Jets & Maker (No 2)
[2011] FMCAfam 1473
•16 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JETS & MAKER (No.2) | [2011] FMCAfam 1473 |
| FAMILY LAW – Five year old child – where child has lived with mother for whole of his life – relevance and effect of status quo – quality of status quo – where mother alleges father has physically and sexually abused child – where mother has unilaterally stopped spend time arrangements on many occasions following such allegations – consideration of evidence in relation to allegations of physical and sexual abuse – where mother was not a credible witness and father was a credible witness – where evidence reveals mother is immature and lacking in insight – where mother is relentlessly critical of father – where mother is prone to exaggeration and "catastrophisation" – where father abused drugs and alcohol and mistreated mother early in relationship – where father has matured but mother has not – where expert evidence does not support a conclusion to the effect that child has been physically or sexually abused – where mother is a permissive and indulgent parent – where child behaves very differently with mother than with father – conclusion to the effect that father has not abused child – no unacceptable risk of abuse when child is with father but unacceptable risk of psychological or emotional abuse if child remains with mother – mother unwilling or unable to allow child to have a meaningful relationship with father – where only way to ensure child will have a meaningful relationship with both parents is to place child with father – where mother cannot be relied upon to facilitate or encourage relationship between child and father – decision to place child with father. FAMILY LAW – Parental responsibility – where mother insists parties cannot communicate – where mother cannot believe that parties can ever communicate – where mother unilaterally enrols child in school notwithstanding pre-existing order for equal shared parental responsibility – order for sole parental responsibility made in father's favour. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules2001 Federal Magistrates Court Regulations |
| A v A: Relocation Approach (2000) 26 Fam LR 382 Carpenter and Lunn (2008) FamCAFC 128 |
| Applicant: | MS JETS |
| Respondent: | MR MAKER |
| File Number: | MLC 493 of 2009 |
| Judgment of: | Walters FM |
| Hearing dates: | 2 February 2011 – 4 February 2011 21 March 2011 – 25 March 2011 |
| Date of Last Submission: | 16 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr O’Connor |
| Solicitors for the Applicant: | M W Law |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | Meier Denison Guyner |
| Counsel for the Independent Children’s Lawyer: | Ms Dowler |
| Solicitors for the Respondent: | Mr Daniel Piekarski – Victoria Legal Aid, Melbourne |
ORDERS
IT IS ORDERED THAT:
The child [X] born [in] 2006, live with the Father.
The Father have sole parental responsibility for the child.
The Father collect the child from child-care centre forthwith this day.
The Mother, her servants and/or agents be and are hereby restrained by injunction from:
(a)contacting [X]’s child-care centre for the next fourteen days;
(b)attending upon [X]’s child-care centre for the next fourteen days; and
(c)causing any other person to contact or attend upon [X]’s child-care centre without the prior written consent of the Father for the next fourteen days.
The Father forthwith provide a copy of these Orders to the child-care centre.
The child spend time with and communicate with the Mother as follows:
(a)for a period of two weeks, not at all;
(b)then, for a period of two weeks:
(i)by telephone each Sunday between 6:00pm and 6:30pm; and
(ii)from the conclusion of childcare Thursday until the commencement of childcare Friday each week;
(c)thereafter:
(i)from the conclusion of childcare Thursday / school until the commencement of childcare / school Friday in each alternate week;
(ii)from the conclusion of childcare / school Friday until the commencement of childcare / school Monday in each alternate week;
(d)on Mother’s Day, from 10:00am until 6:00pm;
(e)from 3:00pm Christmas Day until 3:00pm Boxing Day in 2011 and each alternate year thereafter;
(f)from 3:00pm Christmas Eve until 3:00pm Christmas Day in 2012 and each alternate year thereafter;
(g)during school holidays in 2012 and thereafter:
(i)from the conclusion of school on the last day of Terms 1, 2 and 3 until 6:00pm on the second Saturday of the holidays; and
(ii)from 10:00am on the first Monday of January until 10:00am on the third Monday of January each year;
(h)at such other times as agreed by the parties in writing.
The child’s time with the Mother pursuant to Paragraph 6 herein be suspended as follows:
(a)from 10:00am on Father’s Day; and
(b)at such other times as agreed by the parties in writing.
All changeovers that do not take place at childcare or school take place at the [omitted] Police Station.
The Father do all such things and sign all such documents as may be required to:
(a)authorise the child’s kindergarten/school to provide to the mother, at her expense, copies of all notices, newsletters, photographs, reports and other material ordinarily provided to parents; and
(b)authorise the child’s doctor or other health professional to discuss the child’s medical matters with the Mother
The Father attend upon a counsellor / psychologist with specific expertise in drug and alcohol use and abuse with respect to his alcohol use and follow all such recommendations of that counsellor/psychologist.
The parties attend upon [omitted organisation] or other such organisation to participate in a post-separation parenting program, Parenting Orders Program, or such other course as recommended by Mr P.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Jets & Maker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 493 of 2009
| MS JETS |
Applicant
And
| MR MAKER |
Respondent
REASONS FOR JUDGMENT
(Incorporating preliminary ex tempore reasons – where indicated)
Preamble
This case is about the living arrangements for [X], who is now five years of age. [X] was born [in] 2006.
The primary question for determination – in the broadest sense – is whether [X] should live with his mother, Ms Jets, or his father, Mr Maker.
For the sake of clarity (and brevity – which is probably a lost cause):
a)I shall refer to the parties by their first names (and I mean them no disrespect by doing so);
b)I shall also refer to Mr Maker's partner, Ms W, and to Ms Jets' mother, Ms P Jets, by their first names (and again, I mean them no disrespect by doing so);
c)I shall refer to the independent children's lawyer as the ICL; and
d)I will record, at this stage, that Ms Jets was represented at trial by Mr O'Connor of counsel, Mr Maker was represented by Mr Howe of counsel and the ICL was represented by Ms Dowler of counsel.
Although the law now refers to a child “spending time” with a person with whom the child does not live,[1] I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, s.64B(2) of the Family Law Act 1975. See also Carpenter and Lunn (2008) FamCAFC 128 and Chappell (2008) FamCAFC 143
All statements of fact in these Reasons comprise findings of fact.
Introduction
Mr Maker was born [in] 1974, and Ms Jets was born [in] 1982. They commenced a relationship in July 2006. They separated in September 2008, shortly before [X] turned two. [X] has lived with Ms Jets since that time.
Mr Maker commenced a relationship with Ms W in October 2009. In September 2010, they started to live together. Ms W has three children from two previous relationships – [Q] (who is 15), [Y] (who is 11) and [Z] (who is five). All three children live with Mr Maker and Ms W. [Q] and [Z] spend time with their fathers, but [Y] has no contact with his father.
When the matter was in court in November 2011, Ms W was heavily pregnant. The baby (who will, of course, be [X]'s half sibling – and the half sibling of [Q], [Y] and [Z] as well) was due in December 2011.
Mr Maker and Ms W live in [Suburb omitted].
Ms Jets has not repartnered. She lives with her mother, Ms P Jets, in [Suburb omitted]. It follows that Mr Maker and Ms Jets live approximately 15 km apart.
Ms Jets' father died in mid to late August 2011, after an extended illness. Prior to his death, he had lived with Ms P Jets and Ms Jets (and [X]) in the family home in [Suburb omitted]. Ms P Jets had been very heavily involved in caring for him during the final stages of his illness.
The trial in this matter was lengthy:
a)Following an unsuccessful application by Ms Jets' counsel for an adjournment, the trial commenced on 2 February 2011. It continued on 3 and 4 February 2011.
b)The trial was then adjourned to 21 March 2011, and continued on 22, 23, 24 and 25 March 2011.
c)On 25 March 2011, and after hearing closing submissions from all three counsel, the proceedings were adjourned for the delivery of judgment.
d)On 18 July 2011, Mr Maker filed an application in a case seeking, among other things, leave to reopen.
e)Leave to reopen was granted (following a contested interlocutory hearing) on 28 July 2011.
f)The second phase of the trial (following the grant of leave to reopen) commenced on 14 November 2011. It continued on 15 and 16 November 2011.
g)After hearing closing submissions from all three counsel on 16 November 2011, I delivered a comparatively short, ex tempore preliminary judgment. I then ordered, among other things, that [X] live with Mr Maker and that Mr Maker have sole parental responsibility for him.
It follows that the trial occupied a total of 11 days.
In the course of delivering my ex tempore Reasons on 16 November 2011 (which I shall call "the oral Reasons"), I said:
... the comments that I am about to make are preliminary and incomplete, and I reserve the right to add to them and amend them to the extent that it should become necessary for me to do so, or if there is reason for me to do so.
