Joslin and Joslin
[2008] FMCAfam 753
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JOSLIN & JOSLIN | [2008] FMCAfam 753 |
| FAMILY LAW – Parenting orders – time with the father over Christmas and Easter – whether the father should be restrained from shooting, using or displaying firearms, or allowing anyone else to do so, during [X] and [Y]’s time with him, save that, if and when [X] and [Y] hold junior shooters’ licences, they may use firearms in accordance with the terms of their licence. |
| Family Law Act 1975 (Cth), ss.4, 60B, 60ca, 60cc Firearms Act 1996 (Vic), s.22, item 4 schedule 2 Firearms Regulations 2008 (Vic), r.22(b), 22(e) |
| Applicant: | MR JOSLIN |
| Respondent: | MS JOSLIN |
| File Number: | MLC 9514 of 2007 |
| Judgment of: | Riley FM |
| Hearing dates: | 10 & 11 June & 15 July 2008 |
| Date of Last Submission: | 15 July 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms H. Dellidis |
| Solicitors for the Applicant: | Phillips & Wilkins Solicitors |
| Counsel for the Respondent: | Ms Jardine |
| Solicitors for the Respondent: | Stephen A. Canals |
ORDERS BY CONSENT
The mother and father have equal shared parental responsibility for the children [X] born in 1999 (“[X]”) and [Y] born in 2000 (“[Y]”).
[X] and [Y] live with their mother.
[X] and [Y] spend time with their father as follows:
(a)from the conclusion of school on Friday or 3.10 pm until 7.15 pm on Sunday each alternate weekend during school terms commencing 20 June 2008;
(b)from the conclusion of school on Friday or 3.10 pm until 7.30 pm each Wednesday during school terms commencing 11 June 2008;
(c)for one half of the long summer holidays commencing 3.00 pm on 1 January 2009 and each alternate year thereafter, and commencing at the conclusion on the last day of the school year in 2009 and each alternate year thereafter;
(d)
for the first half of each school term holiday commencing at the conclusion of school on the last day of the school term until
6.00 pm on the middle day of the holidays;
(e)from 6.00 pm on Orthodox Easter Saturday until 3.00 pm on Orthodox Easter Sunday in 2009 and each alternate year thereafter and from 3.00 pm until 7.30 pm on Orthodox Easter Sunday in 2010 and each alternate year thereafter;
(f)from 7.30 pm on Father’s Day Eve until 7.30 pm on Father’s Day each year;
(g)on each of [X] and [Y]’s birthdays from 5.00 pm until 7.30 pm if it is a school day or from 10.00 am until 2.00 pm if a non-school day;
(h)
on [X] and [Y]’s sister’s birthday (24 October) from 5.00 pm until 7.30 pm if a school day or from 10.00 am until 2.00 pm if a
non-school day;
(i)from 3.00 pm until 7.30 pm on Catholic Easter Sunday in 2010 and each alternate year thereafter;
(j)on the father’s birthday from 5.00 pm until 8.00 pm if a school day or from 10.00 am until 7.30 pm if a non-school day;
(k)on other special family occasions to be agreed, provided the father gives 21 days written notice of same to the mother; and
(l)as may otherwise be agreed between the parties.
[X] and [Y] communicate with their father:
(a)by telephone each Tuesday and Thursday between 7.00 pm and 8.00 pm by the father placing a call to the mother’s mobile phone or to a “Gecko” telephone to be purchased by the mother for [X] and [Y]; and
(b)at any other time that [X] and [Y] initiate a telephone call to their father.
For the purposes of paragraph 4 herein:
(a)the mother shall purchase a “Gecko” telephone for [X] and [Y];
(b)the telephone shall travel with [X] and [Y] between the parents’ households;
(c)each parent shall ensure the telephone is charged and made available to [X] and [Y]; and
(d)each parent shall be responsible for the cost of telephone calls made by [X] and [Y] to them personally, and for one half of the monthly payment plan.
For the purposes of the father spending time with [X] and [Y] pursuant to paragraph 3 herein:
(a)the father and/or his mother or his fiancé shall be responsible for collecting [X] and [Y] from school at the commencement of his time when it coincides with a school day;
(b)when the commencement of the father’s time does not coincide with a school day, the father shall collect [X] and [Y] from the mother’s residence; and
(c)the mother and/or her agent shall be responsible for collecting [X] and [Y] from the father’s house at the conclusion of their time with him, save that:
(i)for the purposes of paragraph 3(b), the father shall return [X] and [Y] to the mother’s residence; and
(ii)for the purposes of paragraph 3(a), the father shall return [X] and [Y] to the mother at the [omitted] Shopping Centre Car Park, [W].
In the event the following occasions fall during a period when [X] and [Y] are otherwise spending time with their father, such time be suspended as follows:
(a)from 7.30 pm on Mother’s Day Eve until 7.30 pm on Mother’s Day;
(b)from 5.00 pm until 7.30 pm on [X] and [Y]’s birthdays if a school day or from 10.00 am until 2.00 pm if a non-school day;
(c)from 6.00 pm on Orthodox Easter Saturday until 3.00 pm on Orthodox Easter Sunday in 2010 and each alternate year thereafter and from 3.00 pm until 7.30 pm on Orthodox Easter Sunday in 2011 and each alternate year thereafter;
(d)on any special family occasions to be agreed, provided the mother gives the father 21 days written notice of same to the father.
Each of the mother and father immediately advise the other of any change to their contact telephone numbers.
The father shall ensure the [X] and [Y] attend any extra-curricular activities that coincide with his time spent with [X] and [Y].
Each of the mother and father provide to the other 28 days written notice of any proposed change of residential address.
Each of the mother and father forthwith advise the other of any serious illness, or injury requiring medical treatment affecting [X] and [Y] whilst in their respective care and the name and contact details of the medical practitioner who has attended upon [X] and [Y].
The mother do all things and sign all documents necessary to authorise [X] and [Y]’s school to provide to the father, at his expense, copies of all school reports, notices, letters, applications for photographs and any other information normally provided to parents.
The father be at liberty to attend at all school functions including parent-teacher interviews, sports days, concerts and any other events to which parents are normally invited.
Each party shall ensure [X] and [Y] travel in the rear seat of a vehicle and with child restraints, as provided for by law.
Each party shall ensure [X] and [Y] wear helmets when riding motorbikes.
