J on 5, 6, 7 December 2006 and 29, 30 and 31 January 2007.
On 7 December the second respondent was granted leave, following the commencement of the trial, to file a Response, wherein he generally sought orders in the terms as sought by the first respondent.
As late as 5:30pm on 31 January 2007, following six days of hearing, the orders sought by the Great, Great Aunt remained as per her Further Amended Application filed 15 November 2006.
Following directions given by the Court all parties subsequently filed their respective Minutes of Orders sought, on 1 February 2007.
In general, the first and second respondents are seeking similar orders, save that the second respondent seeks to spend more time with S than had been proposed by the first respondent. The first respondent is agreeable to the orders sought by the second respondent in so far as they relate to the time the second respondent seeks to spend with S.
The Independent Children’s Lawyer in general supports the orders as sought by the first and second respondents, as does the Family Consultant, Ms M.
The Great, Great Aunt has now moved her position and in general terms, seeks orders that would provide for:
§The children to live with her;
§The second respondent, Mr Roscoe, to spend time with S for one half of each of the school holidays, for three out of four weekends in each calendar month and on special days;
§The first respondent, Mr Cormack, to spend time with J for one half of each of the school holidays, each weekend, and on special days; and
§The Great, Great Aunt to have equal shared parental responsibility for both of the children, together with the each of the children’s respective fathers.’
In effect the Great, Great Aunt now seeks that the current interim orders be made on a final basis.
On 7 March 2008, the matter came before me. The parties agreed, and I ordered, that, due to the illness of Waddy J, there should not be a retrial but that I should determine the matter using the transcript of the hearing, the filed material, any updated evidence, an updated report by the Family Consultant Ms M and any final submissions if necessary.
Background[1]
[1] In general terms I have adopted the first respondent’s summary of the background facts which are not controversial.
The Applicant was born in March 1950 and is the Great, Great Aunt of the children S and J, she is currently aged 58 years.
J’s father, Mr Cormack was born in July 1971 and is currently aged 37 years.
S’s father, Mr Roscoe was born in May 1976 and is currently aged 32 years.
The children’s mother is Ms L. She died in February 2006.
Mr Roscoe and the mother had a brief relationship in late 1996 as a result of which S was born in September 1997. However, Mr Roscoe was not advised by the mother at the time that he may be S’s father.
In late 1996, Mr Roscoe commenced cohabitation with his partner Ms P, with whom he continues to reside. Mr Roscoe’s nephew D, born in 1999, resides with them and has done so for many years.
The family tree linking the Great, Great Aunt to the children is set out at paragraph 7 of the first respondent’s trial affidavit (and was not subject to challenge in the hearing), being:
§The mother’s mother is Ms N. She was present on each day of the hearings before Waddy J in the company of the first respondent and his mother as indicated to the Court in the first day of hearing.
§Ms N’s mother is Ms R.
§The Great, Great Aunt and Ms R are sisters.
Apart from J, the first respondent has two other children to Ms W, being:
§G, born in August 1990, currently 18 years. G lives with the first respondent; and
§B, born in July 1995, currently aged 13 years. B resides with her mother.
G commenced residing solely with the first respondent in February 1997 and has continued to do so to date (see paragraph 8 of the first respondent’s trial affidavit). He did not have any contact with either his mother or sister B, from 2001 until January 2007, when his mother contacted the first respondent about the possibility of the children and the parents resuming contact (evidence given by the first respondent’s in evidence in chief).
The mother had a second daughter K, born in September 1999, currently aged 9 years, to Mr C. She resides with her father and has done so since 2000 (see paragraph 10 of the first respondent’s trial affidavit and not subject to challenge).
The mother and the Great, Great Aunt were estranged for many years until January 2001, when she resumed a relationship with the Great, Great Aunt Ms Hood and her husband. At this time S was living with the mother and K was living with her father Mr C.
The mother and Mr Cormack commenced cohabitation in April 2001. S and G were part of the household (see paragraph 15 of the first respondent’s trial affidavit, which was not subject to challenge).
In November 2001 the mother entered into Consent Orders to have contact with K each alternate weekend from Friday afternoon to Saturday afternoon (see paragraph 42 of the first respondent’s trial affidavit and not subject to challenge). Thereafter, K also became part of the household, comprising the first respondent, G, S and K on an alternate weekend.
J was born in March 2002.
Between March 2002 and February 2006, on six occasions S made statements to the Great, Great Aunt and her husband regarding cruel behaviour by Mr Cormack and by Mr Cormack’s son, G.
The first respondent and the mother physically separated in November 2003 and thereafter:
§G remained with the first respondent and S and J remained with the mother (see paragraph 21 of the first respondent’s trial affidavit);
§The mother and the first respondent continued a relationship, notwithstanding the physical separation and saw each other together with G, S, J and K at times when the mother had contact with her in accordance with Court orders:
ofive out of six weekends until the mother’s death (see paragraph 25 of the first respondent’s trial affidavit and not subject to challenge);
oduring the week on a consistent basis for an evening meal and they sometimes staying together overnight (see paragraph 27 of the first respondent’s trial affidavit and not subject to challenge).