I concluded the oral Reasons as follows:
Beyond the above comments and findings, it is not necessary for me to go today. My views are clear from the comments that I have made. As I have indicated, these are preliminary and inelegant reasons, and I reserve the right to amend them to the extent that that may be necessary to make them more comprehensible. I also reserve the right, if it should become necessary to do so, to provide more full reasons at a later time. In my opinion, however, it is important that a decision be made, and that these proceedings be brought to finality, as soon as possible.
My "more full reasons" are contained in this Judgment. The original oral Reasons (as delivered on 16 November 2011, although revised to repair formal or grammatical errors, or awkward phraseology) are set out below, principally under the heading "Oral Reasons".
I am aware that Ms Jets has appealed from the orders made on 16 November 2011. Although a copy of the notice of appeal was emailed to me by the Registrar of this Court, I have not read it and I am not aware of the grounds of appeal relied upon. In my opinion, to read the notice of appeal could open the door to the possibility of a suggestion that these Reasons may have been prepared in such a way as to meet or otherwise deal with the appeal grounds. I would hope that the likelihood of such a suggestion is remote but, in my opinion, the broad principles of procedural fairness demand that these Reasons be prepared in the same manner as they would have been prepared if the parties had asked for them well prior to the filing of a notice of appeal.
As I have recorded above, it was not in dispute that [X] has lived with Ms Jets for the whole of his short life. Mr O'Connor placed great emphasis on what is usually described as the status quo, and it must be acknowledged, of course, that, generally speaking, the longer a parenting arrangement adheres, the less likely the Court to alter it. Still, an existing status quo, even a satisfactory one, is not necessarily determinative in a parenting case. Over 30 years ago, the Full Court in Burton said:[2]
… (We) are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child or in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case.When weighing that factor, the quality of the status quo would require examination – and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified. (Emphasis added)
[2] (1979) FLC 90-622, at 78,218
These remarks were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154.[3] In my opinion, and although the law in relation to parenting issues was comprehensively amended in mid 2006, the passage from Burton quoted above remains good law.[4]
[3] See also A v A: Relocation Approach (2000) 26 Fam LR 382 at 405-6.
[4] See (for example) Goode (2006) FLC 93-286 at paras.72-3
To the extent that Mr O'Connor might be considered to have been arguing that the current status quo should be preserved for its own sake, I reject that submission. Relevantly, and as appears above, there is no legal onus on Mr Maker to persuade the Court that the current status quo should be altered. I have had regard to the current status quo (and, of course, its quality) as part of my consideration of the various factors referred to elsewhere in these Reasons.
Mr O'Connor also appeared to argue that Ms Jets should not be "punished" for her attitude and behaviour by having [X] removed from her care and placed with Mr Maker. As I made perfectly clear during the course of closing addresses (and in the oral Reasons), however, the Court is not concerned with punishing one party or the other, or rewarding one party or the other for that matter. The case concerns [X], whose best interests comprise the Court’s paramount consideration. To punish or reward one party or the other by removing [X] from Ms Jets' care or placing him with Mr Maker (or, for that matter, leaving him in Ms Jets' care or refusing to place him with Mr Maker) would amount to an abdication of the Court's obligation to make such orders as it considers are most likely to be in [X]'s best interests. It would also amount to an obvious failure of the Court to apply the law.[5]
[5] which I have discussed below
Put another way, even if I were to accept that [X] is "doing well" in Ms Jets' care, an order to the effect that [X] should continue to live with her cannot be a reward for commitment or conscientious endeavour on her part. The Court must give consideration to each of the factors that impact on [X]'s best interests, and must do its best to weigh those considerations against each other. If [X] can indeed be regarded as "doing well" in Ms Jets' care, then that is to her credit; indeed, it is to both parties’ credit. But, in effect, it does no more than describe the status quo – which is a relevant consideration, but (as I have explained) is not the sole or the determinative consideration. In this case, I have concluded that the status quo should be disturbed, and I have explained my reasons for reaching that conclusion.
This was a most unusual case. I have formed the view that Mr Maker is a sensible, caring and responsible parent. I have no doubt that he can be relied upon to protect and promote [X]'s best interests. But it was Ms Jets – her character and personality, her behaviour and attitudes – who seemed to dominate the trial process. To paraphrase counsel in a case that came before me some years ago:
Exhibit A in the case was the mother herself.
Before continuing further with these Reasons, I propose to identify certain relevant people.
Witnesses and relevant persons
A comparatively large number of people were involved in these proceedings (directly or indirectly). It follows that a short overview is appropriate:
a)I have already referred to [X], Ms Jets and Mr Maker. Both Ms Jets and Mr Maker swore affidavits, gave evidence and were cross examined.
b)I have also indicated that Ms P Jets is Ms Jets' mother and Ms W is Mr Maker's partner. Ms P Jets and Ms W swore affidavits, gave evidence and were cross examined.
c)Dr D is a general medical practitioner. He is Ms Jets' GP. He is also Ms P Jets' GP. Ms Jets took [X] to see him on a number of occasions. Dr D swore affidavits, gave evidence and was cross examined.
d)Mr N and Dr N are neighbours of Ms Jets and Ms P Jets. Mr N described his occupation as "[occupation omitted]". Dr N is an [occupation omitted] and is now the director of [omitted] at [omitted] Hospital. Their evidence was principally focused on certain observations they had made of [X], or things that [X] had said to them. Each of these witnesses swore an affidavit, gave evidence and was cross examined.
e)Ms T and Ms R are Mr Maker's mother and sister respectively. They swore affidavits, gave evidence and were cross examined.
f)Mr M is a registered and licensed investigator and process server. He swore an affidavit on 12 August 2010 dealing with his communication with Ms P Jets on 10 August 2010, after one of his employees, Ms C, had served Ms Jets with a copy of Mr Maker's contravention application and supporting documents (filed 5 August 2010) earlier that day. Mr M gave evidence and was cross examined (by telephone).
g)Dr E is a consultant psychiatrist, and Mr L is an experienced psychologist and family report writer. Both prepared reports which were admitted into evidence without objection. Neither was required for cross examination.
h)Mr P is a very experienced and well qualified clinical psychologist and family report writer. He prepared a detailed family report. He gave evidence at the trial and was cross examined.
i)Ms S is a psychologist. She swore an affidavit on 14 December 2010, annexing a letter that she had prepared on 18 August 2009. She prepared the letter after seeing and speaking with Ms Jets. She also saw [X] "incidentally", but did not interview him. She did not see Mr Maker. Ms S gave evidence at the trial and was cross examined.
j)Mr B Jets is Ms Jets' brother. Ms A Jets is his wife. Both swore affidavits regarding events that occurred at the home of Ms Jets and Ms P Jets on 3 July 2011 – which events eventually led to the trial being reopened. Both gave evidence at the trial and were cross examined.
Documents relied upon
Ms Jets relied upon the following documents:
a)her outline of case filed 28 January 2011;
b)her affidavits sworn 16 February 2009, 3 August 2010, 23 December 2010, 21 March 2011, 24 March 2011, 25 July 2011 and 31 August 2011;
c)Ms P Jets' affidavits sworn 16 February 2009, 6 January 2011, 21 March 2011, 25 July 2011 and 31 August 2011;
d)Dr D's affidavits sworn 9 September 2010 and 10 December 2010;
e)Dr N's affidavit sworn 10 September 2010;
f)Mr N's affidavit sworn 10 September 2010;
g)Ms S's affidavit sworn 14 December 2010;
h)Mr B Jets' affidavit sworn 23 July 2011; and
i)Ms A Jets' affidavit sworn 23 July 2011.
Mr Maker relied upon the following documents:
a)his outline of case filed 28 January 2011;
b)his response filed 29 September 2010;
c)his affidavits affirmed 27 September 2010, 17 January 2011 and 18 July 2011;
d)Ms W's affidavits sworn 17 January 2011 and 20 July 2011;
e)his mother's affidavit sworn 19 January 2011;
f)his sister's affidavit sworn 19 January 2011; and
g)Mr M's affidavit sworn 12 August 2010.
Although Mr Maker originally relied upon an affidavit sworn by Ms C (a process server) on 12 August 2010, Ms C was not available for cross examination and Mr Howe later indicated that he affidavit would not be relied upon.
The ICL relied upon the following documents:
a)outline of case filed 27 January 2011;
b)Dr E's psychiatric assessment of Ms Jets and Mr Maker (dated 27 April 2009);
c)Mr L's affidavit sworn 26 January 2011 (attaching his family report dated 18 May 2009); and
d)Mr P's affidavit sworn 20 January 2011 (attaching his report dated 21 December 2010).
A large number of exhibits were tendered on behalf of Ms Jets, Mr Maker or the ICL.