ORDERS BY THE COURT
In addition to the times specified in order 3 above, [X] and [Y] spend time with their father as follows:
(a)from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2008 and each alternate year thereafter and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2009 and each alternate year thereafter; and
(b)from 6.00 pm on Catholic Easter Saturday until 3.00 pm on Catholic Easter Sunday in 2009 and each alternate year thereafter.
In addition to the times specified in order 7 above, in the event the following occasions fall during a period when [X] and [Y] are otherwise spending time with their father, such time be suspended as follows:
(a)from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in 2008 and each alternate year thereafter and from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in 2009 and each alternate year thereafter; and
(b)from 3.00 pm until 7.30 pm on Catholic Easter Sunday in 2009 and each alternate year thereafter and from 6.00 pm on Catholic Easter Saturday until 3.00 pm on Catholic Easter Sunday in 2010 and each alternate year thereafter.
The father be restrained from shooting, using or displaying any firearms, or allowing anyone else to do so, in [X]’s or [Y]’s presence, save that, if and when [X] and [Y] hold junior shooters’ licences, [X] and [Y] may use firearms in accordance with the terms of their licences.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Joslin & Joslin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 9514 of 2007
| MR JOSLIN |
Applicant
And
| MS JOSLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of [J] who was born in 1999 and who is now 9 years old and [Y] who was born in 2000 and who is now 7 years old.
[X] and [Y]’s parents were in agreement that they should have equal shared parental responsibility for [X] and [Y] and that [X] and [Y] should live with their mother and spend time with their father each alternate weekend from after school on Friday to 7.15 pm on Sunday, and on each Wednesday evening from after school until 7.30 pm, and for half of school holidays.
The parents were also in agreement about many other matters, including the times to be spent by [X] and [Y] with each of their parents during Orthodox Easter. However, the matter proceeded to trial on the issues of:
a)the times that [X] and [Y] should spend with each of their parents during Christmas and Catholic Easter; and
b)whether the father should be restrained from shooting, using or displaying any firearms, or allowing anyone else to do so, during [X] and [Y]’s time with him, save that, if and when [X] and [Y] hold junior shooters’ licences, they may use firearms in accordance with the terms of their licences.
The father is 36 years old. The mother is 35 years old. They were married in 1996, separated on 4 October 2002 and divorced on
27 March 2004. Both have re-partnered. The father’s new partner is Ms S. The father and Ms S have a daughter, [Z], who was born in 2005 and who is now 2½. The mother’s partner is Mr H. He has three daughters aged 7, 14 and 15. They live with their mother and spend alternate weekends with Mr H. The mother and Mr H have had no children together. The parents and [X] and [Y] are Macedonian Orthodox.
After separation in October 2002, [X] and [Y] spent alternate weekends with their father until April 2007, when [X] and [Y]’s time with their father ceased. It seems that the father became drunk at [Z]’s baptism and was unable to drive [X] and [Y] home. Ms S offered to drive [X] and [Y] home but the mother was not content with that arrangement. The mother stopped contact between the children and their father. On 22 August 2007, the mother booked a holiday in Queensland with the children in March 2008. The father filed an application on 24 August 2007. Interim orders were made by consent on 12 November 2007 which provided that [X] and [Y] spend alternate weekends and Wednesday evenings with their father. The holiday booked by the mother interfered with the children’s time with their father under the orders of 12 November 2007. The mother did not tell the court on that occasion that she had booked the holiday.
A family report was prepared in this matter by Christine Bendall and is dated 7 May 2008. However, the report made no recommendations about the matters that remain in dispute, namely, Christmas, Easter and shooting.
Christmas
By agreement, [X] and [Y] will spend time with their mother from the end of school in even-numbered years until 3.00 pm on the following 1 January, and will spend the same time with their father in odd-numbered years, except for a time to be determined by the court during Christmas.
The father sought orders that [X] and [Y] spend time with him from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in even-numbered years and for [X] and [Y] to spend the same time with their mother in odd-numbered years.
The mother sought orders that [X] and [Y]:
a)spend time with their father:
i)from 3.00 pm on Christmas Day to 7.30 pm on Boxing Day in even-numbered years; and
ii)from 10.00 pm on Christmas Eve in odd-numbered years until the end of their time with their father over the long summer holidays; and
b)spend time with their mother from 10.00 am Christmas Eve to 10.00 pm Christmas Eve in odd-numbered years.
It was common ground that the parents are Orthodox Christians so the 25th of December has no religious significance for them. However, the mother said that her parents and siblings and their families all celebrated Christmas Eve together and had done so for nine years. She said they had a tradition involving having dinner and watching Carols by Candlelight on television. The mother said that after Santa left the televised Carols, he would immediately appear at her parents’ house, to the delight of all the children.
The mother lives in [E]. The father lives in [C], which is about 20 minutes west of [W]. The driving time between the two locations is about 70 minutes on outer suburban and country roads.
The mother considered that [X] and [Y] would be able to enjoy her family celebration, including Santa’s visit to her parent’s house, and she would still be able to deliver [X] and [Y] to the father by 10.00 pm on Christmas Eve in odd-numbered years. She said that the children would be asleep when they arrived and could be put to bed at the father’s place without waking up.
The father said that he had not established any particular family tradition at Christmas but would like to have the opportunity to do so, especially now that he has a new partner and [X] and [Y] have a half-sister. The father thought that 10.00 pm was too late for changeover, and that it would make [X] and [Y] too tired to enjoy Christmas Day with him.
The father wants to be able to take [X], [Y] and [Z] to Christmas Carols on Christmas Eve. He wants to be able to have dinner with them and their extended family on Christmas Eve. On Christmas Day, he has lunch at Ms S’s parents’ place and dinner at his mother’s house or vice versa. Ms S’s family is Catholic.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60cc(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. I will address those considerations in order.
s.60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
The ordinary time that [X] and [Y] spend with their mother and father will enable them to have a meaningful relationship with both of them. However, it is well recognised that it is important for children to spend special occasions with each of their parents, whether those special occasions are specific to the child or family concerned, or whether they are special occasions for the whole or a part of the broader community. Being able to share special occasions with each of their parents enables children have a greater depth in their relationships with both of their parents.
s.60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is not a significant factor in the present context.
s.60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
[X] and [Y]’s views in relation to spending time with each parent during Christmas are not known.
s.60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X] and [Y] appear to have good relationships with their parents and other relatives.
s.60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother stopped contact between [X] and [Y] and their father for the period April to November 2007. The father had to commence these proceedings to be able to have time with his children. To that extent, the mother has not been willing and able to facilitate [X] and [Y] spending time with their father.
