Hyland and Starke
[2008] FMCAfam 1305
•1 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HYLAND & STARKE | [2008] FMCAfam 1305 |
| FAMILY LAW – Children – residence – relevant factors – shared care not practicable – capacity of parents to meet needs of children – substance abuse – antisocial behaviour – domestic violence – mental illness. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 65D, 65DAA, 65DAC, Evidence Act 1995, s.69ZT |
| Abrams & Demars [2008] FMCAfam 797 JB & BG (1994) FLC ¶92-515; (1994) 122 FLR 209; (1994) 18 Fam LR 255 Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323 |
| Applicant: | MR HYLAND |
| Respondent: | MS STARKE |
| File Number: | MLC 2898 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 31 July, 1 August, 6 August, 21 August 2008 |
| Date of Last Submission: | 1 September 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pavone |
| Solicitors for the Applicant: | Clocktower Legal |
| Counsel for the Respondent: | Dr Alexander |
| Solicitors for the Respondent: | Victoria Legal Aid |
ORDERS
That all previous parenting orders with respect to [X] born in 1997 and [Y] born in 2000 be discharged.
That the parents have equal shared parental responsibility for the children.
That the children live with the father.
That the children spend time with and communicate with the mother as may be agreed between the parties, and failing agreement:
(a)
During school term, each fourth weekend from 5 p.m. Friday to
5 p.m.Sunday commencing on the first weekend of each school term;
(b)
For one half of all school term holidays at times to be agreed, and in default of agreement the first half of the school holidays from
5 p.m. on the last day of school to 5 p.m. on the middle Saturday of the holidays;
(c)For one half of the Christmas school holidays at times to be agreed, and in default of agreement for the first half in even numbered years and the second half in odd numbered years;
(d)In the event that the mother is able to travel to [S], for two further weekends per term in the [S] area at times to be agreed between the parties, and failing agreement on the weekend's nominated by the mother from 5 p.m. Friday to 5 p.m. Sunday;
(e)By telephone at reasonable times, such calls to be initiated by the mother.
That for the purpose of changeovers the parties meet in the [location omitted].
That each party keep the other advised at all times of their residential address, landline and mobile telephone numbers.
That each party notify the other as soon as is practicable of any medical emergency involving the children or either of them requiring specialist medical treatment or hospitalisation whilst the children are in their respective care.
That the father authorise the principal of any school that the children attend to forward to the mother at her expense (if any) copies of school reports, newsletters, notices and photograph order forms which are usually forwarded to parents.
Both parties be permitted to attend the children's school, sporting and cultural events that are ordinarily attended by parents.
That the family report writer be requested to explain the orders, and to the extent appropriate, the reasons for judgment to the children.
IT IS NOTED that publication of this judgment under the pseudonym Hyland & Starke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2898 of 2008
| MR HYLAND |
Applicant
And
| MS STARKE |
Respondent
REASONS FOR JUDGMENT
This case concerns the care arrangements for two children, [X] and [Y].
Background
The father, now 37 years old, and the mother, now 36 years old, commenced cohabitation sometime between September and December 1994. In 1997 the parties had their first child, [X] (born in 1997) who is now 10 years old. In 2000 they had their second child, [Y] (born in 2000) who is now 8 years old. There were a number of periods of short separation before the parties finally separated in September 2006.
The parties had a particularly destructive relationship involving significant substance abuse and domestic violence. After the final separation the children continued to live with the mother in the former matrimonial home in [W]. The father relocated to [G] (around 6 hours drive away) and had little contact with the children, however continued to provide financial support.
On 9 November 2007 the mother was imprisoned as a result of a dishonesty offence committed just before Christmas 2006.
The commission of this offence was a breach of her sentence of community based orders for her second offence of stealing as a servant. The children were cared for by the maternal grandparents for around two weeks, before being taken into their father’s care for the balance of the term of the mother's imprisonment. As a result of interim orders made after the mother was imprisoned the children remained in the father's care until trial.
The maternal grandparents drove the children to the prison to visit the mother six times during the mother’s imprisonment. The father did not seek to restrict the maternal grandparents arranging for the children to visit the mother in jail. On 16 April 2008 the mother was released from prison.
The children currently live with the father and his partner, Ms H, in [S] as a result of the interim orders. The mother has maintained regular communication with the children.
Both parties wish to have the children live with them. The option of either party moving to live closer to the other party is not said by either party to be practicable. As a result the main issue is where the children should reside; the frequency with which the children should travel for contact with the other parent remains a subsidiary issue.
The law
The power to make a children’s order is provided for in s.65d of the Family Law Act 1975. This power is subject to the effects of a variety of provisions in Part VII of the Act.
In deciding how to exercise the discretion under s.65D, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
60B [Object of Part and Principles underlying it]
(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)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; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) [Principles underlying object] The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court must have regard to the best interests of the children as the paramount consideration: see s.60CA. Although it should be noted that this is not the sole or only consideration when making a parenting order: see the discussions in U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416; (2002) 29 Fam LR 74; (2002) FLC ¶93-112; (2002) 23(15) Leg Rep 19.
When determining the best interests of the children, the court must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC. These considerations are as follows:
60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation form:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child
having contactspending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
The Court must also consider any risk of family violence, as required by s.60CG:
60CG [Court to consider risk of family violence] (1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
The phrase ‘family violence’ is given a detailed definition in s.4 of the Act:
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Parental responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61b:
61b [Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61c provides for each parent to have parental responsibility, subject to any parenting orders. Whilst s.61da creates a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’, this presumption does not apply in cases involving family violence. There is no question that this case involves family violence. As a result I must also determine whether or not the equal shared parental responsibility is appropriate in this case.
The effect of an order for ‘shared parental responsibility’ is set out in s.65dac of the Act as follows :
65dac [Effect of parenting order that provides for shared parental responsibility] (1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65dae).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Parenting time
When deciding upon orders for parenting time, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65daa requires specific consideration of ‘equal time’ and ‘substantial and significant time’. In this case neither party proposes that there should be equal time, or substantial and significant time. As the parties live such a great distance apart neither equal nor substantial and significant time are practicable. Whilst the court is not bound by the proposals of the parties, the driving distance between the parties’ residences demonstrates that such orders are simply impractical in this case.
Reasoning process
In Goode & Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC ¶93-286 the Full Court considered the reasoning process that should be applied under the Act in its current form with respect to interim decisions: see para [82]. This guide can be usefully adapted to the final hearing in this case as follows:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the … hearing, and making relevant findings;
c)considering the matters in s 60CC that are relevant and … making findings about them …;
d)deciding what orders should be made about parental responsibility; and
e)making such orders that are in the best interests of the child, as a result of consideration of the matters in s.60CC and the other relevant considerations.
Proposals of the parties
The father seeks orders for the children to live with him in [S], in his partner’s home, where he and the children now live. The father proposes that the children travel to spend time with the mother each fourth weekend during the school term and for half of all school holidays. He also proposes regular telephone contact and time with the mother when she can travel to the [S] district.
The mother seeks orders for the children to return to her care in [W]. [[W] is approximately six hours drive from [S].]The mother seeks orders that provide for the children to spend time with the father every third weekend during the school term, half of all school holidays and on special occasions together with regular telephone contact and other times as may be agreed.
