I and R
[2007] FCWA 108
•19 SEPTEMBER 2007
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | I and R [2007] FCWA 108 |
| CORAM: | CRISFORD J |
| HEARD: | 27, 28 & 29 AUGUST 2007 |
| DELIVERED: | 19 SEPTEMBER 2007 |
| FILE NO/S: | PT 2140 of 2001 |
| BETWEEN: | I |
Applicant/Father
AND
R
Respondent/Mother
(Page 2)
Catchwords:
Children's issues - parental responsibility - where a child should live - high levels of conflict
Legislation:
Family Court Act 1997, s 61DA, S 66C, s 68, s 69
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Self Represented Litigant |
| Respondent: | Mr M Berry |
| Independent children's lawyer: | Ms L Young |
Solicitors:
Applicant:
| Respondent: | Chris Baker & Associates |
| Independent children's lawyer: | Legal Aid WA |
Case(s) referred to in judgment(s):
Allen and Parfitt [2007] FCWA 72
Bartholomew and Kelly [2001] FamCA 880
Pagden and Pagden (1991) FLC 92-231
T & N [2001] FMCAfam 222
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1 [Mr I] and [Ms R] are unable to agree where their son, [Benn] now almost 10 years of age should live. In the last 7½ years [Benn]’s life has been dominated by his parents’ conflict.
Orders sought
2 A Minute of the orders sought by the independent children’s lawyer was handed to the Court after the conclusion of evidence. On her proposal [Benn] would live with his parents on a week about basis.
3 [Ms R] seeks sole parental responsibility for making major long- term decisions for [Benn]. She seeks that [Benn] live with her on the same basis he has done since orders were made by consent on 11 September 2002. The arrangement is that [Benn] spend time with [Mr I] every second week from after school on Thursday until 6.00 pm on Sunday (extending to Monday if it is a public holiday). Secondly, in the intervening week [Benn] spend time with him from after school on Thursday until 5.00 pm on Friday.
4 [Mr I] did not file a specific proposal after hearing the evidence. He was self represented for the entire proceedings. The orders he did seek were much in line with those of the independent children’s lawyer. He sought the Court put in place orders, as far as possible, to minimise the potential conflict between him and [Ms R].
5 All parties sought various orders for holiday and special contact. In particular, a raft of specific issues orders was sought in an attempt to try and regulate the interaction between the parties.
Background
6 [Mr I] is 36 years of age and works as a [labourer]. He lives in [the northern suburbs] with his present partner, [Ms P] who is a [beautician]. They commenced a de facto relationship in 2002.
7 [Ms R] is 37 years of age. She is currently employed as a [teachers’ assistant] at [a local school]. She started a relationship with [Mr C] in June 2003 and it is likely they will cohabit at some time in the future. She lives in [ a nearby suburb].
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| 8 | The parties started living together in December 1996. [Benn] was born on 28 December 1997. The parties separated on 8 January 2000. |
| 9 | [Mr I] first commenced proceedings in relation to [Benn] on 27 March 2001. The parties entered into consent orders on 11 September 2002. On 12 January 2006 [Mr I] again filed an application seeking that [Benn] live with him. |
| 10 | An order was made on 13 February 2006 that [Benn] be separately represented. |
| 11 | On 11 October 2006 [the social worker], was appointed as a single expert witness in the proceedings. He provided the Court with a report dated 11 January 2007. |
| 12 | This brief chronology gives little context to [Benn]’s life from since before the parties separated. The attitudes, behaviours and beliefs of both parties have been, at times, destructive, lacking in insight and damaging for [Benn]. The effect of this is summed up by [the social worker] in his report: |
“When [Benn]’s biggest worries were explored it was evident that his biggest concern was his mother and father continuing to fight and argue over him. He wanted his mother and father to be nice to each other.”
Applicable law
13 These proceedings fall for determination under the Family Court Act 1997. A Court, coming to any decision, is to be guided by the objects set out in that Act and the principles underlying those objects. The objects state that the best interests of the 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
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ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
14 Some observations on the law were recently made by the Honourable Chief Judge Thackray. It is a lengthy discussion but bears repeating here. In Allen and Parfitt [2007] FCWA 72 he sets out:
“These objects are more comprehensive than the stated object of the Act prior to the 2006 amendments. Prior to those amendments, the stated object was:
“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The first of the four new objects of the Act is far from novel. It echoes two of the guiding principles previously found in the legislation, namely:
“(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…” The Full Court of the Family Court of Australia has previously considered the impact of amendments dealing with the stated objects of the law relating to children of a marriage. It did so in B & B: Family Law Reform Act 1995 (1997) FLC 92-755 (“B & B”), where the Court was dealing with the 1995 amendments to the Family Law Act 1975. (Those amendments were later mirrored by amendments to the Family Court Act 1997.) In the course of its judgment in B & B, the Full Court said at [9.2]:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as
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parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”
Notwithstanding the changes brought about by the 1995 amendments, the Full Court was in no doubt about the core task of Judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
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Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet (1984) FLC 91-507; (1984) 156 CLR 605, and ZP v PS (1994) FLC 92-480; (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests
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of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises. The analysis by McLachlin J in Gordon v Goertz, supra, is compelling. The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”. See the judgment of Brennan J (as he then was) in Brown and Pederson, supra.