Parenting Orders – The Law[6]
[6] This generic summary of the law is based on a similar summary in my decision in the matter of Mills & Watson (2008) 39 Fam LR 52
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the Family Law Act 1975. Much of Part VII reflects comprehensive amendments to the pre-existing law, which came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long term issues in relation to the child”.[7] Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long term issue in relation to a child ─ although such a decision could involve a major long term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[8]
[7] See s.64B(3)
[8] See the definition of "major long term issues" in s.4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long term issue regarding a child, then the relevant decision must be made jointly. Further, an order for equal shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long term issue, and to make a genuine effort to come to a joint decision.[9] Such consultation is not required in relation to issues that are not major long term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[10]
[9] See s.65DAC; see also Pender & Haywood [2007] FamCA 152656
[10] See s.65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in 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.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[11]
[11] See s.60B(1)
… to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[12]
[12] See s.60B(2)
… that (except when it is or would be contrary to a child's best interests):
· 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
· 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
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[13]
[13] See s.60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are promoted, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[14] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[14] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see s.60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[15]
[15] This list is not intended to be comprehensive. It is simply a summary of the factors in s.60CC(3). The actual factors set out in s.60CC(3) – or, more accurately, those of them that are relevant – will be considered later in these reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent 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 as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[16] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[17]
[16] See s.60CC(4A)
[17] See s.60CC(4)(c)
Although the primary considerations are listed before the additional considerations, they will not always "outweigh" them.[18] Clearly, the primary considerations "should be accorded particular importance in determining what order will best promote the interests of the child", but they will not always determine the outcome of the proceedings.[19] Further:[20]
Not only must the "additional" considerations be taken into account, but the two "primary" considerations themselves may tend in different directions.
… (It is not necessary to determine whether other factors serve to) "displace" one of the primary considerations. Rather, (the Court is) obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as (it thinks) appropriate in arriving at the result most likely to promote the child's best interests. … (Particular emphasis must be placed on the primary considerations) not only because the legislature has identified them as "primary" but also because they are manifestly of the utmost importance in determining what outcome will best advance the child's best interests.
[18] See Champness & Hanson (2009) FamCAFC 96 at para.101
[19] See Marsden & Winch (No 3) (2007) FamCA 1364
[20] See Marsden & Winch (No 3) at paragraphs 77-8
In considering the first of the primary considerations (being the benefit to a child of having a meaningful relationship with both of his/her parents) the "preferred" approach is to "consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents", although an approach which involves examining evidence of the nature of the child's relationship as at the date of the hearing in order to make findings based on that evidence and to frame orders accordingly may also be relevant in certain circumstances.[21] Irrespective of the approach to be adopted, the benefit to a child of a meaningful relationship with his/her parents is not a legislatively defined presumption, or even an assumption.
[21] See McCall & Clark (2009) FLC 93-405 paragraphs 117-22
The Full Court in Goode summarised the above process as follows:[22]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[22] See para.10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[23] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[24]
[23] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[24] See s.65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[25] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[25] See s.61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[26] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[27]
[26] See s.61DA(2) and the definition of "family violence" in s.4(1)
[27] See s.61DA(3); it is important to note, however, that the Full Court in Goode (at para.78) held that the discretion in s.61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[28]
[28] See s.61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[29]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[30] and in the child's best interests. If it is both of these things, then the court must consider whether it should make an order to that effect.[31] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[32] with each parent would be both reasonably practicable[33] and in the best interests of the child. If it is both of these things is, then the court must consider whether it should make an order to that effect.[34]
[29] See, for example, Goode at paras.46 and 47, and Pender & Haywood [2007] FamCA 1526 at para.44
[30] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[31] See s.65DAA(1)
[32] "Substantial and significant time" is defined in s.65DAA(3)
[33] How a court determines "reasonable practicality" is the subject of s.65DAA(5)
[34] See s.65DAA(2); see also Goode at paras.43 and 44
In MRR v GR (2010) FLC 93-424, the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order (for equal time). ... A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. ... If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. ...
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. (Emphasis added.)
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[35]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[35] See para.62; see also Sealey & Archer [2008] FamCAFC 142
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[36]
[36] See para.63
In Mazorski & Albright,[37] Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose,[38] Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3)
[37] (2008) 37 Fam LR 518
[38] (2008) FLC 93-375
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[39]
[39]The relevant steps (as modified for a final hearing, and taking into account the High Court's decision in MRR v GR) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider both the following questions:
i)Is it in the best interests of the child to spend equal time with each parent?
ii)Is it reasonably practicable that the child spend equal time with each parent?
h)If both the above questions are answered in the affirmative, then consider making an order for equal time, but the court is not obliged to make such an order.
i)If the section 61DA presumption applies and has not been rebutted, but equal time is not in the child's best interests, or is impracticable, then consider both the following questions:
i)Is it in the best interests of the child to spend substantial and significant time with the other parent?
ii)Is it reasonably practicable that the child spend substantial and significant time with the other parent?
j)If both the above questions are answered in the affirmative, then consider making an order that the child spend substantial and significant time with the other parent, but the court is not obliged to make such an order.
k)In considering whether to make an order for equal time (or, alternatively, an order for substantial and significant time), the court is not required to assume that it is desirable that such an order should be made, or that the making of such an order is the "default" position (as it were) under the Family Law Act 1975. Instead, the court must concern itself with the reality of the situation of the parents and the child; it must make a practical assessment of whether equal time (or, alternatively, substantial and significant time) is both feasible and in the best interests of the child.
l)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but neither equal time nor substantial and significant time are both feasible and in the best interests of the child, then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[40]
[40] See Goode at para.65.8
Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[41] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[42]
[41] See Goode at para.65.11
[42] See Goode at para.65.9
Oral Reasons (delivered on 16 November 2011)
The following comprise the oral Reasons delivered on 16 November 2011 (although revised to repair formal or grammatical errors, or awkward phraseology) – save that I have removed my references to the section 60CC(2) and (3) factors from the oral Reasons and placed the comments (which I have clearly identified) under the relevant subheadings in this judgment. Have also altered references to "the mother" and "the father" to references to Ms Jets and Mr Maker respectively, so that the oral Reasons reflect the approach I have adopted in this judgment.
1. I indicated some time ago that although it may not be possible (and indeed, it will not be possible) for me to provide full reasons at this stage for the orders that I propose to make, I would indicate as soon as the trial was over, and as soon as I felt able, the orders that I think are in [X]’s best interests.
2. The reason why I am in some difficulty in relation to providing full reasons in this matter at this point in time is because I am about to go on leave at the end of this week. Everybody involved in the case has been aware of that for some time.
3. It follows that the comments that I am about to make are preliminary and incomplete, and I reserve the right to add to them and amend them to the extent that it should become necessary for me to do so, or if there is reason for me to do so.
4. The first comment that I think I should make is in response to Mr O'Connor's suggestion – on a number of occasions during the course of his address to me this afternoon – that punishment of Ms Jets might (in some way) be a relevant consideration, or that punishment or deterrence might comprise motivations or justifications for orders that the Court might be minded to make. I want to say as clearly as I can, and at the outset, that the Court is not concerned with punishing one party or the other. The Court’s primary concern is what is best for [X]. It is as simple as that. His best interests comprise the paramount consideration in these proceedings. This judicial officer has no interest in punishing one party or the other.
5. The reference that I made during the course of the hearing to giving Ms Jets one last chance was in the context of observing that the Court had already heard a very lengthy trial (which concluded on 25 March of this year). At the end of that hearing, all counsel made forceful submissions. The ICL’s submissions were to the effect that [X] should be placed in Mr Maker's care. There is no need for me to revisit those submissions at this time.
6. I indicated during the course of this week that, although reasons for judgment had not been delivered at the time that the application to reopen the case was made, one of the thoughts that was going through my mind as the judicial officer responsible for reaching a determination in the case was whether it was appropriate to see if Ms Jets had learned from the trial and the litigation process generally, and to see whether the behaviours that had characterised the relationship between these parties, and the impact of those behaviours on [X], might take a different direction following the trial. A similar suggestion has been made to me during the course of submissions today.
7. There was at least a glimmer of hope on the last occasion that Ms Jets had learned something from the litigation process, and that [X] might be protected from (for example) further physical examinations as a result of allegations made regarding injuries sustained while in Mr Maker's care, adverse comments made about his father in his presence and what might generally be described as a fairly poisonous atmosphere in Ms Jets' household (and I say poisonous, not in the context of general malice toward all, or the fact that [X] might be placed at risk in a physical sense, but in the sense that there is a deep seated antipathy to Mr Maker in that household – to all that he has done in the past and to all that he now represents in the mind of Ms Jets and Ms P Jets). Unfortunately, the evidence now before me of the sorts of comments that [X] has made – including comments in Mr Maker's household – would indicate that, slowly but surely, his mind is being poisoned against his father by the attitudes that he encounters in Ms Jets' household.
