James and Mae
[2007] FamCA 99
•20 February 2007
FAMILY COURT OF AUSTRALIA
| JAMES & MAE | [2007] FamCA 99 |
| FAMILY LAW - CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility FAMILY LAW - CHILDREN – With whom a child spends time |
| APPLICANT: | JAMES |
| RESPONDENT: | MAE |
| INDEPENDENT CHILDREN’S LAWYER: | MR WELCH |
| FILE NUMBER: | HBF | 789 | of | 2002 |
| DATE DELIVERED: | 20 February 2007 |
| PLACE DELIVERED: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 20 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Fitzgerald |
Orders
THAT all previous parenting orders made under the Family Law Act in respect of the children J and C both born in June 1996 (“the children”) be and are hereby discharged.
THAT the children live with the applicant mother (“the mother”).
THAT the mother have sole parental responsibility for the children.
THAT the father spend no time with the children except to communicate with the children by way of letters, emails, photographs, cards and presents sent to P or such other address nominated by the mother with such mail to be vetted by the mother and provided that the mail is not offensive and/or distressing to the children the mother will promptly give such letters, emails, photographs, cards and presents to the children and facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents from the children to him.
THAT the mother shall facilitate the forwarding to the father of all such letters, emails, photographs, cards and presents to the children provided the father ensures the mother is given written notification of the father’s current postal address.
THAT the father be restrained from attending any residence where the children may be living from time to time or the children’s school or any school the children may attend.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED
THAT for the purpose of s64D(2) of the Family Law Act there are exceptional circumstances whereby no parenting plan can make provision in relation to the issue of the father spending time with the children and this issue can only be determined by a Court exercising jurisdiction under the Family Law Act.
THAT these proceedings were heard in the absence of the father.
IT IS FURTHER ORDERED
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT the mother be at liberty, notwithstanding s121 to provide a copy of these orders and the reasons to the Headmaster and teachers at the children’s school and to Area Commander and such other officers of Tasmania Police as the Area Commander thinks is appropriate in terms of these orders.
THAT the applicant’s application for costs is dismissed.
IT IS DIRECTED
THAT a copy of the reasons for these orders be taken out and placed on the Court file.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: HBF 789 of 2002
| JAMES |
Applicant
And
| MAE |
Respondent
REASONS FOR JUDGMENT
These are proceedings that have been before the court for quite a number of years. They relate to a dispute between Mae, who I will refer to as "the mother", and James, who I will refer to as "the father", in respect of parenting orders with regard to their children, C, and J, who are twins born in June 1996, and are currently aged 10.
There appears to be no issue that the children should live with their mother. The issue appears to be twofold; firstly, whether there ought to be equal shared parental responsibility pursuant to section 61DA of the act, and what time, if any, the children spend with their father.
This matter has been listed for hearing at the Launceston sittings of this court on three occasions; this being the third. The matter was given some priority for the November 2007 sittings of the Family Court, Launceston, but for one reason or another, it could not be reached, and as such it was given priority for these sittings.
The matter was the subject of a callover about two or three weeks ago at which time the father did not attend. The father did attend today as was expected, and was self-represented. Initially he expressed a desire for an adjournment so that he could obtain legal advice.
There was some discussion in respect of that application and I believe I made it relatively clear that I was contemplating allowing the adjournment application; the father having been sworn at the bar table, so that the submissions he made with regard to the adjournment could be accepted by the court as truthful.
As the court began to consider what costs, if any, might arise from that, the father seemed to become upset and withdrew his application for an adjournment. Shortly thereafter he withdrew his participation in the proceedings and angrily left the court.
This matter is ready for trial and has been ready for trial for some time. For children aged 10 who have been the subject of numerous reports, it is time that these proceedings are brought to an end, and accordingly I will be proceeding with a hearing notwithstanding that the husband is no participating.
In the matter of Elspeth v Peter, I repeat those principles in this judgment. I do not intend to go through them in detail, although it is clear at the starting point and the end point is generally section 60CC. Once the considerations are made in respect of that, the court must determine whether there ought to be equal shared parental orders in accordance with the presumption, thereafter to consider the time which the children spend with each parent, and if necessary, consider whether time ought to be equal or significant and substantial, and then go through the section 60CC matters. Those are the underlying principles I will apply in relation to this matter.
RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT.
1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of significant amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
2. The objects of those provisions of the Act relating to children is to ensure that the best interests of the children are met by[1];
i)[1] s 60B(1) Family Law Act 1975 (Cth).
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
3. The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
ii)[2] s 60B(2) Family Law Act 1975 (Cth).