§The mother and the first respondent continued a sexual relationship until the time of the mother’s death. (This assertion is not necessarily conceded but in the overall scheme of things does not affect my determinations.)
§The mother, the first respondent and the three children, G, S and J holidayed for a week in Albury in September 2004.
§The mother, the first respondent and the three children, G, S and J spent roughly six Saturday overnight visits per year with the Great, Great Aunt and her husband.
§From mid-2002 S spent the first week of the three mid year school holidays with the Great, Great Aunt.
§From Christmas 2004 S spent significant time with the Great, Great Aunt during the Christmas school holidays.
The mother first approached Mr Roscoe in mid-2005 requesting that he have a DNA test to assist in determining S’s paternity. Mr Roscoe agreed to undergo the testing.
The mother was hospitalised for a short period on 19 September 2005. S and J stayed with the Great, Great Aunt and the mother also lived there upon her release from hospital whilst convalescing until 20 November 2006. During this time the first respondent visited the mother and the children on weekends.
In October 2005 Mr Roscoe and the mother again discuss the DNA testing, which the mother requests be done prior to S’s 9th birthday, that is in September 2006.
S stayed for her annual Christmas holidays with the Great, Great Aunt, from 26 December 2005 to 29 January 2006. J joins S at the Great, Great Aunt’s home from 14 January to 29 January while the first respondent and the mother holidayed.
The mother and the first respondent planned to marry in April 2006.
The mother died in February 2006.
The mother was buried on 17 February 2006. This was the date upon which the children went into the Great, Great Aunt’s care.
The Great, Great Aunt lives in T and both respondents live in G, a distance of some one and a half hours to two hours travelling time, each way.
The Great, Great Aunt issued proceedings seeking an urgent ex-parte hearing for residency orders in the Local Court at Griffith on 24 February 2006.
At the date if the filing of the applications Mr Roscoe had not undergone the DNA testing.
The DNA testing was undertaken on 1 March 2006 and Mr Roscoe was determined to be S’s father.
Between April 2006 and October 2006, on 12 occasions, J made statements in substance claiming that Mr Cormack touched J’s genitals and that Mr Cormack masturbated in J’s presence and made allegations of physical anger or hurt by Mr Cormack and G. He was also observed by the Great, Great Aunt to be behaving ‘unusually’ such as touching his penis and poking his great-great-uncle’s bottom. An investigation was carried out by JIRT in June and October 2006 as well as a therapeutic session with the children and Ms V in May 2006.
Interim consent orders were made on 5 April 2006 providing that the children would live with the Great, Great Aunt and spend time with their fathers. The time agreed regarding J was for half of the school holidays as well as each weekend during school terms, but returning early on the third weekend. It was agreed that S would spend time with Mr Roscoe as agreed between the Great, Great Aunt and Mr Roscoe. It was agreed that S may also spend time with Mr Cormack as she wishes. Other orders were made providing for telephone contact
These orders have been complied with, with some variations. The time that S has spent with Mr Roscoe has been generally three weekends out of four. Further interim orders were made on 7 December 2006 providing for the children to spend 16 days with their respective fathers over the Christmas and New Year period. On 31 January 2008, the Great, Great Aunt filed an application in a case for the recovery of the children. The fathers had refused to return the children after a weekend contact period concluding on 16 December 2007. The fathers agreed to return the children during court proceedings on 1 February 2008. Additional orders were made on 7 March 2008 suspending the usual weekend time with the fathers for the children to spend Easter 2008 with the great-great aunt and uncle.
On 15 August 2008, the Family Consultant, Ms M, was cross-examined on her updated family report dated 3 June 2008. This concluded the proceedings.
Parties’ Submissions
The two primary (and potentially competing) considerations in this matter are the meaningful involvement of the parents (in this case, the two fathers of the two children) and the risk to the children posed by either the fathers or the Great, Great Aunt.
I begin with a summary of the key arguments of each of the parties and then set them out more fully.
The submissions of Mr Cormack and the Independent Children’s Lawyer suggest that the alleged risk does not exist. In support of this they refer to the JIRT assessment that there was no risk and no need for further investigation. They also suggest that the evidence regarding the children’s allegations are poor. In particular, counsel for Mr Cormack and the ICL as well as by Ms M submitted that the evidence of Ms V ought not be relied upon as a determinative conclusion as to risk.
The submissions of the Great Great Aunt do not feature an argument about risk. Furthermore, the Great, Great Aunt has abandoned the request in the orders sought that the children’s time with Mr Cormack be supervised. This would seem to indicate that the Great, Great Aunt, acting as the children’s guardian, has judged that there is no risk to the children in spending time alone with Mr Cormack. Indeed, the orders she seeks contemplate a significant amount of time for the children to spend with Mr Cormack, including half of the school holidays. Counsel for the Great, Great Aunt suggested (in his written submissions) that there may be an innocent explanation for the disclosures made by the children and did not seek that I make a finding as to whether the abuse occurred. This approach is supported by High Court authority in M v M (1988) 166 CLR 69 at 76:
“In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362.”
The evidence of Ms M, the Family Consultant, seems to be that the true risk to the children is in not having the benefit of the maximum relationship possible with their fathers, rather than there being any risk of physical or sexual abuse.