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary
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to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
It will be noted that the Full Court made many references in this citation to s 65E of the Family Law Act 1975, which was the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Family Law Act 1975. A similar exercise has been undertaken in amending the equivalent provisions of the Family Court Act 1997. In my view, most of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the Act still contemplates individual justice.
The Full Court of the Family Court of Australia has recently said in Goode & Goode (2006) FLC 93-286 that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the children’s best interests and reasonably practicable. The legislative intent is also tempered by s 66C(4), which requires the Court to consider the extent to which each parent has fulfilled (or failed to fulfil) his or her responsibilities as a parent.
In enacting the 2006 amendments, Parliament has given legislative voice to what was already a presumption that responsibility for decision making about children should be shared equally between parents. Parliament has provided more guidance to the Court about the matters to be taken into account in discharging its fundamental task of establishing what is in the best interests of children. It has also directed the Court, save in limited circumstances, to consider certain possible outcomes before determining the outcome that best suits the needs of the individual children who are the subject of the proceedings.”
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15 It is essential that I
treat [Benn]’s best interests as the paramount consideration. What is going to be best for [Benn] will be the final determinant in this matter. S 66C sets out the matters I must take into account in determining what is in his best interests. S 66C(2) details what are described as the “primary considerations” and s 66C(3) details “additional considerations” to be taken into account in determining what is in his best interests. S 66C(4) directs me to consider the extent to which each of [Benn]’s parents has fulfilled the responsibilities they have as a parent. I am also directed to regard events that have occurred and circumstances that have existed since separation.
[Benn]’s best interest
16 Firstly, I turn to consider the primary considerations.
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
17 Against all odds [Benn] has a close and loving relationship with both [Mr I] and [Ms R]. It is essential that [Benn] has the benefit of continuing this meaningful relationship with both of them.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
18 There have been concerns raised by [Mr I] and the independent children’s lawyer about bruising on [Benn]. [The social worker] has considered this issue.
19 [Mr I] deposes that from about 2003, he has noticed bruising on [Benn] from time to time. He recounts a number of occasions up until the end of March 2007 when he observed extensive bruising on [Benn] including on his hip, groin and upper thigh. Due to the answers given by [Benn] as to how the bruising occurred, the appearance and placement of the bruising and his own assessment he has concluded it was caused by [Ms R] in disciplining [Benn].
20 [Benn] said to [the social worker] that his mother had caused some bruises on his arms when she pushed her fingers onto him or smacked him. He also told [Ms P] his mother had hit him. However, he recounted no recent episodes of such chastisement. He said she
(Page 11)
simply growls at him now. [The social worker] did not think such
occurrences had been regular.21 [Ms R] denies having caused the bruising. She accepted that she may have grabbed [Benn] on an occasion when he was running out the door to play football with his friends against her wishes. She had not checked to see whether her grabbing of him had caused bruising. In his closing, her counsel accepted [Benn] may have been held inappropriately but said that it was a matter of degree.
22 [Ms R] was of the view that [Benn] was lying about this issue.
23 I am satisfied that in the past there has been inappropriate chastisement of [Benn] by [Ms R] such that bruising has been caused. I am equally satisfied that the drawing of attention to this fact is likely to reduce the probability of it occurring in the future. [Benn] is now almost 10 years of age and becoming a young man. It is likely there will be a shift in the dynamics of their relationship. [Benn] had told the independent children’s lawyer in August 2006 there was no physical discipline in either home.
24 As deeply worrying as the past physical abuse is, of even greater concern is the potential for psychological or emotional harm to be visited upon [Benn] as a result of his parents unrestrained animosity towards each other and which is routinely expressed in [Benn]’s presence.
25 An example of this is an incident which occurred, it appears, some time in 2005 when [Benn] was spending time with his father. For one reason or another, [Ms R] and [Mr C] arrived at the home of [Mr I] and [Ms P]. The exact detail is unclear save to suggest it was either to take [Benn] to a football game or to collect him after a contact period due to [Mr I]’s car having a flat battery.
26 In any event, there was a highly emotional exchange between the two couples. This exchange which at the very least included some pushing and shoving was in the presence of [Benn]. [Benn] was distressed and crying. The Police were called.
27 I am not entirely satisfied that events of this description have been infrequent. [Mr I] said the harassment levels were now much less. [Ms R] also accepted that things were a little better. This is not cause for much optimism but it is a step forward.
| (Page 12) | |
| 28 | There is no doubt that [Benn] loves his parents deeply and is attached to their respective partners. For a child to see the four people he loves most in the world behaving in such a manner has the potential to impact on his emotional wellbeing. |
| 29 | Neither party appeared to be able to take responsibility for his or her own actions. Their main focus was to explain to the Court why the other party was wrong. There was a complete lack of insight into the role that each played in exchanges. |
| 30 | The Court will attempt to reduce the potential for such conflict which reflects poorly on them both. |
Additional considerations
31 I now turn to consider the relevant additional considerations. There is a certain overlap between some of these matters. These considerations are not secondary considerations and need to be read in conjunction with the primary considerations.