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
4. Each of the parents of a child has complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[4] for the child. The section provides as follows:
iii)[3] s 61C Family Law Act 1975 (Cth).
iv)[4] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
Section 60DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
5. There is some debate within the legal profession as to whether the presumption ‘automatically’ applies once an order is made. A reading of the amendments in context with s 61C of the Act suggests that the presumption provision of that section, viz 61C, applies until a contrary order is made by a court or agreed in writing between the parties.
6. A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[5], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
v)[5] s 65DAA(1) Family Law Act 1975 (Cth).
7. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
8. Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
9. The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[6]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
vi)[6] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
10. If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[7], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[8]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
vii)[7] s 61DA(3) Family Law Act 1975 (Cth).
viii)[8] s 61DA(4) Family Law Act 1975 (Cth).
11. A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
12. As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[9]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act, as and from 1 July 2006, provides:-
ix)[9] s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.
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.
13. The amendments go on to provide in s 60CB:
How the court determines what is in the best interests of a child is set out under s 60CC.
14. Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
15. The primary considerations are contained in s 60CC(2) as follows;
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B (1)(a) and (b).
16. The additional considerations are set out in s 60CC(3) as follows;
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation 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;
(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;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child[10]:
x)[10] This sub-section must be read in terms of s 60CC(6), which provides:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
17. In having regard to ss 60CC(3)(c) and (i), s 60CC(4) applies in that it provides;
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
18. Generally the section further provides that;
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
19. How does a court deal with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?
20. Professor Richard Chisholm, formerly a Judge of the Family Court of Australia, has recently written on this area of law and observes that
[t]he big question for us, is how this will affect decision making …[11]
xi)[11]Richard Chisholm, a paper entitled ‘The Family Law Amendment, Shared Parenting Responsibility (Act) 2006: An Overview’ (2006).
21. Professor Chisholm goes on to suggest that;
The significance of the characterisation of some considerations as “primary” may be summarised as follows. Those matters should be considered first among relevant considerations, and should be treated as being of particular importance in assessing what orders are likely to promote the best interests of the child.
As indicated above, the primary considerations should not be regarded as necessarily outweighing or “trumping” other considerations, nor is it appropriate to attempt a mathematical or quantitative approach. The primary considerations, especially paragraph (a), cannot in fact be determined without reference to the additional considerations. A holistic approach is not only desirable, but logically necessary.
If all this is correct, the legislation will have been followed, in spirit and in the letter, if the court treats the primary considerations in subsection (2) as the first matters to be considered, and as matters of particular importance, as it engages in the task of determining, on the basis of the evidence and the provisions of Part VII, what orders are most likely to serve the best interests of the children who are the subject of the proceedings[12].
xii)[12] Ibid.
22. Professor Parkinson similarly suggests that the additional considerations serve to assist the court in reaching a determination consistent with the primary considerations:
In almost all cases, the additional considerations will amplify the primary ones at another level of detail. Put differently, it is through detailed examination of such additional considerations as may be relevant, that a judge may be assisted to determine the significance of the primary considerations, and what orders to make[13].
xiii)[13] Patrick Parkinson, ‘Decision-making About the Best Interests of the Child: The Impact of the Two Tiers’ (2006) 20 Australian Journal of Family Law 179, 183.
23. Dr Altobelli[14] has a different view to how the amendments will operate. He has described them as “the most significant reform to Australian Family Law in a decade”[15]. In his paper on the amendments[16], Dr Altobelli observes the following:
xiv)[14] Now Federal Magistrate Altobelli.
xv)[15]Dr Tom Altobelli, ‘Some Practical Implications of the Family Law Amendment (Shared Parental Responsibility) Bill 2005’ 2..
xvi)[16] Ibid.
How will Part VII of the Act be interpreted after 1 July 2006?
The answer to this question determines whether the changes wrought by the amendments are substantive or superficial. From a purely legal perspective, the answer will depend on how certain key sections inter-relate to each other.
The key sections are:
· Section 60B – the objects and principles underlying Part VII
· Section 60CA – the re-expression of s65E: that a child’s best interests are paramount
· Section 60CC – how a child’s best interests are determined
· Section 61DA – presumption for equal shared parental responsibility
· Section 65DAA – equal, or substantial and significant time
The first thing to note is that the legislature has not purported to change the paramountcy principle i.e. that a child’s best interests are the paramount consideration in making a parenting order. Indeed, by bringing it forward from s65E to s60CA, immediately following the objects provisions, but otherwise at the commencement of Part VII, it has reasserted the paramountcy principle. However, what the legislature has done is to explain, in more detail, how a child’s best interests are to be determined. The embodiment of this is found in s60CC, a far more prescriptive version of its predecessor, s68F. However, ultimately, the Court’s expression of what is, on the facts of a particular case, the best interests of a child, is found in a parenting order under s64B. Because of s61DA, there will often be a presumption of equal shared parental responsibility in parenting orders that leads the Court to consider at least two statutory expressions of what the legislature considers to be in the best interests of children so far as the time they spend with their parents after separation. Those statutory expressions are found in s65DAA: equal time or substantial and significant time. It is a complex and convoluted pathway that starts off with a very broad direction and unfettered discretion (child’s best interests paramount) but which is gradually fettered and narrowed as the decision-making process moves from generalised concept to concrete order.