The submissions of Mr Cormack and the Independent Children’s Lawyer interpret the Act as privileging the place of (biological) parents above other people concerned for the children’s welfare. The loss of the children’s mother makes the establishment and maintenance of the relationship with their only remaining parent more important.
Furthermore, it is submitted that the associated benefits of living with the fathers are that they will be more likely to support the children’s having a relationship with the Great, Great Aunt; there will be more opportunities for contact with the extended family and half-siblings; the fathers are closer in age to the children and that the children have strong (and growing) attachment to the fathers.
In the case of S, who would live with Mr Cormack rather than her biological parent Mr Roscoe, the case is slightly more complicated. The benefit to her in living with Mr Cormack is that she would not be separated from her brother; that she already has a close relationship with him (and it was intended by her late mother that Mr Cormack would have soon been her step-father, but for her death) and that living with Mr Cormack will best facilitate her growing relationship with Mr Roscoe, because Mr Cormack and Mr Roscoe have developed a good relationship.
The submissions of the Great, Great Aunt are, in a broad sense, that remaining with in her care offers the children stability and continuity of care; that the Great, Great Aunt has demonstrated success in caring for the children and that the children are settled in the community. For S it is submitted that the Great, Great Aunt will provide a female role model as S grows up (however, Mr Cormack points out that this may also be offered by extended family in G where the fathers live or by Mr Roscoe’s partner).
The submissions of the applicant Great, Great Aunt, in more detail but in a summary form are as follows:
§The children are settled with the Great, Great Aunt and any change would be disruptive. The children have lived with the Great, Great Aunt since 18 February 2006 and have established a close relationship with the Great, Great Aunt and Uncle, local friendships, household and school routines and extra-curricular activities. In their present home, the children are happy and well-cared for. Furthermore, “Each child is doing well at present. Each child appears to have improved whilst living with [the Great Great Aunt and Uncle]. Each child is happy with her. There is no compelling reason why there should now be some sort of major change.”[2]
§Removing the children from the Great, Great Aunt would be “yet another tragic loss for each child to have to endure. Both of these children have lost more than their share of parental figures, homes, relationships and a sense of belonging.”[3]
§The Great, Great Aunt provides a biological link for the children to their mother.
§The mother’s wishes were for the children to be cared for by the Great, Great Aunt.[4]
§The fathers had both failed to financially support their children.
§The hostile attitude of Mr Roscoe towards the Great, Great Aunt indicates that he may not facilitate a relationship between the children and the Great, Great Aunt.
§The fathers are inexperienced (and Mr Roscoe has been slow to be willing and interested and has some financial difficulty) in caring for the children whereas the Great, Great Aunt and Uncle are experienced, willing and capable.
§S will need a female figure in her life even more as she approached puberty and teen years. The Great, Great Aunt is already a mother figure. There is no such figure if she lives with Mr Cormack.
§The Great, Great Aunt has worked hard to be a parent figure for the children and “An order in favour of [the Great, Great Aunt] will validate her efforts in doing so much for these children. She has done so without the assistance of either father.”[5]
§If the children live with the Great, Great Aunt, there is less risk of the children being unhappy and disrupted and therefore less chance of the children making complaints. If the children do make such complaints, the Great, Great Aunt may feel compelled to report those complaints and institute further litigation.
[2] Submissions of the applicant, 14 February 2007, page 14
[3] Submissions of the applicant, 14 February 2007, page 12
[4] This appears to be contradicted by the mother’s plans to marry Mr Cormack but in any event if the deceased mother’s wishes are a relevant consideration it is a consideration which has been substantially diminished in significance by the time that has elapsed and the events which have since occurred.
[5] Submissions of the applicant, 14 February 2007, page 15
It seems to me that the Great, Great Aunt is arguing almost a presumption in favour of stability as opposed to my creating the circumstances (by court order) that would best facilitate a benefit to the children of having a meaningful involvement in their lives by their fathers.[6]
[6] Patrick Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 Australian Journal of Family Law 179, 185
The submissions of Mr Cormack are as follows (again in summary form):
§The Act focuses on parents having maximum involvement in the children’s lives (as set out in the Objects and Principles of the Act in s 60B). Preventing these children from being in the majority care of their only living parents would need to be supported by very strong evidence that it was not in their best interests.
§Mr Cormack and the children’s mother planned to marry in April 2006 but the mother died in February 2006. The children J and S were spending 5/6 weekends, a mid-week dinner and holidays with Mr Cormack although they were living with the mother separately from Mr Cormack. Consequently, there was an established and good relationship between the children and Mr Cormack.
§There was no agreement that the children live with the Great, Great Aunt. Instead it was agreed that the children live with the Great, Great Aunt until Mr Cormack could find alternative accommodation for himself and the children. He did not wish the children to return to his home after the funeral as it was where the mother had died (in the children’s presence). Mr Cormack subsequently found a four bedroom house for himself, J, S and his son G from a previous relationship (now aged 18).
§The Great, Great Aunt believed Mr Cormack to be too upset at the funeral to discuss permanent arrangements for the children. She assumed he would agree to the children living with her permanently.[7] However, this was not the case.