8. So let me reinforce my earlier comment: I am not concerned with punishment. It is regrettable that that concept was emphasised to the extent that it was in Mr O'Connor's address. I am only concerned with [X]’s best interests.
9. The difficulty in this case has always been, though: what orders are most likely to best promote [X]'s best interests? As with almost every parenting case that is run in this Court and in the Family Court, the long list of considerations that must be taken into account frequently leads to there being certain factors which will favour one outcome, and certain factors which will favour a different outcome. Having made findings in one direction or another, the task that a judicial officer must embark upon is to weigh up those various factors and considerations and determine, on balance, how best to promote the child’s welfare or best interests.
10. That [X] has a close and loving relationship with Ms Jets is not in dispute in this case. That Ms Jets has been his primary caregiver since his birth is not in dispute either. That in one sense – and that is the physical care of [X] – Ms Jets has done a very good job is probably not in dispute either, although there are aspects of that care to which I may have to refer at a later stage.
11. The thrust of the ICL's submissions today and on the last occasion had to do with [X]’s emotional health, and his psychological and emotional welfare. Ms Jets' attitude is a cause for concern, as the ICL has made clear, and I accept and adopt Ms Dowler's submissions from both today and the last occasion (25 March 2011) in that regard. Clearly, the Court must look at what can or can’t be done about Ms Jets' attitude, and the impact of that attitude on [X], as it turns its attention to future parenting arrangements for him.
12. Just as the Court is not and cannot be concerned with punishing one party or the other, so the Court is not and cannot be concerned with rewarding one party or the other for what might be a job well done, or a job that was partially well done and partially poorly done (or, indeed, for being an innocent party). That is not the Court’s role in parenting proceedings. In broad terms, it has to look at the various competing factors, make findings about them, and endeavour to apply the law as best it can. Discretion clearly plays a significant role in that process.
13. Obviously, the Court's impressions of the witnesses who gave evidence before it comprise an important component of the exercise. The Court cannot be expected to make a decision in a vacuum. One of the purposes of the trial process is, if you like, to breathe life into the affidavit evidence presented by or on behalf of the parties, and in this case the Court has had the benefit of seeing and hearing from a relatively large number of witnesses. When and if I give more full reasons, I will obviously have to deal with some of that evidence in more detail.
14. I want to say at this stage, though, that I found Mr Maker and Ms W to be impressive and credible witnesses and, by and large, I accept their evidence. On the other hand, I found Ms Jets and Ms P Jets to be poor, unimpressive witnesses. I have grave doubts about many of the things that they told me, and their attitude to Mr Maker and willingness to blame him for almost every problem in [X]’s life seems to me to be counterproductive. It is certainly not in [X]'s best interests. I have not made these comments to punish or insult anybody. One of the roles of the Court is to consider and weigh up the evidence of the parties and their witnesses and, where conflicts in relevant evidence arise, to determine whose evidence should be preferred. That is not to say that every aspect of Mr Maker's evidence was wholly satisfactory and every aspect of Ms Jets' evidence was wholly unsatisfactory. That is not the case at all. But I am certainly concerned by Ms Jets' evidence and presentation, and by Ms P Jets' evidence as well. And I cannot help but be concerned about [X]’s emotional welfare while he lives in a household that contains those two women, for so long as they adhere to the views that they expressed in these proceedings and for so long as their behaviour, about which I have heard so much during this lengthy trial, remains immoderate where it relates to [X]'s contact with Mr Maker.
15. Let me turn now to the events that caused the reopening of this case. They relate to an incident (about which I’ve heard a great deal) which occurred on 3 July this year. I don’t propose to analyse all the evidence in giving these short and partial reasons. Suffice it to say that I accept the evidence of Mr Maker and Ms W to the effect that [X] did not have the red marks on his arm at the time that he left Mr Maker's care. I have no discomfort whatsoever with that finding. I am prepared to make that finding on the balance of probabilities, taking into account the seriousness of the allegations that have been raised by Ms Jets (suggesting that [X] had been injured in some way while in Mr Maker's care). In other words, I am satisfied on the balance of probabilities – indeed, to a high degree – that [X] did not have the red marks on his arm when he left his father’s care on that day.
16. Clearly, by the time [X] was seen by police officers later that evening, after Ms Jets' brother and sister had left, he had marks on his arm. I cannot make any clear finding as to what type of marks they were, or as to what caused them. I find, however, on the balance of probabilities and taking into account the seriousness of the matters alleged, that the injuries were more than likely caused at some time between [X] being collected by Ms P Jets and the time when Ms Jets made the initial complaint to the police. Who (if anyone) caused them, and how they were caused, I am unable to conclude. I will say, however, that I find that there is at least a possibility that Ms Jets caused the injuries.
17. I find that there is also a possibility, and perhaps a stronger possibility, that [X] himself caused the injuries while playing alone at a time when neither Ms Jets' brother nor her sister was in his presence. I was most unimpressed by the evidence of each of them, and I find that, quite clearly, there were relevant times when they were not in [X]’s presence, and that there were relevant times when neither Ms Jets nor Ms P Jets was in his presence either. I find that it is possible that [X] could have injured himself in some way while playing by himself in the house.
18. As has been pointed out by Ms Dowler and Mr Howe, [X] gave different explanations for the alleged injury. It appears to have caused him no pain; he certainly did not complain of any pain in relation to the injury. Suffice it to say that I make the following findings on the balance of probabilities (and taking into account the seriousness of the matters alleged):
a. the injury did not occur while [X] was in the direct or indirect care of his father; and
b. the injury did occur while he was in the direct or indirect care of his mother.
19. As to precisely how the injury occurred, I do not know – but (as I have said) there is a possibility that Ms Jets caused it, and a greater possibility that [X] himself caused it.
20. I should also say something about certain of the matters that formed the subject of evidence during the first phase of the trial. There was a great deal of evidence about bruising. I am satisfied on the balance of probabilities, and taking into account the seriousness of the matters alleged, that, with the exception of injuries or bruising that Mr Maker and Ms W have conceded occurred while [X] was in their care, the injuries and bruising that [X] may have appeared to sustain did not occur while [X] was in Mr Maker's care. There is at least a possibility in relation to those injuries, or some of them, that they were caused by Ms Jets. Similarly, there is at least possibility that they, or some of them, were caused by Ms P Jets. There is also a possibility that they, or some of them, were caused by [X] himself. And there is a further possibility that they, or some of them, occurred while [X] was in another place, such as his child care. Suffice it to say that I accept the evidence of Mr Maker and Ms W in relation to injuries that occurred or did not occur while [X] was in their care. Beyond that, I am unable to make any clear or positive findings as to the cause or extent of [X]'s injuries – but, as I have indicated, there are at least the various possibilities that I have referred to. In all the circumstances, and taking into account the evidence before me, I cannot make a positive finding to the effect that those other possibilities have been excluded.
21. Generally speaking, I accept and adopt Ms Dowler's submissions (as made today and on 25 March 2011). I note that Mr Howe also accepted and adopted Ms Dowler's submissions on both occasions.
22. Section 60CC of the Family Law Act directs the Court to give consideration to a variety of factors in determining what might be in a child’s best interests. The primary considerations are expressed to be, firstly, the benefit to the child of having a meaningful relationship with both of the child’s parents, and secondly, the need to protect the child from physical or psychological harm, and from being subjected to or exposed to abuse, neglect or family violence.
The next passages of the oral Reasons are quoted (in order) elsewhere in this judgment, under the various section 60CC factor headings. After dealing with the section 60CC factors, I concluded the oral Reasons as follows:
53. Beyond these comments and findings, it is not necessary for me to go today. My views are clear from the comments that I have made. As I have indicated, these are preliminary and inelegant reasons, and I reserve the right to amend them to the extent that that may be necessary to make them more comprehensible. I also reserve the right, if it should become necessary to do so, to provide more full reasons at a later time. In my opinion, however, it is important that a decision be made, and that these proceedings be brought to finality, as soon as possible.
54. I propose to make the orders that are contained in the minute handed up to me by Ms Dowler and supported by Mr Howe. I propose to order that [X] move into the care of his father forthwith, this afternoon, by 6 pm; and that the period of two weeks that the mother not spend time with [X] commence forthwith. In my view, [X] faces an unacceptable risk of emotional harm for so long as he remains in Ms Jets' care, and it follows that the change of residence should take place immediately.
55. I will make an order that all parties have liberty to apply for an order for costs within 90 days. Given that that is an order that deals with time within which event is to occur, the time frame can be extended on the application of one party or the other.