The challenge facing the Full Court as regards these amendments is similar to that confronted by the Full Court as B and B: Family Law Reform Act 1995 (1997) FLC 92-755. There the Court decided that s65E prevailed:
“The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court… starts from that essential premise and it remains the final determinant.” (para 9.51).
That proposition should not, it is submitted, change, save that s60CA replaces s65E.
The Full Court then considered which of ss60B or 68F(2) was the next most influential provision in the decision-making process. The Court found, in effect, that s68F(2) was the implementation of s65E, and that s60B was to be read subject to both ss65E and s68F(2). The objects provisions in s60B:
“provide guidance to the Court’s consideration of the matters in s68F(2) and to the overall requirement of s65E.” (para 9.54).
Of course, the versions of ss60B and s68F(2) in the current amendments are significantly different. The shared-parenting “message” in s60B was not matched in s68F(2). Indeed the dissonance between these two sections when it comes to shared parenting is readily apparent when they are read alongside the “new” s60B as compared to s60CC. The objects of the legislation are far more closely aligned to how they are manifested and are to be implemented under s60CC.
The Full Court’s admonition in B and B was that the wording of s68F(2) made it clear that the court “must consider” the various matters set out therein and that the
“weight which is attached to any one consideration will depend upon the circumstances of the individual case” (para 9.53).
The Full Court also noted that he list was not intended to be exhaustive and that:
“the inquiry is a positive one tailored to the best interests of the particular children and not children in general…” (para 9.53).
Of course the successor to s68F(2) does not so easily lend itself to such an interpretation about weighting. The legislature has spoken – there are primary considerations, and there are additional considerations. The former is a closed class, the latter is not, as s60CC(3)(m) confirms. This “closed class” of primary considerations is actually a closed but broad class. For example, the s60CC(2)(a) consideration about “benefit to the child of having a meaningful relationship” necessarily incorporates, it could be argued, a number of factors that the section treats as additional considerations in s60CC(3). Hence, on this argument, “benefit” cannot be ascertained except by reference to what are the child’s views [(3)(a)] relationships with parents [(3)(b)] capacity of parents etc. The difficulty with this interpretation is that it is reading down “primary consideration” – primary loses its distinctiveness and becomes meaningless.
The problem with using B and B as a point of reference in interpreting the new Act is that it emphasised the importance of the exercise of discretion in each case, in a context where the Act permitted discretion to prevail. Arguably, under the new Act, discretion is fettered or circumscribed. Whereas in B and B the Full Court could confidently say:
“…….the legislature and the courts…. have eschewed the application of fixed or general rules as the solution.” (para 9.57)
that is no longer the case under the new Act because discretion is exercised within more narrow confines. Moreover, whereas the Full Court could confidently assert that the:
“Act contemplates individual justice. Any question of presumption or onus has the potential to impair the enquiry as to what is in the best interests of the particular children” (para 9.59),
now it could be asserted that the Act rather precisely and prescriptively creates a far more structured enquiry about what is best for particular children. On this view, sections 60CC(2) and 65DAA are the statutory manifestations of a new structured enquiry.[17]
xvii)[17] Ibid 36 - 38.
24. It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
25. The approach to be adopted by a court is structured.
(a) The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
(b) The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
(c) To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
(d) Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests
(e) In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[18] where her Honour said;
xviii)[18] C & G [2006] FamCA 994.
The primary considerations
i) The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is a case where both of the primary considerations are relevant.
(a) The benefit of a meaningful relationship – as a primary consideration.
9. The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
10. The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
11. While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[19].
xix)[19] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
12. The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
13. The arguments supporting the second possible interpretation include;
(a) Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
14. (b) The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
15. The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
16. (c) The whole of s.60CC calls for an evaluation of various factors by the court.
17. (d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
18. (e) The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
19. My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to Billy into the future.
26. I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists”.[20] I would, however, add that such evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child
xx)[20] Ibid paragraph 68.
27. Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the court make such a determination.