s.60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Changing the routine for [X] and [Y] at Christmas time, so that they miss out on Christmas Eve with their maternal family in alternate years and gain a special occasion with their paternal family in alternate years is likely, on balance, to be beneficial for them. It will add depth to their relationship with their father and his side of their extended family. I cannot imagine that it will adversely affect [X] and [Y]’s relationship with their mother or her side of their extended family.
s.60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant factor in the present context.
s.60CC(3)(f): the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents are able to provide for [X] and [Y]’s emotional and intellectual needs at Christmas time.
s.60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother’s family’s nine year old Christmas tradition is no doubt very enjoyable for everyone concerned. However, it is not so fundamental a tradition that there is any particular benefit to [X] and [Y] in participating in it every year, as opposed to in alternate years. On the contrary, there are considerable benefits to them in establishing and enjoying new experiences in their father’s household at Christmas time.
s.60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents, in the present context, have good attitudes to the responsibilities of parenthood.
s.60CC(3)(j): any family violence involving the child or a member of the child’s family
This is not a relevant factor in the present context.
s.60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
This is not a relevant factor in the present context.
s.60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is unlikely that any order that was made about the division of time over Christmas would lead to the institution of further proceedings.
s.60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Conclusion regarding Christmas
In my view, [X] and [Y] should spend alternate years with each parent from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day. I consider that a 10.00 pm changeover on Christmas Eve is too late. It will make [X] and [Y] too tired to enjoy Christmas Day. While they might be able to be sleep through being transferred from the car to their beds at the moment, they will soon lose that capacity. A 3.00 pm changeover in alternate years will allow [X] and [Y] to settle into their other parent’s house, and enjoy with that parent the anticipation of Christmas, Christmas Eve, Christmas morning, and Christmas lunch.
Generally speaking, the usual arrangement of children spending the same special times with each parent in alternate years is in the children’s best interests. I do not consider that the mother’s nine year family traditions are of such benefit to [X] and [Y] that they should be deprived of the opportunity to enjoy Christmas Eve with their father in alternate years. There will be orders accordingly.
Easter
The father sought orders that [X] and [Y]:
a)spend time with him:
i)from 6.00 pm on Easter Saturday until 3.00 pm on Easter Sunday in odd-numbered years; and
ii)from 3.00 pm until 7.30 pm on Easter Sunday in even-numbered years; and
b)spend time with their mother:
i)from 6.00 pm on Easter Saturday until 3.00 pm on Easter Sunday in even-numbered years; and
ii)from 3.00 pm until 7.30 pm on Easter Sunday in
odd-numbered years.The mother sought orders that [X] and [Y] spend time with their father from 10.00 am to 3.00 pm on Easter Sunday in odd-numbered years and from 3.00 pm until 7.30 pm on Easter Sunday in even-numbered years.
Accordingly, it was agreed that [X] and [Y] would spend time with their father from 3.00 pm to 7.30 pm on Easter Sunday in even-numbered years. The dispute concerned the time to be spent by [X] and [Y] with their father on Easter Sunday in odd-numbered years.
The mother explained that on Easter Sunday morning, [X] and [Y] find grass and bark and baby powder footprints in the house and then have an Easter egg hunt. The hunt was described by both parties as an Easter Bunny hunt. This was a particularly unfortunate misdescription, given the father’s wish to take the children with him when he shoots rabbits. In any event, the mother said that Mr H’s children also participate in the Easter egg hunt in odd-numbered years, when they spend the four days of Easter with Mr H, but not in even-numbered years, when they are with their mother. The mother said that the Easter egg hunt was a family tradition which [X] and [Y] enjoyed.
The father said that he would also like to have an Easter egg hunt at his place with the children on Easter Sunday morning.
In determining this question, the court must consider the best interests of the children as the paramount but not the only consideration. I refer to and rely on the discussion of the s.60CC factors set out above, but substituting Easter for Christmas.
In my view, the Easter egg hunt conducted at the mother’s home is not significant a tradition that the benefits to [X] and [Y] participating in it every year outweigh the benefits to them in spending special time on Easter Sunday morning with their father in alternate years. I note that Mr H’s children only participate in the Easter egg hunt at their mother’s place in odd-numbered years. It is in [X] and [Y]’s best interests that they have the opportunity to participate in an Easter egg hunt, or some other special event, at their father’s place in odd-numbered years, especially now that they have a half-sister. It is important for the development of that relationship that [X] and [Y] are able to enjoy special occasions with [Z].
Shooting
The mother sought orders that the father be restrained from shooting, using or displaying any firearms during [X] and [Y]’s time with him unless [X] or [Y] held a junior shooter’s permit in which case they would be permitted to use firearms in accordance with the terms of the permit. The father sought no order at all in relation to shooting.
In her affidavit sworn on 9 November 2007 for the interim proceedings, the mother said at paragraph 34 that [X] and [Y] had told her they had been shooting with their father and they had used a firearm. In her original response filed on 12 November 2007, the mother sought no orders in relation to firearms. In keeping with that, there were no orders about firearms in the consent orders made on 12 November 2007. The matter was listed for final hearing on 10 June 2008.
The family report
As noted above, the family report dated 7 May 2008 did not make any recommendations about [X] and [Y] accompanying their father when he went shooting. However, the family report did note that the issues in dispute included the disputed allegation that the father did not keep [X] and [Y] safe while they were with him. Additionally, the family report included the following observations that related to [X] and [Y]’s safety in general while they were with their father and hunting in particular:
7.Mr Joslin presented as communicative and receptive man of 36 years. …
8.… Mr Joslin stated that … he believed that he had been an involved and caring father throughout the children’s lives. He added that he resented Ms Joslin’s (sic) accusation that in some way he was not adequately caring for the children, and he claimed that his extended family members “all look up me”, and praise him for being a responsible member of the community.
9.… Mr Joslin claimed that he made the decision to separate and leave the family home because he could not cope with Ms Joslin’s controlling and jealous personality. Ms S stated that the boys were always well supervised during their visits, and she considered that she cared for both boys in the same manner as she did her own daughter, and that none of the children had ever been exposed to any risk.
10.Mr Joslin stated his habit of taking his sons hunting and shooting has been raised as a safety issue, but he denied ever placing his sons in any danger whatsoever. He added that hunting and shooting was a cherished component of his own childhood, and he was overjoyed when his sons commenced to experience the same amount of pleasure. He reported his 7 rifles were stored in a lawfully accredited gun safe, which in turn is secured in a locked cupboard, and that he was a conscientious and responsible gun owner and shooter.