Background and overview
I have dealt with certain biographical and other details under the headings of Preamble and Introduction above.
Mr L's report contains a summary of certain background facts and historical aspects of the relationship between Ms Jets and Mr Maker. Although the numbering in the report appears to be awry, the relevant passages are on pages 4 to 11 (inclusive) and from paragraphs 3.1 to 2.39 (seemingly, 3.39). I accept and adopt these paragraphs as a useful, short form summary of the relationship. Of course, as indicated elsewhere in these Reasons, I do not accept Ms Jets' version of the facts where it conflicts with Mr Maker's version (or, indeed, where it conflicts with the version of any other witness).
Given that these Reasons are being prepared in the context of a notice of appeal having already been filed, I do not propose to set out the procedural history of the case in detail. The outline of case documents filed on behalf of Ms Jets and on behalf of the ICL on 28 and 27 January 2011 respectively both contain adequate chronologies dealing with the subject. I will make mention, however, of the following:
a)Mr Maker and Ms Jets commenced their relationship in July 2006. They separated in September 2008, shortly before [X] turned two.
b)The first application filed by either party was an application filed by Mr Maker on 21 January 2009. In it, he sought that the parties have equal shared parental responsibility for [X], that [X] live with him and that Ms Jets have certain defined contact with [X].
c)Ms Jets filed a response to Mr Maker's application on 16 February 2009. She sought that she have sole parental responsibility for [X] and that [X] live with her. The response was supported by Ms Jets' affidavit sworn 16 February 2009, in which she made a large number of allegations against Mr Maker. For example, she alleged that Mr Maker had assaulted her on a number of occasions, was unsympathetic to and unsupportive of her during her pregnancy with [X], and was effectively disinterested in spending time with [X] and unreliable when arrangements were made for him to do so. Ms Jets also alleged that Mr Maker was an alcoholic and that he had been a frequent user of illicit drugs in the past. She added that she suspected that he was still using illicit drugs. Further, she alleged that on one occasion (when he could not sleep at night because of [X]'s crying) Mr Maker "snapped and became very angry at [X] and grabbed a knife and threatened to stab [X] while he was in his cot". On other occasions Mr Maker wore earplugs to bed so that he could block out [X]'s crying (leaving it to Ms Jets to care for [X] when he cried). As well, Ms Jets asserted that Mr Maker was not meeting his child support obligations.
d)Ms Jets also alleged in her affidavit sworn 16 February 2009 that on one occasion Mr Maker's sister "picked up [X] ... (and) proceeded to pour beer down [X]'s throat".
e)In paragraph 57 of her affidavit sworn 16 February 2009, Ms Jets deposed as follows:
I believe that the only feasible option is for [X] to live with me on a full time basis. I do not propose that (Mr Maker) spend any time with [X] for the time being in light of his violent nature and the threats he has made in the past to kill himself and [X]. (Mr Maker) cannot control his alcohol consumption, I suspect he is taking illicit drugs and I suspect that he has a psychological condition. (Mr Maker) has never shown that he is capable of providing a safe environment for [X] nor has he demonstrated an ability to adequately care for [X]'s day to day needs.
f)Ms Jets' affidavit sworn 16 February 2009 is remarkable for its relentless criticism of Mr Maker and its failure to record any or any obvious positive statements about him as a person or as a parent.
g)On the first return date of Mr Maker's initiating application, being 18 February 2009, interim orders were made by consent to the effect that [X] live with Ms Jets and that Mr Maker have daytime contact with him each Saturday, such contact to be supervised by Mr Maker's sister (although a notation to the orders records that Mr Maker's consent to the supervision of his contact with [X] was given with a denial of the necessity for such supervision). An ICL was appointed, a family report was ordered and the matter was otherwise listed for trial on 20 May 2009. In addition,
i)Ms P Jets was to be responsible for effecting the contact changeovers;
ii)the parties were to keep each other advised of certain events, including [X] suffering any serious illness or injury;
iii)the parties were restrained from denigrating each other in [X]'s presence;
iv)Mr Maker was restrained from consuming alcohol or being under the influence of any illegal drug for 24 hours prior to and during each contact period;
v)Mr Maker was required to undergo supervised random urine screens;
vi)the parties were to maintain a communication book;
vii)both parties were to attend and complete a post separation parenting course;
viii)both parties were to see Dr E for the purpose of the preparation of a psychiatric report;
ix)both parties were to attend therapeutic counselling with a view to improving their communication; and
x)Mr Maker was required to do refresher courses relating to an anger management course that he had previously completed.
h)The family report was prepared by Mr L. It is dated 18 May 2009 and is annexed to Mr L's affidavit sworn 26 January 2011. Mr L saw the parties and [X] on 28 March 2009.
i)Dr E's report is dated 27 April 2009.
j)The matter did not proceed to trial on 20 May 2009. Instead, final consent orders were made by Federal Magistrate Phipps (which I shall call "the 2009 final orders"). The 2009 final orders are detailed, and they are available to be read for their full terms and effect, but they include the following:
i)Mr Maker and Ms Jets were to retain "joint parental responsibility" for [X];
ii)[X] was to live with Ms Jets;
iii)Mr Maker was to have unsupervised contact with [X] on an overnight basis; and
iv)Mr Maker's unsupervised contact with [X] was to increase on a gradual basis leading to an arrangement (to commence on [X]'s birthday in 2011) whereby [X] would spend five nights per fortnight and half of all school holidays with Mr Maker.
k)Problems arose very shortly after the making of the 2009 final orders. With effect from July 2009 (and using the words appearing in Ms Jets' chronology):
Mother alleges child returns from father’s time regularly with injuries (bruising, scratches and other injuries to head, body and limbs ...)
l)Ms Jets having stopped contact on the basis of these allegations, Mr Maker filed a contravention application on 11 August 2009.
m)The contravention application came before Federal Magistrate O'Dwyer on 25 August 2009. After a defended hearing, his Honour found the contravention proved and ordered Ms Jets to enter into a bond to be of good behaviour pursuant to section 70NEC of the Family Law Act 1975 for 24 months, and to provide makeup contact. Federal Magistrate O'Dwyer provided reasons for his decision: see Maker & Jets [2009] FMCAfam 1046.
n)On 18 September 2009, Ms Jets appealed from Federal Magistrate O'Dwyer’s orders. The appeal was heard by Justice O'Ryan on 3 March 2010. On 26 March 2010 his Honour published his Reasons for Judgment, and ordered that the appeal be allowed. His Honour also ordered that Federal Magistrate O'Dwyer’s orders be set aside and that Mr Maker's contravention application be remitted for rehearing before a different Federal Magistrate.
o)Justice O'Ryan's judgment was published informally as Jets & Maker (2010) FamCAFC 55.
p)On 17 September 2010, O’Ryan J published a further judgment, dealing with the costs of the appeal. His Honour ordered that both parties be granted relevant costs certificates: see Jets & Maker (2010) FamCAFC 185.
q)I have, of course, read Federal Magistrate O'Dwyer's judgment, and the two judgments handed down by Justice O'Ryan.
r)The rehearing of Mr Maker's contravention application was allocated to me. It first came before me on 12 April 2010, at which time it was listed for a two day hearing commencing on 27 September 2010 (which was later altered to 29 September 2010).
s)In the meantime, Mr Maker filed a further contravention application on 5 August 2010 and Ms Jets filed an application initiating proceedings seeking the discharge of the 2009 final orders and a reconsideration of the contact arrangements that might be deemed appropriate between Mr Maker and [X]. Ms Jets also filed a Form 4 Notice of Child Abuse.
t)On 13 September 2010, I ordered that an ICL be appointed and directed that Mr Maker's second contravention application be adjourned to 29 September 2010, to be heard together with his earlier contravention application.
u)On 29 September 2010, Mr Maker filed a response seeking orders to the effect that [X] live with him and that Ms Jets have certain defined contact with [X].
v)A comparatively lengthy interim/interlocutory hearing took place on 29 and 30 September 2010, at the conclusion of which detailed orders were made. I refer to the orders themselves for their full terms and effect. Of most significance, however, were the following:
i)All previous orders were discharged.
ii)Until further order, the parties were to have equal shared parental responsibility for [X].
iii)[X] was to live with Ms Jets, and have contact with Mr Maker.
iv)Mr Maker's contact was to occur each alternate weekend from 4:30 p.m. or the conclusion of childcare on Friday to 4:30 p.m. on Sunday, and from 4:30 p.m. Thursday until 9 a.m. or the commencement of childcare on Friday in the intervening week, as well as at other specified times.
v)Mr Maker’s mother or Ms W were to be in substantial attendance during Mr Maker’s contact periods.
vi)Orders were made in relation to non-denigration and for Mr Maker to undergo drug screen testing (including by way of the provision of a hair sample). Mr Maker was also restrained by injunction from using alcohol or illicit drugs for 24 hours prior to and during all contact periods.
vii)The parties and [X] were to attend upon Mr P to enable this the preparation of a family report.
viii)The matter was otherwise listed for trial on 31 January 2011 with an estimated hearing time of five days.
w)All the above orders were made on Ms P Jets' undertaking not to abuse, insult, belittle, rebuke or otherwise denigrate Mr Maker in [X]'s presence or hearing.
x)Mr P saw Ms Jets and Mr Maker, and [X], on 8 December 2010. His report is dated 21 December 2010 and is annexed to his affidavit.
y)On 31 January 2011 I granted Mr Maker leave to withdraw his contravention applications filed 11 August 2009 and 5 August 2010, and adjourned the trial to commence on 2 February 2011.
z)As indicated above, the trial commenced on 2 February 2011 and continued for a total of 11 days.