DISCUSSION
The orders sought by the mother are as set out in her amended application dated 18 July 2006 with the variation that orders 7, 8 and 9 be deleted, and in place thereof there be a specific order that the children spend no time with the father. This approach is supported by the independent children's lawyer.
In support of her application the mother relied upon her four affidavits filed 1 January 2005, 29 March 2006, 10 July 2006 and 25 January 2007, and I amend my reasons to show that it is four affidavits not five.
She also relies upon a notice to admit facts which was filed on 2 February 2007 which sets out in huge detail the interaction between the father and the criminal justice system. It also provided letters from Ms C which are facts 169 and 170. I note that those facts are admitted for the purpose of these proceedings and are read into evidence.
The mother also reads into evidence an affidavit of Mr A filed 10 July 2006; Ms H, 31 May 2006, Ms W of 2 February 2007.
The independent children's lawyer reads into evidence affidavits of teachers P, L and E filed in December 2005; an affidavit of Mr M of 23 May 2006 in relation to contact via the contact centre; the family report of 28 July 2006 and single expert report of 28 April 2006, 18 July 2005, 6 October 2004, 4 September 2003.
I include and accept in my reasonings the summary of argument of counsel (attached to these reasons) for the mother and counsel for the independent children's lawyer. On that evidentiary material it is crystal clear - I should not use that word, I have used it once already today - but it is clear that this is a matter where the presumption imposed by section 61DA ought not to apply because of the matters set out under section 61DA(2).
There is no issue as to the mother's parenting capacity. There are significant issues as to whether the father should have any contact with these children. To her credit the mother is prepared to facilitate some exchange of information as is set out in her application and in the circumstances of this case it is very much to her credit that she adopts that attitude in respect of the father and of the children. It shows, in my view, a focus on the needs of the children and the mother ought to be acknowledged for doing so.
Bearing in mind that I have included and accepted the submissions under 60CC as made by counsel in this matter, I see little point in regurgitating it in this judgment, although I will attach such submissions to these reasons as being part of the reasons.
There is an application before me in relation to the question of costs. Once an application is made I am obliged to consider all the matters under section 117. In any event this is a matter where the mother is entirely successful; where the mother is in receipt of legal aid. However, the father is unrepresented. The fact that the mother is in receipt of legal aid speaks to her financial circumstances.
These are always difficult cases. These are cases where orders are being sought that a child or children not have any contact with a parent. It is reasonable in those circumstances for people to have their day in court.
Even though on this case the father chose to abandon that right he is entitled to come here and it would be sad indeed if that right was restricted by view of a costs order. In these circumstances I dismiss the application for costs.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Mae & James.
I certify that the preceding 31 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 22 February 2007
APPLICANT MOTHER’S
SUMMARY OF ARGUMENT
| (A) Parenting Case | |
| 1. | Proposals 1. That all previous Parenting Orders made in the Family Court of Australia proceedings number HBF789/2002 being and are hereby discharged. 2. That the children C and J both born on 22 June 1996 (“the children”) live with the mother Mae (“mother”). 3. That the Mother have the sole parental responsibility of the Children. 4. That the children spend no time with the father. 5. That the father James (“father”) communicate with the children by way of letters, e-mail, photographs, cards and presents sent to P or such other address as nominated by the mother with such communication to be vetted by the mother and provided that the mail is not offensive and/or distressing to the mother and/or likely to be so to the children, the mother will promptly give such communication to the children. 6. That the Mother shall facilitate the forwarding to father of all such letters, e-mails, photographs, cards and presents from the children to the father provided that the father ensures that the mother is given written notification of his current postal address. 7. That the mother shall facilitate the forwarding to the father of a copy of the term school reports of the children and yearly school photograph provided that the father ensures that the mother is given written notification of his current postal address. 8. That the father in writing, keep the mother addressed of his postal address from time to time. 9. That for the purposes of Section 64D(2) of the Family Law Act 1975 (as amended) there are exceptional circumstances whereby no parenting plan can make provision in relation to the issue of the father spending time with the children or the communication that they have with him and these issues can only be determined by a Court of competent jurisdiction. AND THE COURT IS ASKED TO NOTE: |
