Jacks and Hanley
[2010] FMCAfam 1392
•16 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACKS & HANLEY | [2010] FMCAfam 1392 |
| FAMILY LAW – Children – parenting – significant history of conflict between parents – re-orientation of lives post-separation – considerable geographical distance between parents – maintaining positive development of children – best interests considerations. |
| Family Law Act 1975, ss.4, 60CA, 60CC(3)(b)(ii), 60CC(3)(d)(ii), (f), (g) & (i), 60CC(4), 60CC(4A) |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2008) 37 Fam LR 518 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MR JACKS |
| Respondent: | MS HANLEY |
| File Number: | CAC 538 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 9 & 10 August 2010 |
| Date of Last Submission: | 10 August 2010 |
| Delivered at: | Canberra |
| Delivered on: | 16 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | Friedlieb Byrne Solicitors, Wagga Wagga |
| Counsel for the Respondent: | Mr Rosic |
| Solicitors for the Respondent: | Aitken Lawyers Pty Ltd, Sydney |
| Independent Children’s Lawyer | Legal Aid NSW |
| Counsel for the Independent Children’s Lawyer | Ms Godtschalk |
ORDERS
The Father have sole parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2006.
The children live with the Father.
The children spend time with the Mother as follows:
(a)One weekend each month from 9:00am Saturday to 4:00pm Sunday;
(b)For each of the first, second and third New South Wales gazetted school holiday periods;
(c)For one half of the Christmas school holiday periods being the first three weeks in odd numbered years and the second three weeks in even numbered years;
(d)With the Father on Father’s Day weekend in each year from 9:00am Saturday to 4:00pm Sunday;
(e)With the Mother on the Mother’s Day weekend in each year from 9:00am to 4:00pm Sunday;
(f)At such other times as agreed between the parties.
The parent with whom the children are not living may communicate with the children by telephone:
(a)each Tuesday and Thursday between 6:30pm and 7:00pm with the parent with whom the children are not living to instigate such calls; and
(b)at all reasonable times with the children to instigate such calls and the parent with whom the children are living to facilitate such calls to the other parent.
For the purpose of the children’s changeover during school holiday periods the parties meet at a point half way between Sydney and [E] at the commencement and conclusion of each period.
The Father:
(a)Keep the Mother advised at all times of the current residential address and contact telephone number of the children as well as the names and the telephone numbers of all carers for the children;
(b)Advise the Mother immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c)Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Mother in respect to the children’s medical condition and/or requirements;
(d)Authorise all schools at which the children may attend, from time to time, to:
(i)Provide the Mother, at the expense of the Mother copies of all school reports, school notices and school photographs in relation to the children;
(ii)Communicate with the Mother, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
(iii)Permit the Mother to attend all school functions to which parents are normally invited.
When the children are with the Mother that the Mother:
(a)Keep the Father advised at all times of the residential address and contact telephone number of the children;
(b)Advise the Father immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c)Authorise any medical practitioner upon which the children, or either of them may attend from time to time to communicate with the Father in respect to the children’s medical condition and/or requirements.
AND IT IS NOTED THAT:
(A)In the event that Ms Hanley moves closer to [E], a shared care/equal time arrangement should apply. Such an arrangement would be conditional on (a) Ms Hanley providing the relevant drug tests that have been requested of her and those tests confirming that she is free from illicit drugs, and (b) a general review of possible parenting arrangements, and of the relationships between the parties and the children (including [Z]), having been undertaken by a nominated family consultant prior to a shared care arrangement commencing.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Neville delivered this day will for all publication and reporting purposes be referred to as Jacks & Hanley.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 538 of 2009
| MR JACKS |
Applicant
And
| MS HANLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The two boys who are the subject of these parenting proceedings, [X], who is aged 9, and [Y], who is aged 4, currently live with their Father in the small town of [E], which is near [G] in country NSW.[1]
[1] [E] is 16 kilometres from [G]. Mr Jacks, the Applicant Father, has older children. They do not live with him. His eldest daughter, [A] is 21. His other daughter, [B], is aged 16. Mr Jacks says that she has a good relationship with [X] and [Y]. See his primary affidavit, filed 3rd August 2010, paras.7-11.
The boys have lived with their Father since consent orders were made by the [G] Local Court on 30th March 2009. Those orders provided that their Mother spend time with the boys ‘as agreed between the parties but in the absence of agreement from 9am on Saturday to 4pm on Sunday, two out of three weekends.’