Of considerable importance in the context of this matter is the fact that Ms Jets raised fresh allegations regarding Mr Maker's behaviour towards [X] both during the proceedings and after the completion of what turned out to be the first phase of the trial, leading to the trial having to be reopened. As explained above, the trial commenced on 2 February 2011 and continued to 4 February 2011, at which time it was adjourned to 21 March 2011. Before the recommencement of the trial on 21 March 2011, both Ms Jets and Ms P Jets alleged that [X] made statements on 4, 5 and 6 March 2011 suggesting that Mr Maker had sexually abused him and allegedly injured him to the point that (according to Ms Jets and Ms P Jets) [X] said "there was blood". As a result of this allegation, Mr Maker's contact with [X] was stopped, and did not recommence until after the trial resumed on 21 March 2011. The allegation was investigated, but not substantiated.
After the completion of what turned out to be the first phase of the trial (on 25 March 2011), the proceedings were adjourned for the delivery of judgment. While the judgment was still pending, Ms Jets alleged that she noticed (when she was dressing him in his pyjamas on 3 July 2011) that [X] had marks or cuts on his right arm. She alleged that [X] told her that Mr Maker had cut him with a sword, and that [X] had also told her that Mr Maker had put him in a rubbish bin with a red lid. The evidence reveals that there were indeed marks on [X]'s right arm when he was later examined by police and others. Once again, Mr Maker's contact with [X] was stopped as a result of this allegation. It is clear, however, that the police did not accept that Mr Maker had caused the marks on [X]'s arm, and suspected that Ms Jets had caused the injury herself and made a false report. As is apparent from the oral Reasons, I am satisfied that Mr Maker did not cause the marks on [X]'s arm. I am also satisfied that Mr Maker did not put [X] in a rubbish bin or any other receptacle of any sort as apparently alleged by [X]. I am satisfied of both those things on the balance of probabilities, and taking into account the seriousness of the matter is alleged.
I shall refer to the first incident (being the events that occurred on 4, 5 and 6 March 2011) as "the blood incident" and the second incident (being the events which occurred on or around 3 July 2011, and which led to the reopening of the trial) as "the sword incident".
Following the sword incident and Mr Maker's application to reopen the case, and after hearing extended argument from counsel for Ms Jets and Mr Maker and the ICL, I granted Mr Maker leave to reopen. I also varied the previous contact orders so that [X] was to have contact with Mr Maker –
a)each alternate weekend from 4:30 p.m. (or the conclusion of childcare) on Friday to 9 a.m. (or the commencement of childcare) on Monday – commencing 29 July 2011; and
b)each alternate week from 4:30 p.m. (or the conclusion of childcare) on Thursday to 9 a.m. (or the commencement of childcare) on Friday – commencing 30 August 2011.
In addition, I ordered that:
at each changeover, a staff member of the child care centre shall undertake a full body visual examination of ([X]) and shall make notes as to any cuts, scratches, bruises or other marks observed by (the staff member).
Given the persistent allegations made by Ms Jets, including allegations made during the course of the proceedings, I could see no other way of protecting [X] from involvement in further investigations and examinations arising out of such allegations.
In her affidavit sworn 31 August 2011, Ms Jets said that the arrangement put in place on 28 July 2011 (involving a child care staff member examining [X] at each changeover) had "given her some confidence". She said that the orders had been of benefit to [X] because he no longer had to attend at a police station for changeover. She added that she had not had any significant concerns since the making of the orders, and proposed that they continue on an interim basis. Indeed, at the conclusion of the trial in November 2011, Mr O'Connor submitted that the order should continue indefinitely. As is apparent from the oral Reasons and these Reasons, I was not persuaded that that should occur.
The blood incident and the sword incident are two of many incidents forming the subject of allegations made by Ms Jets against Mr Maker. I have discussed them in more detail elsewhere in this judgment. I have also discussed another incident forming the subject of allegations made against Mr Maker. I have referred to the incident as "the fit ball incident". Significant time was devoted to the fit ball incident at trial. It occurred in January 2010, and involved [X] being returned to Ms Jets' care with, among other things, bruising and an obvious bump on his head. Ms W's evidence was to the effect that [X] and her son, [Y], had bumped their heads while jumping on a fit ball from different directions. [X] had then fallen off the ball. Ms W said that she was present when the accident happened, but Mr Maker was not (because the accident happened outside the house and Mr Maker had gone inside for a short time). During her evidence in November 2011, Ms Jets said that she did not believe Ms W's (and Mr Maker's) version of how [X] had sustained the relevant injuries.
General findings in relation to Ms Jets and Mr Maker
Ms Jets
I paid careful attention to Ms Jets as she gave her evidence. While litigation is clearly a stressful experience for a litigant, and while anxiety and nervousness are to be expected during the course of giving evidence, Ms Jets' demeanour in the courtroom could not fairly be regarded as attributable (or even substantially attributable) to such considerations. Overall, she presented as sullen, obdurate and irritable. At times she appeared vague, weary or disinterested. At other times she presented as cynical, petulant, frustrated or impatient. She was rarely willing to make concessions when it was appropriate that she should do so, or to give credit where it was due. Many of her answers were unthinking or unresponsive. She frequently demonstrated by her evidence that she was immature. She was clearly prone to exaggeration or "catastrophisation" (to use Mr L's term). Ms Jets' ill feeling and antagonistic attitude towards Mr Maker were obvious, and often amounted to vindictiveness. Although Ms Jets asserted that she does not hate Mr Maker (she "just does not understand him", "feels sorry for him for what he has done to his son" and wants him "to think more of [X] than of himself"), and that she only hates "what he is doing to [X]" (which she described as "disgusting"),[43] I do not accept her evidence in that regard. Her ill feeling towards Mr Maker runs very deep indeed, and her consistent refusal to give Mr Maker credit for anything positive that he may have done in the context of his role as [X]'s parent was as striking as it was disconcerting. I shall shortly refer to the observations of Ms Jets made by Dr E, Mr L and Mr P. Ms Jets' presentation in court was broadly consistent with those observations.
[43] See 3 February 2011 transcript, pages 70 to 72
Ms Jets' distrust and suspicion of Mr Maker were palpable. She did not hesitate to criticise all aspects of his character and ascribe to him the most base of motivations. Indeed, she described him as having "a dark heart", and interpreted his every (or almost every) motive and action as malevolent. She insisted that Mr Maker was prepared to deceive and harm her, and that he was quite prepared to use [X] as a weapon in order to do so. Indeed, during the November 2011 phase of the trial, she said that Mr Maker gets "two for the price of one" – in that by harming [X] he gets to hurt Ms Jets as well. She obviously felt that she had been deeply and irreversibly injured by Mr Maker during their relationship, and expressed unjustified and (in my opinion) arguably irrational doubts about the objectivity and trustworthiness of anyone (including Dr E, Mr L, Mr P, the police and the Department of Human Services) who did not concur with her view of the risk posed to [X] by Mr Maker.
I accept Mr Maker's description of his relationship with Ms Jets, and his subsequent dealings with her. I do not accept Ms Jets' description of the relationship, and find that she has exaggerated the degree of family violence that she endured Mr Maker's hands. But any form of family violence is reprehensible and unjustifiable, and I do not condone for one moment any of Mr Maker's behaviour towards Ms Jets which involved family violence. I accept, however, that Ms Jets would have been difficult to get along with, and would have experienced problems with a close relationship such she had with Mr Maker. I find that Ms Jets' excessive suspiciousness and hostility would indeed have expressed itself in argumentativeness and frequent complaining or, alternatively, by coldness or aloofness. Having said that, Mr Maker could have and should have avoided any situation which had the potential to lead to family violence. As he conceded, it is certainly not to his credit that he failed or refused to do so.