Whilst the parties differ in the amount of time they suggest the other party should have with the children it is apparent that the proposals are genuine attempts to meet the children's best interests, in that both parties suggest that if the children live with the other party, that they receive the contact they propose for the other party.
At the hearing I explored with counsel whether it was at all possible that either party may move closer to the residence of the other. It is clear that neither party will move. The mother does not wish to move away from her home town, where she has part-time employment together with support from her parents. The father has employment, a paid coaching position, and his partner has a business and owns the home in which they live. As a result I find that I am limited to considering proposals substantially in accord with those put forward by the parties.
The evidence
The father relied upon his own evidence, the evidence of his partner, and the evidence of the family reporter. The mother relied upon her own evidence, the evidence of her mother, the evidence of her counsellor Ms. S, and the evidence of the family reporter.
During the course of the hearing evidence was given and various documents were tendered, without objection, which may not have been admissible if all of the provisions of the Evidence Act 1995 applied. However, s.69ZT provides that various provisions of the Evidence Act do not apply in child related proceedings. Importantly, the section states:
69ZT [Rules of evidence not to apply unless court decides] (1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
The practical application of this provision requires some care. Commonly evidence in a form that is not technically admissible is placed before the court without objection (usually as the parties do not dispute the relevant fact, or do not wish to incur the expenses of more formal proof). As a result, generally speaking, that evidence may be relied upon (to the extent that it has any rational persuasive effect): see Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323 at 219; Pompidou & Pompidou [2007] FamCA 879 at [27], hence it is important to warn self-represented litigants of their rights to object to evidence being led: MS & PS [2006] FamCA 588; (2006) FLC 93-268.
In cases where evidence is admitted as a result of the relaxation of the rules of evidence effected by s.69ZT, there will often be issues as to the weight that should be attached to that evidence. It is important that such issues be raised at the time, to allow the other party an opportunity to call such formal proof as may be available.
In this case a report of Ms C, a psychologist, was tendered from the subpoenaed material, although she was not called to give evidence. No objection was made to the tender of her report, nor was any request made of the counsel for the father that she be made available for cross-examination. However, in written submissions at the end of the trial counsel for the mother submitted that little weight could be placed upon Ms C's report as Ms C was not called to give evidence.
Ms C's report recounts that the mother had been diagnosed by a psychiatrist as suffering from dysthymia and bipolar (II) disorders as described in the DSM IV manual. Ms C came to the view that the mother most likely suffered from a narcissistic personality disorder and an antisocial personality disorder. Ms C was engaged by the solicitors for the mother to prepare a report prior to the mother being sentenced for criminal conduct. Ms C is not a psychiatrist, but a psychologist.
On the evidence available I am not persuaded that the mother necessarily suffered the disorders diagnosed by Ms C, based only upon the written report that was tendered. However, in the context of this case the difficulties described in the report of Ms C are an indication of a broader difficulty with respect to the evidence of the mother's mental health.
The mother did not lead evidence of any detailed psychiatric assessment. The evidence before the court consisted of documents and reports, such as that of Ms C, and two reports of Ms S. As a result, the state of the evidence is not such as to allow the court to conclude that the mother currently suffers a narcissistic personality disorder or antisocial personality disorder, however the report of
Ms C does demonstrate that these disorders are at least reasonable hypotheses. The evidence given by Ms S does not persuade me that these hypotheses should be ruled out.
Similarly, whilst I accept that there is little evidence of the precise nature of the psychometric testing undertaken by Ms C, nonetheless it resulted in similar scores with respect to indicators of depression as the psychometric testing undertaken by Ms S: that is, none of the psychometric testing showed scores with respect to depression elevated beyond the normal range. It appears that the psychometric testing undertaken by both Ms C and Ms S is consistent on this issue.
The father’s evidence
The father is employed as an [omitted]. He presented neatly dressed and as a forthright witness.
He gave evidence that he drinks little at all any longer. He says that he doesn't drink when he attends football on Saturdays. He explained at one point that he had gone eight months without having a drink. This is consistent with the evidence of his current spouse.
He was cross-examined in some detail about the children and the school arrangements, even their dates of births, and demonstrated a detailed knowledge. He showed a clear involvement and focus upon the children.
I accept that the father has never sought to restrict the time the children have with the maternal grandparents or the mother during school holidays.
The chores and obligations in his current household are divided on fairly traditional lines, and as a result it is clear that he is assisted by his current spouse with respect to many of the household activities. However, this is little different to a very large number of households in Australia. The father has not sought to supplant the mother with his current partner, who he describes as the children's friend. He agreed that the children love the mother, and in evidence was able to identify positive things that she had done in the past.
He recounted that the first few years of the relationship between him and the mother went well, and thereafter their relationship went downhill. They attempted to run a dairy farm for a period, however this appears to have taken a heavy toll on both of them and ultimately the deregulation of the milk market led to them leaving the farm. The father recounted symptoms of depression on the part of the mother, such as weeping and, in retrospect, what he believes to be post-natal depression. She also exhibited symptoms such as picking her facial hair, a symptom she has continued to suffer in more recent times. He explained that she had suffered mood swings from being “terrific” to sleeping and weeping. In cross-examination he admitted that they had had arguments around twice a week and a couple of times he had come home from work as the mother had threatened to hurt herself and the children, although he made clear that he never believed that she would hurt the children.
He said that by 2006 he was drinking excessively and that their problems were compounding. He had lost his licence more than once as a result of his drinking. He says he became ashamed and embarrassed of the situation that they were in.
There were two incidents of significant physical domestic violence that occurred between the parties that he conceded. On one occasion, after significant arguments, the father locked the mother out of the house when they arrived home. She broke a window to get inside the house and he says that she had a piece of glass in her hand. He says he punched the mother in the face in self defence and that she received two black eyes. The mother's version of this event portrays him as the attacker and her as the victim. It appears to me, having seen both the mother and the father in the witness box, that this was one of many alcohol and marijuana fuelled disputes between the two of them, which ended in violence. By this point both were to suffering significantly from substance abuse.
The parties had a number of separations before they finally separated permanently. Thereafter the father's life appears to have been in good order: holding down a job, a football coaching position, establishing and maintaining a new relationship and in more recent times caring for the children. Importantly, whilst the father did not seek to spend time with the children on a regular basis after separation he did give evidence of regularly telephone contact. He sent money when requested, for example $600 in December 2006, on another occasion $2000 when requested by the mother. Since the children have lived with him he has not sought any child support from the mother. He continued to pay the mortgage after separation in order to maintain the home in which the mother and children lived. When the mother was convicted of stealing as a servant on the second occasion arrangements were made to pay restitution by borrowing money on the mortgage.
My overall impression of the father is that he and the mother were in a very destructive relationship, fuelled by drugs and alcohol. He did not have the skills or insight to appropriately deal with the mother's mental health issues, leaving her feeling isolated, and him frustrated. This resulted in many verbal altercations and at times physical violence. For periods of the relationship neither were able to function adequately, and on one occasion the grandparents even agreed between themselves to remove the children from the parties.
The father ultimately recognized the nature of the situation and made a decision that he must leave the relationship and move away. This left the children in a difficult position, being in the care of the mother who was similarly not coping with day-to-day life. The father had sought legal advice about obtaining orders for the children to live with him. He was advised he would be unsuccessful at that time.