Since their Mother left their Father in early 2009, for current purposes (and subject to other factual matters noted later) it is sufficient to note that she has lived with her Mother, the children’s Grandmother, Ms M, in the northern Sydney beach suburb of [omitted].[2]
[2] Mr Jacks is aged 44; Ms Hanley, the Respondent Mother, is 31 years old.
Ms Hanley has an older child, [Z] (who is shortly to turn 11), who is not part of these proceedings; she lives with her Mother. For most of her life she understood that Mr Jacks was her Father until, in the course of a relatively recent argument between the parties, it came to light - courtesy of her Mother - that he was not.
The boys’ parents had a quite turbulent relationship, which included some degree of domestic violence, for the 9 years they were together. To a significant degree that turbulence was either the result of or was promoted by the increased use of drugs and alcohol.
In her first Report, the experienced family consultant, Ms B, described the relationship as “emotionally complex with significant allegations raised and disputed by Mr Jacks and Ms Hanley.” After referring to the parents and some other persons, with some under-statement Ms B referred to the likelihood that they “may have shared a lifestyle of illegal drugs, alcohol consumption, family conflict and possibly crime, not conducive to the welfare of the children.”[3]
[3] See Ms B’s Family Report, dated 8th July 2009, par.8. Ms B prepared a second report, dated 11th June 2010. Although both reports were not formally admitted into evidence, on the principles espoused by Warnick J in SPS & PLS (2008) FLC ¶93-363 at [8] – [19], they should be taken to have been relied upon by all and formally before the Court. At the conclusion of the evidence of the parties, Counsel for the ICL submitted that there was little utility in the cross-examination of Ms B; her Reports spoke for themselves, and of even greater moment was the evidence of the parties now before the Court. Neither of the parties sought to cross-examine her.
Since the parental separation, it is reasonably clear that both parents, to significant but varying degrees, have re-oriented their lives and exercised much greater responsibility so that drugs and alcohol no longer dominate or significantly influence them. This is especially so in the case of Mr Jacks who has submitted to drug tests (which are, for all relevant purposes, clear).[4] Unfortunately, Ms Hanley has not submitted for the same drug tests notwithstanding that the Independent Children’s Lawyer (“ICL”) has requested that she do so on a number of occasions.[5]
[4] Mr Jacks’ drug tests results became Exhibit A in the proceedings. In relation to one of those test results (November 2009), Mr Jacks’ solicitors advised the Independent Children’s Lawyer, by letter dated 15th January 2010, that Mr Jacks had recently had a number of teeth extracted. He was prescribed panadeine-forte for pain relief, which medication accounted for a recording of ‘opiates’ being detected. The most recent test, in late July 2010, showed no drugs of any kind having been detected. The letter from Mr Jacks’ solicitors became Exhibit E.
[5] At the trial Ms Hanley said that she had scheduled a drug test for the day after the hearing concluded. Transcript A (10th August 2010) pp.22-23 & 64.
If the parents lived in much great proximity to each other, it is more likely than not that an equal time/shared care arrangement would be ordered. This view was also held by the ICL. However, given that they live 567 kilometres apart (with a driving time of approximately 6½ hours – according to “Whereis”[6]) the primary issue to determine is with whom should the boys live, and in the light of that assessment, and in the absence of any agreement, what consequential orders should be made for the time (and circumstances) for the boys to spend with the other parent.
[6] see also Transcript (9th August 2010) p 12.
At the commencement of the trial the very experienced ‘ICL team’ of Counsel, Ms Godtschalk, and Mrs Dwyer, indicated that no specific view had, at that stage, been formed as to the recommendation they wished to put to the Court regarding where and with whom the boys should live. Rightly, in my view, they intended to wait to see how the evidence fell from the parties, as well as having the opportunity to consider further the various pieces of documentary evidence tendered in the course of the hearing.
At the end of the trial, Ms Godtschalk indicated that the ICL’s recommendation was that, in the light of the oral and documentary evidence presented to the Court, it was important that the boys continue to live with their Father.[7] Respectfully, I agree with that recommendation. Orders will be made in accordance with it. Those orders are made on the basis of the evidence, which, after setting out the respective orders sought, may be summarised as follows.
[7] This would have the unfortunate consequence of separating the siblings – [Z], who lives with Ms Hanley, and the boys, who live with their Father. [Z] is not a child the subject of these proceedings.