11.He added that it was absolutely impossible for his children to access the firearms, and he was teaching them best practice methods associated with firearms. He acknowledged that approximately 12 months ago [X] had held and fired an air rifle, but he had not permitted that action since he became aware that children under 12 years of age were not permitted to handle firearms. Mr Joslin added that in any event, he did not take his sons shooting regularly, and the accusations made against him that he was exposing the children to danger were misleading and completely untrue.
12.Ms Joslin presented as a forthcoming and agreeable woman of 35 years. …
…
14.Ms Joslin alleged that in 2007 she instigated the proceedings for an Intervention Order against Ms S and Mrs J, because Mrs J (sic) had assaulted her. She claimed that she was verbally assaulted by both women when she asked for booster seats to transport the boys at changeover; and when she tried to call the police Mrs J “grabbed” her arm in an effort to prevent her making the phone call. Ms Joslin added the police attended at that time.
15.Ms Joslin expressed her concern that the boys’ father was exposing them to risk. She cited the example of his taking them shooting, and allowing [X] to fire a gun in the past. Ms Joslin expressed her belief that the boys were not old enough to go shooting with their father, and she felt constantly worried about the dam on Mr Joslin’s property. She also wondered if the children’s father had complied with her wishes to place the boys in the back seat when they travel with him.
…
18.[X] presented, at least initially, as a somewhat anxious child with a sense of maturity far beyond his chronological age. Nevertheless, he settled well, and welcomed the opportunity to be interviewed on his own. [X] thought overall he was happy, but he wished his parents would not fight so much. His brow furrowed when he talked about his parents’ separation, and wondered if he actually remembered the occasion or if his memory was a related event. [X] felt that sometimes he would like to spend more time with his father, because they had such fun together, and he remembered feeling “very cross once on the holidays” when he and his father planned to go to Mt Beauty, but he ended up not seeing his father at all those holidays.
…
20.According to [X], he and [Y] sometimes accompanied their father shooting, although they had not been lately. He added that his father had very strict rules, and he had to stand behind his father and [Y] stood behind him. [X] added that they love going hunting with their father, and he intended getting his own shooting licence when he is older. In the wishes section of the All about Me booklet,[1] [X] wished firstly that he could fly, and secondly that “Mum and Dad (were) together”, and wished for no change.
21.[Y] presented as a delightful little 7 year old boy with an impish smile, which lit up his face when he talked about school and his friends. However, the smile faded when he described his feelings of sadness that “Mum and Dad live apart, and I wish that had never happened”. This sentiment was also expressed in his wishes list in the All About Me booklet. On the feelings chart[2] he identified the scared face “when I went to Sea World”, although he felt more frightened, he said, when “there was a big fight at home, and the police came, and everyone was yelling”, and he thought perhaps that was “the most scared that anyone could possibly feel”.
22.[Y] said he loved visiting his father’s house, with “[name omitted]” (Paternal Grandmother), and “[name omitted]”, (Ms S). He added that in his opinion the best plan in respect of the time he spends with each parent was “one day at Mums and one day at Dads” and he could not understand why the grown ups would not be able to agree with him. He wished that his parents did not fight, and he hoped one day that their fighting would stop and they would “be friends”. On the feelings chart [Y] identified the happy face when he was at his mother’s house, and the sad face “because dad lives too far away”.
…
25.Observations took place throughout the day both in the reception area and in the playroom. It was a busy observation period for the children, as they were observed on separate occasions with their parents, Mr and Mrs N, Mrs J, Ms S, and Mr H. Both boys appeared happy and relaxed, smiling and hugging all family members, and engaging them in the various games and activities on offer. They delighted in referring to the playroom as their “hotel room”, and referring to the family members as “their visitors”.
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28.Ms Joslin was worried that Mr Joslin was not practising safe parenting whilst the children were in his care. She listed a number of concerns, ranging from Mr Joslin’s practice of taking the children hunting with him, allowing the children to sit in the front seat, not using a booster seat for [Y], not informing the children who would pick them up, and not hearing the children read at night. …
29.Mr Joslin assured the Consultant that he abides by the law in respect of children using firearms, and that he follows safe practices when he takes the children hunting. However, it seemed to the Consultant that the children are very young to be accompanying their father in this hobby, and their mother’s concern did seem reasonable. Furthermore, [Y]’s statement that he felt it amusing when he witnessed a wounded rabbit attempt to walk was surprising, and suggested a degree of insensitivity which most likely was not fundamentally inherent in this little boy’s personality. Perhaps he was unsure how to react to that image of the animal, which would be a normal response for a child of that age.
…
31.In the Consultant’s opinion it is not possible to address all the anxieties and concerns of parents in a Court Order; and ultimately the best way to make comprehensive and positive changes for children is through open and frequent dialogue, and the onus is on the adults to ensure this occurs. … Nevertheless, there was no doubt both parents love their children and both gave the impression that they had the capacity, interest, and time to devote to both boys.
[1] All About Me, NSW Ed Unit
[2] Writer’s own tool.
The mother’s safety concerns
The mother filed an amended response on 6 June 2008. In that document, she sought an order that, “there is to be no shooting or use or display of firearms” during [X] and [Y]’s time with their father. The mother swore an affidavit on 5 June 2008 in which she outlined her concerns about the father not taking proper care of the children’s safety. I will deal with those concerns in order.
House construction
The mother said that the children stayed with their father while his house was under construction from 2003 to 2006. She said that, for a time, there were no stair railings and a high veranda. The father did not dispute this claim and I accept it.
Riding motorbikes without helmets
The mother stated that in 2005, [X] and [Y] rode motorbikes without helmets on the father’s property. They would have been about 6 and 4 years old respectively. The mother said that she told the father it was not safe and bought a helmet for [X] and [Y] to use at their father’s place and he acknowledged her concern. The mother said that, afterwards, there was a further incident of [X] and [Y] riding a motor bike without a helmet. The mother again expressed her concern to the father, who acknowledged her concerns.
The father said in his affidavit in reply that [X] and [Y] wear helmets if they ride bikes on his property. He did not dispute that they had not done so in the past and did not dispute the mother’s involvement in ensuring that [X] and [Y] now wear helmets if they ride motor bikes on his property. In oral evidence, the father said that they rode on private property, as if that made it unnecessary, from a safety perspective, to wear a helmet while motor bike riding.