I accept that he needed to distance himself from the mother to allow each of them the opportunity to rebuild their lives as any continued relationship was so destructive.
The father has, however, been able to put his life in order. I am satisfied that he is no longer drinking nor engaging in domestic violence. He is maintaining a workplace position of responsibility and engaged as a coach for a local football team. The involvement with the football team enables him to have social support, just as his current spouse provides him with support. He has been able to ensure the children attend school and has participated appropriately in the children's school life since the children have been living with him.
The Father’s spouse
Ms H, the father’s partner, was a very impressive witness. She was clear in her evidence and presented as a confident and capable person. I found her clear identification and understanding of the boundaries necessary in her role as a step-parent insightful. I accept her evidence, and in particular that she has not observed the father to drink to excess or use prohibited substances. I also accept her evidence that she has not been the subject of any family violence by the father, nor that she would tolerate it, if it did occur.
She recounts a positive and largely normalised relationship between the boys and the father. She said that in the first couple of weeks that the boys lived with them they would jump on the furniture and simply leave any mess (for example spilt food), although she accepted that that may well have simply been the boys acting out as a result of the turmoil in their lives rather than necessarily reflective of the living arrangements with the mother.
It appears that the father had been frank with her in recounting the nature of the relationship he had with the mother.
Whilst Ms H's role is significant in the life of the father and the children, I am not persuaded that she has become a primary carer or substitute parent. The father works from 6 a.m. to 3 p.m. and Ms H works from home as a hairdresser. The father does rely upon Ms H’s support in the mornings, and to care for the children when he attends football training and games.
It was submitted by Counsel for the mother that the father’s reliance upon Ms H is particularly heavy. Counsel develops this argument to a submission that orders for the children to live with the father would amount to the court favouring a heterosexual two-parent family structure over a single-parent family unit. In this regard Counsel refers to a number of early family law cases which it was submitted showed an historical preference toward a working father who has re-partnered above that of a single mother: Jurss and Jurss (1976) 1 Fam LR 11; (1976) 9 ALR 455; (1976) FLC ¶90-041; Rose and Duroux (1976) FLC ¶90-064; (1976) 12 ALR 107; (1976) 2 Fam LR 11,101; Schenck and Schenck (1981) FLC ¶91-023; 7 Fam LR 170; Harrington and Hynes (1982) 8 FamLR 295 Harrington and Hynes (1982) 8 Fam LR 295; Archbold and Archbold (1984) FLC ¶91-532; (1984) 9 Fam LR 798; Swaney and Ward [1987] FamCA 24; (1988) FLC ¶91-928. Whilst the cases are examples of fathers succeeding in residence applications it does not appear to me that those cases show any preference for particular family types, nor that they have ‘not been followed for 20 years’ as Counsel suggested.
In Jurss and Jurss Demack J dealt with an argument that a principle existed which required the placing of children of tender years with their mother unless there was some disqualifying factor against the mother. Demack J concluded that to approach the case on this basis was to "put the cart before the horse" as the enquiry under the Family Law Act is an essentially positive one requiring consideration of the best interests of the children. In the particular case the mother had not seen the children for three years, and they had had no relationship with her partner. The children had been living with the father and his subsequent partner throughout that time. The case is still cited for the proposition that the enquiry is an essentially positive one focused on the best interests of the children: for example see Potter & Ross and Ors [2008] FamCA 894; Kery and Kery [1996] FamCA 60; and Licha & Wunscher [2007] FamCA 357.
In the decision of Rose and Duroux (1976) FLC ¶90-064 the court again rejects the notion of a presumption subject to disqualifying conduct, and also rejects the proposition that matrimonial conduct (or fault) has relevance to residence determinations under the Family Law Act unless it affects the welfare of the child. This case was cited as authority in In the Marriage of Smythe (1983) 8 Fam LR 1029; (1983) 48 ALR 677; (1983) FLC 91-337.
In Schenck and Schenck (1981) FLC ¶91-023 the court again affirmed the proposition that the welfare of the children was the paramount consideration, pointing out that at times this may result in a different outcome to simply comparing the justice of the two parties’ positions. The court also found that:
It is, of course, relevant to consider the past behaviour of each parent in so far as this has a bearing on the well-being of the child.
Both Smyth and Schenck were cited by Chisholm J in “‘The paramount consideration’: Children's interests in Family Law” (2002) 16 AJFL 87 as supporting the ‘strong view’ of the paramountcy of the children's best interests.
In Harrington and Hynes (1982) 8 FamLR 295 the mother had the care of the children on an interim basis, and the children were placed in the father's care following the trial. Factors weighing against the father in the interim included the uncertainty of his household arrangements, however he had stabilised his own household prior to the final hearing. The evidence with respect to the mother included feigned suicide attempts, and a strong attitude of frustrating the contact with the father. Importantly, the court noted:
In the present case each of the parents has housing accommodation, income, intelligence and practical abilities sufficient to provide for the basic material needs of the children. They each have the same handicap of having to adjust their lives and organize their affairs to accommodate their work and the care of the children that comes from being a working parent. Although the defendant put forward in her own favour her superior ability to give up work and devote herself to the children and live off social service payments, she has shown no signs of ever intending to do so. She continues to be employed in the job which she had at the time of the earlier hearing from Monday to Friday and in addition she pursues an interest in buying, restoring and selling antique furniture and in selling her own drawings. In addition to these activities she has undertaken a university course in marine biology.
It was in this context that the court concluded that one of the relevant factors was:
The choice of households is presently not between the defendant's and the plaintiff's but between the defendant's and that of the plaintiff and [his new partner] Vicky. My impression of Vicky is that it would be in her nature and that she would in fact, for the sake of the children, play a supporting part and not attempt to substitute herself for the defendant as the mother of the children if the plaintiff had custody and the defendant access.
In Archbold and Archbold (1984) FLC ¶91-532 the husband succeeded at trial, largely as a result of the uncertainty of the arrangements that the wife intended to put in place (it was not clear whether she would remain in the area or relocate, as a relationship between her and a third party had not yet had time to develop). The Full Court concluded that in the particular circumstances of the case interim orders were more appropriate and allowed the appeal on this basis.
The technical legal point dealt with in Swaney and Ward was whether or not a judge was functus officio after delivery of judgment and before the entry of orders. Taken in isolation, orders in the form the trial judge made (making residence of the children with the wife conditional upon the wife falling pregnant) appear difficult to justify. However, the gravamen of the decision concerned a husband who was old enough to be the children's grandfather and a wife who said she intended to care for the children as she was trying to fall pregnant and have another child, not that she would utilise childcare. In the decision which the trial judge described as very finely balanced the trial judge was in favour of the mother if she was home to care for the children, and in favour of the father if the mother was not going to be available to care for the children.
It appears to me that these cases do not show any preference for parents who have re-partnered rather than single parents. To approach matters on such abstract notions is to fail to commence one’s enquiries by determining the best interests of the children by way of careful consideration of what each household has to offer the children. Indeed, it is common for orders to be made in favour of a single mother, usually as a result of strong bonds between the mother and children and the availability of a parent to care for the children as a result of reduced working hours.