| 2. | Reasons Shared Parental Responsibility Section 61 DA It is submitted, arising from the matters set out below that pursuant to S61 DA(2) (a) and/or (b) the presumption does not apply as there are reasonable grounds to believe the father has engaged in either or both a) abuse of the children; or b) acts of family violence as defined by S 4 of the Family Law Act 1975 (as amended) Alternatively pursuant to Section 61 DA (4), for the reasons set out below the presumption is rebutted on the basis it would not be in the best interests of the Child for the Parents to share parental responsibility. Section 65 D Finally, though conceding a findings or application of S61 DA (2) or (4) does not preclude the Court’s power to make such an order for shared parental responsibility this is not a case where such order ought to properly be made. Best Interests of Child Under The Family Law Act Section 60CA 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. a) The child’s right to have contact with both parents is subject to the best interests of the child. (Sec 60(B)(2)). The best interests of the child are ascertained by reference to the section 60CC factors listed herein. Section 60 CC Considerations A list of the matters referred to in s.60CC which the Applicant asserts are relevant and the findings the applicant/respondent asserts should be made by the Court in relation to each of such matters. The primary considerations the court must consider are: This is an extra-ordinary case where it is submitted that it is not in the children’s best interests to spend time with their father due to his violent behaviour, abusive language and denigration of the mother whilst the children are in his care. It is further alleged that the father demonstrates an inability to acknowledge the effects that his behaviour has on the children. The mother seeks an Order that the children live with her and not spend time with the father. The mother’s proposal is supported by the family report dated 28 August 2006 and prepared by Family Consultant Ms Y pursuant to an Order by Justice Young on 2 May 2006. (2)(b) the need to protect the child from physical or psychological harm from being The need to protect the children from physical and psychological harm is high. As is described in the affidavits filed on behalf of the mother, the father has been highly abusive to the mother on countless occasions both during and since the relationship. The mother has suffered serious injuries including multiple black eyes, a dislocated jaw, repeated stabbings to the head with a screwdriver and significant bruising to the legs and bottom from being kicked by the father. The father has been imprisoned on several occasions for abusing the mother and for breaching restraint orders she has placed against him. As a result, the mother is constantly afraid for the safety of the children and herself, to the point that she is unable to relax on the limited occasions that the children have spent unsupervised time with the father. Another concern is that the children’s language, their attitude towards the mother and their behaviour, both at school and home have deteriorated after spending time with the father. Additional considerations are: The children C and J are 10 years of age. At this age it is appropriate for the court to take their wishes into consideration but the court is not bound to do so, especially given the risks to the children’s physical and psychological safety. In the single expert report of Dr R dated 28 April 2006, both children stated that they did not wish to have contact with their father. C objected to his father’s comments about his mother’s poor care of him and the fact that these beliefs are echoed by his grandmother. C described his father’s verbal aggression to his grandmother and stated that he just wanted to stay with Mum. J’s view was reportedly dominated by her experience at her last contact with her father during which she says he made a verbal threat against their mother, being the effect that “I’m going to slice her throat”. In the more recent Family Report prepared by Ms Y, registered psychologist, dated 28 July 2006, the children both wished to spend time with their father so long as his current behaviour of threatening their mother, swearing and falling asleep stopped. C was very positive about his mother and her care of him, and positive about his school and his teacher. C reportedly gave mixed reports about his father, recalling times feeling really scared because his father was yelling and he thought his father was going to hit his grandmother, and times where his father would sleep through nearly the whole visit, swear and threaten his mother. (b) the nature of the relation ship of the child with each of the child’s parents and with other persons; The children have not seen their father since October 2005 and currently do not have a particularly close relationship with him. This is due in part to the limited amount of contact they have had with him since the parents separated in 1999/2000 and partly due to the father’s aggressive behaviour and comments to and about them and their mother. The recent report of Ms Y, dated 28 July 2006, it is stated that the children appear to have close relationships with the paternal grandmother and very close relationships with their mother and half brother Z. In the report of Dr R dated 28 April 2006 both children expressed reservations about spending time with their father and said that they didn’t want to see him. The children were more positive about their paternal grandparents although C had some reservations about the grandmother because she “sticks up for the father a lot”. J said she did want to see her paternal grandparents but only in the absence of her father. (a) 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; Both parents have a very negative view of each other. The father has reportedly denigrated the mother in the presence of the children, as have the father’s parents. It is unlikely that the father would facilitate and encourage a close and continuing relationship between the children and the mother. The mother by contrast is aware of not denigrating the father in the presence of the children. The mother has facilitated contact between the children and the father at the L Contact Centre at times when the father has not been in prison for violently assaulting the mother. The mother’s current application is that the children not have direct communication with the father for their own personal safety. (b) 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, with whom he or she has been living; Currently the children live with their mother and have no contact with their father. The mother reports that the children are more settled, better behaved and performing better at school in the months since they have had no contact with their father. The Report of Registered Psychologist Ms Y recommends that the children live with their mother on a full time basis and have no direct communication with their father. The positive aspect/s of this arrangement would be that the children