Orders Sought
Both parties are agreed that there should be an order for equal shared parental responsibility. This matter is addressed later in these reasons. Otherwise, the respective orders sought are as follows:
Applicant’s Final Orders Sought[8]
[8] ‘Outline of Submissions for the Applicant Father’, filed in Chambers 2nd August 2010.
1.That the Mother and Father have equal shared parental responsibility for the children [X] born [in] 2001 and [Y] born [in] 2006.
2.That the children live with the Father.
3.That the children spend time with the Mother as follows:
(a)One weekend each month from 9:00am Saturday to 4:00pm Sunday;
(b)For each of the first, second and third New South Wales gazetted school holiday periods;
(c)For one half of the Christmas school holiday periods being the first three weeks in odd numbered years and the second three weeks in even numbered years;
(d)With the Father on Father’s Day weekend in each year from 9:00am Saturday to 4:00pm Sunday;
(e)With the Mother on the Mother’s Day weekend in each year from 9:00am to 4:00pm Sunday;
(f)At such other times as agreed between the parties.
4.That the parent with whom the children are not living may communicate with the children by telephone:
(a)each Tuesday and Thursday between 6:30pm and 7:00pm with the parent with whom the children are not living to instigate such calls; and
(b)at all reasonable times with the children to instigate such calls and the parent with whom the children are living to facilitate such calls to the other parent.
5.That for the purpose of the children’s changeover during school holiday periods the parties meet at a point half way between Sydney and [E] at the commencement and conclusion of each period.
6.That the Father:
(a)Keep the Mother advised at all times of the current residential address and contact telephone number of the children as well as the names and the telephone numbers of all carers for the children;
(b)Advise the Mother immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c)Authorise any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Mother in respect to the children’s medical condition and/or requirements;
(d)Authorise all schools at which the children may attend, from time to time, to:
(i)Provide the Mother, at the expense of the Mother copies of all school reports, school notices and school photographs in relation to the children;
(ii)Communicate with the Mother, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools;
(iii)Permit the Mother to attend all school functions to which parents are normally invited.
7.That when the children are with the Mother that the Mother:
(a)Keep the Father advised at all times of the residential address and contact telephone number of the children;
(b)Advise the Father immediately in the event that the children, or either of them, suffer any serious illness or injury;
(c)Authorise any medical practitioner upon which the children, or either of them may attend from time to time to communicate with the Father in respect to the children’s medical condition and/or requirements.
Respondent’s Final Orders Sought
1.That the Mother and Father have equal shared parental responsibility for the long term care welfare and development of the children:
a.[X] born [in] 2001; and
b.[Y] born [in] 2006
(“the children”).
2.That the Mother have the parental responsibility for the day to day decisions when the children are in her care.
3.That the Father have the parental responsibility for the day to day decision when the children are in his care.
4.That the children live with the Mother.
5.That the children live with the Father as follows:
a.During the first, second, third and fourth school terms every third weekend from 9:00am Saturday until 4:00pm Sunday.
b.In the first, second and third term school holidays from the first Saturday at 9:00am until the following Saturday at 5:00pm.
c.Whenever Easter falls during term 1 school holidays:
i. In the even years the Father is to spend time with the children for the first half commencing after school on the day term 1 concludes at 6:00pm for a duration of 7 days and to be returned on the seventh day at 6:00pm; and
ii. In the odd years, the Mother is to spend time with the children for the first half commencing after school on the day term 1 concludes at 6:00pm for a duration of 7 days and to be returned on the seventh day at 6:00pm;
d.In the Christmas school holidays from after school until 4 January in odd years with the Father the remainder to be with the Mother until the last weekend before commencement of Term 1.
e.In the Christmas school holidays from after school 7 until 4 January in even years with the Mother the remainder to be with the Father until the last weekend before commencement of Term 1.
f.Changeover is to occur at the Mother’s residence.
6.That the Father have telephone communication with the children on Tuesdays and Thursdays between 6:30pm to 7:00pm.
7.That the Mother have telephone communication with the children when they are spending time with the Father on Tuesdays and Thursdays between 6:30pm to 7:00pm.
8.That each party shall do all things necessary to ensure that all schools, doctors, dentists, professional carers and other professionals involved in the care and treatment of the children are authorised at all times to communicate with and provide information and copies of documents in relation to the children to both parents.