However, as a matter of principle, each case must be approached by making an enquiry as to what each parent can offer the children, and determining what is in the children's best interests having regard to the relevant factors set out in the legislation. There is no presumption that a parent who has re-partnered is prima facie better able to meet the children's needs than a parent who has not re-partnered. However, the role of subsequent partners must be carefully considered as they will be living in households with children and necessarily impacting upon the day to day care of the children.
In this case Ms H provides the father with valuable support. However, that support would not be equivalent to a parent being able to undertake the care of the children, if the parent was not only available, but also able to meet the children's needs. It is this latter issue which requires careful attention in this case.
The mother’s evidence
The mother is employed part-time as a [omitted] and also receives Newstart Allowance. She presented neatly dressed and was clearly very concerned about the outcome of the proceedings. Whilst giving evidence she displayed a large array of furtive gestures, and some nervous preening. I accept that the trial was a particular stressful occasion for the parties as it related to the ongoing care arrangements of the children, however, I did not always have the impression that she was an entirely forthright witness.
She recounted that the husband had been controlling in his behaviour, inspecting the house in the evenings to see if she had undertaken her home duties. She says there was emotional abuse on a daily basis which escalated to physical violence around 10 times (excluding pushing). Whilst she stated that physical violence erupted around
10 times, she had told Ms S that she had suffered weekly beatings. She had been hospitalised as a result of the violence of the father and had gone to her mother's on a number of occasions. She said she stopped attending at her parents when her mother said that she would notify the police. She denies that she had threatened the children or herself and explained that the children had become aware of the black eyes she had suffered as a result of finding a photograph. She also alleged she suffered sexual abuse at the hands of the father.
The mother’s first major involvement with the criminal law was at
19 years of age when she stole around $40,000 as an employee. Her parents made restitution on her behalf and she has not repaid them, although admittedly she has had little capacity to do so. Some years later she was working as a [omitted] and stole between $8,000 and $10,000 from her employers. Restitution was made by the parties drawing down on the mortgage, and for this offence that she was placed on community-based orders. She says that she had spent the money on the children, although the husband's evidence was that he suspected the money went on drugs as he could never understand where all the money would go.
The mother agreed that she was, like the father, also a heavy user of cannabis over many years. She stated that she had suffered significant depression before the relationship, and was taking medications; she also suffered from bulimia. She stated that Ms C was in error in saying that she suffered tricolomania (the excessive plucking of hairs) since her teens, although she agreed that she had suffered tricolomania in her adult years. She had been referred to a psychiatrist the past but had "never been under the care of one". To the extent that it was suggested that the mother's depression was caused by domestic violence, I reject that argument. I accept that the mother suffered considerable mental health issues prior to the relationship and that the dysfunctional relationship between the parties would have aggravated the condition as did the violence that ensued in the relationship.
The mother gave evidence that she no longer took medications for depression, yet in relatively recent times she has filled prescriptions for such medications. There is no reason that such scripts would be filled if she did not intend taking the medications. I am not satisfied that she has been frank with the Court or Ms S about her circumstances.
The mother continued to minimise a conviction for leaving the younger child in a car unattended in summer when he was still a baby. It appears to me that this can only be seen as a serious lapse of judgment for any parent, and that the mother has not yet accepted the seriousness of the incident.
The mother’s period of imprisonment was the result of her stealing a shopping bag (containing goods from a surf-wear store) that was left on a counter at a women’s clothing store by another customer who was elsewhere in the store. The mother took the goods to the shop they were purchased from to attempt to exchange them the next day.
The stealing that the mother was convicted of after separation was described by her in her affidavit material as being "very stupid and naive" and explained on the basis that she was depressed, suffering low self-esteem and was the victim of domestic violence. In cross-examination the details of the most recent offence were clarified. This occurred when the mother was well aware that she had been fortunate to avoid a sentence of imprisonment for her second charge of stealing as a servant. As a result of the mother breach of her community based orders she was imprisoned. The events occurred after separation, when the mother was the primary carer of the children. The mother lives in a small town; as a result it is likely that other people are aware of the events. The mother played down the potential impact upon the children at school from others being aware of the events. The mother claimed that the stealing was to obtain consumer goods for the children as it was close to Christmas. Whilst the mother is on a low income, it is notable that earlier in December of that year the father had given her $600 in cash, although she says that it was expended on birthday gifts and celebrations for the boys. She denies having torn the credit card details from receipt; however this appears to be necessary incident of the offence she was committing as the credit card details were not for her credit card.
Ms S, in her report (relying upon the mother's version of events) described this offence as follows:
… Later that same month Ms. Starke committed theft by finding. She reported that she found a bag of new surfing gear which she returned to the shop to exchange the goods for something for her two sons. The shop proprietor called the police who interviewed Ms. Starke and charged her in July 2007 with theft by finding. This charge breached her community-based order. During therapy Ms Starke stated that this was a ‘stupid’ act and, ' I don't know why I did it '.
It appears to me that the mother’s explanations are an attempt to minimise responsibility for a serious lapse in her parenting responsibilities, to say nothing of her personal responsibilities. The version she gave to Ms S minimised the nature of the offence. This not only reflects upon the quality of the mother's evidence, but also shows that the mother has not been entirely frank with Ms S.
During 2007 each child was absent from school for around 39 to 40 days whilst in the care of the mother. This is a significant part of the school year. The children had significant absences from school when the parties were together, although it transpired in cross-examination that this was largely on days when the father was at work, not when he was at home (the father was then on a rotating shift roster). I accept that the number of absences were less in the second half of the year compared to the first half, however, the absentee rates are so high that it must be considered a serious issue going to parenting capacity.
With respect to the mother and the father I generally prefer the evidence of the father where it differed to that of the mother. With respect to the domestic violence within the relationship, I do not accept that it was as significant as claimed by the mother, however I remain of the view that the father's version minimises the extent of the violence. I do not accept that the father sexually abused the mother, nor was violent to the children.
The Maternal Grandmother
Ms S, the maternal grandmother, presented as a very caring grandparent. It is clear that the substance abuse of the parties when they were younger, and the violent nature of the parties’ relationship has troubled the grandparents for many years. Her evidence appeared overly critical of the father, casting him as ‘using’ her to care for the children during the holidays. I accept that he, quite appropriately, did not restrict the time the boys had with the grandparents.
The maternal grandmother was concerned that as a result of work commitments of the maternal grandfather their time with the children would be limited due to the distance between their residence and that of the father. It appears likely that the children living with the father will reduce the amount of time that they spend with their extended maternal family.
Ms. S
Ms. S, the mother’s counsellor gave evidence by video link. She was called as a professional witness to give evidence as to her observations and dealings with the mother. Her evidence lacked the level of professional detachment one would hope for in a case of this type. Whilst she diagnosed depression on the part of the mother, elevated scores for depression were not shown on the psychometric testing that she carried out, and this was not mentioned in her reports. I also note that the previous psychologist who assessed the mother similarly found that the scores for depression on a psychometric test were not elevated beyond the normal range. The scores were inconsistent with Ms S’s observations, but consistent with the assessment of Ms C.
Ms S appeared to be unaware that the mother had filled scripts for medications in recent times. She had been told of levels of violence during the relationship (by the mother) of greater frequency and intensity than the mother’s evidence at the hearing.
In her report of September 2007 she recounted that the mother was left with no job and very little money, and no job prospects on separation. The mother, in cross-examination, agreed that she did have a job when the parties separated, although she explained that she had given notice. Notably she has since resumed the same job following her prison term. The father continued to pay the mortgage payments (the mortgage including the loan to pay restitution to the jewellery shop), and utilities bills for the home in which the mother was living. From late 2006 through 2007 he made cash payments to her of $3500. She was working earning between $150 and $350 per week and receiving around $280 per week from Centrelink.
Ms S’s more recent report appeared to be somewhat emotive and deprecating of the father, describing him as "the two-game ex-[football club] player". When asked about this in cross-examination the following exchange took place:
… tell me, what is the need for you to put in your report the expression "two-game ex-[football club] player"?---It was a consideration in that situation he would be probably an angry person.
Could I just stop you there?---And a frustrated person.
Can I just stop you there. What, somebody who only played two games with [football club] would be a frustrated angry person. Is that what you are saying?---Yes, maybe.
… So that's just an assumption on your part. You have no idea about how league footballers conduct themselves if they only get one or two games, do you?---Not as an expert.
How many other ex-AFL footballers who played one or two games have you seen?
COUNSEL FOR MOTHER: She hasn't seen Mr Hyland?---I am not a football fan.
COUNSEL FOR FATHER: Any. Full stop. Not my client. Any ex-AFL footballer who has only played one or two games. How many have you seen?---I don't know. I'm not a football fan.
The answer would be "No," Ms S. Right? None?---Okay.
So you as an alleged expert to then make an assumption that because a league footballer only played one or two games, that they would therefore be angry and frustrated and therefore presumably, from your report, more likely to be a person who would commit domestic violence. Is that what you are trying to say?---I don't know.
Well, why did you put it in the report?---Because I could imagine that there would be some frustration there but as I have not met the other party I cannot say for sure that that would be the situation.
Do you think that that was a professional thing to do, to put that clause in that report?---Well, this piece of paper was asked for the day before and it was going to be a summary of what had happened in those sessions ‑ ‑ ‑
That's not the question I asked you, Ms S. See, what I am saying to you is that you have moved. You have blurred the boundaries. You have gone from being a professional witness, or professional therapist, to being someone in Ms Starke's camp. That's your only reason you would put that in that paragraph. That's true, isn't it, Ms S? I'm waiting for an answer, Ms S?---You think that - what do you think? Am I going to answer?
I want you to answer my question. I asked you a question. What I put to you is that you have moved from being a professional psychologist treating this woman to being in her camp. There is no other explanation as to why you would put that clause in your report?---I am supportive of Ms Starke, yes.
Ms S has never interviewed the father, nor was he requested to attend upon her for interview.
Ms S recounted in her report that she had been advised the children were not doing well in school at [S]. The mother's evidence at trial was to the contrary.
Ultimately, I did not find Ms S’s evidence was of sufficient reliability to assist me. It appears that Ms S has based her opinion upon a version of events given by the mother that "gilded the lily" in many respects. In addition she has not maintained a level of detachment from the mother sufficient to allow her evidence to be accepted as an objective assessment of the mother, rather than advocating for the mother.
The points of variation in the mother's version of events at trial and her description of events to Ms S add weight to the diagnoses suggested by Ms C.
Family report
I found the Family Report Writer to be a careful and genuine witness. He appeared to be mindful of the limitations involved in conducting a report of this type.
In his initial Report, the Family Reporter recommended that the children should live with the mother and spend time with the father one week out of every four. At the hearing the Family Reporter expressed reservations about the mother’s ability to care for the children fulltime when informed of the mother’s failure to ensure that the children were in constant attendance at school. This concern was exacerbated by the mother minimising her conduct in leaving the younger chid in a motor vehicle on a summer day in December 2001.
With respect to the father’s involvement in the children’s upbringing the Family Reporter made a number of observations:
…the mother was the primary carer. I mean that is the only person they could really attach to just because their father was absent a lot of the time.
…
…he should have maintained some connection with these boys but then as I understand it in the last year at least before the separation he was quite detached from the boys and Ms Starke. He was eating separately and doing things separately, you know, in the last stages of that relationship.
He said of the father:
[65] He admitted he needed to sort out his own life when he moved to [omitted] after the separation and made that his priority rather than having regular and on-going involvement with the children.
The family violence must have had an effect on the children, the children did not mention that when interviewed by the Family Reporter.
The Family Reporter held no concerns about the father's current household and found his new partner impressive and supportive. He noted that the mother chose not to bring her new partner despite the Family Reporter offering to meet him. The Family Reporter found that the mother appeared to minimise the theft from the jewellery store and was vague about the events. He held concerns about the future if the mother was to continue to minimise the past. He was also concerned about the mother's reasons for not ensuring that children attended school.
The Family Reporter formed the view that the children love both parents, and that the mother being sent to jail was, in particular, difficult for [X]. He noted a strong connection between [X] and the mother. He said that the mother did not raise financial or sexual abuse issues with him, and that he had the impression that the domestic violence was mainly emotional, beyond the two major incidents discussed in evidence.
In his interview with the children the children said nothing of the allegations that the father had hit [X]. The Family Reporter stated that he had the impression the children were more concerned about the father's absence than any violence. He gave evidence that the children have a stronger attachment to the mother due to absences of the father in formative years. He believed that [X] is still "feeling the father out". Whilst [Y] behaved in an age appropriate manner he found [X] somewhat serious and intense.
The Family Reporter recounted the [X] had said about school "we were getting it sorted out now". It appears that it is most unfortunate that a child [X]'s age would be making comments to indicate that he was taking some responsibility with his mother to 'sort out' the proper functioning of the household. The Family Reporter thought that the mother was placing her own needs above those of the children by keeping them at home rather than attending school, probably as a result of her self-esteem issues. He noted that the mother's household was more chaotic and had less boundaries than the father’s household.
The Family Reporter concluded that in his view this was only a "line ball case" and his recommendation had been influenced by [X] stating that he would be "devastated" if he did not live with his mother, the evidence of Ms S that the mother's self-esteem was improving, and that schooling had been improving. He also referred to the father not having had a strong background with the children and the relatively short relationship between the father and his current spouse.
The Family Reporter was concerned that [X] had become an emotional support for the mother and that [X] would worry that he would be letting his mother down if he was not there to help her. The Family Reporter thought that [X] would need some help with his feelings in this regard. I find this a significant part of the evidence and accept that [X] has become an emotional support for the mother, taking on the burden of supporting her and the functioning of the household despite being only 10 years of age. In this environment it is likely that [X] will not have the support and emotional space to experience his childhood as a child, but rather take on the role (or attempting to take on the role) of supporting the mother.
In considering the potential impacts on the children of living with father the Family Reporter noted that the father was able to provide a stable family life. In considering the potential impacts of the children living with mother it was of significant concern to the Family Reporter that she was not able to ensure the children’s regular attendance at school.
Family violence
The mother says that the father was violent. The father has denied this allegation in his affidavits however he did admit under oath, and to the Family Reporter, that he had physically assaulted the mother on two occasions.
The father was cross-examined about violence to the mother. He did, on occasion, attempt to justify the use of physical force by claiming that he was acting in self-defence.