would enjoy a more constant routine and would be shielded from the father’s violence towards and denigration of the mother. The negative aspects of this arrangement would be that the children would lose touch with their father and may also lose touch with the paternal grandparents. This could be overcome by visiting arrangements being established for the children and their grandparents. (c) 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; Given the high levels of violence and the restraining order in place by the mother against the father, it is not practical to expect the parents to co-ordinate contact between them. Furthermore, the mother is currently too anxious of the children’s safety when they are in the father’s care. Given the father’s violent history it is arguably not in the children’s best interests to spend time with the father without supervision. Contact visits at the L Contact Centre are expensive. It is further submitted that contact visits have been proven to be very disruptive for the children and they have become rude to the mother after contact and have been in trouble for misbehaving at school. (d) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs; The children have lived with and been cared for by the mother since separation. The family report states that the mother and the children presented as a well functioning family unit. The information obtained from S school staff reflects positively on the mother’s care of the children. The family report further states that there is little information to suggest the children are at risk in their mother’s care and the children spending time with their father will not offer the children any protection from inadequate parenting. There is a significant risk that the children will be subject to negative emotional influences whilst in the care of the father. There is evidence that the father has failed to shield the children from the conflict between the parents. The mother appears to be more capable from shielding the children from the parental conflict. The Family Report of Ms Y states that the father’s ability to provide for the children’s day to day needs of care and supervision is questionable and that it is a poor reflection on the father that he does not acknowledge the concerns reported by the children. The family report further states that the father’s attitude suggests it is very unlikely that he will change his behaviour in the future and that he is therefore likely to expose the children to further emotionally damaging behaviour and to be a poor role model. It is also reported that the father falls asleep during the short periods of time he had with the children and that it is possible that his use of prescription or illicit drugs has interfered with a normal sleep pattern. In the Family Report of Dr R dated 4 September 2003, Dr R expresses the opinion that the father has an anti-social personality disorder. Dr R maintains this diagnosis in future reports. The husband takes prescribed medications for pain relief and panic disorder and is alleged to have taken illegal drugs over a number of years. The duration of the father’s anti-social behaviour and legal convictions combined with the effects of the drugs he takes suggests that his condition is unlikely to improve in the future. (e) the child’s maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant; Not relevant (f) if the child is an Aboriginal child or a Torres Strait Islander child: (g) the child’s right to enjoy his or her Aboriginal or Torres Straight Islander culture (including the right to enjoy that culture with other (ii) the likely impact any proposed parenting order under this Part will have on this right; Not relevant (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; The mother has demonstrated a child-focused attitude to parenting. She describes that her life centres around caring for the children and trying to ensure their future wellbeing and safety. The mother’s home has a high quality security system and the mother has repeatedly alerted police to protect herself and the children from violent attacks by the father. Despite her own reservations, the mother has facilitated the children spending time with their father and agreed to previous visiting arrangements because the children had wanted this and because such visits had earlier been recommended by the independent Children’s Lawyer. The mother now makes application for the children not to spend time with their father because the father has shown to have an inappropriate attitude towards the children and a failure to understand the responsibilities of parenthood. See paragraph (f) in this regard. (j) any family violence involving the child or a member of the child’s family; Serious domestic violence allegations have been made out against the father. The father’s criminal record provides evidence supporting the mother’s allegations. Indeed the father has been convicted and imprisoned for assaulting the mother on more than one occasion. The mother states that there have been numerous other occasions where the father has assaulted the mother and she did not telephone the police. (k) any family violence order that applies to the child or a member of the child’s (i) the order is a final order; or (ii) the making of the order was contested by a person; Restraint Order against father issued 13 May 2002, until further order, restraining the father from assaulting, molesting or harassing the mother and/or the children or any of them. (l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; (m) any other fact or circumstance that the court thinks is relevant. |