[7] Transcript of proceedings, 6 December 2006, p143
§The Great, Great Aunt argues that Mr Cormack has failed as a parent, citing examples of the Christmas present incident, headstone example, failing to provide adequate child support, the alleged abandonment of the children after the funeral and that Mr Cormack did not care for the mother when she was ill in September – November 2006. However, it was submitted that these events are not supported by the evidence or are explained adequately by Mr Cormack. In any case, if they were true they are not sufficient to rebut the objects and principles in s 60B.
§The Great, Great Aunt alleged in her affidavit that Mr Cormack was a heavy drinker, was verbally aggressive to the children, mentally abused and socially isolated the mother, was physical violent to the mother and the children, has no relationship with S who refuses to speak to him due to the assaults, sexually abused J and masturbated in front of J. The Great, Great Aunt alleged that Mr Cormack’s son from a previous relationship has emotional/intellectual problems that would impact on the children, tries to hurt the children, was violent to the mother, was sexually inappropriate to S and physically abuses J. The Great, Great Aunt alleges that Mr Cormack was indifferent to the actions of his son against the children.
§Mr Cormack denies these allegations. He tendered what became Exhibit F, a letter from Dr Y regarding Mr Cormack’s son. This letter noted that G was grieving, had previously suffered depression but was no longer taking medication and had been supported by Mr Cormack and the mother. He also tendered what became Exhibit G, DoCS information noting JIRT was not concerned about the sexual abuse allegations against Mr Cormack. Furthermore, Mr Cormack was not cross-examined on these allegations. The Great, Great Aunt’s allegations about the relationship between S and Mr Cormack’s son was contradicted by Mr Cormack, Mr Roscoe and Ms M. As such, it was submitted that there is no evidence of risk. In that case, the primary consideration of the children having the benefit of a meaningful relationship with their parents prevails.
§The Great, Great Aunt did not consult the fathers regarding enrolling the children in school, counselling, a dietician and extra-curricular activities. This would seem to be suggesting that the Great, Great Aunt would not support the fathers having an active role in the children’s lives.
§Mr Cormack was not in a financial position to pay child support to the Great, Great Aunt, nor did she seek any.
§The Great, Great Aunt dwells on the negatives in the past instead of promoting the children’s best interests.
§Mr Cormack and Mr Roscoe are more credible witnesses because they were open and frank and not successfully challenged; the Great, Great Aunt effectively abandoned the above allegations; the difficulties in the relationship between the Great, Great Aunt and Mr Cormack only began when Mr Cormack asked for the children to return to him and the evidence of the Great, Great Uncle was that he had never seen Mr Cormack do anything wrong as a father.
§The Great, Great Aunt’s (non-expert) evidence was that if S was removed from her then she would feel like she was losing her mother again. This is not supported by Ms M’s evidence.
§If S lived with Mr Cormack this provides a link to her mother and in close proximity to her father, Mr Roscoe, and in close proximity to her half-sister, K. It would also permit relationships with the Cormack, Roscoe and Mr C’s extended families.
§The evidence of Ms V, it was submitted, should be disregarded because she had pre-judged the situation based on information given by the Great, Great Aunt, the allegations upon which Ms V relies were not pursued at trial and Ms M’s evidence is more compelling in its rejection of Ms V’s conclusions and methodology.
§Mr Roscoe’s evidence was that he could co-parent S if she lived with Mr Cormack but that if she remained with the Great, Great Aunt, his chances of a relationship with S was more limited. Mr Roscoe also gave evidence that if S later wished to live with him, he and Mr Cormack could agree and co-operate but that he and the Great, Great Aunt could not.
§The evidence of Mr Cormack’s sisters and employers regarding support they could give in the care of the children was not challenged by the Great, Great Aunt.
Mr Roscoe, although not providing written submissions, gave some oral submission to Waddy J on the final day of hearing.[8] In essence, he was concerned that if S continued to live with the Great, Great Aunt, she would be alienated from him. More particularly he indicated the following concerns:
§That if S stays with the Great, Great Aunt, the relationship between her and Mr Roscoe will be troubled. Evidence in support of this was Mr Roscoe’s opinion that there had been problems communicating with S since the conflict between Mr Roscoe and the Great, Great Aunt. The consequence from Mr Roscoe’s perspective is that S does not open up to Mr Roscoe.
§That the Great, Great Aunt tells S about the court proceedings, with the result that S is turned against Mr Roscoe.
§S is trapped in the middle.
[8] Transcript of proceedings, 31 January 2007, page 538
The submissions of the ICL were in essence supporting the primacy of children having meaningful relationships with parents as opposed to non-parents. In this case, it was submitted that placing the children in the care of Mr Cormack would offer them the best chance of maintaining relationships with all parties. In summary form, the submissions were:
§The Act expressly emphasises parents. Other people are significant to children’s welfare (such as grandparents) but are not specifically included in the principles and objects of s 60B [nor in the primary considerations under s 60CC(2)].
§The only way the Court can meet the Objects of the Act is for the children to live with their parents, unless there would be risk of harm to the children.
§Given that the children have only one alive parent, maximising that relationship is particularly important.