The Family Reporter indicated his belief that the arguments, and physical violence were:
[69] …more than likely witnessed by the children…
Moreover, the father’s partner, Ms H, informed the court that one of the children had told her he had witnessed the father hitting the mother.
I am satisfied that the relationship between the parties was one which was characterised by emotional turmoil and incidents of physical violence. On at least two occasions, probably more, this violence was severe. On each occasion, however, the violence arose at a time when the parties were in high conflict and affected by substances such as alcohol or drugs. The violence flowed from the inability of the father to deal with the relationship issues, the substance abuse and the mother’s mental illness. Although this provides the context for the violence, the father’s violent responses were unacceptable.
Schooling
Of significant concern are the number of days the children failed to attend school whilst attending at [W] Primary School during 2003 and November 2007. In 2006 [X] missed 31 days of school, and [Y] 23 days. In 2007 [X] missed 38 days of school and [Y] 41 days. In the years from 2003 to 2005 [X] missed 20 days, 23 days, and 30 days respectively. The mother agreed in cross-examination that most of the occasions when [X] missed school would have been when the father was at work (the father was working a rotating roster at that time). I accept that when the father was home he ensured the children's attendance at school. In these circumstances it is difficult to accept the submission that the children's absences from school could be explained simply by the conflictual and violent relationship.
This inability of the mother to ensure the children’s attendance at school is stark in comparison with the children’s regular attendance at [S] Primary School whilst in the care of their father.
There are occasions when any child is unable to attend school, usually due to ill health. However, the number of days missed by the children, whilst attending at [W] Primary School, is inexcusable. The mother maintains the children required time to recover from the departure of the father from the former family home, however I accept the explanation posited by the Family Reporter:
Yes, it was more to do with her self-esteem. I mean, I really believe, my opinion anyway, is that she needed to keep the children at home to, I guess, strengthen some sense of connection or family…
Despite their very poor attendances at school [X] appears to be academically gifted, and [Y] is now well within the normal range for his age. It was submitted that [X]’s good performance at school indicated that the absences from school had not had a significant impact upon him. I find that it is more likely that [X] is a gifted child and, with the appropriate schooling and home environment, is likely to excel. This adds weight to the need to ensure that [X] is not spending his childhood as the emotional support for his parents.
The mother’s mental health
An issue of contention in this matter was the role that the mother’s health played in her ability to care for the children. It became clear during the hearing that a possible justification for the mother failing to ensure the children’s attendance at school was that the mother was suffering from depression. Unfortunately, despite having the benefit of reports from Ms C, Ms S and the Family Reporter, I am no closer to determining with precision what role, if any, the mother’s depression (if any) actually played, in this scenario.
The mother’s uncertain mental health is, moreover, of concern when taken in context with the Family Reporter’s concern, that:
To be able to put the children's needs before her own, you know, that's the major issue I think that is - and according to Ms S, she was on the road to doing that when she went to prison. She saw her for a number of sessions and that's the only thing I can go by. But my major concern is, you know, could she keep that up.
I accept that the mother has suffered mental health issues from before she met the father. The mental health issues suffered by the mother are not insignificant. Whether they manifest themselves in the form described by Ms C, or as depression, the consequences in the past have been severe. She has placed considerable financial burdens upon her own parents and on the parties in the form of restitution payments. She has been unable to properly care for the children since separation in that their school attendance has been very poor, and she was incarcerated for a period. On balance I accept that it is likely that [X] has become an emotional support for the mother. I find her evidence with respect to filling scripts for medication, but not taking the medication difficult to accept.
I am not satisfied on the evidence that I have a reliable description of the true state of the mother's mental health, nor a realistic assessment of her prognosis for the future. In a case where the mother has exhibited significant difficulties as a result of mental illnesses since she was a teenager, the lack of clear evidence as to the future is an important factor.
The events following the mother's incarceration
The mother's case was that she had made arrangements with the parents of the children to live with them during her period of incarceration. She said that she expected the children to remain with her parents, that she was surprised when the children went to live with the father, and that she did not understand it would be the father's proposal to make this a permanent arrangement until two weeks before her release from prison. However, the emails between the parties, and a note from Ms S's file, made it clear that it was the father's intention to have the children reside with him. The mother does not appear to have advised the maternal grandmother of these
e-mails. Indeed, the maternal grandmother was only aware of the sentence of imprisonment some time after it had been handed down (the mother having lodged an appeal and obtained bail for a short period before abandoning her appeal).The maternal grandmother had been notified that the father was coming to collect the children at least a couple of days prior. She advised the school teachers. No arrangements were made for the children to have any going-away events, although at the time maternal grandmother assumed that they would return in the following year for school. When the children were with the maternal grandmother for three weeks over the Christmas holidays they did not seek out any of their peers (although she explained that they may have seen some friends when taken to the pool one day by their uncle).
The change in care arrangements after the mother's imprisonment was not well planned, and there were clearly tensions between the parents as to what should occur. The children would have been embarrassed about the real reason that the care arrangements had to change. I am not persuaded that it is appropriate to be critical of the father or the maternal grandparents with respect to this difficult period.
Best interests of the children
Primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
In this case the children clearly have a relationship with both parents. Their relationship with the father has been disrupted by his absences. Whilst he may not be able to provide the children with as deep an emotional attachment as they have formed with the mother, it is apparent that he has established a meaningful relationship and will continue to provide them with the stability and boundaries necessary to enable them to develop in their own right, and that this stability will provide a basis for a meaningful relationship with him, although qualitatively different to the relationship they have had with mother.
The children's relationship with their mother is strong, with a greater attachment to her than the father. She has been present when the father has been absent. This attachment, however, must have been tested when the mother was incarcerated. Whilst the attachment is clearly meaningful for the children, there is a very real risk in this case that, at least with respect to [X], that relationship has moved from being meaningful in a purely positive sense to being a relationship of dependency by the mother.
As a result this factor also indicates two risks to the children: that they may not be able to develop the same depth of relationship with the father as they have experienced with the mother; and that the relationship with the mother has moved from being meaningful to one of dependency by the mother.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are many risk factors in this case.
In the father's household there is the risk that his relationship with his current spouse will not be maintained. Having seen both the father and his current spouse in the witness box, and noting the evidence of the Family Reporter, I do not find that this is a significant risk.
That the father had been the perpetrator of violence during the lengthy and particularly dysfunctional relationship the parties, even though in circumstances where both parties were engaging in substance abuse, is a risk factor. The children should be able to develop in a household where it is quite clear that such behaviour is unacceptable. I have found however that there is no domestic violence in the current relationship, and that the father appears to have overcome his substance abuse. Nonetheless it remains relevant that he acted in this way in the past.
I also bear in mind the father's absences and the impact this has had upon the children's primary attachments.
In the mother's household there are also risk factors that are difficult to balance. I do not accept that she has yet taken responsibility for her actions, but rather continues to minimise her thefts, the impact they have had upon the children and others around her, the seriousness of leaving [Y] unattended in a motor vehicle in the summer heat, and the absences from school.
The uncertainty of the evidence about her current psychological state, (with the differences in versions given by her to Ms S from that given at court, and the uncertainty of what medication she may or may not be presently taking) is also a significant risk factor. I accept that in the recent past her mental health has been so poor that she has been unable to ensure reasonable attendance by the children at school, and that [X] has started to become an emotional support for her, leaving him to start to take some emotional responsibility for the functioning of the household.
I also bear in mind the risks to the children of a reduction in time with a primary carer. I accept that the children might not achieve an equally deep attachment to the father and that there is some risk of a compromise to the security of the attachment of the children to the mother as was submitted by counsel for the mother.
Additional considerations
(a) Any views expressed by the child
The importance of the views of children has been well recognised for many years. Until the recent amendments to the Family Law Act this consideration was expressed as referring to the ‘wishes of the children’. In R & R: Children's Wishes [2000] FamCA 43; (2000) FLC ¶93-000; (2000) 155 FLR 29; (2000) 25 Fam LR 712 the Full Court said:
39. … The Full Court in [H v W (1995) FLC ¶92-598] stressed the importance of trial judges giving proper weight to children's wishes but it did not say that they should not be departed form.
40. In that case Fogarty and Kay JJ said:
``The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.'' (FLC at 81,944; FamLR at 797)
41. Their Honours expressed approval of the statement by Hannon J in Doyle and Doyle (1992) FLC ¶ 92-286 at 79,128 where his Honour said:
``If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.''
42. Their Honours continued at FLC 81,947; FamLR 800:
``As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.''
43. In the same case, Baker J made an extensive examination of the literature relating to the evaluation of children's wishes. His Honour said at FLC 81,967-81,968; Fam LR 825:
``In my opinion, a child's wishes must not only be considered, but must be shown to have been considered, in the reasons for judgment of the trial Judge. Further more, if the trial Judge decides to reject the wishes of a child, then clear and cogent reasons for such a rejection must be given particularly if, as in this case, the separate representative submits that the Court should give effect to such wishes.
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial Judge in each individual case. Such an exercise will require a consideration of both the child's level of maturity and understanding.
I am not advocating that a trial Judge should automatically act upon the wishes of children, since the Court's duty is to act in the best interests of the child. Rather, the goal is to take the wishes of children seriously by giving them careful, detailed consideration. To merely regard the wishes of children in a token manner, or to be dismissive of them, does not accord with the findings of psychologists as to the competence of children to express soundly based wishes and ignores the statutory requirement of s 64(1)(b) of the Act [now s 68F(2)(a) since the commencement of the Family Law Reform Act 1995].''
44. It is quite clear that their Honours were not saying that if the child's wishes are valid then they are to be acted on by the Court and indeed this is not the law. What is required is that they be given appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so.
The children have clearly expressed a wish to return to the care of their mother. The oldest child, [X], has a strong emotional attachment to his mother. The Family Reporter indicates that the younger child, [Y], also shares this wish, stating:
…that both children still when I interviewed them, and that was a long time after they had been with their father, they were still missing their mother and missing [W].
The wishes of the children are significant, and not surprising given the history of this case. It is a factor that weighs in favour of the children returning to the mother. However it is also a factor that must be seen in the context of the age of the children and the emotional circumstances in which they have been living.
The children's views are likely to have been affected by the dependency of the mother upon [X], and his sense of responsibility for the family unit. To the extent that the children's views are driven by this aspect of their relationship with the mother it shows that they are children with loyal and noble notions for their tender years. However, these are pressures the children should not have to deal with at this age. Fortunately this is not a case where the children would simply lose their relationship with the mother if they live with the father.
(b) The nature of the relationship of the child with parents and others.
The children’s relationship with the father is a positive one, but one which would appear to have been negatively affected by the father’s absence from their lives in the past.
Likewise the children’s relationship with Ms H is a positive relationship.
The children’s relationship with the paternal grandparents is not an issue of contention as it appears to be a strong grandparent/grandchild relationship.
The children’s relationship with the mother appears to be a strong bond. As discussed above it is of concern that [X]'s relationship with the mother may now be one of providing the mother with emotional support.
The children’s relationship with the mother’s partner cannot be determined on the evidence. It was the mother’s evidence that she currently lives alone in the former family home and that the relationship with her partner is only at the beginning of a budding relationship. Nonetheless, it is more than likely that the mother’s partner will have a role to play in the lives of the children and I am concerned that I did not have the benefit of the Family Reporter’s evidence as to what impact this new partner may have.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The father has complied with orders relating to contact with the mother. He has not impeded the mother in seeing the children, nor the grandparents in facilitating that even when it involved jail visits. However, it does not appear that he is likely to take the initiative to facilitate that relationship. Having regard to the history of the relationship is not surprising that he would take a passive role, fulfilling his obligations and not impeding the relationship, but not actively encouraging.
The mother has stated that she would facilitate and encourage the father’s relationship with the children; however I am not convinced that she would in fact do this any more than the father.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or others.
If the children were to continue to reside with the father, the Family Reporter has indicated that he would have concerns for the psychological wellbeing of the eldest child, [X]. The Family Reporter has indicated that, to some extent this could be dealt with in counselling.
The Family Reporter noted that this concern existed despite the fact that [X] had had some time to become accustomed to living in the care of his father:
The fact that he is not living with her, is something he would have to come to terms with and get some help to come to terms with it, but he's had a number of months now to get used to the idea that it might happen, but even then, he said that's not what he wanted.
If the children remain living with the father they will be 6 hours drive away from the mother, limiting the amount of time, and the frequency with which they may see her. A similar situation would ensue for the father if the children live with the mother. There is no evidence of strong friendship groups that the children have in either location. I am satisfied the children have a strong bond with all of their grandparents, and that living with the father will place them a further distance from their grandparents than living with their mother.
Living in the mother's household is likely to place them in a position where they will not attend school regularly. [X] is likely to take on a role of responsibility in the household far greater than that appropriate for a 10 or 11-year-old. It is likely that the mother's household will continue to be chaotic, and it is unclear to what extent her mental health issues are under control.
(e) Any practical difficulty and expenses
The major difficulty in this case, which was recognized by both the father and the mother, is the significant travel the children will have to endure in order to spend time with the non-resident parent. Even if the children were several years older, instead of 10 and 8 respectively, I would have concerns about how regularly the children are to travel the necessary 12 hour round-trip to spend time with the other parent.
The Family Reporter was questioned by the Respondent’s Counsel as to the capacity of the children to travel, as the parties are not in agreement as to how often the children should see the non-resident parent during school terms. He stated:
The difference here is one week in three versus one in four, although in my recommendation I actually said "one weekend in four" because I just thought it was just too much travelling to these boys and they both weren't too happy about it, you know, it was quite onerous on them to be doing all that driving every weekend and it's a long drive.
The father does not oppose the mother seeing the children when she travels to [S]. His concern is focused upon the amount of driving time the children must experience. Fortunately telephone contact can be regular, and there is no reason that the parents could not set up computers with WebCams to improve the quality of the contact.
(f) The capacity of the parents and others to provide for the needs of the child
The father is more than capable of providing for the day-to-day needs of the child, with the assistance of Ms H. In his household the children regularly attend school, live in a structured environment, and are given the emotional freedom to be children.
The mother is likely to experience some difficulties in providing for the needs of the children, to the extent that she will need to ensure that the children attend school on a regular basis. The Family Reporter expressed the need for the mother to ensure that the children have routine in their lives, saying:
…if the children were to stay with her she really needs to work on some firmer parenting boundaries about structure and routine.
