Jessop and Hancock
[2007] FMCAfam 674
•7 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JESSOP & HANCOCK | [2007] FMCAfam 674 |
| FAMILY LAW – Children – aged ten and seven – allegations that older child in particular suffering psychological harm in mother’s household – parties and children attending on agreed counselling program – whether change of living arrangements on an interim basis necessary or desirable. |
| Family Law Act 1975 – ss.60CC, 61DA, 65DAA |
| Applicant: | MR JESSOP |
| Respondent: | MS HANCOCK |
| File number: | DNM 12 of 2004 |
| Judgment of: | Terry FM |
| Hearing date: | 3 September 2007 |
| Date of last submission: | 3 September 2007 |
| Delivered at: | Darwin |
| Delivered on: | 7 September 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Truman |
| Solicitors for the Applicant: | Anthony D Buckland |
| Counsel for the Respondent: | Mr Barry |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That all previous parenting orders are discharged.
That the father and mother have equal shared parental responsibility for the children N born in 1997 and J born in 2000.
That until further order and provided that Mr H gives a written undertaking to the court within 7 days that he will not physically discipline the children, the children live with the mother except during the times as set out in Order (4).
That until further order the children live with the father as follows:
(a)Each alternate weekend during school terms from after school on Friday until the commencement of school on Tuesday;
(b)Each alternate Monday during school terms from after school until the commencement of school on Tuesday.
(c)For the first half of the Christmas school holiday 2007/2008;
(d)At all other times as agreed between the parties with 72 hours notice to either party.
That on 26 December 2007 the mother is to spend time with the children from 10.00am to 6.00pm provided that the children are not absent from Darwin on holiday with the father.
That the father collect the children from the mother’s residence or a place to be agreed at the commencement of his time with the children and the mother collect the children from the father’s residence or at another place to be agreed at the conclusion of his time with the children.
That the children complete a course of counselling with Relationships Australia in accordance with the recommendations in the 4 July 2007 report of Dianne Knox, and that this counselling include, in time, the parties and Mr H.
That the parties complete a course of counselling at Resolve in accordance with the recommendations in the 4 July 2007 report of Dianne Knox.
That each party is restrained and an injunction is granted restraining them from:
(a)Physically disciplining the children or allowing any other person to physically discipline the children;
(b)Denigrating the other party or allowing any other person to denigrate the other party to or in the presence of the children;
That each party is to inform the other immediately if the children are diagnosed with a serious medical condition or involved in an accident requiring hospital treatment.
That each party is to advise the other party of any change in residential address or telephone contact number within 48 hours of the said change.
That if either party travels away from their usual place of residence with the children during school holidays, they shall give the other party notice in writing at least 14 days prior to their date of departure of the proposed date of departure and return and the address and telephone number of the place where the children can be contacted during the holiday.
That each party is restrained and an injunction is granted restraining them from discussing the current court proceedings with the children save that the children may be informed:
(a)Of the order restraining either party from physically disciplining the children and the undertaking entered into by Mr H that he will not physically discipline the children; and
(b)the order regarding the parties and the children continuing their attendance at counselling.
That the matter is listed for final hearing on 14 and 15 February 2008 at 10.00am NOTING two days hearing time has been allocated and will not be exceeded without leave of the court.
That the applicant pay the hearing fee of THREE HUNDRED AND SIXTY FOUR DOLLARS ($364.00) or file a remission certificate in respect thereof within 28 days of today’s date.
That each party file and serve any affidavits on which they intend to rely at the final hearing by close of Registry filing on 1 February 2008.
That pursuant to section 62G(2) of the Family Law Act 1975
Ms Dianne Knox provide to the court a further report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children N born in 1997 and J born in 2000 with such report to be released to the parties by 18 January 2008.
That the parties have liberty relist the matter should Mr H fail to provide the written undertaking as required.
IT IS NOTED that publication of this judgment under the pseudonym Jessop & Hancock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM12 of 2004
| MR JESSOP |
Applicant
And
| MS HANCOCK |
Respondent
REASONS FOR JUDGMENT
Introduction
N and J’s parents separated in 2002, when the girls were about five and about two respectively. The girls are now ten and seven respectively and I am asked to adjudicate on an interim application in the third set of proceedings for final orders which have been filed in this court.
Pursuant to consent orders made on 15 July 2004, the girls live with their mother and spend time with their father each alternate weekend during school terms from Friday until Tuesday and in the other week Monday overnight until Tuesday, and for half of each school holiday period.
The father seeks to change this arrangement so that the girls live with him, and spend time with the mother from Friday until Monday each alternate week and in the other week Monday overnight until Tuesday. He offers no block school holiday time for the mother and proposes that the arrangement for school terms continue during the school holidays.
The mother proposes that the existing orders be maintained and that orders be made about the parties and the children attending counselling.
The issue which I have to decide in these interim proceedings is whether the girl’s psychological well-being requires an immediate change to their current care arrangements, or whether the issue of a change to girls living arrangements can and should wait until the parties and the children have completed the extensive counselling program which they have now commenced.
The mother and father had a fairly brief relationship, from 1996 until late 2001 (mother) or December 2002 (father). Nothing now turns on which version of the separation date is correct.
All of the proceedings in this court have been commenced by the father, but nothing turns on this in these interim proceedings. I cannot on the present state of the evidence make any findings about whether the father has been too quick to go to court or whether he has been left with no choice as a result of the mother’s actions.
The father made his first application in January 2004. A Family Report was subsequently prepared and this resulted in the consent orders being made on 15 July 2004.
At some unspecified date after separation, the mother commenced a relationship with Mr H, who is a member of the Defence Force. They married in December 2005. Their first child was born in 2005.
In February 2006 the father commenced proceedings again. This was over an issue of the mother wishing to take the children interstate in February 2006 for a few weeks for a family reunion, and the amount of make-up contact he should receive. These proceedings were finalized by consent orders on 21 March 2006, which provided for the father to have an additional seven days with the children during the mid-year school holidays.
In 2006, the mother’s second child with Mr H, was born.
On 10 November 2006, the father filed a third application seeking orders that the children live with him and spend school holiday time with the mother. This application was prompted by the mother having approached him about a month earlier seeking his agreement to her relocating to Queensland with the children, as a result of Mr H being posted Brisbane.
In his affidavit filed in support of this application, the father reported that the children have just recently told him that Mr H had been inappropriately disciplining them with a wooden spoon and had been verbally abusive of them. The father also expressed concern about his position as father being undermined as a result of information given to the children’s school. On 5 December 2006, the father filed a Notice of Child Abuse.
The mother filed a response seeking to relocate to Brisbane. The matter was listed for final hearing in February 2007 and a Family Report was ordered. However, subsequently, Mr H’s posting was changed allowing him to remain in Darwin for a further two years and the relocation issue was dropped. The father’s application for an order that the girls live primarily with him remained alive however.
Both the mother and Mr H have consistently denied that Mr H has hit N with a wooden spoon or inappropriately disciplined her. The father filed a Notice of Child Abuse in relation to this matter. It was the subject of a quite thorough investigation by Family and Children’s Services, who were not able to determine that the father’s complaint was substantiated.
In an affidavit filed on 2 February 2007 the mother said that in her view N needed counselling. The mother also said that N had returned home from a visit with her father 2 days earlier and had told the mother that the father had punched her in the ribs when she said that she did not want to visit him. The mother took N to the hospital for a check up.
Shortly after this, the parties agreed to vacate the final hearing date and discharge the order for the preparation of a family report. They sought and obtained an order that N be assessed by an independent child psychologist.
The parties agreed that Dianne Knox should prepare this assessment and her report was produced 5 months later, on 4 July 2007. Although it probably seemed reasonable at the time, it is regrettable that
Ms Knox was asked only to assess N rather than prepare a full family report. Ms Knox is a respected Regulation 8 Counsellor who regularly prepares family reports for this court. A Family Report could have included observations of each of the parties and Mr H with the children and may have included home visits.
Some of the comments in Ms Knox’s report are worth reporting in full. At paragraph 9 she stated that:
“When asked what type of help she wanted, N was initially hesitant in her response and replied that she did not know. At the first meeting, when brought in by her mother, she reported that she still wanted to live with her mother but wanted her stepfather to change and “be nicer” This meant not getting so angry, be kind and not put the blame on everyone else. At the last meeting, when brought in by her mother, she again repeated the above, but added that if Mr H cannot change she would prefer to live with her father. An additional comment was that if her father would pay her more attention she would be happier living with him”
At paragraph 9 Ms Knox reported (after earlier referring to N’s concern about her relationship with her stepfather Mr H)
“The 2nd area of concern for N is the acrimonious relationship between her parents”
At paragraph 13 Ms Knox stated that
“At the third assessment session N related that she feels that she does not have a good relationship with either of her parents. She felt her relationship was equally bad with both of them”
At paragraph 15 Ms Knox observed that
“For the most part N describes being happy living with her father (see results of Children’s Depression Scale). However she does feel he is too busy with work to spend quality time with her. The incident where she was injured by her father when he fell whilst intoxicated, has also confounded her perception of the relationship with Mr Jessop. N is not completely sure her father did not mean to hurt her, and despite the fact that this is the first incident of this sort, it has affected the trust in the relationship. The fact that her father will not speak about it, saying her has no memory of it, is not helpful.”
As an illustration of the difficulties I face in these interim proceedings, I have no information from the father about the incident Ms Knox refers to. I presume from having read the Family and Children’s Services report dated 6 February 2007, that it bears a relationship to the mother’s allegation in her February affidavit that the father punched N in the ribs.
J was also interviewed and the following appears at paragraph 34
“J reported that N is a good, big sister who looks after her by making sure she does not get hurt. J reported she feels happiest at her real Dad’s house and feels most sad and scared at her mother’s home. She is sad at being smacked by stepdad and sent to her room.”
At paragraph 35 J reported that
“her real Dad does not smack her, and although he drinks a lot of beer he does not scare her.”
Ms Knox recommended that N and J commence counselling and that the mother and father commence joint counselling so that their differences can be put aside so as to allow them to co-operatively parent their daughter.
Ms Knox also recommended that Mr H continue his personal counselling. Ms Knox also went on to state that:
“As it seems that he [Mr H] had already used his power to isolate N from her wider family network, it would appear to be in hers and J’s best interests to predominantly live with Mr Jessop until some significant changes occur in their mother’s home. Joint parenting appears doomed to fail due to the acrimony that exists.”
Ms Knox goes on to add however that:
“Mr Jessop’s capacity and competency to parent would need to be assessed before a change of residency is enacted”
Ms Knox may have assumed that her report would be used as one piece of evidence in a final hearing. The father however has brought an application to change the children’s residence on an interim basis. I cannot in these interim proceedings where I only read documents and hear submissions, make any findings about Mr Jessop’s capacity and competency to parent.
It has always been the mother’s case that the father would face difficulty in parenting the children full time. He suffers from Chronic Fatigue Syndrome, and the mother has expressed concern that the father sometimes stays in bed and expects N to carry out household tasks such as the washing, which he should be doing. The comments by both J and N to Ms Knox raise a concern about the father’s alcohol consumption. I am also concerned about the lack of information about N being hurt while in the father’s care.
The father filed an affidavit just before the interim hearing in which he sought to address the two issues of alcohol consumption and Chronic Fatigue Syndrome. He said that he would abstain from consuming alcohol when the girls were with him, and he annexed a brief note, handwritten, from Dr G stating that his chronic fatigue syndrome did not affect his ability to parent the children.
The parties have taken up Ms Knox’s suggestion about counselling. The parties have commenced the procedure to take part in dispute resolution at Relationships Australia, and N and J are to commence counselling through Resolve. I am told that it is expected that the programs the parties and the children are embarking on will take many months to complete.
There are numerous disputed issues which I simply cannot resolve in these interim proceedings. I do not know the extent of the father’s current alcohol use, whether it is a problem and whether he is able to cut back on his alcohol consumption as he asserts. I do not know whether his chronic fatigue syndrome affects his ability to parent at the moment, or will affect his ability to parent, if the girls are with him on a much more extensive basis than at present. I do not know whether he punched N or fell on her while drunk or what significance should be placed on this incident. I do not know if Mr H smacks the children with a wooden spoon or his hand. I do not know if there is family violence in the mother’s home as the father asserts. The mother denies it. I do not know whether the father is abusive and obnoxious to Mr H as Mr H asserts or whether Mr H is a liar and someone who tries to get at the father as the father asserts. I do not know to what extent N’s difficulties are the result of the chronic conflict between her parents and to what extent they are the result of events in the mother’s home. At a final hearing this last issue could be thoroughly explored with Ms Knox.
Any order I make must be in the best interests of N and J. Section 60CC(2) and (3) of the Family Law Act sets out the matters which I must consider in order to determine what is in the best interest of the children. In interim proceedings where the court cannot determine disputes about the evidence, it is often very difficult to make findings about the matters in section 60CC(2) and (3).
It almost goes without saying that children benefit from having a meaningful relationship with each of their parents. The mother and father in this case each clearly accept that it is important for their children to have a relationship with both parents.
I must consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The mother and Mr H deny that there is family violence in their relationship. The father says that N has related incidents to him which come within this category. The father says that N is being smacked with a wooden spoon. The mother and Mr H deny this. The incident between N and the father earlier this year raises questions. The father does not mention the incident. I am simply not in a position to determine whether in either home either child is being subjected to abuse, neglect or family violence.
Ms Knox has reported on the children’s views. Interestingly while J said that she would feel happier if she could spend more time with her father and visit her mother, N’s views were more equivocal.
I infer because nobody suggested otherwise that J has a good and close relationship with her mother and her father. It is more difficult to be certain about the state of N’s relationship with each of her parents.
Until late 2006, it appears that N had a reasonable relationship with
Mr H. She informed Ms Knox that she “used to like him but now does not”. J made negative comments about Mr H to Ms Knox. However, Ms Knox did not observe the children with Mr H. The Family and Children’s Services report dated 6 February 2007 contains the observation that:
“At the end of the interview FACS observed J approaching Mr H and give him a hug and N said hello to all present. The interaction between Mr H and his blended family appeared normal and appropriate. There was no observed hesitation or fear when the children were observed interacting with him.”
I am unable on the present evidence to make findings about the nature of the relationship between the children and their parents and Mr H.
The issue of N and J’s relationship with their younger sisters is not addressed at all in Ms Knox’s report or in any of the father’s material. Mr H and the mother make reference in their affidavits to the close and warm relationship N and J have with their younger sisters.
I am unable to predict the likely effect of changing the children’s residence from being primarily with the mother to primarily with the father. It may be beneficial if it relieves N’s current psychological stress and if it accords with J’s views. If however there is a basis for concerns about the father’s ability to care for the children full time, or if a major underlying difficulty for N is parental conflict and this does not change, then changing the children’s residence may not result in any improvements for N and J.
The father is untested as a full-time carer for the children on a day to day basis. He says that he will have no difficulty with this. I cannot determine this issue on the current evidence.
The mother’s ability to care for the children on a day to day basis is not challenged by the father in any way that would give rise to concern for the court save for one significant point.
The father says that the mother has failed to protect the children from psychological harm, because she has failed to protect them from exposure to Mr H’s bad temper and physical discipline and from family violence involving herself and Mr H. It is his case that the mother will not be able to alter this in the future. If this is true, it is a very serious matter. The mother denies however that Mr H is behaving inappropriately with the children or that there is family violence in her home. I cannot determine this issue in these interim proceedings.
The father sought an order for sole parental responsibility. Section 61DA requires me to apply a presumption of equal shared parental responsibility unless there are reasonable grounds to find that one of the parties has engaged in abuse of the children or family violence.
The issue of whether Mr H has hit N with a wooden spoon and whether even if he has, this comes with the definition of abuse in the Family Law Act, is not an issue I can determine in these interim proceedings. I do not know what happened between N and the father earlier this year and whether it comes within the definition of abuse.
In interim proceedings the presumption applies unless the court considers it would not be appropriate in the circumstances to apply it. The presumption may also be rebutted by evidence that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
The mother and the father have long had an order in place that they share long term decision making for the children. I can see no reason on the current state of the evidence to deny either parent an equal right to make decisions about the children and I intend to apply the presumption of equal shared parental responsibility.
Conclusions
As I have found that the parents should have equal shared parental responsibility for the children, I am required by section 65DAA to consider whether the children spending equal time or substantial or significant time with each parent is in their best interest and reasonably practicable.
There is no reason such as the distance the parties live apart which would preclude a successful shared parenting arrangement. However, given the parties extremely difficult parenting relationship, I cannot find at this time that it is in the children’s best interests for an equal time arrangement to be implemented.
The options I am left with are the fathers options (a complete change) the mother’s option (leave things as they are) or some other option in between. I am left to assess these options in circumstances where I cannot make findings of fact about a number of very significant issues.
This is a very difficult matter. I am being asked by the father to make a major change to children’s living arrangements based on limited evidence. On the other hand I need to ensure that N and J are not exposed to a risk of psychological harm by things being left as they are.
On balance I am not persuaded that it is desirable to change the living arrangements for these children on an interim basis in the way that the father proposes. There are questions marks over the father’s ability to care for the children which I cannot resolve in these interim proceedings. It would be undesirable if the existing arrangements were changed and then after a trial, had to be changed back again.
It is extremely important to protect N in particular, but also J, from psychological harm. However although N has identified problems with Mr H, she also identifies a serious problem with parental conflict. She says that the relationship between her parents makes her feel “abnormal, not like other kids.”
It is therefore possible that I might change the living arrangements for N and J but that their psychological situation may not improve because nothing changes in regard to the parental conflict, and that their difficulty with Mr H is exchanged for a difficulty with their father’s ability to care for them on a day to day basis and abstain from misusing alcohol.
A change of residence such as the father proposes would also considerably reduce the time N and J are able to spend with their younger sisters. This relationship with their sisters, with whom they have lived all their lives, is a significant relationship.
The parties have now all taken steps to address the problems which confront them. The parties N and J have taken the first steps to commence the extensive counseling program which Ms Knox recommended. This in itself alters the situation for the children from what it has been up until now.
I will require Mr H to give an undertaking to the court that he will not physically discipline the children, and I intend to make an order restraining either of the parents from physically disciplining the children.
I am told that it may take 6 months for the counselling programs the parties have embarked on to be completed. I propose listing the matter for trial next February, so that the parties have an end date in case they are not able to resolve the matter themselves. However I do strongly urge the parties to make every effort to resolve matters themselves.
When the original family report was prepared in 2004, the Family Report Writer recognized that the children had a good relationship with each parent. At that time the report writer said that he did not recommend a shared care regime because of the children’s ages (then three and five) and the parties’ poor inter-personal relationship. The children are now older and if the parties can improve their relationship, then the option of a shared care regime remains. The counselling which the parties have now commenced gives them the opportunity to work on their parenting relationship and perhaps reach a point where shared care is feasible.
I intend to list the matter for a final hearing on 14 and 15 February 2008. This will give the parties time to complete the counselling program. If the parties can resolve their parenting issues themselves, this would be a good outcome, but if not, the final hearing date is set.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: C White
Date: 7 September 2007
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