§The evidence of Ms V regarding the sexual abuse allegations against Mr Cormack is not well-founded. Ms V used a therapeutic rather than diagnostic tool to make a diagnosis. The accuracy of this tool is questionable. The child’s actions are consistent with being traumatised, (an undisputed fact) because of the death of his mother and the battle between the parties. It is difficult to put this evidence any higher. The ‘diagnosis’ was not supported by Ms M, who was not concerned about the children’s safety while in Mr Cormack’s care. Ms M said: “I would be loathe to use any one technique to make a definitive assessment, particularly with very young children who have suffered other forms of trauma.”[9] Accordingly, it was submitted, there can be no finding of risk to the children while in Mr Cormack’s care.
§In regard to the children’s views, J is too young to offer a view that ought to be significantly taken into account. S’s views are influenced by the Great, Great Aunt (as assessed by Ms M) and ought not to be taken at face value. In this case, the children’s views ought not to be determinative.
§The willingness to foster the children’s relationships with the other parent is particularly important in this case. Ms M believed Mr Cormack to be able to support all of the children’s relationships but did not believe the Great, Great Aunt to be able to do the same.[10] The Great, Great Aunt and Uncle retained the children not due to concern for the children but their own fear of losing them. The Great, Great Aunt sought to exclude the fathers. It is possible that the sexual abuse allegations were made to support the court case.
§It is important that the siblings remain together especially given Ms M’s opinion that they are the only constant for each other. Dividing the children between the parties would not provide security and stability.
§The amount of time the children can spend with their fathers will be reduced if they live with the Great, Great Aunt in T. This is because the children will likely become more involved in extra-curricular activities, become less flexible on weekends and more removed from the G community. This would also reduce the time they could spend with half-siblings.
§There is no suggestion that Mr Cormack is unable to provide for the children’s needs.
§If S lives with Mr Cormack she will have other female figures available such as Mr Cormack’s mother, the maternal grandmother, Mr Cormack’s sister and Mr Roscoe’s partner.
§Mr Cormack (and Mr Roscoe) is closer in age to the children than the Great, Great Aunt and Uncle.
[9] Transcript of proceedings, 31 January 2007, p434
[10] Transcript of proceedings, 31 January 2007, p442
Allegations of inappropriate sexual conduct by Mr Cormack and G
As analysed in the issues for judgment set out above, this matter appears no longer to be pursued by the Great, Great Aunt and Uncle.
In some cases, allegations of this seriousness, if abandoned, may be taken as evidence of malice on the part of the person making them. In this matter, I do not conclude that that was the case with the Great, Great Aunt and Uncle.
While the existence of such allegations in the past may indicate that it is unlikely that the Great, Great Aunt and Uncle would be particularly willing to encourage and develop a relationship between the children and Mr Cormack (and therefore G, I do not find that there has been any systematic pattern of alienation from the children or that the Great, Great Aunt and Uncle have been reporting things other than in what they considered to be the children’s best interests.
At the same time, the evidence before the Court does not, for the reasons outlined in the submissions of the Independent Children’s Lawyer set out above, demonstrate to any level, either that the alleged sexual activity occurred or that there is an unacceptable risk of it occurring in the future. In this regard, I prefer the evidence of Ms M to that of Ms V. While it may not be necessary to do so, I accept Ms M’s opinion that Ms V’s primary purpose was therapeutic and there is no evidence that suggests that the ‘Sandplay’ therapy that she used as a diagnostic tool should be so used. At the same time, I find the analysis of the situation and the assessment by Ms M of the relationship between the children and their fathers and between the children and each of the applicants to be more persuasive and objectively based.
I am aware of senior counsel for the applicant’s criticism of the evidence of Ms M. I am also conscious of the fact that I did not have the advantage of actually seeing and hearing Ms V in the witness box. Nevertheless, Ms M’s clear and sensible analysis of the situation and her assessment of the methodology for determining these sorts of matters is compelling, particularly in the light of the apparent abandonment of the allegations by senior counsel for the applicant.
The applicable Law
Mr Nicholson, on behalf of the first respondent, set out the applicable law at great length in his written submissions. I do not propose to repeat formally in this judgment all of the sections to which he referred. There are however, two fundamental matters which bear attention before I turn to a more conventional assessment of the best interests of the children pursuant to s 60CC of the Family Law Act 1975.
The Significance of the word ‘parents’ in section 60CC(2)(a)
Counsel for the first respondent and the Independent Children’s Lawyer relied on the wording of the above subsection to distinguish between the importance of the children’s having a relationship with their Great, Great Aunt and Uncle with a relationship with Mr Cormack and Mr Roscoe. The situation is somewhat complicated by the fact that the proposals of Mr Cormack (with which Mr Roscoe agrees) involved S living principally with Mr Cormack who is not her father.
The Act makes provision for persons other than a parent to apply for a parenting order in s 65(c)[11] and Section 69(c)[12]. These sections differentiate in their terms between parent, grandparent and “any other person concerned for the care, welfare and development of the child”. It would have been relatively easy for the legislature, if they had intended it, to include an extension of the wording of s 60CC(2)(a) to include persons other than “the child’s parents”. The extension is not included.