| 3. | Case Law List any propositions of law relied upon together with the authorities to be cited in support. Purdy J in Grant (1994) FLC 92-506 ordered that access orders be discharged in circumstances where the custodial mother feared for the well-being of the children whilst they were on access. She was the victim of both the husband’s violence and intimidatory stalking conduct post-separation. In the Marriage of Sedgley (1995) 19 Fam LR 363 the father was denied access. It was accepted that “if access is so highly destructive of the custodial parent that it would significantly interfere wit his or her capacity to properly fulfil that role, then access should be refused.” The Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 acknowledged research which indicated that “on-going contact with a child would not advance his or her wellbeing where abuse has occurred or where serious family violence has existed”. In the case of Re Andrew (1996) 20 Fam LR 538 there was evidence that on one occasion the husband had intended to harm the wife and their child. The decision of the trial judge to cancel all access between father and son was upheld on appeal. It was held the trial judge correctly exercised his discretion in giving weight to the wife’s genuinely held belief that the husband had intended to kill her and the child. In the Marriage of A (1998) 22 Fam LR 756 the wife was violently assaulted. The identity of the perpetrator was not determined. The wife believed the father to be the perpetrator. An important factor in the refusal to grant unsupervised access to the father was not whether the wife’s belief was objective or reasonable but whether genuine. Unsupervised contact discontinued, supervised contact arrangements were made. In the more recent case of M and M (2000) FLC 93-006 contact was refused on the basis of the father’s abusive behaviour. It was held there was an unacceptable risk of harm to the child even though the court was not satisfied on the balance of probabilities that the father had sexually abused the child. In this case the children had been residing with the father post separation. The court ordered supervised contact for a period of 12 months to aid separation from father. No contact after a period of 12 months. In the 2006 case of PST v CPR [2006] FMCAfam 36 it was ordered that the mother have the sole responsibility for the long term welfare and the day to day care of the children and that all extant applications be dismissed. In other words the father’s contact was terminated. In this case the parties’ character and personality were relevant; the father was diagnosed by psychiatrist as having a "personality dysfunction" and it was thought the father would not change, the father failed or refused to comply with Court orders, continued to denigrate the mother and showed an unacceptable attitude to the responsibilities and duties of parenthood. Other issues included whether "unacceptable risk" exists; the effectiveness of using Court orders to attempt to convert an unacceptable risk to an acceptable risk; whether it is preferable to make an order that would be least likely to lead to the institution of further proceedings; where mother is "at the end of her tether" emotionally and financially. Chronology of Events: January 1962 Date of birth of Mother June 1967 Date of birth of Father June 1996 Date of Birth of Children, C and J. 1999/2000 Parties separate for the final time. Children reside with mother, informal contact arrangements with father in mother’s presence when father not in Prison, continuing until in or about February 2002 28/02/1999 Father imprisoned for assaulting mother and breaching restraint order against her, amongst other things. 10/02/2002 Father beat and stabbed mother repeatedly in the head with screwdriver and attacked her again 7 days later. Father then charged with Assault, amongst other things, and remanded in custody. 29/04/2002 Mother filed residence application in Family Court of Australia. 21/05/2002 Father sentenced to 6 months imprisonment for assaults against mother in February, amongst other things. Sept 2003 Father released from prison. Oct 2003 Father began supervised contact with the children at Relationships Australia Launceston Contact Centre, gradually progressing to unsupervised contact from 10:45am-4:45pm each alternate Saturday. May 2004 Father served term of imprisonment until August 2004 and had no contact with children from February 2004 until October 2004. 04/10/2005 Father imprisoned for breaching mother’s restraining order. 22/12/2005 Father convicted of breach of Family Violence order, sentence suspended on condition father commits no breach of any order. 2/05/2006 Family Court Order that, inter alia, the mother be permitted to hearing by way of video link. 8/08/2006 The proceedings were adjourned with priority to the November 2006 Sittings. Children currently reside with mother and have not spent any time with father since October 2005. The mother will be relying on the following documents:
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INDEPENDENT CHILDREN’S LAWYER
SUMMARY OF ARGUMENT
PARENTING CASE:
Prosposals:
The mother seeks in her Amended Application for Final Orders filed on the 18th July 2006 a discharge of all previous parenting Orders which specifically include interim Orders made by consent of the parties on the 15th September 2003 which provide for the father to have contact to the two children being twins, C and J both born in June 1996 for two hours each fortnight. She also seeks Orders that enable the children to live with her, for her to have sole parental responsibility for the major long term issues of the children and inter alia for the issue of the father spending time with the children to be reserved.
The father, by the terms of his Affidavit filed on the 26th May 2006, is seeking to spend time with the children on alternate weekends, and it seems on an unsupervised basis.
At paragraph 10 of the Family Report dated the 28th July 2006 the father’s proposal is clearer in that he seeks unsupervised day time visits with the children gradually increasing in length to fortnightly weekend visits, including overnights.
Although the Court will need to consider the issues of parental responsibility, where the children are to live is not in issue, and the central issue for the Court to determine is whether or not the father will be permitted to spent time with the children or communicate with them.
REASONS:
Section 60CC(3)(a)
The twins are now aged 10 years.
As Doctor R in his Single Expert Report dated the 28th April 2006 at page 4, points out “the children’s attitude to the father has vacillated according to the circumstances at the time”.
The mother in her Affidavit filed the 1st December, 2005 at paragraph 120 states that the children do not wish to “have any contact with [the father] as they are scared of him”.