If the beliefs of Ms Jets and Ms P Jets regarding Mr Maker's ongoing abuse of [X] are incorrect, as I have found them to be, but they continue to behave and to treat him as if he has been abused, then it "creates a world for [X] that is based not in reality but on the construction and a set of beliefs that comes from them, commonly referred to as projections".
Applying Mr P's analysis and reasoning to the facts as I have found them to be, it is clear that [X]'s behaviour – when he is in Ms Jets' care and when he is making statements to the effect that he has been abused when the reality is that he has not – can be seen as being psychologically disturbed because of Ms Jets (and to a lesser extent, Ms P Jets).
In all the circumstances, this factor clearly supports a conclusion to the effect that [X] should cease living with Ms Jets and commence living with Mr Maker.
Child's views
In the oral Reasons, I said:
28. The factors in section 60CC(3), which are expressed to be additional considerations, are many. I will not refer in detail to all of them, but I will give a thumbnail sketch of my views in relation to each. The first relates to any views expressed by [X], and any factors that the court thinks are relevant to the weight it should give to those views.
29. [X] is a very young boy. I have no doubt that his preferred wishes would be that he should continue to live with his mother, whom he loves, and with whom he has a very close relationship. [X] clearly has a very close and loving relationship with his father as well. In my view, however, there are more important considerations than [X]’s wishes (assuming that they can be inferred in the manner that I have suggested). To the extent that Ms Jets and Ms P Jets disagree with that conclusion, I can say little, other than that my finding is that [X] does indeed have a close and loving relationship with both Mr Maker and Ms W.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Nature of relationship
In the oral reasons, I said:
30. I do not propose to deal in detail with the nature of the relationship of [X] with his parents – I accept and adopt Mr P’s analysis of their different parenting styles and skills – but it is also important that I comment on the nature of [X]’s relationship with others, which includes grandparents or other relatives. Clearly, [X] has a close and loving relationship with his maternal grandmother, Ms P Jets. That is not in dispute. But [X] also has a close and loving relationship with Ms W, and he also has a close relationship with Ms W’s children. And, of course, there is soon to be a sibling for [X] in that household.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Facilitation and encouragement of relationship between child and parent
In the oral Reasons, I said:
31. The next factor is 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. I find that Ms Jets is neither willing nor able to facilitate or encourage a close and continuing relationship between [X] and his father. On the other hand, I find that Mr Maker is both willing and able to facilitate and encourage a close and continuing relationship between [X] and Ms Jets. That is a significant and important factor in this case.
The evidence in this case to the effect that Ms Jets is neither willing nor able to facilitate and encourage a close and continuing relationship between [X] and Mr Maker is overwhelming. I have already recorded my conclusions to the effect that Ms Jets' views are entrenched. I find that not only will Ms Jets neither facilitate nor encourage a close and continuing relationship between [X] and Mr Maker, that she will also do everything within her power to actively impede and discourage such a relationship. The thrust of her evidence was that she could see no benefit to [X] in having any sort of relationship (and certainly not a meaningful, close and continuing relationship) with Mr Maker and, to a lesser extent, with Ms W and his family. To the extent that Ms Jets said or suggested that she wants or would like [X] to have a meaningful, loving, close and continuing relationship with Mr Maker, I reject her evidence in that regard. As I have discussed above, her actions speak far louder than her words.
This factor clearly supports a conclusion to the effect that [X] should live with Mr Maker and not with Ms Jets.
Effect of changes in child's circumstances
In the oral Reasons, I said:
32. The next factor is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or anybody else with whom he has been living. This is also an important consideration, and one that I have thought about both after the previous hearing and during the course of this hearing.
33. [X] has lived all his life in the care of his mother, and he is, as I have indicated, very close to her, as she is to him. I have no doubt that a change in living arrangements from [X]’s point of view will be difficult. There is no evidence before me, however, that [X] will not be able to cope with a change in residence. I am satisfied that Mr Maker and Ms W are mature and responsible parents. They will be willing and able to obtain the assistance that they might need, and to implement recommendations that are made to them to assist [X] in dealing with the changes in his circumstances.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
I accept, of course, that this factor seemingly supports Ms Jets' argument to the effect that [X] should remain living with her. It is not an unimportant consideration, and falls under the general umbrella of the desirability of maintaining the status quo. I have dealt with this subject elsewhere in these Reasons. The reality is, however, that the status quo is very flawed for so long as Ms Jets continues to pursue what is effectively a vendetta against Mr Maker, and for so long as she is prepared to involve [X] in it (whether wittingly or unwittingly).
Practical difficulties and expense associated with contact
In the oral Reasons, I said:
34. The next factor is the practical difficulty and expense of a child spending time and communicating with a parent. I am not going to deal with that, because it is not directly relevant to my consideration at this point in time.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Capacity to provide for the child's needs
In the oral Reasons, I said:
35. The next factor is the capacity of each of the child’s parents and any other person, including a grandparent or other relative, to provide for the needs of the child, including the child’s emotional and intellectual needs. I am satisfied that Mr Maker and Ms W have the capacity to properly provide for [X]’s emotional and intellectual needs in the short and in the long term.
36. I am satisfied that Ms Jets is capable of providing for [X]’s intellectual needs, but I find that she is not capable of providing for his emotional needs, one of which includes the ability to have a free and unhindered loving and close relationship with his father. Ms Jets does not appear able to accept that need and, in my view, has done precious little to support or meet it.
37. Similarly, Ms P Jets has the capacity, without doubt, to provide for [X]’s intellectual needs. Regrettably, she, like her daughter, does not have the capacity to provide for [X]’s emotional needs in the sense to which I have referred. Evidence was given about Ms P Jets' inability to hold her tongue when it is necessary and appropriate that she do so. I accept that evidence. There have been at least two occasions where Ms P Jets has said wholly inappropriate things about Mr Maker in [X]'s presence. That is most unfortunate. She seems unable to modify her behaviour, and in my view, that form of behaviour is contrary to [X]’s emotional needs.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Maturity, lifestyle and background of the child and the parties
In the oral Reasons, I said:
38. The next factor relates to the maturity, sex, lifestyle and background of the child and the child’s parents. I am not concerned with that consideration.
39. The next factor relates to Aboriginal or Torres Strait Islander children. [X] does not fall within that category.
The evidence reveals that Ms Jets is immature. Dr E, in particular, explained the relevance of that immaturity. It plays a role in Ms Jets' personality and arguably either causes or exacerbates her impulsivity, insecurity, issues over abandonment and difficulty with relationships. It certainly impedes the development of any insight on her part as to the true impact on [X] of her outlook and behaviour. To some extent, as well, her immaturity nurtures and supports what I have found to be her irrational and baseless beliefs regarding the risks to [X] allegedly posed by Mr Maker; and if she does not in fact genuinely believe that Mr Maker poses a risk to [X] (as I have suggested might be the case) then her irrational behaviour in that context certainly reflects her immaturity.
Again, I rely on Dr E’s analysis of Ms Jets' psychological or psychiatric state, together with the evidence of Mr L and Mr P. To that must be added my own observations of Ms Jets as recorded in these Reasons and the other findings that I have made regarding her behaviour. But Ms Jets is not prepared to accept views which differ from her own (which also reflects her immaturity) and does not believe that counselling or any other form of therapy is either necessary or likely to be of assistance. In other words, her immaturity and her entrenched views create a formidable barrier to any outcome which would involve [X] remaining in her care.
As I have recorded above, Ms P Jets is not significantly less immature than Ms Jets.
I am satisfied that Mr Maker and Ms W are mature and responsible people. I accept that Mr Maker was not always mature and responsible, and I note that he made a significant number of admissions against interest regarding his previous behaviour. He has abused alcohol, he has abused drugs and he has been violent to Ms Jets. He has not always accepted the responsibilities and duties of parenthood and he was certainly not sufficiently supportive of Ms Jets when [X] was a baby. I do not ignore any of these matters, which reflect poorly on Mr Maker. I am satisfied, however, that he is now a very different person and that he is indeed mature and responsible.
A good example of Mr Maker's maturity was his evidence regarding the comments appearing on his Facebook page. He acknowledged that the comments were inappropriate, and explained in a sensitive and compassionate manner that he would not want [X] to become aware of such comments because of the damage it would cause him, and having regard to the love that [X] feels for Ms Jets.
Attitude to the child and to responsibilities of parenthood
In the oral Reasons, I said:
40. The next factor is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. Ms Jets has raised a great many criticisms of Mr Maker's attitude to the responsibilities of parenthood, and some of those criticisms are fair. Mr Maker has not contributed child support to the extent to which he has been able to do so, and there are other areas where Mr Maker has left many of the responsibilities of parenthood to Ms Jets. I am satisfied, though, that Mr Maker has matured, and changed as he has done so, and that he has gradually accepted all the responsibilities of parenthood. I am also satisfied that his attitude to [X]'s parenting is a positive and constructive one.