[11] Section 65C Who may apply for a parenting order
[12] Section 69C Who may institute proceedings
There would therefore appear to be afforded to parents a primary position in accordance with s 60CC(2) in considering the benefit to the children of having a meaningful relationship with a parent (the Act says both of the child’s parents) over a relationship with other parties. That of course does not mean that the relationship of the child with other persons is not a relevant consideration. Section 60CC(3)(b)(ii) specifically brings into consideration, the nature of the relationship with the child with “other persons (including any grandparent or other relative of the child)”.
Notwithstanding that the legislation has now been in force for some time, it is still not entirely clear what the significance of a primary consideration is in comparison with an additional consideration. It is clear that primary does not mean overarching or exclusive. What is not so clear is whether it means of greater importance than any other consideration or whether it means that it is a consideration to which attention should first be turned. In the context in which I am presently examining it, it must mean that a higher level of consideration (perhaps greater weight) should be given to the relationship between a parent and child than a the relationship with another person.
Meaningful Relationship
The meaning of these words has been the subject of some consideration in a number of cases before the Court. One aspect of that consideration has been the apparently self-evident statement by His Honour Justice Kay that “…what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”[13] This phrase has, however, recently been the subject of some consideration by the Honourable Mr Richard Chisholm in an article which thoughtfully and comprehensively deals with matters relating to these terms up to date.[14] Other judicial consideration of the term has offered the synonyms of ‘important’, ‘significant’, ‘of value’ and note that it is a qualitative rather than quantitative term.[15] The Objects and Principles in s 60B refer to a ‘meaningful involvement’ and Cronin J has concluded that it is the same idea as a ‘meaningful relationship.’[16]
[13] Godfrey & Sanders [2007] FamCA 102 at [36]
[14] Richard Chisholm, ‘The Meaning of “Meaningful”: Exploring a Key Term in the Family Law Act Amendments of 2006’ Article based on a paper prepared for the Queensland Family Law Residential, Gold Coast, August 2008
[15] Mazorski & Albright (2007) 37 FamLR 518 at 526
[16] D & T [2007] FamCA 1383 at [165]
Whatever nuances may attach to the term are not directly relevant to a resolution of the issues before me. The geography of the parties and to some extent the relationship between the applicant and the respondents, strongly suggests that unless the children were to be living with Mr Cormack and Mr Roscoe, the relationship they would enjoy with their fathers (and I use the plural of that term intentionally) would be less and less significant than if they were living with either Mr Cormack and Mr Roscoe or with Mr Cormack.
If the children were living with the Great, Great Aunt and Uncle in T, the children would have, on the admission and evidence of all relevant parties, less time to spend with their fathers. Whatever the meaning of “meaningful” may be, it is necessarily the case that in the circumstances of these children, that would have to mean that there would be a less meaningful relationship with their fathers or certainly less opportunity for the parents to have a meaningful involvement in the children’s lives.
I am not suggesting that the term ‘meaningful relationship’ necessarily has temporal connotations. I am not suggesting that the amount of time that a child spends with a parent necessarily makes that time meaningful. I am not suggesting that less physical time with a parent makes a relationship not meaningful or that the parent would be necessarily uninvolved in the child’s life.
It seems to me that the quality, duration and nature of the time that the children could spend with their fathers would be diminished if they were living with the applicant.
The Benefit of…
The Act of course does not simply prescribe as a primary consideration that the children have a meaningful relationship with both parents. It includes the words “the benefit to the child of having….”
This suggests that there would be occasions where a child might have a meaningful relationship but that it might not be to his or her benefit.[17] What these words appear to require the Court to consider is the fact that the relationship with a parent, although a primary consideration, is not prescriptively and ultimately a matter which will determine where a child should live or what parenting order should be made. Without there being a benefit to the child in the relationship, the mere existence of some relationship would not be determinative. A Court considering where children should live or what orders should be made in relation to their parenting must consider whether the children will derive a benefit from a relationship with a (or both) parents. That is not to suggest that even if there should be a benefit, that is in itself exclusively determinant. The Court must take account of the additional considerations under the Act as well.
[17] Pearce & O'Toole and Anor [2007] FamCA 1491; see also Richard Chisholm, ‘The Meaning of “Meaningful”’ above n 15
In this case, the most recent evidence from the Family Consultant and the nature of the submissions made on behalf of each of the parties (including the applicant) concedes that there is a benefit for the children in having a meaningful relationship with their respective surviving parents. This of course, does not mean that there is not a benefit to the children in maintaining a relationship with the applicants, who have unquestionably borne the heat and labour of the day in caring for the children after the tragic death of their mother.
Summary of the primary considerations
The wording of the Act, in my opinion, prescribes in this matter that some primacy should be given to the relationship of the children with their fathers. This would only arise in circumstances where there is a benefit to them in so doing.
The proposed arrangements include the fact that the children will primarily live with Mr Cormack but this would facilitate S having a more meaningful relationship with her father. This would be more likely and indeed probable if the children were living with Mr Cormack than if they were living with the Great, Great Aunt and Uncle.
This is partly because of the propinquity of Mr Roscoe to Mr Cormack but also because of the admitted and conceded cooperative attitude between the fathers and the likelihood of each of them cooperating to ensure that the children would have an appropriate relationship with each of them. This is not to say that I find that the Great, Great Aunt and Uncle would necessarily not encourage such a relationship but rather that I find that it is more likely to arise in circumstances where the children are living with Mr Cormack.
Notwithstanding the history of the matter and the considerable time that has been extended in considering matters of abuse and arguments about the children’s physical and psychological welfare, it seems to me at the end of the case after all the evidence and the submissions have been received, that s 60CC(2)(b) is not a factor that is currently relevant to the parties. Moreover, it does not appear to be a matter upon which the Court is being asked to pronounce and accordingly, for the reasons set out above, I am satisfied that this is not a matter which ought to be weighed except to the extent that I had indicated that it would be above in my consideration of what would be best for these children.
Additional considerations
I take account of the views expressed by the children as reflected in the report of the Family Consultant. There is no doubt that these children are both loyal and to some extent divided in their loyalties.
I am satisfied that each of them would prefer to spend their time principally with Mr Cormack with some time with Mr Roscoe, which may finish up being more significant time in the future in the case of S. They would also wish to spend time with the applicant and this should be time that is carefully nurtured by Mr Cormack and Mr Roscoe. Failure by either of those two to recognise the significance in the lives of the children of the Great, Great Aunt and Uncle would, in my opinion, be likely to lead to resentment and difficulty from the children.
I have to some extent already looked at the relationships of the children with each of the parents and with other persons as s 60CC(3)(b) requires of me. I have not yet commented significantly about the relationship with the children with the Great, Great Aunt and Uncle.
The relationship of the children with their Great, Great Aunt and Great, Great Uncle is by any measure a good relationship. The importance of the maternal connexion for the children through the relationship with the Great, Great Aunt and Uncle has been mentioned several times but it seems that its significance has decreased.
Perhaps more significant is the role that the Great, Great Aunt may play in the future as S goes through adolescence. It is agreed that there should be a female figure to whom she can relate and in whom she can repose trust. The Great, Great Aunt clearly represents one such person. There are others potentially in S’s life who may contribute to this important task but the Great, Great Aunt is tried and proved and will remain important for S into the future. This emphasises the need for the children to spend predictable and significant time with the applicant.
I have already commented on the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other respondent. The Act prescribes the other parent and in this context again the distinction is curious. It is also unreasonable to apply, in my opinion, in this context, a directive and confined meaning to the word “parent”. Even if in this regard my interpretation of the Act is wrong, the willingness and ability of each of the children’s fathers to encourage a relationship with the other respondent would be a matter I regard as relevant, at least pursuant to s 60CC(3)(m).
In this regard, I have commented already that the relationship between the two fathers is such that the children will receive encouragement that is appropriate for them to continue to develop and to benefit from the relationship with the other respondent.
The likely effect of changes in the children’s circumstances is that they will have the benefit of time with their fathers and with Mr Cormack and his extended family. If the children were not to change so as to live with Mr Cormack then their opportunities to develop a substantial and significant relationship or a meaningful relationship with their fathers would be more difficult. This will be increasingly so as the children progress in school and have school-related activities both at night and on the weekends. Moreover, if the children have to travel to spend time with their fathers this may provoke a level of resentment towards the applicant.
The change will affect the children’s contacts with schools friends and local activities in T. This is unfortunate and a reason why they should not change their primary residence. Nevertheless it is but one factor and in my opinion is in all the circumstances outweighed by the advantages to them in having a substantial and meaningful relationship with their fathers.
Obviously, the reverse may be true. But in circumstances where the time that they spend with the applicant would necessarily be less than the time that they spend with their fathers is probably preferable for them to have less travel in the direction of the applicant than in the direction of their fathers.
In addition there are practical difficulties for the children in being taken to spend time with either the Great, Great Aunt and Uncle or with their fathers. If in the end the more important relationship is to be with the fathers then it is preferable that they should be located closer to or with them than closer to or with the Great, Great Aunt and Uncle.
Section 60CC(3)(g) requires me to take into account, among other things, the lifestyle and background including lifestyle, culture and traditions of the children. I mention this particularly because it has been asserted on behalf of the Great, Great Aunt and Uncle, that it is important for S in particular to have a connexion with her mother’s family. This, it is asserted, can really only occur through the Great, Great Aunt and Uncle, in particular the Great, Great Aunt. Hence it is asserted that the continuation of the family at least from a maternal point of view would best be accomplished with them.
There is some force in that statement, but that to some extent begs the question about whether that connexion to the mother’s former family is more important than a present connexion to the father or in the case of Mr Cormack and S, her (almost) step-father. As a matter of balance and weight, in my opinion, it is not.
Paragraph (i) requires the court to take account of the attitude of each of the child’s parents to the child and the responsibilities of parenthood. Again, in this extended context, it is probably appropriate to include those who are in loco parentis with the children and if by strict application of this Section that cannot apply, then it is a factor to be taken into account under Section 66CC(3)(m). I have distinguished between references to parents and those in loco parentis primarily in relation to the context in which the word “parent” has occurred .
Turning however, to the respective father’s attitudes, it is asserted on behalf of the applicant’s that the fathers have failed to contribute financially to supporting the children. They point out that the applicants have totally financially supported the children and have never sought contributions from the fathers.