(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;
32 [Benn] was interviewed on two separate occasions by [the social worker]. He was also interviewed on two separate occasions by the independent children’s lawyer.
33 [Mr I] says the view most consistently stated by [Benn] to those independent parties reflects what [Benn] says to him. [Ms R] says that [Benn] has been influenced by his father and, in truth, he wishes the present arrangements to remain in place.
34 On 17 August 2006 the independent children’s lawyer corresponded to solicitors for [Ms R]:
“I also discussed with [Benn] his wishes in relation to his living arrangements. [Benn] is still very keen on a shared arrangement on a week and week about basis. [Benn] informed me that he enjoys living with both of his parents and things are going very well for him in both homes.
The only impediment I see to putting in place this type of arrangement is the poor relationship between [Benn]’s parents. I
(Page 13)
enquire whether or not your client has yet enrolled in or started to
attend the Mums & Dads Forever program.”
35 [The social worker] interviewed [Benn] on 16 November 2006. [Benn] told him he wanted equal time. He said that it was probably what his father wanted and he would rather things stay the same.
36 However, on 1 December 2006 when he was again interviewed by [the social worker], [Benn] stated that his ideal would be to have equal time with each parent. [The social worker] reports that [Benn] was adamant that this was his view.
37 There is a strong likelihood in this case that both parties have sought to influence [Benn] in his views on where he would like to live. I have no doubt that the influence exerted over [Benn] by [Ms R] and her partner [Mr C] is as strong and all pervading as the influence exerted by [Mr I] and [Ms P].
38 The independent children’s lawyer is of the view that [Benn]’s true position is that he wants to spend equal time with each parent.
39 [The social worker] reported [Benn] rated himself as having a strong sense of connection with both parents.
40 [Benn] currently spends substantial and significant time with [Mr I]. I accept he wishes to spend more time with him. [Ms R] admits this is a possibility.
41 [Benn]’s views will play a part in my determination, although I am mindful that he is still reasonably young and has been subjected to the views of both parties.
(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);
42 I am satisfied that [Benn] has a good relationship with both his parents and their partners, especially [Ms P].
43 [Benn] also has a good relationship with his maternal grandmother. His maternal grandmother very much took the part of her daughter. She saw herself as a typical grandmother and provided support in that respect. [Ms R] also ensures that [Benn] has some contact with [Mr I]’s parents.
| (Page 14) | |
| 44 | [Mr I] has a fractured relationship with his parents. [Ms R] has a fractured relationship with her father. Apparently she has conveyed this message to him by way of burnouts on his front lawn. |
(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;
45 Each party acknowledged that it was necessary for [Benn] to have a relationship with the other biological parent.
46 However, neither showed a particular willingness or ability to facilitate and encourage such a close and continuing relationship. [The social worker] reports both parties seem unlikely to promote the relationship between [Benn] and the other parent.
47 In her affidavit of evidence in chief, [Ms R] deposed to having never been obstructive regarding [Mr I]’s contact with [Benn]. She said that the opposite was the case and she had always encouraged [Benn] to have contact with him. She said she had facilitated [Benn]’s time with his father.
48 At the commencement of her evidence this was amended. She said she had made an error because on one occasion after an incident on 4 March 2001 she stopped contact for a three month period.
49 In cross-examination it became apparent this simply did not tell the whole story. An entry in the communication book from [Ms R] on Thursday, 13 April 2006 showed that [Benn] was to be collected by [Mr I] at 1.00 pm on Easter Sunday. [Mr I] attended to collect [Benn]. He was not there. [Ms R] explained that she decided that [Benn] would go to her sister’s house on Easter Sunday. She said [Benn] was excited to go and he wanted to go.
50 There was no attempt to explain her change of arrangements to [Mr I] who had attended her premises. [Ms R] accepted that she did hamper the contact on that occasion.
51 There were two further occasions in September 2006 when [Mr I] arrived at school on a Friday to collect [Benn] and he had already been collected by his mother. On one occasion she had arrived early fearing that [Mr I] would also arrive early.
52 Again [Ms R] accepted she had disrupted contact.
| (Page 15) |
53 The independent children’s lawyer sought an explanation for her actions. [Ms R] was not shy in admitting she had done this although she says “with regret of the decision”. She explained her position as being a “protest and cry for help”.
54 [Ms R] told the independent children’s lawyer that she had considered the impact on [Benn] of withholding him from contact but that he was not disturbed by it. She begrudgingly conceded that the effect of her actions was to punish [Benn].
55 There is evidence, which I accept, to suggest that [Mr I] at the very least condones, if not encourages, [Benn] to refer to his mother as [by her first name] when he is with her. There does not appear to be any effort to refer to [Ms R] as “mum” or to give any indication that she is acknowledged as having that role in his life.
56 The parties have behaved disrespectfully towards each other in front of [Benn].
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
57 There is little evidence to suggest that the changes envisaged by [Mr I] and the independent children’s lawyer are of such magnitude that there will be any adverse effect on [Benn].
58 His father’s proposals would extend the time [Benn] spends with him but given [Benn]’s stated wishes, it is unlikely that any transition would be detrimental to him.
59 [Ms R]’s counsel argues that the effect on [Ms R] may be significant and this will translate to an effect on [Benn].
60 [The social worker] says that he is a resilient and flexible young man. He has grown accustomed to the transition between two distinct households. He is well acquainted with his mother’s distress and his father’s distress. He has learnt to cope with the various emotions of
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his parents and he has been able to absorb them, at least in the short-
term.61 I am not satisfied there will be any detrimental effect on [Benn] if there is a change in the present arrangement.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
62 There was no suggestion of practical difficulty and expense associated with the proposals of [Mr I] or the independent children’s lawyer. The orders I intend to make will continue to see [Benn] maintaining personal relations and direct contact with both his parents on a regular basis.
63 The parties live in relatively close proximity and are able to accommodate [Benn]’s schooling and extracurricular activities.
(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;
64 The Court has no concern about either parent being in a position to provide adequately for the physical needs of [Benn] insofar as they relate to accommodation, food and schooling.
65 [Ms R] alleges that [Mr I] is financially irresponsible. Firstly, there is some suggestion that he has an erratic work history and secondly, that his child support payments to her for [Benn] have been sporadic. Documents from the Australian Taxation Office show [Mr I]’s income to be:
(i) 30 June 2002 – $35,060;
(ii) 30 June 2003 – $11,680;
(iii) 30 June 2004 – $15,604;
(Page 17) (iv) 30 June 2005 – $29,224; (v) 30 June 2006 – $35,184.
66 [Mr I] explains that in 2002/2003 he had a work related injury. He had a double operation and his work ability was hampered. He says he is now back to his earning capacity. His most recent taxable income supports this contention. He is earning much the same as [Ms R]. I accept his explanation.
67 [Ms R] says that when she lives with [Mr C] she will have an additional ability to support [Benn]. Both parties have partners who earn an income and I have no doubt intend or already do contribute to [Benn]. [Mr C] has children of his own.
68 I do accept that [Mr I] has not always paid his child support in a timely manner and there has been a need for his taxation returns to be credited against arrears owing. For many years [Ms R] has had the overwhelming financial responsibility for [Benn].
69 Both parties raised concerns over matters the Court sees as being of minor significance. [Ms R] complained that the quality of the hair cuts given to [Benn] by [Ms P], was less than adequate. [Mr I] complained that there were mouse droppings in [Benn]’s bedroom at [Ms R]’s house.
70 The manner in which each party dealt with these issues was likely to cause far more angst to [Benn] than the issues themselves. [Ms R] said [Benn] was very embarrassed about his hair cut and wished to keep his cap on. This may well have more to do with her negativity about the hair cut than the hair cut itself. The flurry of correspondence by [Mr I] about some field mice was out of all proportion to the issue itself. [Ms R] lives opposite some natural bushland. She said her cat brought a mouse home.
71 There are question marks over the ability of both parents to provide for [Benn] in an emotional and intellectual sense.
72 The most glaring example of this is the failure by [Mr I] to recognise and cater for [Benn]’s desire to play football. I have no difficulty accepting that when [Benn] told his father he did not want to play football but would rather enjoy the “routines” that took place in his father and [Ms P]’ household he was simply adopting what he thought his father wanted him to say rather than stating his own desires and wishes.
| (Page 18) |
73 [Mr I] advanced reasons for not having [Benn] attend football:
• [Benn] did not want to play; • he had a broken arm; • there were other things to do; and • [Mr I] had limited contact so it was fair that he did what he wanted with [Benn] when [Benn] was with him. 74 [Benn] simply did not go to football when he was with his father.
75 [The social worker] assessed this as [Benn] giving up as the situation was simply too hard to manage.
76 Initially in 2004 and 2005 [Ms R] took [Benn] to games and training during periods of time that he was with her. Not surprisingly, this was untenable for a football team who relied upon the whole team to train and play together.
77 [Ms R] sought to have the football coach champion her cause. He provided her a letter dated 16 February 2006 setting out how [Benn] was a “full bottle on football and at times would give me some helpful hints on how to coach.” He said he was looking forward to [Benn] being available every week in the 2006 season.
78 [Mr I] took up the challenge and approached the [suburban] Junior Development Officer who took the matter up with the football club and an investigation took place. Not satisfied, [Mr I] also sought the coach champion his cause. A second letter by the coach was produced. This one was dated 26 July 2007. He explained that his earlier letter had been provided to [Ms R] as “she approached me at my home in tears” to write it. He was under the impression that the original letter was simply an observation on [Benn]’s three month involvement at the club.
79 However, by this time it is clear that the coach had a sense of what was happening and states:
“It’s not my aim or desire to get involved in family disputes etc, I just wish and hope that problems at home don’t affect the child’s sporting aspirations and loves, my job is to turn them into good, disciplined and skilled footy players …”
80 In order to have [Mr I] to change his mind, [Ms R] provided [Benn] with a book she called the “Daddy diary”. It was for [Benn] to
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write down his feelings and show his dad. One entry was made. It was asking his father to allow him to play football. The note was placed in [Benn]’s bag and left there. [Mr I] discovered it. He formed the view that [Ms R] was behind the note. He ignored it.
81 [Ms R] filed an application on 20 July 2006 seeking the Court’s intervention in having [Mr I] take [Benn] to all football training sessions and competitions with the [local] Junior Football Club when he was with him.
82 The matter resolved. [Benn] now attends football with both parents. [Mr I] explains his capitulation on the basis that it is now what [Benn] wants.
83 I accept the very clear evidence provided to the Court that [Benn] has always wanted to play football. He is a gifted player and a good team member. [Mr I] failed to recognise this and engaged in a power struggle with [Ms R] to the detriment of [Benn]. He lacked the insight to see that [Benn] had simply given in and taken the easy path rather than confront his father.
84 The need for [Benn] to involve himself in a team sport in which he displayed innate ability is necessary for his development. This is not only in a physical sense but in a sense that gives him self esteem, experience as a team player and a sense of commitment. [Mr I]’s failure to recognise [Benn]’s needs in this respect does not reflect well on him.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
85 I have not doubt that [Mr I] and [Ms R] love [Benn] dearly. At times they have each displayed a very poor attitude to [Benn] and to the responsibilities of being a parent. Each has sought to influence him, elicit his views on adult issues and to have him act as a conduit of ill will between the respective households.
86 [Mr I] said he thought [Ms R] was contriving and manipulative. [Ms R] clearly returned this sentiment. She is deeply suspicious of him. They both saw each other as being controlling.
87 [Ms R] believes [Mr I] to be a drug taker, if not a dealer. On 17 April 2004 [Benn] had spent time with his father. When he returned he said words to the effect that his father had blown smoke in his face. [Ms R] immediately took him for a drug screen. The clinical notes
(Page 20)
question exposure to drugs, possibly cannabis. Urinalysis was
undertaken of [Benn] which returned clean results.88 [Ms R] said she tried to make the urinalysis test a “fun thing” for [Benn]. She said all children had to undergo this. The truth clearly is it was not a fun thing, it is not usual for children to undergo it and it was a reaction out of all proportion to what [Benn] may or may not have said or meant.
89 [Ms R] alleges that [Mr I] has a problem with gambling. To this end, with [Benn], he visits TAB outlets and horse tracks, he has instructed [Benn] on filling out betting forms and he has tutored [Benn] in horse statistics, jockey details and betting odds. [Benn] has made statements that a person does not need to work as money can be obtained from the race track.
90 [Mr I] accepted that he had on a couple of occasions visited the TAB but [Benn] had remained outside. He was there for a very short period of time. He also accepted that [Benn] had gone to the races with him on occasions.
91 It is undesirable that [Benn] become involved with the intricacies of gambling and betting at such a young age. It is important that he has a role model in terms of a work ethic and that he does not adopt an attitude where winning money by gambling is a viable alternative to hard work.
92 Having said that, it is difficult to really know what the truth of the matter is. I accept the constraints proposed by the independent children’s lawyer as appropriate orders in this regard.
93 Both parties have been very keen to have what they consider to be [Benn]’s views broadcast to the other party and, indeed, to the Court and the single expert.
94 [Ms R] contrived the “Daddy diary” in this respect. She manoeuvred [Benn] to write down what he said to her his feelings were so that these could be made known to [Mr I]. On the other hand, [Mr I] was very keen to have [Benn]’s views about life in his mother’s household relayed to the independent children’s lawyer. To this end, he also manoeuvred [Benn] to dictate his feelings on tape. He explained he provided a dictaphone to [Benn], set it up, showed him where the “on” button was and sent him out of hearing to dictate a tape.
| (Page 21) | |
| 95 | In relation to the issue of bruising on [Benn] a series of photos, taken by [Mr I] in 2005, were produced. It is clear that [Benn] was fully aware of why the photos were being taken. The photos were posed with [Benn] pointing at the bruising. |
| 96 | I am satisfied that both parents have shown an insensitive attitude to [Benn]. In so doing, they have completely forgotten their responsibilities as parents. An attitude of one upmanship has prevailed. |
| 97 | [The social worker] makes note of this when he reported: “Ongoing animosity and lack of cooperation are the major negative factors for [Benn]’s emotional development.” |
98 [The social worker] was aware that each parent from time to time is a very poor role model to [Benn].
(j) any family violence involving the child or a member of the child's family;
99 There have been various allegations in relation to family violence. Both parties allege there was violence in the relationship prior to separation. Both parties say that [Benn] has recounted what could loosely be called family violence between his parents and their present partners. The parties and their partners appear to accept there may have been some general pushing, shoving and unseemly interaction which has been viewed by [Benn] from time to time. They disagree as to the degree of this.
100 [Mr C] who is a member of [Benn]’s family has had some anger issues, at the very least, in relation to a former relationship.
101 I am satisfied that both parties and their partners have engaged in family violence one way or another and in varying degrees. It is impossible on the available evidence to comment on the scale of this or on any degree of the culpability of a party.
102 I am not satisfied that any of this violence has happened in the very recent past.
(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;
103 The Court is concerned about the ongoing potential for conflict insofar as it relates to parental responsibility and the need, inevitably,
(Page 22)
for decisions to be made about the long-term welfare of [Benn]. These parties have a difficulty in focusing on [Benn]’s needs and in their struggle for supremacy are likely to resort to the Court. The Court will endeavour to put into place orders that cover possible arrears of contention.
104 [Mr I] sought the Court put in place “bomb proof” orders. His naming of the orders is apt. Both these parties have waged a war, indulged in acts of terrorism and caused mayhem and destruction. In those circumstances, bomb proofing matters is an extremely difficult task.
(m) any other fact or circumstance that the court thinks is relevant
(i) counselling
105 On 28 July the parties signed a Minute of Consent Orders. These orders issued on 3 August 2006. Relevantly here there was an order:
“2. On a without admission basis, both parties do all things necessary to enrol and attend the Mums and Dads Forever program.”
106 Despite the expiration of a year since those orders, neither party had attended such a course. This is once again a reflection of their attitude to parenthood and their ongoing need to cater for [Benn]’s welfare.
107 Apart from this program there is a need for the parties to have in place some strategies to negotiate and communicate.
(ii) school
108 [Ms R] has been employed as a [teachers’ assistant] at the [local school] for three years. She deposes that [Benn] has the present opportunity to be enrolled in this school for Year 8 without being placed on a waiting list for several years. She says it is a highly respected school with a good academic record. She is willing to pay all the school fees for his education at this college.
109 [Mr I] does not want [Benn] enrolled at the school. He sees it as [Ms R] trying to control the schooling issue. He says her presence there will effectively restrict his involvement.
110 He did not have any specific complaint against the school save and except [Ms R] presence and likely control there.
| (Page 23) | |
| 111 | [Benn] is apparently not keen to go to the school, although I have no doubt he has adopted his father’s position in this respect. I am very mindful that [Mr I] has been of assistance to [Benn] with his homework. [Benn] told [the social worker] that his father |
| helped him out in that regard. I have had the benefit of viewing some of the homework book entries and it is my view that [Mr I] needs to be involved in [Benn]’s school activities as much as he possibly can. | |
| 112 | The Court must balance the opportunity that [Benn] will have by going to this school with the likely difficulties that may be caused by his mother’s desire to ensure that she maintains the upper hand. |
| 113 | I am of the view [Benn] should have the opportunity to go to this school but with provision made in the orders to allow [Mr I] to be fully involved. It is appropriate that a copy of the orders to be made available to the school with an explanatory note from the independent children’s lawyer. |
Parental responsibility
114 [Ms R] sought an order she have the sole parental responsibility for making long-term decisions for [Benn]. [Mr I] was silent on the matter but his evidence suggested that he did want to be involved in such responsibility. The independent children’s lawyer proposed a raft of orders which would cover some aspects of parental responsibility in an attempt to head off future difficulties.
115 In making parenting orders, I am required to apply a presumption that it is in the best interests of [Benn] for his parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that either parent (or a person who lives with either parent) has engaged in abuse of the child or family violence. If there are no reasonable grounds to believe there has been such violence or abuse, the presumption can only be rebutted by evidence to satisfy me that it would not be in [Benn]’s best interests for his parents to have equal shared parental responsibility.
116 I am concerned that there has been abuse of [Benn] within the meaning of the Act. I am also concerned that there has been family violence. I am not satisfied that the presumption applies here and I do not intend to make an order for equal shared parental responsibility pursuant to s 70A of the Act.
| (Page 24) | |
| 117 | In the past the parties and their partners have engaged in volatile behaviour. [Benn] has been exposed to their bitterness and acrimony. There may be some glimmer of hope that these occasions are becoming less and indeed may become less with the orders I intend to make. However, I have grave doubts whether each can behave towards the other in a civilised fashion and join in making appropriate decisions for [Benn]. |
| 118 | I do not intend to make an order that imposes upon the parties an obligation to negotiate. I do not intend to make the order sought by [Ms R]. I do intend to make some orders in relation to specific issues relevant to [Benn]’s long-term care, welfare and development. |
| 119 | Apart from those specific orders, parental responsibility for [Benn] is governed by s 69 of the Act. S 69(1) provides that until a child turns 18, each of the child’s parents has the parental responsibility for the child. This can be exercised jointly or independently. S 68 sets out the meaning of parental responsibility: |
“Parental responsibility”, in relation to a child, means all the
duties, powers, responsibilities and authority which, by law,
parents have in relation to children.