41. I have already commented Ms Jets' attitude, and her willingness to involve [X] in her ongoing dispute with Mr Maker.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons. The
Family violence
In the oral Reasons, I said:
42. The next factor relates to family violence, and although I may at a later stage deal with that subject in the context of more detailed reasons, in my view it is not necessary for me to go into detail at this stage. Almost the whole of Ms Jets' negative attitude to Mr Maker has as its genesis the unpleasantness of her earlier years with him. In my view, Ms Jets seems both unwilling and unable to move beyond the views that she formed of Mr Maker at that time.
43. As to whether Ms Jets' views about Mr Maker's behaviour in those early years are based on reality or on her perception of reality is a matter of which I am unsure, and I am not prepared to make a clear findings on that subject at the present time. Suffice it to say, though, that there is at least the strong possibility that Ms Jets has exaggerated her concerns about Mr Maker and the extent of his violence and other behaviour towards her. Indeed, such is Ms Jets' propensity for "catastrophisation" that it is very likely that she has exaggerated those concerns and the nature and extent of his behaviour in those early years.
44. I am concerned about Ms Jets' psychological or psychiatric state and well-being. I am aware of the evidence of the experts in the case. I accept that I am not an expert, but it must be said that her demeanour and presentation during the course of the trial itself, and even more so over the last few days, has concerned me. She appeared vague. She had difficulty hearing questions and understanding them. In my opinion, Ms Jets would certainly benefit from psychological or psychiatric assistance. But I cannot and do not make any clear finding in relation to Ms Jets' psychological or psychiatric health at this point in time, although I accept the evidence of Dr E, Mr L and Mr P. That is not to say that I will not be able to review the evidence in the fullness of time and make more clear findings. Suffice it to say that I am concerned about Ms Jets' mental health in the broadest sense, but my concerns in that regard have not influenced my overall conclusion that it is in [X]'s best interests to live with Mr Maker.
I accept that paragraph 44 of the oral Reasons should perhaps have appeared under the heading Other relevant facts or circumstances. In any event, I have dealt with my concerns regarding Ms Jets' mental or psychological health elsewhere in these Reasons.
I have also dealt with the issue of family violence elsewhere in these Reasons, including under the heading Maturity, lifestyle and background of the child and the parties above.
Seen in isolation, this factor might be regarded as favouring Ms Jets' case. As indicated above, however, I am satisfied that Mr Maker has matured (although he is still capable of some immature behaviour, such as changing the word Jets to the word [omitted] on [X]'s bag), at least to the extent that he poses no risk to [X]'s welfare. Mr Maker's previous wholly inappropriate and largely inexcusable behaviour while he was living with Ms Jets is not irrelevant, and I have discussed this in these Reasons. But it has ceased, Mr Maker has acknowledged that it was inappropriate and taken steps to ensure that it will not occur again in the future.
Orders least likely to lead to the institution of further proceedings
In the oral Reasons, I said:
45. The next factor is whether it would be preferable to make an order that would be less likely to lead to the institution of further proceedings in relation to the child. These proceedings have been before the Court in one form or another for a very long time. Indeed, they started out as the result of a contravention application which was heard and determined, formed the subject of an appeal, was sent back for a re-hearing, and then metamorphosed into the applications now before the court.
46. I have absolutely no doubt, and I find as a fact, that there will be further proceedings and further breaches of orders if [X] remains in Ms Jets' care, and if the Court were to order that Mr Maker continue to have contact with [X] – whether or not the contact is supervised, and whether or not the changeover is supervised.
47. I am concerned, as I indicated, about Ms Jets' mental state in the broadest sense, but irrespective of those concerns I find that that she will not be able to restrain herself from continuing to make unfounded allegations about Mr Maker, and to involve [X] in those allegations in the way that she has to date – for example, by having him medically examined and interviewed by police officers and other experts. And in my view, if [X] remains in Ms Jets' care, there will certainly be further proceedings relating to him.
48. I am of the view that the orders that are least likely to lead to the institution of further proceedings in relation to [X] are the orders that the ICL has proposed. In other words, orders that would place [X] in Mr Maker's care, and give Mr Maker sole parental responsibility for him.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Other relevant facts or circumstances, including reference to section 60CC(4)
In the oral Reasons, I said:
49. Section 60CC(4) requires the Court to consider the extent to which each of the child’s parents have fulfilled or failed to fulfil their responsibilities as a parent, and in particular, the extent to which each of the child’s parents has, and I quote in paragraph (a):
... taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child; and (b) has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child, spending time with the child and communicating with the child; and (finally), ... has fulfilled or failed to fulfil the parent’s obligations to maintain the child.
50. I have made reference to Mr Maker's failure to maintain [X] in the past. That is a matter that I take into account. But of far more significance, in my view, is Ms Jets' attitude, exemplified by the evidence that was heard over the last few days to the effect that she saw fit to enrol [X] in a school without any reference to Mr Maker at all, notwithstanding the existence of an order for equal shared parental responsibility.
51. It is quite clear that Ms Jets will not communicate in a sensible or constructive manner with Mr Maker. She will not make any genuine effort to do so, and she will not pay any heed to his views in relation to what might be in [X]’s best interests in the long term – or indeed, I might add, in the short term. It follows that I find that Ms Jets has failed or refused to take the opportunity to involve Mr Maker in making decisions about major long term issues in [X]’s life, and I find that it is highly unlikely that Ms Jets will willingly involve him in the future without careful monitoring by somebody, such as an independent children's lawyer.
52. I find that Ms Jets has prevented [X] from spending time with Mr Maker on a number of occasions, and that she has done so inappropriately and without any objectively reasonable excuse.
In my view, the above comment adequately deals with this factor, and I need not elaborate further in these Reasons.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that [X]'s best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that, in general terms, the ICL’s and Mr Maker’s proposals are far more likely to be in [X]'s best interests than Ms Jets’ proposals.
Parental Responsibility
As indicated above, even if the presumption relating to equal shared parental responsibility could be regarded as applying in the present case, it can be rebutted by evidence that satisfies the court that it would not be in [X]'s best interests for an order to be made to that effect. For the reasons that appear elsewhere in this judgment, I have formed the view that it is in [X]'s best interests for an order to be made to the effect that Mr Maker have sole parental responsibility for making decisions about [X]'s major long term issues.
Ms Jets was firm in her view that equal shared parental responsibility could not work, irrespective of whether [X] lives with her or with Mr Maker. As I have described in these reasons, she simply could not imagine having constructive communication with Mr Maker about any issue whatsoever. The evidence also reveals that Mr Maker's attempts to communicate with Ms Jets have been unsuccessful and I have no confidence that any such efforts in the future would deliver a better outcome.
In addition to the above, I find that Ms Jets' personality is such that she is unwilling or unable to accept any decision which does not conform with her own views. Further, the evidence reveals that she is unable to relate to Mr Maker constructively. As well, the evidence reveals that, notwithstanding the pre-existing order for equal shared parental responsibility, Ms Jets made no attempt to discuss the issue of [X] schooling with Mr Maker, or to confer with him for the purpose of dealing with that issue in a constructive and productive manner. Her evidence was to the effect that she simply cannot imagine any such dialogue ever occurring.
I am aware that generic concerns regarding the potentiality of an impasse in decision-making brought about by the inability of one party’s view to prevail over that of the other, or regarding the limitation of communication between former partners who no longer like or respect each other, or even regarding the convenience (from, for example, a school's point of view) of being able to deal with one party instead of both … "are not – in themselves – sufficient to rebut the presumption of equal shared parental responsibility".[92] The Full Court in Chappell said, however, as follows:[93]
In order to rebut the presumption (of equal shared parental responsibility) it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child's best interests the Court must take into account the prescribed matters in sections 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child's best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, that the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. (Emphasis added)
[92] See Chappell at page 82,843
[93] See page 82,843
Leaving aside the question of whether the presumption actually applies, there can be no doubt that, in the present case, the application of the presumption would not be in [X]’s best interests because Ms Jets’ track record and her statements in evidence guarantee an extremely high probability of deadlock, which will inevitably lead to further proceedings.
I find that the only practical and realistic order that can be made in relation to parental responsibility, and the order that best promotes [X]'s best interests, is an order for sole parental responsibility in Mr Maker's favour.
Orders
Final orders were made at the time of the delivery of the oral Reasons. I remain of the view that those orders are appropriate and in [X]'s best interests.
I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of Walters FM
Date: 20 January 2012
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
para.36
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