More recently in the Family Report prepared by Family Consultant Ms Y dated the 28th July 2006 the children’s wishes towards spending time with their father are set out. At paragraph 30 of the report C “gave mixed reports about spending time with his father”. He said that he “wanted to see his father” but only if he ceased behaving in the manner set out in that paragraph. He did not want to see his father again at the Children’s Contact Service.
J at paragraph 34 sets out her views in relation to seeing her father.
At paragraph 48 of her report Ms Y expresses the view that “the children would clearly like to spend time with their father if he behaved differently in future”.
Section 60CC(3)(b)
C was positive about the mother to Ms Y (paragraph 39) and J likewise (paragraph 33). Indeed there is nothing to suggest that their relationship with their mother is anything other than a caring and loving one.
Insofar as the children’s relationship with their father is concerned their wishes as outlined above reflect the nature of their relationship with their father. Whilst Ms Y observed a loving and close physical contact between C and his paternal grandmother it was “to a lesser degree with his father”. J on the other hand “appeared at ease with her father and paternal grandmother”.
Both the children were comfortable with their mother and half brother Z. It is noted that Z was clearly aligned to his mother and had nothing positive to say about the father.
Section 60CC(3)(c)
Whilst it might be expected on her case that the mother may wish to denigrate the father to the children, to her credit the mother has not despite her very negative attitude towards him, been assessed by Ms Y as one who has denigrated the father to the children (para 47). Although the circumstances are not yet clear, at paragraph 36 of the Family Report there is a suggestion from C’s report that his mother had told him about incidents of violence and that she may have denigrated the father to C.
The father’s attitude towards the mother is a very negative one. As Ms Y reports at paragraph 46 of her report information from the children indicates that the father “distresses the children by denigrating their mother in their presence”. It also appears from her report that the father does not have an insight as to how such denigration may negatively impact upon the children.
Section 60CC(3)(d)
As the issue of where the children are to live is not in contest this paragraph can consider the likely effect upon the children of Orders by the Court which do not allow the father to spend time with the children, or, the likely effect upon the children of a change to their current circumstances (where there is no time spent with their father), to a situation where they do spend time with him.
The effects upon the children of there being no Orders providing for the father to spend time with the children have been considered by Ms Y in her report (para 48). She there points out that in her view the children will comprehend a decision that they cannot see their father because of the possibility of his inappropriate behaviour. For the children to have time with their father would involve no “protection from inadequate parenting” from him. Indeed such time with their father “is likely to add to their emotional difficulties given that their father is likely to expose them to denigration and encourage the children to report negative information about their mother”.
In that sense it is suggested the children would be at an unacceptable risk of abuse should the father spend time with them. Conversely as Ms Y reports there is little information to consider that the children are at risk in their mother’s care.
Another effect of the children spending time with their father which the Court will need to consider is the impact, if any, upon the capacity of the mother to parent the children. This possibility has been considered by Ms Y at paragraph 55 and by Ms H in her Affidavit. Dr R too, in his letter to Ms Y dated the 31st July 2006, reports upon Ms H report dated the 26th May 2006.
Section 60CC(3)(f)
The assessment of the mother by Ms Y reveals no incapacity to provide for the needs of the children including their emotional and intellectual needs. On the other hand the assessment reflects poorly upon the father in this respect given that he does not “acknowledge the concerns reported by the children” (para 42). Indeed Ms Y has questioned the father’s ability to provide for the children’s day to day requirements and supervision of the children.
Section 60CC(3)(i)
Again there appears little concern about the mother’s attitude to the children and to her responsibilities as a parent. The father has suggested to Ms Y by his attitude in failing to acknowledge the concerns reported by the children that “it is very unlikely that he will change his behaviour in future. He is therefore likely to expose the children to further emotionally damaging behaviour and to be a poor role model”. (para 42).
A finding that there has been domestic violence will clearly influence the Court’s attitude as to the father’s responsibilities of parenthood.
Section 60CC(3)(J)
This is one of the critical issues in this case and which has been identified as such by Ms Y at paragraphs 11 and 12 of the Family Report.
If the Court concludes that there has been domestic violence, it having been witnessed by the children, the father’s attitude to it having occurred or not, and any behavioural changes by him which may be necessary for the future, could amount to the children being at an unacceptable risk of further abuse were Orders to be made requiring them to spend time with the father (paragraphs 40 and 41 of the Family Report).
Section 60cc(3)(K)
There exists a Family Violence Order, a copy of which will be tendered to the Court. The Restraint Order is dated the 6th May 2003 and is currently in force until the 6th May 2008.
CASE LAW:
re: W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 at page 79 217
“The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort”.
M v. M (2000) FLC 93-006
Sedgley v. Sedgley (1995) FLC 92-623 at page 82 259
R re: Andrew (1996) FLC 92-692
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies