J and Mc
[2004] FMCAfam 55
•18 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & Mc | [2004] FMCAfam 55 |
| FAMILY LAW – Children – Residence – best interests of child – allegations of sexual interference – whether an unacceptable risk– domestic violence. Family Law Act 1975 (Cth), ss.60B, 65E, 68F B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | S D J |
| Respondent: | F A Mc |
| File No: | LNM259 of 2002 |
| Delivered on: | 18 February 2004 |
| Delivered at: | Devonport |
| Hearing dates: | 7 & 8 July 2003, 30 September 2003, 1 October 2003, 5 & 18 December 2003 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. S. Mackey |
| Solicitors for the Applicant: | Crisp Hudson & Mann |
| Counsel for the Respondent: | Mr. P. McVeity |
| Solicitors for the Respondent: | Ian Guest & Associates and McVeity & Associates |
ORDERS
That the children C J born 1st October 1996 and R J born 6th September 1998 (“the children”) reside with F A Mc (“the Mother”).
That the Mother have sole responsibility for the children’s day to day care, welfare and development.
That the Mother and S D J (“the Father”) have joint responsibility for the long term, care, welfare and development of the children.
That the children have contact with the Father as follows:
(a)during school terms each alternate weekend from 5.00 p.m. on Friday until 5.00 p.m. on Sunday, such to commence on the first Friday after the school term commences;
(b)for half of each school holiday as agreed between the parties, such to include contact on Christmas Day and at Easter on an alternating basis, but failing agreement as ordered by the Court;
(c)in the event that the parties are unable to agree upon contact as provided for in subparagraph (b) above, the parties have liberty to apply;
(d)if Father’s Day does not otherwise fall during a period of contact hereby ordered, from 9.00 a.m. until 5.00 p.m. on Father’s Day;
(e)if Mother’s Day falls during a period of contact hereby ordered, that contact shall cease at 9.00 a.m. on Mother’s Day.
That for the purposes of contact hereby ordered, unless the parties otherwise agree, the Father shall collect the children from the Mother’s residence at the start of each contact period and the Mother shall collect the children from the Father’s residence at the end of each contact period.
That Order No. 3 of 8th May 2003, Order No. 7 of 3rd September 2003 and Order No. 6 of 18th December 2003 be and are hereby discharged.
That the Mother be permitted to enrol the children in a school or schools in the area in which she lives.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
LNM259 of 2002
| S D J |
Applicant
And
| F A Mc |
Respondent
REASONS FOR JUDGMENT
Applications and introduction
Essentially, these proceedings involved competing applications by S D J (“the Father”) and F A Mc (“the Mother”) for residence orders in relation to their children, C J born 1st October 1996 (“C”) and R J born 6th September 1998 (“R”).
The Father filed the originating application on 16th May 2002 and in that document he sought orders that the children live with him and that the Mother have reasonable contact. The Mother filed a Response on 25th July 2002 in which she sought a residence order in her favour in relation to the children and that the Father have contact each second weekend from after school on Friday until 5.00 p.m. on Sunday and for half the school holidays.
Both parties sought interim orders and at an interim hearing on 15th August 2002, I ordered on an interim basis, inter alia, that the children reside with the Father and that the Mother have contact each weekend and for half the school holidays.
The Father subsequently made an application for a Recovery Order and I made an Order on 8th May 2003 requiring the Mother to return the children to the Father. However, because of an allegation of improper interference by the child of a female friend of the Father, I made an order restraining the Father from permitting the children to remain in the presence of that child (“HH”) other than in the presence of the Father at all times. I shall refer to that in more detail below.
At the start of the final hearing counsel for the Father informed me that his client was seeking orders that mirrored those sought by the Mother. Essentially, each party is seeking a residence order in his or her favour with orders providing the other parent with contact every second weekend and for half the school holidays.
The hearing took place on 7th and 8th July 2003 and I reserved my decision when it concluded.
Before I was able to hand down a decision, the Mother made an application to re-open. On 3rd September 2003, I granted leave for the parties to re-open the proceedings and I dismissed an application by the Father for a Recovery Order. In addition, I made further interim orders providing for the children to live with the Mother and for the Father to have contact during the school holidays and each weekend when the children were at school.
The re-opened matter came on for hearing on 30th September and 1st October 2003, and on 1st October I reserved my decision again.
On 14th November 2003, the Father filed an application to re-open the proceedings. On 4th December 2003 I permitted a further re-opening and on 5th December 2003 I reserved my decision yet again.
On 18th December 2003, I heard a further application by the Father to re-open the proceedings. That application was dismissed.
Factual background
The Father and Mother lived together for approximately ten years until they separated in May 2002. C and R are the two children of that relationship.
When the parties commenced their relationship the Mother had just left school and was unemployed. At that time the Father was employed as a baker in his father’s bakery in the North West of Tasmania.
The parties moved to Smithton in Tasmania in 2001, where they operated their own bakery business. They subsequently purchased a bakery franchise (that is well known in Tasmania). Both parties worked in the bakery business but organised their affairs so that their children were properly cared for. (The franchise business has since failed but nothing really turns on that in relation to this decision.)
At about the time of the parties’ separation, the Mother formed a relationship with a former employee of their bakery business. She is still in a relationship with him and they have had a child together.
I shall refer to that gentleman as “the Mother’s partner”.
Initially, the Father denied that he had formed a relationship with the Mother of HH. However, it is now his evidence that he has subsequently formed such a relationship.
Relevant law
Section 60B of the Family Law Act 1975 (“the Act”) states:
(1) The object of this Part is 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.
(2) 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.
Section 65E of the Act provides that: “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
The Family Law Act gives clear guidance to the court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) sets out a number of matters that the court must consider. They are:
·any wishes of the child and any factors that the court considers relevant to the weight that should be given to those wishes;
·the nature of the child’s relationship with each parent and with other persons;
·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 any other person with whom the child has been living;
·the practical difficulty and expense of the child having contact with a parent and whether that will substantially affect the child's right to maintain a relationship and direct contact with each parent on a regular basis;
·the capacity of each parent (or any other person) to provide for the needs of the child, including emotional and intellectual needs;
·the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court considers relevant;
·the need to protect the child from physical or psychological harm which is or may be caused by abuse, ill-treatment, violence or other behaviour, or by being exposed to such behaviour that is directed towards, or may affect, another person;
·the attitude of each parent to the child and to the responsibilities of parenthood;
·any family violence involving the child or a member of the child's family;
·any family violence order that applies to the child or a member of the child's family;
·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; and
·any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia considered the interrelationship of Sections 60B, 65E and 68F. The Court said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) 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 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.”
This case involves allegations of sexual interference of one of the children by the child HH. Issues of a similar nature were considered by the High Court of Australia in B and B (1988) FLC ¶91-978 and
M and M(1988) FLC ¶91-979 and from those two cases the following is now clear:
·The paramount issue to be decided in residence and/or contact proceedings is whether the making of the order sought is in the interests of the child's welfare;
·The resolution of an allegation of sexual abuse is subservient to the Court's determination of what is in the child's best interests.
It is quite clear from those decisions that a court must not grant residence or contact to a parent if it is likely to expose a child to an unacceptable risk of sexual interference or abuse.
Credit
The applications to re-open these proceedings dealt mainly with the issue of credit. When I allowed the first and second re-opening, it was clear to me that the issue of credit was of more significance in this particular case than is often found in such cases. By this I mean that in many residence cases the parties are generally agreed about basic facts, but they have different interpretations of those facts. In this case, the parties clearly disagree about whether particular events occurred or not. The most obvious such difference in their evidence is whether or not the Father was violent towards the Mother. In short, she says that he was violent towards her on many occasions but he emphatically denies ever being violent to her.
It follows that the issue of credit is very important in this matter.
The Mother’s evidence is corroborated, to some extent, by the evidence of her own mother (“the maternal grandmother”), who said that she had seen the Mother with cuts and bruises on her face and body. The maternal grandmother recalled one particular occasion when the Mother came to her house and the Mother was bleeding badly from her mouth and was badly bruised around the eye. She says that the Mother was screaming and saying that the Father was after her. It is the evidence of the maternal grandmother that she locked the door, but shortly thereafter the Father came to her home and was screaming outside that he was going to kill the Mother.
During the hearing before me, the Father stated clearly on numerous occasions that he was never violent towards the Mother.
During cross-examination, the Father was asked whether the lease on his rented premises had expired. He said that it had not and that he was still living there. When he was asked when the lease would expire, he answered: “When I tell the real estate that I’m leaving, I suppose”.
He was subsequently asked whether he was planning to move and he said that he was not.
Later in cross-examination, it was put to the Father that he was packing materials at his home as if he was about to move. He responded that he was packing things because there was a lot of junk there and he would like to hold a garage sale.
When the matter was re-opened on the first occasion, it was clear that the Father had received a “Notice to Quit” from the real estate agents managing the property that he was renting shortly before he gave the evidence set out above. Consequently, I have no hesitation in coming to the conclusion that the Father was deliberately trying to mislead the court and give the impression that his tenancy was far more secure than it in fact was.
After he was successful in his application to re-open, the Father attempted to show that the Mother had given false evidence to the Court about the schooling of the children and, in particular, the days on which she took the children to school.
In considering the evidence given by the Mother, I come to the conclusion that, while she may have been confused about particular days on which she took the children to school, she was not deliberately trying to mislead the Court.
In relation to the violence suggested by the Mother, I accept her version of events. In my view, the Father rather unwisely denied that violence even in the face of corroboration of the results of the violence by the maternal grandmother. It is significant, that the maternal grandmother was not shaken in relation to the evidence that she gave about witnessing the “aftermath” of the Father’s violence towards the Mother.
Similarly, the Mother’s sister was not shaken in her evidence about the Father’s violent behaviour.
On balance, I come to the conclusion that the Mother is a more honest witness than the Father and, where their versions of events are different, I prefer the evidence of the Mother.
Evidence and findings
Because I am required by law to consider the factors set out in subsection (2) of section 68F of the Act, it seems appropriate to me to examine the evidence in relation to each of those factors that are relevant to this matter.
Wishes of the children
I am sure that both parties and their supporters have seen the children happy with that particular parent and they have on occasions heard things that give them the impression that the children wish to remain with that particular parent. However, I note that C is seven years old and R is five years old. As a consequence, their wishes would not be likely to influence the Court to any great degree. This is simply because they are not mature enough to make decisions that are in their own best interests.
The nature of the children’s relationship with each parent and with other persons
After considering all the evidence, it is clear to me that these children have very good relationships with both of their parents. I have no doubt that each parent loves the children dearly and that those feelings are reciprocated by the children.
Similarly, I have no doubt that the children have good relationships with the grandparents and extended families on each side.
I also accept that the children have a good relationship with the Mother’s new partner. Although he is only twenty one years old, he impressed as a mature individual for his age and I accept his evidence that he has an excellent relationship with both boys and that they happily do things together such as playing football, playing games on the computer and the like.
The likely effect of changes in the children’s circumstances
It is clear to me that the children will suffer some disruption if their residence arrangements are changed yet again. However, the children are used to spending regular periods of time with each of their parents so any such disruption would be minimal and would be unlikely to have any lasting effect upon the children.
The practical difficulty and expense of contact
Both parties live on the North West Coast of Tasmania. However, they do live some distance apart and the travel for the children is of some significance. Notwithstanding this, there is no significant difficulty or expense of the nature often seen by this Court where children have to travel vast distances.
The capacity of each parent to provide for the needs of the children
Essentially, both parents are able to provide reasonably well for the needs of the children. Both clearly understand the children’s emotional and intellectual needs and both are generally good parents when the children are with them.
The Father and his mother were somewhat more dismissive of the Mother’s parenting ability than she and her witnesses were of the Father’s parenting ability. In this regard, the Father was derogatory about the “quality of the care that (the Mother) is providing the children”. Similarly, his mother appeared to be derogatory of the care provided by the Mother. For example, she stated that the Mother never cooked for the children during the parties’ relationship.
Notwithstanding this, I am of the view that both parents are essentially good parents and they provide well for their children. The views of the Father and his mother are naturally coloured by the importance of these proceedings.
The need to protect the children from harm caused by abuse, ill-treatment, violence or other behaviour
In relation to this aspect, the Mother’s evidence was that in April 2003 while at a park in East Wynyard the children were having a snack when “out of the blue” R said that he had played “rooting games” with HH. When she asked him what he meant by that his response was “having sex”. She asked further questions and R said “we get out doodles and rub them against each other”.
It appears that at that point the Mother was not sure who HH was. The description of him by R was simply that he was “a big fat boy”.
The Mother also said that R said that HH had taken off his pants as well as his own and then got on top of R on the ground “and goes up and down”.
It was the Mother’s evidence that she was horrified by what was said and did not continue the discussion.
On the following day, the Mother took the child R to see a doctor and the doctor did a complete examination. However, she was informed that there was probably no available evidence of what had happened. She understood that the doctor telephoned the Tasmanian Child Protection authorities when the Mother was leaving his office.
On the same day, R was taken to the Burnie Police Station where he took part in a video interview with a police officer.
The video recording of that interview was one of the exhibits available to the Court, but it was not particularly helpful.
As mentioned above, on 8th May 2003 I made an order that the Father be restrained from permitting the children to remain in the presence of HH other than in his own presence.
It is clear that the Father has formed a relationship with the mother of HH and that the children have come into contact with that child from time to time. Certainly, if the Father’s relationship with HH’s mother continues, they will continue to come into contact with HH. It is therefore essential for the Court to be satisfied that there is no unacceptable risk of harm from any inappropriate behaviour.
The father relied upon the evidence of a psychologist who had interviewed HH upon the request of the Father’s lawyers. The psychologist reported that HH was “naïve about sex but certainly had some awareness of it”. HH had denied any involvement in games of a sexual nature but he had seen C and R role-playing sexual intercourse on approximately three occasions.
Referring to C, R and HH, the psychologist reported that “It is important to keep in mind that all three boys are prepubescent children and unlikely to have any independent interest in sex. Prepubescent children who engage in sexualised play are generally imitating something to which they have had exposure either deliberately or inadvertently.”
Having reviewed all the evidence, I am satisfied that there is no unacceptable risk to C and R. It is my opinion and that if anything has occurred, it is within the realms of normal experimental play by young boys. I am sure that the parents will now be quite vigilant to ensure that the boys do not observe anything inappropriate.
I am therefore prepared to discharge the order that required the Father to be present at all times when the children come into contact with HH.
The attitude of each parent to the children and the responsibilities of parenthood
As I have said above, I am satisfied that both parents are essentially good parents. However, I do have some concerns about the Father’s attitude to parenthood.
For example, I am of the view that he put his own needs before those of the children when he attended at a dental clinic with the Police. It is my view that on that occasion he was more concerned about his own “rights” in relation to “custody” than he was about the effect that his actions would have upon the children.
Family violence
As can be seen from above, I have come to the conclusion that the Father has on many occasions been violent towards the Mother. It is quite clear to me that he has a very quick temper and, on occasions, he has been unable to control that temper.
It concerns me that the Father has sought to deny his violence towards the Mother, notwithstanding that the evidence is that he was violent towards her on a number of occasions over a lengthy period. However, it is my view that he has rather unwisely chosen to deny that violence out of concern that it may harm his chances in these proceedings.
In the decision in Patsalou and Patsalou (1995) FLC ¶92-580, the Full Court of the Family Court of Australia found that it is acceptable for courts to refer to literature about the effects of violence on children. In the report of that decision, there is an extensive list of such literature.
In Blanch v Blanch and Crawford (1999) FLC ¶92-837 the Full Court allowed an appeal in part on the basis that the trial Judge had failed to deal adequately with the serious issue of domestic violence. At page 85,748, Mullane J said that:
“His Honour’s discussion of the violence allegations appears to have largely overlooked the wide and more serious dangers that an abusive parent presents to children than the obvious danger of physical harm. In addition to that harm children can suffer insecurity, fear, unhappiness, anxiety and hyper vigilance from witnessing abusive behaviour of a parent. Such effects present a threat tot their emotional development. Probably the worst danger to children is the role model that a violent parent provides…..”
In this particular case I have no evidence that the children have been adversely affected by the Father’s violence but I must be very concerned that the Father provides a poor role model in that regard.
Conclusions
As can be seen from the above, I am of the view that both parents are essentially good parents. However, I must have concerns about the Father’s inability to control his temper and the resulting violence. Further, I have some concerns that there are occasions when the Father puts his own needs above those of the children.
In the circumstances, it is clear to me that the children should reside with their mother and have regular contact with their father. I will therefore make orders that provide for that.
When I made orders changing the interim residence of the children, I also made an order that required the Mother to keep the children at the school that they had previously been attending. That order was only intended to be an interim order and it clearly imposes an onerous transport burden upon the Mother. I note that she relies upon her own mother for assistance in that regard. In the circumstances, it is appropriate that the Mother should be able to change the children’s schools to enable them to be educated closer to their home. I will also make an order to provide for that.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Roberts FM
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