9.That each party shall do all things necessary to ensure the other party is kept informed at all times and in writing of the residential telephone number, mobile telephone number and residential address of the other party.
10.That each party shall do all things necessary to ensure the children are taken to an treated by a medical practitioner or medical centre as both parties agree for treatment and consultation in relation to any health problems of the children, except in the case of an emergency then the parent of whom the child is in the care of shall have the sole discretion as to the treatment and shall notify the other party within 2 hours or as soon as practicable.
Written submissions filed in Chambers on 20th August 2010 by the Independent Children’s Lawyer considered the ‘Orders sought by the Father are Orders that are appropriate for the Court to make.’ [9]
[9] ‘Submissions filed on behalf of the ICL Jacks and Hanley CAC 538 of 2009’. Filed in Chambers, 20th August 2010.
Evidence
Mr Jacks: Even without his criminal record before him, which became Exhibit B, Mr Jacks readily admitted to convictions for assault in 1993 and 2007. The conviction in 2007, which led to Mr Jacks being placed on a bond, involved an altercation with Ms Hanley.[10]
[10] For the discussion concerning his record, see Transcript (9th August 2010) pp.14 ff and Exhibit B. As relevant as his criminal record is, which involves four offences (the remaining two offences were in 1991 [stealing] and 2004 [mid-range PCA]), in my view, it is not of paramount importance for the current proceedings. It is but one factor, with due weight given to it in the light of (a) how long ago the offences were, and (b) more recent events and relevant evidence.
Mr Jacks also readily admitted that he used to take marijuana.[11]
[11] Transcript (9th August 2010) p.16.
Summarily, I note the following from Mr Jacks’ evidence, all of which I took to have been candidly and readily given: he has no formal qualifications for employment; he has needed vouchers for assistance (for example, in relation to petrol); [X]’s various behavioural issues could, to a significant degree, be related to the separation of his parents; [Y] has been and will continue to see a counsellor at school to help him cope with the various tensions in his life; he had agreed with Ms Hanley in May 2009 for a week-about arrangement regarding the boys, but on the basis that she was living in [G].[12]
[12] Generally, see Transcript (9th August 2010) pp.13-27.
In my view, very significantly, he acknowledged (again, without difficulty or hesitation) that Ms Hanley was a good Mother.
Mr Jacks said that the relationship with Ms Hanley was a very argumentative one. He also conceded that he was not as fulsome or quite as accurate in some of his descriptions or account of various events in his affidavit as he might have been.[13]
[13] See, Transcript (9th August 2010) p.45.
He also confirmed that since Ms Hanley had left the relationship there were no longer stresses in his life, which is to say that he no longer had reason to get angry or to manifest his anger physically.[14]
[14] Transcript (9th August 2010) p.45.
Mr Jacks confirmed that he was engaged with the Brighter Futures Program. He has had for some time a regular case-worker with the Department of Community Services. That case-worker role is now performed by Mission Australia, which organisation has confirmed that it will support Mr Jacks for the next two years.[15]
[15] Transcript A (10th August 2010) pp.53-54. I designate the transcript here as “Transcript A” because later evidence was transcribed, which bears the same date, but which does not continue the pagination sequence. Instead it begins the pagination again. The later transcript will be described as “Transcript B.”
Mr Jacks said that he receives no child support from Ms Hanley. He readily agreed that if the parties lived closer together a shared care arrangement could work.[16]
[16] Transcript A (10th August 2010) pp.55-59.
Finally, Mr Jacks confirmed that [X] has been at [E] Primary School for the last three years. The school is across the road from Mr Jacks’ residence.
[X]’s School Reports for the last five semesters (2008 x 2; 2009 x 2; & 2010 semester 1) were tendered by the ICL.[17] The Reports speak for themselves. They attest to his attendance at school.
[17] See Exhibit H.
To take the latest Report as an example, it confirmed that [X] was absent only for 7 days, that he often experienced difficulty in adhering to classroom rules and procedure, that “he enjoys sport and thrives in the playground where he delegates roles and responsibilities.” He was commended for his initiative for participating in a particular activity. His two teachers [names omitted] confirmed that [X] finds some aspects of class work difficult, “but when prompted works diligently.”
Of even greater moment is Annexure G to Mr Jacks’ affidavit, filed on 3rd August 2010. It is a letter from [E] Public School, dated 21st July 2010. Among many similar observations, Ms C (the author of the letter, who has taught at the school for 4½ years and who says that she has known [X] since Kindergarten – he is now in Grade 3) says that [X] “is very happy and familiar in his school”; “He and his friends are also committed to the [omitted] drama group and are prompt, reliable and committed”; “[X] has a good attendance record at school and is always on time”; “He is clean and tidy and his school uniform is ironed and neat”; “[X] is always clean and tidy himself with well kept hair and skin. He has lunch packed and money provided for canteen items. [X] is cheerful and healthy and appears to enjoy his time at school”.
The letter from Ms C proceeds in similar lines to describe how well regarded Mr Jacks and [X] are by their friends. She notes too how “obviously very comfortable and loving [[X] is] around his father and his younger brother [Y] ....” Ms C concluded her letter saying that “[X] is a happy well adjusted young school boy, happy around his family, friends and teachers.”
To state the obvious, the glowing report from the school is a significant and very favourable testament to the parenting of Mr Jacks.
Ms Hanley: It might be said, not unfairly, that Ms Hanley provided perhaps rather more material for Mr Jacks’ Counsel, and the ICL’s Counsel, to work with than did Mr Jacks. Her evidence may be summarised as follows.
First, Ms Hanley confirmed that she had not undertaken any drug screening tests. She could not explain why she had not done so when requested to do so by the ICL in November 2009. Indeed, she conceded candidly that she did not have a good reason for not complying with the request.[18]
[18] Transcript A (10th August 2010) p.65. See also Transcript B (10th August 2010) pp.22 ff. The letters of request from the ICL became Exhibit F.
Secondly, there was quite some discussion about a Mr W. He is a person of some interest and relevance to the current proceedings. I say that for the following reasons, none of which were seriously disputed.
Ms Hanley and Mr Jacks were friends of Mr W and his then partner some years before the parties separated. The two couples then seemed to have lost touch with one another. However, shortly before the parties separated, Ms Hanley and Mr W did make contact with each other. And, as things transpired, upon leaving the relationship with
Mr Jacks, Ms Hanley commenced to live with Mr W.[19] The children thereupon lived with Ms Hanley and Mr W. In comments to the Family Consultant, [X] described the time of living with his Mother and Mr W as ‘the scariest experience for him.’[20]
[19] See, among other places, Transcript B (10th August 2010) p.24.
[20] See Ms B’s Report, dated 11th June 2010, p.13 (para.39). Ms B described [Z]’s comments in this regard as follows: “[Z] described cogently the experience of being around Mr W as very unpleasant if not frightening.” Ibid., p.14 (para.44).
Unfortunately, and surprisingly, Ms Hanley did not deal with her relationship with Mr W in her affidavit material. It was left to her Counsel at trial, and other Counsel as well, to explore this relationship.
The relationship with Mr W is of particular relevance, among other things, because (a) it was alleged but never finally determined that he is [Y]’s biological Father,[21] (b) Ms Hanley requested Mr W to discipline [X] on more than one occasion,[22] and (c) Ms Hanley now consents to injunctive orders to restrain her from bringing the children into contact with Mr W.[23] Ms Hanley stated that she believed that Mr W was still in prison for arson involving a police vehicle. She confirmed that
Mr W was “totally wiped out of my life.”[24]
[21] Alarmingly, shortly after moving in with Mr W, Ms Hanley confirmed that Mr W told the children that he was [Y]’s “Daddy.” See Transcript A (10th August 2010) pp.85-86 & Transcript B (10th August 2010) p.2. Significantly, Ms B expressed her concern at this action and Ms Hanley’s [lack] of insight into her own actions and those of Mr W on the children. See Ms B’s Report of June 2010, p.7 (para.20). Respectfully, I agree with the observations of the Family Consultant in this regard.
[22] See Transcript (10th August 2010) pp.73; 75-79.
[23] See Transcript (10th August 2010) p.67.
[24] Transcript A (10th August 2010) pp.66-67.
Briefly stated, Ms Hanley confirmed that she expected now to remain living at her Mother’s residence in Sydney for at least the next couple of years. She works full-time at [omitted]. She confirmed that she had taken drugs (“speed” and marijuana) when in the relationship with
Mr Jacks but does not take drugs now.[25]
[25] Transcript A (10th August 2010), pp. 71-72.
Ms Hanley confirmed that (a) she had been estranged from her Mother for a number of years, and (b) her Mother seemed to have a strained or sometimes testy relationship with the children, although she conceded that she needed the help of her Mother to deal with [X] and his, at times, testing behaviour.
She also confirmed that [Z] saw Mr Jacks as her Father, but perhaps more recently, upon her learning that he is not her biological father, a Father figure. Ms Hanley agreed that it would benefit [Z] to spend time with Mr Jacks.[26]
[26] Transcript A (10th August 2010) pp.87, 90-92.
Ms Hanley alleged significant violence was perpetrated against her during the relationship with Mr Jacks. Later, she confirmed that there had been mutual acts of violence between the parties during the relationship.[27] Yet it is important to note that [Z] stated to Ms B that she had never seen Mr Jacks hurt her Mother.[28]
[27] Transcript B (10th August 2010) p.7.
[28] Family Report, June 2010, p.13 (para.42). Interim Consent Orders were made on 11th February 2010. In the notation to these Orders, the parties agreed that [Z] should be interviewed by the Family Consultant. It was on this basis that [Z] met and spoke with Ms B.
In response to questions put by Counsel for the ICL, particularly as to how she has put the children’s interests first, Ms Hanley conceded – but with some hesitation and occasional disputation – that, for example, upon leaving Mr Jacks and then not facilitating the children even speaking with their Father, she had not put their interests as a priority.[29]
[29] See Transcript A (10th August 2010) pp.103-105.
Likewise, she agreed that she did not consider the impact on the children of them being told that Mr W was [Y]’s Father.[30]
[30] Transcript B (10th August 2010) p.2.
Inconsistently, Ms Hanley maintained that she had separated from
Mr W in June 2009, whereas there were records produced under subpoena from the NSW Police, which confirmed that he was still with her in August 2009.[31]
[31] See Transcript B (10th August 2010) p.12.
Ms Hanley accepted that documents from the Department of Community Services (“DOCS”) confirm that the boys ([X] and [Y]) are doing well in their Father’s care, and this is so notwithstanding that she has made reports to DOCS in which she has alleged neglect of them by Mr Jacks.[32]
[32] Transcript B (10th August 2010) p.14.
She confirmed that she has had limited contact with [X]’ teacher(s). She had telephoned the school only once this year. She did not know the names of his teachers.
Ms Hanley confirmed also that, notwithstanding her difficulties in dealing with [X], she had not undertaken any parenting courses.[33]
Ms Hanley changed her evidence in the course of cross-examination as to whether she considered that she needed to do a parenting course. Initially she thought such assistance was unnecessary; later she thought it would assist her.
[33] Transcript B (10th August 2010) p. 17-18.
Nor has Ms Hanley had any discussion with [Z] about whether she wants, or should seek to maintain, a relationship with Mr Jacks who, as previously noted had, hitherto, been regarded as her Father (and he treated her as his daughter).
In my view, Ms Hanley’s lack of attention to (a) regular contact with the school, (b) making any inquiries regarding parenting courses, and (c) speaking and assisting [Z] in dealing with her relationship with
Mr Jacks, indicates little insight into her parenting responsibilities.
As already noted, Ms Hanley now works full-time (as does her Mother). She said that she could not transfer from her current place of work to the same [business], but in the [G] area, until two years had lapsed.[34]
[34] Transcript B (10th August 2010) pp.23-24.
Finally, although [X] has been placed on the support teacher learning case load at his school in [E], Ms Hanley had not made any inquiries in Sydney of similar support programs.
By way of general observation, both during the trial, and since, in my view, Ms Hanley’s evidence was often unconsidered. She seemed to lack some (but not total) insight into her parenting responsibilities. However, sometimes her lack of appreciation of the likely consequences of her actions was alarming. This was especially the case in her decision (a) to move in with Mr W and to take no action at least to ensure that the children remained in contact with their Father (they should have still been able to see their Father, but that did not occur), (b) not to prevent Mr W to declare to the children that he was [Y]’s Father, and (c) to invite and allow Mr W, a complete stranger to the children, to discipline [X]. To be fair, with hindsight, she conceded that this was not a good idea.[35]
[35] Transcript B (10th August 2010) pp.17-18.
Observations on the Parties’ Evidence: Both parties conceded that their relationship was characterised by some elements of family violence, by the somewhat regular use of drugs, and of alcohol. Both parties have confirmed that they no longer indulge in any of those things, save for occasional (or the social) use of alcohol. Thus far, only Mr Jacks has confirmed, and on more than one occasion, and from independent sources, that he no longer uses drugs.