That the mother re-offended whilst she was still on a community-based order for her second stealing as a servant offence, whilst the children were in her sole care, demonstrates a real lack of capacity to provide for the needs of the children. I am satisfied that the mother was well aware that further offences were most likely to place her in gaol, and therefore the children would require alternative carers and be likely to suffer embarrassment at school. I am not persuaded that this could be considered a one-off incident when one also has regard to the incident when [Y] was a baby, and her attitudes to these offences.
At the time of separation it appears that both parties were significantly impeded in their capacity to provide for the children as a result of their high conflict relationship, substance abuse, and behaviour patterns. At the time of separation the attachment of the children to the mother appears to have been the distinguishing factor. By the time of trial, however, it has become apparent that the father has overcome his substance abuse and changed his behaviour patterns. He has demonstrated a capacity to meet the children's day to day needs. Through this time the mother has not demonstrated such a capacity.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that are relevant;
This case concerns two young boys. They have had a tumultuous upbringing to date. They are still of an age where they are likely to have strong emotional attachments to their mother. The importance of emotional attachments in an appropriate form is discussed above. In both households the children will live in country towns and continue to have attachments to their grandparents. As the children grow older the broader involvement of the children in the community through the father’s football associations is likely to be of benefit to them.
(h) If the child is an Aboriginal child or a Torres Strait Islander child the child’s right to enjoy their culture
It is not alleged that this factor is relevant in this case.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
For much of the children’s lives the father has not adequately responded to the demands and responsibilities of being a parent. As a result the children have grown attached to their mother. However, since the children have lived with their father and Ms H, the father has been able to parent the children adequately and appears to be developing a bond with the children. Importantly he is meeting their day to day needs.
Whilst the father has engaged in domestic violence, there are nonetheless some positive aspects to his conduct. He did ultimately recognize that the relationship between him and the mother was toxic, and took steps to sever the relationship. He has addressed significant personal difficulties so as to put his own life in order. During cross examination he explained that he had attended upon a lawyer for advice as to whether he could obtain court orders to have the children live with him and was told that he would not be successful unless the mother demonstrated significant incapacity to parent. The father continued to provide financial support both in cash and through the mortgage and payment of utilities. When the mother was imprisoned the father took responsibility for the children.
The mother has had significant difficulties meeting the responsibilities of parenthood beyond the development of an emotional bond with the children. This was demonstrated by the failure of the children to attend school on a regular basis, the mother failing to consider what affect further imprisonment would have upon the children, and leaving [Y] in a car unattended. It appears that the mother's own functioning has been impaired by some degree of mental illness from before the time of the relationship and it is not clear that the mother's level of functioning today is such that she will be able to meet the needs of the children into the future.
(j) and (k) Any family violence (and any family violence order) involving the child or a member of the child’s family;
I note that the Full Court, in KN and Child Representative & NN and JN [2006] FamCA 611; (2006) 35 Fam LR 518; (2006) FLC ¶93-284 (at [95]) recently cited with approval the comments of Chisholm J in JB & BG (1994) FLC ¶92-515; (1994) 122 FLR 209; (1994) 18 Fam LR 255 where his Honour said (at 82,316):
… Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.
Brown FM provides a good summary of the principles that underpin a consideration of family violence in Abrams & Demars [2008] FMCAfam 797 where his Honour said:
56. Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the Marriage of Patsalou (1994) 18 Fam LR 426].
57. Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
58. However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
59. Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
60. The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
61. Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
There has been family violence. This has had an impact on the mother and the children. I accept that the relationship was characterised by conflict. The father was unable to appropriately deal with the mother's mental health issues, and both parties engaged in substance abuse.
I am not persuaded that the violence was as frequent as suggested by the mother to Ms S, in that even the mother's evidence at trial was not as strong as the version given to Ms S. To the extent that the mother alleged the father had sexually abused her I do not accept her evidence. Whilst the mother's perception is that the violence and emotional abuse was constant and controlling, it appears more likely that the father was unable to deal with the mother's mental illness and the substance abuse of the parties. Indeed, on at least one occasion, even the maternal grandmother had asked the mother to leave her house as a result of the mother's drug use.
The father is not presently in a relationship involving substance abuse or violence. The current evidence suggests that this is not likely to be repeated. Past family violence remains a risk factor in this case, however on the evidence before me I am not satisfied that the repetition of family violence is a risk factor in the future. This also adds weight to the view that the violence was a by-product of an otherwise toxic relationship of the parties: however, whilst this explains the circumstances in which the violence occurred it does not excuse it.
Of course, the subtle and often insidious effects of family violence in the past cannot be undone. In the absence of risks to the welfare of the children in the mother's household this factor alone would be likely to tilt the balance in favour of the mother. However, this case concerns parties who have exhibited significant dysfunction for a very lengthy period. There are a variety of risks to the children which I have discussed above. The domestic violence remains a serious factor that weighs heavily in the appropriate considerations in this case.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. Ultimately however, this is a question of where the children should live. It will be an outcome where the children will spend quite a substantial amount of time with one parent and a much smaller amount of time with the other parent, due to the tyranny of distance. This, unfortunately, cannot be avoided.
(m) Any other fact or circumstance that the court thinks is relevant.
There does not appear to be other facts or circumstances relevant to this case that are not covered by the preceding criteria. Whilst domestic violence and past involvement in the children’s lives are covered by additional sections of the Act they are discussed above and I take into account their importance under the additional provisions.
Conclusions
This case, like many that are now heard in the family law courts, involves a complex array of difficulties that must be weighed in the balance. The wishes of the children, their attachment to their mother, and the previous violence of the father all weigh in favour of placing the children with the mother. Against this one must balance the appalling school attendance record of the children when they were in the mother's household, the mother’s inability to refrain from stealing in circumstances almost certain to place her in jail, the minimisation of the offence of leaving a young baby in a car in summer, the uncertainty of the true nature of her mental health, and the likelihood that a relationship of dependency has grown between her and [X] whereby she is dependent upon [X].
I am not satisfied that the mother has demonstrated she is now able to meet the children's needs. The differences between her evidence and the information supplied to Ms S tell against any significant improvement in her capacity. I am satisfied that the father has made significant changes in that he does have the capacity to meet the children's needs on a day-to-day basis. The risk that the father will not be able to meet the children’s deeper emotional needs must be weighed against the risk that the mother will not have the emotional strength to allow the children to be children nor meet their day to day needs. The risk in the father's household is mitigated by the fact that the children will be able to have regular contact with the mother in circumstances where their day-to-day needs will not be met, and routines and boundaries will be in place at the father's household.
On all of the material before me I am ultimately persuaded that the children's best interests are served by the parents having equal shared parental responsibility. I find that on balance the children's best interests are served by continuing to live in the father's household at this time. As the factors that weigh in the balance in this case are not easily comprehended by younger children I propose requesting that the decision be explained to the children by the Family Report Writer.
I am satisfied that the amount of travel involved in the children seeing the mother during school term is such that the trip each four weeks is an appropriate balance for the children, and that the mother should travel to the [S] area if more frequent visits are desired. The children should have liberal telephone and Internet contact with the mother and spend time with both parents over the school holidays, however I have no doubt that this will be able to be suitably arranged between the parents with the assistance of the grandparents in order to ensure that the children have good-quality holiday experiences.
I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 3 December 2008
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