This is a matter of commendation for the applicants but is not necessarily a matter of condemnation for the fathers. In circumstances as they have outlined in their evidence, where their own financial arrangements are quite tight and where no request has been made for financial contribution, it is not as significant that the children’s fathers have not made more attempt to provide financial contribution for their welfare but it certainly does not count in their favour. As I have said, this in no way diminishes the sacrifice and generosity of the applicants in not seeking a contribution and in, in fact providing for the children.
In the case of Mr Roscoe, there was, as has been submitted on the part of the applicant, a relatively late coming to an appreciation of his involvement with S. DNA testing was required before he finally accepted that he was S’s father. It is submitted on behalf of the applicant and I think with some justification, that it was not reasonable on his part to have any doubts about the situation.
Whether that be so or not, the question is not necessarily what has been the case but what will be the case. In many cases, as the future is unknown, looking to the past can be the only way of predicting what might happen in the future. In this case, after perhaps a slow start, both the of the fathers have demonstrated a persistence and what is interpreted by the Family Consultant as genuine concern about the children and each of them has to some extent, persisted in difficult circumstances to try to achieve what they regard as best for the children.
In my opinion, although the past does not present an unqualified and untarnished pathway of responsibility, the evidence of the fathers and of the Family Consultant allows me to conclude that they will appropriately demonstrate a proper attitude to the children and to parenthood and its responsibilities in the future.
So far as the applicants are concerned, it is impossible to fault their dedication to the children after the difficult events gave rise to the children’s coming to their care. I am somewhat concerned however, about the fact there seems to have been a diminution in the children’s relationship with their fathers once court proceedings began. It is reasonable that the applicants should be somewhat resentful of the fact that he fathers have come lately into the scene and seek to have the children live principally with them.
I am satisfied from the evidence that has been before the court and from the reports from the Family Consultant that there is a level of acrimony, particularly from the Great, Great Aunt, towards the fathers. This has been consistent with, and in my opinion, has operated to the detriment of, the children and would, if allowed to continue, operate for their detriment in the future. To that extent, it seems to me that there has been a failure in parental responsibility by the applicant. Again these considerations are matters of weight and it would be churlish not to offset that consideration by the vast and generous contributions that they have made to the children’s welfare and care since the children’s mother died.
None of the parties have expressed any issues of violence which are applicable which would cause me to take a view other than that the children should live with Mr Cormack.
I am of the opinion that I have considered s 60CC(4) and (4A) in the reasons above.
parental responsibility
In accordance with s 61C, each of the first and second respondents has parental responsibility for the child of whom he is the father. Section 61DA has no application in this matter because in the case of neither child is the other parent alive and hence there is no person with whom it would be presumed that the father would share parental responsibility equally.
In the light of the orders I propose to make, it is appropriate that I should make an order in respect of S that parental responsibility for her should be shared equally between her father and Mr Cormack with whom she will be living.
It is unclear to me whether in the past any order has been made investing parental responsibility in the applicant but any such order should now be discharged.
conclusion
Taking all of those factors into account it seems that I am led to the conclusion that the children should on balance live with Mr Cormack. This will give S the opportunity to develop her relationship with her father and possibly to live with him at some point in the future.
I am satisfied that the two fathers will cooperate in ways that will enable the relationship between S and J to be maintained and their relationships with each of their respective fathers and with the wider members of their fathers’ families to be enjoyed.
The children should still continue to have relatively substantial time with the applicant. The Great, Great Aunt and Uncle have been an important if not crucial part of the children’s lives for a long time. They have been the rock upon which the children’s lives have been built and they will always remain an important part of the children’s future.
In this regard, however, it is important for the reasons set out above, not the least of which is the geographical separation of the applicant from the respondents, for the children not to resent the time they spend with the applicant because it will impinge on their weekend activities or sport. Accordingly, it seems to me that I should make orders which will see the children spending time together with the applicant but not so as to disrupt the normal; development of their social interaction with their peers, mates and sporting companions.
The children should spend one weekend a month with the applicant and generally speaking, one half of the school holidays. It may be more appropriate for all concerned if the children were to spend the whole of some of the school holidays with the applicant, rather than half of all the school holidays. However the default position, if the parties cannot agree otherwise, should be that they spend one half of each school holidays with the applicant. This will enable them to maintain on a regular basis the importance of that relationship into the future.
S will spend time with her father, if she is living with Mr Cormack, and I am content to allow that arrangement to develop naturally and by agreement. There is no declared difference between the first and second respondent about the desirability of nurturing, developing and ultimately settling upon the relationship between S and her father.
The children should be free to telephone any of the applicant or the respondents at any time and there should be a mutual sharing of information about the children so that all of the relevant people who have had a place in their lives will continue to have that place and be important for the children in the future.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks
Associate:
Date: 12 September 2008
A parenting order in relation to a child may be applied for by:
(a) either or both of the child’s parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.(1) Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.
(2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:
(a) either or both of the child’s parents; or
(b) the child; or
(c) a grandparent of the child; or
(d) any other person concerned with the care, welfare or development of the child.
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