Ms Hanley has reported to her Mother (whose evidence is noted below) that [X] is not doing well at school, and that the children are neglected while in their Father’s care. By independent evidence, both of these contentions/reports are contradicted.
Because the basic contentions of Mr Jacks in relation to the children are supported by independent evidence, and because those maintained by Ms Hanley have been established to be somewhat awry if not completely contradicted in relation to the same matters, where there is any inconsistency between the evidence of the parties, I prefer that of Mr Jacks to that of Ms Hanley.
Evidence of Ms M (Maternal Grandmother): Ms M’s evidence was clearly and simply given. She impressed as a clear, considerate person with significant clarity about many things, including basic boundaries for her grand-children and others.
For example, she confirmed that she had been estranged from her daughter, Ms Hanley, for two years. This was due to her assessment that she could do no more for Ms Hanley and Mr Jacks, either financially or otherwise. She had reached her limit. In the absence of change on their part, in her view, the only thing left to do was to have nothing further to do with them.
She also confirmed that she very quickly recognised Mr W, who had come to live at her residence with Ms Hanley, to be a person who lied and was conniving. She asked him to leave her residence.[36]
[36] Transcript B (10th August 2010) p.37.
It was clear, and Ms M confirmed that, since Ms Hanley’s separation from Mr Jacks, her assessment of how the children were progressing (or not) was based on what she had been told by Ms Hanley. Thus, she was told by her daughter that [X] was not doing well at school. Likewise, she had been told that the children were out of control.[37] She was clearly, and genuinely, surprised by the much better than she expected school reports, which she was shown in Court, and understandably her genuine surprise at Ms C’s recent letter, to which I referred earlier, extolling [X]’ virtues and those of his Father and the care provided to him.[38]
[37] See Transcript B (10th August 2010) pp.38, 40 & 41. Other concerns she expressed related to cleanliness of Mr Jacks’ home. As with almost all matters, Ms M’s views were, to a significant degree, informed only by reports from either Ms Hanley or [Z]. Again, the letter from the school to which I have already referred goes a long way in refuting those concerns.
[38] Transcript B (10th August 2010) p.51.
Ms M confirmed that she was aware of the requirement for her daughter’s drug tests, and was concerned that they had not taken place.[39]
[39] Transcript B (10th August 2010) p.39.
She also said that if the children lived with their Mother at her residence she would support and encourage their relationship with their Father. I have no doubt that this would be so, although likely with some straining and adjustment for all.
Discussion & Resolution
On many occasions the Full Court has prescribed the course to be pursued in parenting cases.[40] Accordingly, I will traverse firstly what are described as ‘the s.60CC factors’ but informed by the objects and principles of s.60B, before then considering whether the presumption in s.61DA in relation to equal shared parental responsibility should apply in this case. In the light of the statutory prescriptions I will have regard, in all respects in the making of orders, the best interests of the children, [X] and [Y].[41]
[40] See, for example, Goode v Goode (2007) 36 Fam LR 422 at p.445 [81] – [82]; Keach & Keach (2007) FLC ¶93-353. Although the Full Court’s comments in Goode were in the context of interim proceedings, respectfully, they are otherwise apt for final hearings as well.
[41] See s.60CA.
Both parents indicated that they could not, and would not change their current residence. In those circumstances, the primary issue to determine is with whom the boys should live and, in consequence of that, how much time they might reasonably spend with the other parent.
In my view, there is a third issue. Although the parents both seek an order for equal shared parental responsibility, in the light of the circumstances of the case, and as a matter of reasonable practicability, (a) because of the distances involved and (b) in the absence of either of the parties moving closer to the other parent, the Court needs to consider whether such an order is in the best interests of the boys.
It is not disputed that the children would benefit from a meaningful relationship with both parents (s.60CC(2)(a)).
It is also not disputed, as indicated from matters dealt with earlier in these reasons, that while the parties were in a relationship there were elements of domestic violence. The children also experienced some violence while their Mother was in a relationship with Mr W. It is not disputed that both relationships have now ceased. Moreover, [X] confirmed to the Family Consultant that he is not scared of his Father who “does not get really angry.”
In my view, having regard to the evidence before the Court, issues in relation to family violence and the Court’s responsibilities to ensure the children are protected from it, or other harm of the kind specified in ss.60B(1)(b) and s.60CC(2)(b), and having regard to s.60CC(3)(j), family violence is no longer an issue for the children of these proceedings.
To the degree that any view was expressed, and having due regard to [X]’ young age, he indicated to the Family Consultant his contentment to live with his Father. The comments in the most recent letter from his school are, in my view, relevant as they reflect a significant degree of current and on-going stability and contentment in [X]’ life.
In relation to s.60CC(3)(b), it seemed clear that the children have a good relationship with both parents. However, it was also clear that Ms Hanley has difficulties in dealing and coping with [X]’s sometimes difficult behaviour. It is also relevant to consider the children’s relationship with their sister [Z].[42] The ICL submitted that, because she lives with her Mother, Ms Hanley is best placed to deal with [Z]’s relationship with her brothers, as well as her relationship with
Mr Jacks. On all relevant fronts, the ICL submitted that Ms Hanley had failed all three children. Regrettably, it is difficult to disagree with that submission.
[42] See s.60CC(3)(b)(ii).
In relation to the willingness and capacity of the parents to promote the children’s relationship with the other parent (s.60CC(3)(c) & (i)), given the lack of initiative on almost all fronts, and her inaccurate depiction to her Mother regarding the care of the children while with their Father, I could not be overly confident that Ms Hanley would promote the children’s relationship with Mr Jacks if they lived with her. From his straightforward, uncomplicated evidence at trial, I have greater confidence that Mr Jacks has promoted, and will continue to promote, the boys’ relationship with their Mother while-ever they are in his care.
Undeniably, stability is a central feature in the lives of all, and especially so for your children. In my view, the stability of continuing to live with their Father in [E] would provide significant stability in environment and in routine. In this respect, there will be little if any change and thus s.60CC(3)(d) has little work to do.
As for sub-paragraph (e), matters of practical difficulty and expense relate to travel between the respective residences of each parent. This was traversed early in these reasons.
In terms of the respective parental capacities and s.60CC(3)(f), in my view, the fact that Mr Jacks has been in regular touch with DOCS, that he has a regular case-worker (now from Mission Australia), that he has completed a parenting course, and the glowing observations from the [E] Public School, suggest strongly that Mr Jacks has taken all reasonable steps to provide in the most appropriate manner for the children. Unfortunately, Ms Hanley has not provided any evidence that could support her capacity to provide for the children. Perhaps rightly at this time, it would appear that her primary focus is on getting some stability back in her life and sufficient resources, in a few years’ time, to move out of home.[43]
[43] In my view, the matters addressed by sub-paragraph (g) have been the subject of consideration throughout these reasons. Sub-paragraphs (h), and (k) of s.60CC(3) have no application in this case.
In relation to the presumption under s.61DA for equal shared parental responsibility I have already noted that both parties agree with such an order.
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for such an order to be made.[44]
[44] See the Full Court’s brief but instructive comments in Goode 36 Fam LR at [82 (e) & (f)].
In my view, the fact that the parents live so far apart makes such an order inherently unworkable and, therefore, not in the children’s best interests. Such an order would be appropriate if the parents lived closer together. However, unless and until that occurs, in my view, for the reason already given, it is not in the boy’s best interests for such an order to be made.
That said, Mr Jacks is to keep Ms Hanley reasonably and regularly informed of any and all matters that pertain to the care and welfare of the boys, and in particular those matters set out as major long-term issues in s.4 of the Act.
Likewise, precisely because of the extremely large physical distance between the parents, it is not reasonably practicable – indeed, it is utterly impracticable - for the Court to make orders either for equal time, or for substantial and significant time for the children to spend with their Mother.[45]
[45] See Goode 36 Fam LR at [82 (g) – (j)].
In the light of the circumstances outlined in these reasons, in my view, the orders as sought by the Father, Mr Jacks, should be made in relation to the time the boys spend with their Mother. In the light of the evidence before the Court, those orders are in the children’s best interests.
As I have already indicated, in the event that Ms Hanley moves closer to [E], in my view, a shared care/equal time arrangement should apply. However, such an arrangement would be conditional on (a) Ms Hanley providing the relevant drug tests that have been requested of her and those tests confirming that she is free from illicit drugs, and (b) a general review of possible parenting arrangements, and of the relationships between the parties and the children (including [Z]), having been undertaken by a nominated family consultant prior to a shared care arrangement commencing.
In my view, the orders I propose, as sought by Mr Jacks, are the least likely to lead to further litigation, and are in the children’s best interests.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 16 December 2010
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