Division of time with [Benn]
120 [Mr I] has sought an equal sharing of time. It is a position recommended by the independent children’s lawyer. On this basis, I will consider such a sharing.
121 Before arriving at a decision in that regard, it is of some relevance to canvas the credibility of these parties.
122 The Court has no doubt whatsoever that both [Mr I] and [Ms R] have lied in the course of these proceedings. I am satisfied that each lied to the Court during the course of the trial. This reflects very poorly on them both. Such a failure to acknowledge the truth, at times in the face of almost irrefutable evidence, gave the Court concerns about the inappropriate role model each provides for [Benn].
123 In April 2005 [Ms R] was receiving disturbing telephone calls. These included threatening calls and someone ringing and simply hanging up. At that time she was living alone. She reported the unwelcome calls to the Police. On advice she approached Telstra to place a trace on the source of the calls.
| (Page 25) | |
| 124 | A trace was placed on her calls in the middle of 2005. It is apparent that, amongst other things, frequent calls of extremely short duration made at odd hours of the night were coming from the landline of [Mr I] and [Ms P]. For example, on 15 June 2005 a call was placed at 10.53 pm for 12 seconds and 11.03 pm for nine seconds. This was not an unusual pattern over the period of time the trace was in place. |
| 125 | [Mr I] denied making the calls. He said he did not expect [Ms P] made them either. It was accepted that no-one else had access to the telephone save for [Mr I] and [Ms P]. There were a number of attempts to explain the telephone calls ranging from legitimate calls to discuss matters relating to [Benn], the calls being a response to a text message sent by [Ms R] and lastly according to [Ms P] the result of her 18 year old cat, now deceased, accidentally touching the speed redial when it was in the process of climbing onto her head where it routinely slept. |
| 126 | Not surprisingly after the Police investigated the matter the telephone calls ceased. |
| 127 | As previously mentioned the effect of blaming [Benn] for lying in relation to the bruising on him led me to believe [Ms R] also feared the truth. |
| 128 | The parties and their partners have been accused of intimidating behaviour. During the course of the trial, I accept the evidence of [Ms P] that [Mr C] was likely to have acted in a subtle yet intimidating way towards her within the Court foyer. At times during the trial the animosity of the parties towards each other was palpable. |
Conclusion
129 Faced with this, it is difficult for a court to arrive at a decision. It is necessary for the Court to consider and balance all matters. In doing so it is apt to return to the extract quoted from Allen and Parfitt (supra). It is necessary to consider all matters to arrive at individual justice for [Benn].
130 In T & N [2001] FMCAfam 222 at p 34, Federal Magistrate Ryan (as she then was) summarised various authorities and drew up a list of a variety of matters that provide useful guidelines as to whether or not a shared parenting regime is appropriate in a particular case. These matters are:
| (Page 26) | ||||||||||||||||||||
| • | the parties’ capacity to communicate on matters relevant to the child’s welfare; | |||||||||||||||||||
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| 131 | There can be no doubt that these matters considered by the Federal Magistrate are a useful starting point when an equal shared living arrangement is to be considered. However, in order to attain individual justice, any outcome will depend on the particular facts of the case at hand. |
132 As Rowlands J said in Pagden and Pagden (1991) FLC 92-231
at 78,585:
“…[T]he outcome – always depends upon the facts of the particular case and the helpful criteria cannot overshadow the factors recited in the legislation in the search for where the welfare of the child lies”.
(Page 27)
133 There is nothing to
suggest that simply because some or indeed most of these factors are not present, there are cases where an equal shared arrangement should not be implemented. This was recognised by the Full Court of the Family Court in Bartholomew and Kelly [2001] FamCA 880.
134 This was a case where the husband had sexually assaulted the wife, there was a high level of distrust between the parties, they were unable to communicate and there were allegations of domestic violence generally.
135 The wife’s appeal against the first instance decision that there be an equal sharing on a fortnightly basis was dismissed. The Full Court was satisfied that the trial Judge had considered the factors that would militate against a shared residence order that split the children’s time equally between their parents. The children’s relationship with their father and the success of the shared arrangement to date tipped the balance in favour of such an arrangement being ordered to continue.
136 Despite the criticisms of the parties, it is clear that [Benn] is becoming a fine young man. His football coach and the single expert attest to this. I have also considered the school report of 6 August 2007.
137 [The social worker] is of the view that both [Mr I] and [Ms R] have good parenting capacities. [Benn] is functioning well. He is well adjusted and well cared for. [The social worker] is of the view there are ways to manage the conflict.
138 [Benn] has a close connection with both parents and flourishes in the household of each of them. He already spends substantial and significant time with his father. The very fact he has flourished in each household despite the inability of his parents to communicate and cooperate suggests that in this case an equal sharing is very likely to work.
139 I am of the view it is necessary [Benn] has input from both of his parents and given his strong and apparently mature wishes, I consider an equal sharing of time to be what is likely to suit this particular child. The factors weighing against a shared arrangement are overcome by other factors.
| (Page 28) |
140 The orders I propose to make, subject to further submissions will
be as follows:
Orders
1. All previous parenting orders be discharged.
2. The child [BENN] born December 1997, live with his parents on a week about basis, from either the conclusion of school each Friday or 5.00pm on those Fridays where he is not in school until either the conclusion of school the following Friday or 5.00pm on those Fridays where he is not at school, alternating each week between the parents.
3. In addition to the time spent with each of the parties as set out in paragraph 2 and unless otherwise agreed, [BENN] also spend time with each of his parents as follows:
3.1
For one half of each of the term school holidays and the Christmas/January school holidays at such times and on such days as agreed between the parties;
3.2
With respect to Christmas 2007 and each alternate year thereafter [BENN] spend time with his father from 12noon on Christmas Eve 2007 until 1.00pm Christmas Day and with his mother from 1.00pm Christmas Day until 1.00pm Boxing Day, with the ordinary living arrangements being suspended during this period of time;
3.3
With respect to Christmas 2008 and each alternate year thereafter, [BENN] spend time with his mother from 12noon on Christmas Eve 2008 until 1.00pm Christmas Day and with his father from 1.00pm Christmas Day until 1.00pm Boxing Day, with the ordinary living arrangements being suspended during this period of time;
3.4
On [BENN]’S birthday, the parent with whom he is not living during that week, spend time with him for a period of up to 4 hours on that day at such times as can be agreed and in the event an agreement cannot be reached from 9.00am to 1.00pm.
(Page 29)
3.5 In the event Mother’s Day occurs during a week [BENN] is not living with his mother, [BENN] be returned to his mother’s care at 9.00am until 5.00 pm on Mother’s Day; 3.6 In the event Father’s Day occurs during a week [BENN] is not living with his father, [BENN] be returned to his father’s care at 9.00am until 5.00 pm on Father’s Day; 3.7 On any other occasions as agreed between the
parties from time to time.4. During the week that [BENN] is not living with them, the non-resident parent be at liberty to initiate telephone contact with [BENN] every second day between 6.30 and 7.30pm or at such times as agreed between the parties.
5. [BENN] be at liberty to telephone the parent with whom he is not living according to his wishes.
6. Both parties to ensure the other party is kept informed of their current contact details, including home address, landline and mobile telephone numbers.
7. Both parties shall keep the other promptly and adequately informed of any serious medical conditions incurred by [BENN] while in their respective care, including but limited to significant illnesses, medical treatment and hospitalisation.
8. Both parties to ensure that while [BENN] is in their care, he attends his sporting commitments and any other extra curricular activities and both parents are to keep the other parent informed at all times of arrangements in relation to his sporting commitments and extra curricular activities.
9. The father transport [BENN] to and from his Australian Rules Football training sessions with the [local] Junior Football Club and be in attendance, whenever any such training sessions coincide with his time with him.
10. The father transport [BENN] to and from his Australian Rules Football matches and be in attendance, whenever any such matches coincide with his time with him.
(Page 30) 11.
Both parties be restrained by injunction from denigrating or allowing any other person to denigrate the other parent in the presence or within earshot of [BENN].
12.
The father be restrained by injunction from taking [BENN] to the TAB, and from allowing him to place bets on horses.
13.
Both parties be restrained by injunction from questioning or allowing any other person to question the child in relation to his time at the other parent’s house.
14.
Both parties be restrained by injunction from using any physical force or physical discipline against [BENN].
15.
At handover or any other time when the parents are together and [Benn] is present the parents be restrained by injunction from discussing any issues in relation to [BENN] or any other matter in the presence or within earshot of [BENN].
16.
Any communication between the parents in relation to [BENN]’S welfare or any other issue in relation to [BENN], to be either in writing or, in the event that the matter is urgent, by telephone at time when [BENN] is not within earshot of the conversation.
17.
In the event they have not already done so, both parties to forthwith attend the Mums & Dads Forever Programme conducted by Anglicare or similar program conducted by Relationships Australia and the parties are to inform the independent children’s lawyer of their enrolment in the programme and the date that it commences.
18.
As soon as practicable and once they have completed the program referred to in order no. 17, both parents attend a parenting course such as the Respectful and Practical Parenting Program conducted by Relationships Australia.
19.
The parties together do all acts and things necessary to immediately enrol [BENN] at [the local college] commencing in the 2008 school year, with each party doing whatever is reasonably required by the school to authorise the other parent to attend and participate in classroom and school events, receive copies of newsletters, school reports and school photos and attend any other
(Page 31) activities organised by the school to which parents are
invited or are otherwise welcome to attend.20.
Subject to their rights under the Act, the parties shall use the following process to resolve disputes in relation to the operation of these orders:
(a)
each party shall make reasonable efforts to have the dispute resolved with the help of the Family Relationship Centre at Joondalup before filing any application in court; or
(b) such other processes the parties may agree upon. 21. All applications in this matter be otherwise dismissed.
I certify that the preceding [140] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
0
4
1