I accept the mother’s evidence on these matters. That is, I accept that it took repeated complaints by the mother, and her providing a helmet for [X] and [Y]’s use on the father’s property, before he began to require them to wear a helmet while riding motor bikes on his property.
Travelling in the front seat and without proper child restraints
The mother said that the father on many occasions did not ensure that [X] and [Y] had suitable child restraints in motor vehicles and often allowed [X] to travel in the front seat without suitable child restraints. The mother said that the father allowed the children to travel 60 kilometres in the front seat of a truck while sharing one lap seatbelt. The mother also stated that [X] had said that he drove his father’s vehicle whilst on his father’s lap around the father’s property. The mother said that on 16 April 2008 [X] was in the front seat of Ms S’s car and was also in the front seat of a work vehicle.
The father said that [X] sometimes, although rarely, sits in the front and that nine year olds are allowed to. The father said that the children always wear proper restraints, in accordance with their height and weight. The father denied in his affidavit that [X] had driven a truck while seated on the father’s lap and maintained his denial in cross examination.
The issue of child restraints caused a major confrontation which resulted in the mother seeking intervention orders against the paternal grandmother and Ms S. It was this incident that made [Y] feel “the most scared that anyone could possibly feel”: paragraph 21 of the family report. On 21 November 2007, the mother wanted the paternal grandmother and Ms S to take the booster seats for [X] and [Y] to use. The paternal grandmother and Ms S did not want to use them. The mother alleged that the paternal grandmother grabbed her by the arm. The mother called the police. The mother said the police ascertained that [X] still needed a booster seat, as of November 2007. The mother said she now uses a booster seat for [X] but when he is with other people, she allows him to choose whether he uses one or not. The father considers that, at the age of nine, [X] does not need one.
I accept the mother’s evidence on these matters. As the evidence in the case overall demonstrates, the father has a fairly rough and ready attitude to safety issues. It seems to me that the matters that the mother has alleged about safety in motor vehicles are in keeping with that attitude.
[X] and [Y] themselves using a gun
The mother said that [X] and [Y] had been shooting with their father and they had themselves used a firearm. The father conceded in his responding affidavit that he had allowed [X] and [Y] to hold an air rifle when they were about seven and five years old respectively. He said that he had not been aware that children were not permitted to hold an air rifle until they were twelve years old. He said that since becoming aware of that fact, he had not allowed [X] and [Y] to hold a rifle. He said the mother keeps referring to the incident as an example of his irresponsible parenting.
The father agreed in cross examination that his affidavit had not set out the full legal position regarding 12 year olds and air rifles. He agreed that they could not simply turn twelve and then use an air rifle. He agreed that they first needed a junior shooter’s permit and he agreed that, even with a permit, they could only use an air rifle in the presence of an adult who holds a shooter’s licence.
It seems clear that, if the mother had not objected to [X] and [Y] using a gun, the father would have continued, since they were five and seven, to allow them to use a gun.
The father said that a pellet from an air rifle cannot pierce the skin, unless it is shot from only a few metres away. I accept that an air rifle would only injure a person in unusual circumstances.
Shooting on 30 November 2007 and 7 December 2007
The mother said that on 30 November 2007 and 7 December 2007, [X] and [Y] went shooting with their father. The father denied this in affidavit but withdrew his denial in cross examination.
Shooting into the air on New Year’s Eve
The mother said that at a party at the father’s place on New Years Eve, at which [X] and [Y] were present, the father’s brother shot a gun repeatedly into the air, for the reason that no fireworks were available. The father admitted this in cross examination.
The father accidentally shooting livestock
The mother also said that [X] and [Y] said that the father had accidentally shot livestock on other people’s property. The father denied that in his affidavit and maintained his denial in cross examination. He said that he had deliberately shot a sheep but had not accidentally shot a sheep.
I accept that farmers sometimes have good reason for shooting sheep. In the absence of evidence to the contrary, I accept that the father had a good reason for shooting a sheep deliberately. However, I do not accept that the father accidentally shot a sheep on another person’s property. It is a serious allegation in the context of this case. It would be strong evidence that the father was careless with a gun. I do not consider that the mother’s hearsay evidence on this question is sufficient to enable a finding to be made.
The uncle shooting a cockatoo
The mother said that [X] and [Y] told her that their uncle had shot a cockatoo while the children were with their father. The father denied this in his affidavit but, in cross examination, the father admitted that it could have happened. He said his brother stored guns at the father’s place and he had the father’s permission to go shooting on the father’s property, not necessarily with the father.
There are two issues arising from this evidence. The first is that no reason was offered by the father for the uncle shooting a cockatoo. They are not introduced vermin. They are native birds. Some species of cockatoo are endangered. Some are regarded as a pest to crops. However, the father said he ran sheep on his property, so preventing damage to crops is unlikely to be the reason for the shooting of the cockatoo. The court is left with an unexplained killing of a native bird by the father’s brother to the knowledge of young children. It seems likely that the uncle killed the cockatoo for his own amusement. However, as this matter was not fully explored in evidence, I will only rely on the bare fact that the uncle shot a cockatoo to the knowledge of young children.
The second issue is that the uncle appears to have standing permission to shoot on the father’s property. This could pose a risk, in that the uncle might decide to shoot on the father’s property without checking with the father and ascertaining where everyone is. The uncle might decide to go shooting at a particular place, when, unknown to the uncle, [X] and [Y] had decided to play there. If the father has in fact given anyone standing permission to shoot on his property, I would urge the father to revoke that permission immediately and only permit other people to shoot on his property after checking with him on each occasion.
The 15cm scratch
The mother said that, on 17 February 2008, [Y] returned from his father’s care with a 15 cm scratch from his neck to his chest. When asked how it had happened, he said “at a party”. The father denied this incident in his affidavit as part of a general denial of the mother’s claims. Neither party was asked any more about it. I accept that [Y] did have the scratch alleged and that it occurred at a party. However, in the absence of any detail about the circumstances, I am unable to conclude that it was anything more than an accident.
The father shooting into trees
The mother said that on 13 April 2008 “the father was shooting into the trees to see how much damage it could do”. The father denied this in his affidavit but said in examination in chief that he had been with [X] and [Y] in a dry creek bed looking for foxes. The father said they did not find any, so he set up a target on a tree stump. He said the target consisted of an A4 piece of paper clipped to a tree. He said he fired two shots into it and then showed [X] and [Y] how much damage it had done. The father’s evidence about this matter was not actually challenged in cross examination. I accept it.
Shooting in an unregistered vehicle
The mother said that on 1 May 2008 the children went shooting in an unregistered vehicle that only had a cover note for mechanical repairs and that was not insured by the Traffic Accident Commission. The father denied this allegation in his affidavit as part of his general denial. However, in cross examination, he said that [X] and [Y] were transported in such a vehicle for the purposes of hunting. However, he maintained that vehicles used on private property did not have to be registered. Eventually, he agreed that the vehicle had been driven on a public road to get to the adjoining private property. However, the father initially maintained that the cover note permitted that. Eventually, however, he conceded that the cover note only covered trips for the purpose of getting mechanical repairs and did not cover trips on public roads for the purposes of going hunting.
The upshot of all this was that the father conceded that he had driven the children in an unregistered vehicle on a public road that had no personal injury insurance. If there had been an accident, [X] and [Y] would not have been covered. It is also clear that the father did not think through the consequences of driving the children on a public road in an unregistered vehicle. He evidently thought that the law did not require the vehicle to be registered to be driven on private property, therefore, everything was fine. He did not consider the short drive on a public road and he apparently did not consider that there was any problem with driving his children around in a vehicle that needed mechanical repairs.
[X]’s psychiatrist
The mother said that [X] is seeing a psychiatrist to deal with the constant anxiety he faces due to the inconsistency in his life. The father did not dispute these allegations. No report from a psychiatrist was put before the court. However, the family report writer did note that [X] presented as a somewhat anxious child. I accept that [X] does suffer from anxiety and is seeing a psychiatrist as a result.
The father’s affidavit evidence
The father said that hunting is a big part of his family’s life and he had participated in it from the age of two years. He got his junior shooter’s licence at 12 and a full shooter’s licence at 18. Most of the father’s family has shooter’s licences. The father has been a member of the Sporting Shooter’s Association for 13 years.
The father said that he introduced [X] and [Y] to shooting three years ago and taught them that the purpose of hunting to is to rid the property of pests and feral animals. He taught them about hunting safety. The children wear ear muffs. The father takes [X] and [Y] hunting once a month. The children are passionate about sport and hunting is something unique that the father can share with them. He said that it involves life skills, physical and mental skills, a healthy sense of achievement and outdoor activity.
In general terms, I accept this evidence. I accept that the father has explained safety matters to [X] and [Y]. However, as his own evidence set out below indicates, [X] and [Y] did not always follow the rules that the father had specified.
The father’s oral evidence
The father is a construction site supervisor. The children have accompanied him four times on shooting trips since November 2007.
The first occasion was on the father’s 50 acre property and occurred at night. They went in a vehicle. [Z] was in the back seat and [X] and [Y] were on either side of her. The father said that [X] held the spot light while seated in the back seat on the driver’s side. The purpose of the hunting trip was to kill foxes (it was lambing season) and to kill rabbits which cause erosion. The father said that if the rabbits that are killed do not have myxomatosis, they are skinned, marinated and eaten. His grandfather taught him how to skin rabbits. On that night, they saw no foxes. However they saw twelve rabbits and shot four. The father has a rest for the gun on the side of his vehicle. After the animal is shot, the father discharges any remaining ammunition. The children argue over who will retrieve the rabbit. One of them gets the rabbit and puts it in the back of the vehicle. [Y] has sensitive ears and he likes to wear his ear muffs. The children enjoy spotting. They are aware of the environmental damage that the rabbits cause.
I accept that evidence, except that I consider that [X] and [Y] would have a very limited understanding of the environmental damage caused by rabbits.
In regard to the family report writer’s mention of the injured rabbit, the father said that he did not recall the reference that the family report writer had made. However, the father said that he had wounded a rabbit, which [Y] saw moving and then dying. The father said that he explained that he had not got the rabbit in the right spot and it was just his nervous system that had made him move like that. [Y] said, “That’s fine Dad”. The father said that the children understand the difference between pets and vermin. He said that the children had only ever accompanied him on hunting trips on private property.
I accept that evidence, except that I do not accept that [X] and [Y] understand the difference between pets and vermin. As the family report writer pointed out, [Y], at least, is too young to understand that difference, especially as the vermin in this case, namely, rabbits, are also kept as family pets and the Easter Bunny is a rabbit. In any event, the distress of seeing a rabbit dying slowly would not be reduced, for most people, by the thought that rabbits should not have been introduced to Australia.
The father said the second hunting trip was also on the father’s property. He said there was the same seating arrangement. Only one rabbit was shot. The children have only been on hunting trips on private property. He said they would never be shot by another hunter. The father is the only person with a gun, or, if Mr M (from the adjoining property) is with them, there is still only one rifle. The father said that he always discharged any remaining ammunition from the rifle before allowing the children to get out of the car. However, the father admitted that on a trip where Mr M was the shooter, the father did not check that Mr M had discharged all the ammunition before the children got out of the car.
Accordingly, I accept the father’s evidence set out above, except that the father’s rule about ensuring that the remaining ammunition is discharged from the gun before [X] and [Y] get out of the car is not always followed, and there are consequent risks for [X] and [Y].
On the third occasion, the hunting trip took place on a 2,500 acre property managed by Mr M. The father said that he regularly goes shooting there. On this occasion, the father, Mr M, [X] and [Y] (but not [Z]) went hunting there. Mr M had a permit to shoot kangaroos. [X] and [Y] sat in the back seat of the vehicle. Mr M sat in the passenger seat and the father was spotlighting. Mr M was the sole shooter, and shot five kangaroos. The children did not see how the kangaroos were disposed of, but did get out of the car to see the dead kangaroos. I accept this evidence.
The father said that the fourth hunting trip took place on the father’s parents’ 150 acre property. The father, [X] and [Y] walked to a creek but did not see any animals. The children wanted the father to have a few shots so he set up a target on a tree stump. He told [X] and [Y] about the danger of shooting and showed them the damage to the tree. In regard to safety precautions, [X] and [Y] were instructed to stay three to four metres behind their father and he only shoots to the front. The father said that, although he instructed [X] and [Y] to stay three to four metres behind him, due to their lack of concentration, they sometimes got close enough to touch him. He would then warn them to stay behind him at all times. I accept this evidence.
The father said that the vehicle he used for shooting was a twin-cab 4WD and the children were in restraints. The father said that once an animal was caught in the spotlight, he would load the gun and shoot. The father also said that he did not keep the rifle in the car loaded. He said that he never shot the rifle when the car was moving. I accept this evidence.
The father said that the children might be in the car for one hour during a hunting trip. The father agreed that the children could not develop hunting skills until they are allowed to fire a gun themselves. I accept this evidence.
In response to a question from the Court, the father explained that an air rifle projects a lead pellet. It could cause injury if shot from a distance of one to two metres but otherwise would not pierce the skin. The father said when an animal gets caught in the spotlight, he stops the vehicle, takes his gun, puts it outside the window on the rest, loads it and shoots. If there is any ammunition left, he discharges the rifle, and then brings the rifle inside the vehicle. I accept this evidence.
The mother’s oral evidence
The mother said that she had a shooter’s license for less than one year before she married the father. She said she got the license so that she could buy ammunition for the father. She said that she shot at targets with an air rifle and once shot a .22 rifle. She said she had never shot an animal and had never owned any guns. She said that she had used the father’s guns. The mother said that she let her license lapse, got married, had children and the father went shooting less. The mother said her family did not have guns although they had a 10 acre property.
The mother said that when she had been shooting with the father, about 20 years ago, the guns would be loaded while the vehicle was moving and the guns would not be unloaded while people were retrieving the animals that had been shot. The mother agreed that she had not seen the father’s hunting practices since he had become a father.
The mother said she was unaware of whether the father had ever been charged with a criminal offence or investigated for a criminal offence. She said she had never sought an intervention order against him. She said that she understood that [X] and [Y] had not used a gun since the incident with the air rifles about three years ago.
The mother said that [Y] had told his friends at school that he had been hunting with his father and his friends had ridiculed him for it. The mother said that [Y] had told her about the ridicule. She told him that there were people such as herself who did not like hunting and if he chose to do it when he was older he might find people are opposed to it.
I accept the mother’s oral evidence as set out above.
The family report writer’s oral evidence
Ms Bendall said that she considered the mother’s concerns about [X] and [Y]’s safety to be reasonable. She said that she thought the father had a reasonable safety plan, in terms of one child being a couple of metres behind the father and the other child being further behind again. However, Ms Bendall also mentioned the unpredictability of children, the fact that they sometimes dart out and the fact that “children are children”. When she was told that the father had given evidence that his “strict” rule of the children staying behind him had sometimes not been followed, and they had actually touched him when he was carrying the gun in the creek bed, Ms Bendall said that she considered that situation to be dangerous.
Ms Bendall said, however, that she was mostly concerned about the psychological impact on the children, particularly [Y]. She said she thought he had difficulty getting his head around the injured animal that he had seen. She said that she understood that rabbits are vermin, as the father saw them, but thought a seven year old might not fully understand that. Ms Bendall said that things can seem different to a seven year old. She pointed out that the Easter Bunny is a rabbit and that children keep rabbits as pets. Ms Bendall recalled that [Y] had been frightened of something at Sea World and seemed to be quite a sensitive child. Ms Bendall thought that [Y] did not yet have an understanding that death is death and that she could not say that [Y] was not affected by the event he had witnessed. However, Ms Bendall also agreed that she had not discussed these matters with either child or conducted any formal psychological testing.
Ms Bendall considered that children of seven or nine years old are too young to be exposed to the violence involved in shooting and to the maiming and death of an animal. Ms Bendall acknowledged that children are exposed to violence on television but said that was one step removed from being actually present when violence occurs.
Ms Bendall accepted that [X] identified strongly with his father and identifying with him was an important part of [X]’s development.
Ms Bendall acknowledged that [X] said he loves to go hunting with his father. However, she said that other activities could be substituted to foster a close father-son relationship. Ms Bendall thought that [X]’s intention to get a junior shooter’s licence did not necessarily mean that he loved the sport. He might simply have wished to be like his father. Ms Bendall said she was not convinced that [X] and [Y] would be completely unscathed by joining their father in his shooting activities.
Consideration
The mother submitted that [X] and [Y] needed to be protected from exposure to violence in the form of the killing of animals. She said that need fell within s.60CC(2)(b) of the Act in that the killing of animals in the presence of the children constituted abuse. However, as the father’s counsel pointed out, abuse is defined in s.4 of the Act as:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
There is a risk that accompanying the father while he is shooting could result in [X] or [Y] being assaulted, in the sense of injured. However, any such assault would be accidental. Accordingly, the injury would not constitute the offence of assault. In any event, it is obviously in [X] and [Y]’s best interests to be protected from serious injury. This is a matter to be considered under s.60CC(3)(m) of the Act, namely, any other relevant fact or circumstance.
The father submitted that the court should leave it to him to decide, as part of his parental responsibility, whether to involve [X] and [Y] in his shooting activities. The father submitted that it was not appropriate for the court to involve itself in the minutiae of issues dealt with as part of ordinary parental responsibility, such as participation in sports or hobbies.
However, the court frequently and properly involves itself in decisions that are a normal part of parental responsibility, such as which school a child should attend, the name a child should have and whether a child may be subjected to cigarette smoke or physical discipline. It is commonplace for the court to order that children only be transported in vehicles with proper child restraints and that they wear helmets when riding motor bikes. Such orders are clearly within the court’s power. I consider that there is no substance to the father’s submission on this issue.
The father also submitted that the mother’s concerns about hunting had only been expressed very late in the proceeding, and, by implication, the mother was not genuine in her concerns but was merely being obstructive and controlling. Whatever the mother’s motivation for raising the question of shooting so late in the proceeding, the matter is now before the court and must be resolved on the basis that [X] and [Y]’s best interests are the paramount consideration.
The father’s counsel submitted that the father, by consent, will have equal shared parental responsibility and he was a responsible, practical and involved parent who had no drug or criminal history and who was vigilant and responsible when he took [X] and [Y] shooting. In general, the mother was content for the father to have equal shared parental responsibility. However, quite clearly, she strongly opposed that responsibility being extended to include shooting.
Additionally, I do not accept that that the father was entirely vigilant and responsible when taking the children shooting. Notwithstanding his rule that the children walk in single file a few metres behind him, on his own evidence, [X] and [Y] touched him at times when they were hunting on foot in the creek bed. Also, although the father said that the rule was that the shooter had to discharge any remaining ammunition from the gun before [X] and [Y] got out of the car, the father admitted that he had not checked that Mr M had done so on the occasion when they shot kangaroos. The father simply assumed that Mr M would have done so.
The father submitted that the court’s job was not to eradicate every possible risk for the children. That is true. The court’s job is to make orders on the basis that the best interests of the children are the paramount consideration. The court must consider the benefits to the children of the proposed conduct and the possible detriments. Particular conduct may involve a small chance of harm occurring, but the potential harm may be very serious indeed, and the conduct in question may produce minimal benefits for the children. In such circumstances, the court could properly conclude that the minimal benefit to the child was outweighed by the small chance of very serious harm.
The father’s counsel also submitted that the father was not a renegade. No one suggested that he was. What was suggested was that the father was not particularly safety conscious. I accept that suggestion. The father did not ensure that the children wore helmets while riding motor bikes on his property. He thought they did not have to because there is not a legal requirement that helmets must be worn while riding motor bikes on private property. However, it is obviously safer for them to wear helmets than to not wear helmets, even on private property, and even if they would not be going at the speeds on private property that are customary on public roads.
The fact is that the father only accepted that [X] and [Y] should wear helmets while riding motor bikes on his property because their mother insisted, bought them a helmet (which the father initially failed to ensure that [X] and [Y] used) and then the mother insisted again.
The father also allowed [X] and [Y] to travel a number of times in motor vehicles without proper restraints and on one occasion allowed them both to travel in a truck for 60 kilometres while sharing one lap seat belt. This is a serious safety issue.
The father, as a person who has been a serious shooter for many years and a member of a shooting association, allowed his five year old and seven year old children to handle a gun without checking the regulations governing that conduct. The regulations relating to guns exist for safety reasons. They are not simply hurdles put in the way of people having a good time. They exist to reduce the risk of harm to people who use guns and people in their vicinity. The fact is that the father did not go to the trouble of checking the regulations before allowing his children to handle a gun. The father’s sense that it was appropriate for young children to handle guns was far from the standards expressed in the regulations. This suggests that the father has little insight into the risks involved in combining children and guns.
The father, contrary to his submission, does not enforce strict rules about the use of guns. He did not check that Mr M had discharged the gun before allowing the children to get out of the car on the kangaroo shooting trip. The father acknowledged that, due to their lack of concentration, his rule about [X] and [Y] staying a few metres behind him was not followed at times on their shooting trip in the dry creek. They got close enough to touch him. The reality is that children of seven and nine years old do not reliably obey rules. Young children do lack concentration and they naturally want to be close to their parents. Young children do not understand the possible consequences of bumping into their father while he is carrying a gun.
Overall, I consider that the father is not particularly safety conscious. I consider that he is not inclined to perceive the risks involved in particular behaviour until those risks are hammered home to him. I accept that there is only a small chance that [X] or [Y] would come to harm from the father or others shooting, using or displaying firearms when they are with him. However, the potential physical harm is very serious indeed.
There are also psychological harms that may come from accompanying the father on shooting expeditions. As Ms Bendall has indicated, [Y] at least is too young to witness violent death. The way he recounted the incident of the injured rabbit was indicative of an emotional inability to process his distressing experience.
Additionally, [Y] was ridiculed at school for participating in hunting trips. [X] and [Y] live and attend school in an outer suburban environment. It is unlikely that many of their peers at school would share the father’s interest in shooting. There are, of course, many people in the community who are strongly opposed to the use of guns and the hunting of animals. Those views may filter through to their children who may then relay them in a very derogatory fashion to other children who participate in hunting and shooting. In any event, the unchallenged evidence was that [Y] was ridiculed at school for being involved in shooting and hunting. It is generally in the best interests of children for them to be well liked by their peers and for them not to engage in activities that make them the object of ridicule.
The father submits that the children would benefit greatly from participating in his shooting activities with him. He says that shooting is a healthy outdoor activity which tests the children’s physical and mental skills, allows them to practice concentration and dedication and gives them a healthy sense of achievement. There is a vast range of sports that provide exactly the same benefits with less potential for serious harm.
The father also said that [X] and [Y] had developed a real passion for shooting. Ms Bendall said that she thought that [X] and [Y] would be interested in anything their father was interested in. The father said that shooting had become an important part of the children’s life and happiness. That sounds like an exaggeration. In any event, children are adaptable. They develop new enthusiasms quickly. I do not accept that shooting is an immutable part of [X] and [Y]’s happiness.
The father also said that shooting was an important father-son bonding experience. Ms Bendall said that there are many other activities that the father could engage in with [X] and [Y] that would have the same result. In any event, shooting is an activity that could be shared by the father with [X] and [Y] when they are older. Father-son bonding obviously takes different forms at different stages of life, depending on what is appropriate.
In considering this matter, I must treat the best interests of [X] and [Y] as the paramount consideration. I must also consider the matters set out in s.60CC of the Act.
As to s.60CC(2)(a), I accept that participating in the father’s shooting activities would give an added dimension to the relationship between [X] and [Y] and their father. However, I also consider that, even without shooting, their relationship will be well and truly meaningful. As Ms Bendall said, there are many other activities that the father can enjoy with his children.
As to s.60CC(2)(b), I have already said that it does not apply in the present context.
As to s.60CC(3)(a), [X] and [Y] have expressed views strongly in support of them participating in their father’s shooting expeditions. However, I consider that the children are too young to appreciate the risks involved. Moreover, Ms Bendall said that they would want to do any activity that their father did. I do not consider that significant weight should be given to [X] and [Y]’s views on this matter.
As to s.60CC(3)(b), [X] and [Y] apparently have a good relationship with both of their parents and their various family members.
As to s.60CC(3)(c), the parents have both facilitated a close and continuing relationship between [X] and [Y] and their other parent, except that the mother suspended time between [X] and [Y] and their father without reasonable justification.
Paragraphs 60CC(3)(d) and (e) are not relevant in the present context.
As to s.60CC(3)(f), I do not consider that the father would be able to provide for [Y]’s emotional needs if another animal is injured on a shooting trip. Although the father said that he had explained to [Y] that it was just the rabbit’s nervous system that made it attempt to run after being shot, that explanation did not enable [Y] to recount the experience with equanimity. His reaction, even some time after the event, was odd, and indicated that he had not been able to deal emotionally with his experience. The father sees rabbits as vermin and therefore as deserving of no empathy. [Y] evidently did not see it that way, even after the father’s explanation.
As to s.60CC(3)(g), the father’s lifestyle, culture and traditions include hunting and gun use. The father regards these activities as important and beneficial. A significant proportion of the community would agree with him. I note this factor and give it weight. However, I consider that the benefits to [X] and [Y] of participating in their father’s shooting activities are quite small at this stage in their lives, especially as they can only be observers.
Paragraph 60CC(3)(h) is not relevant in the present case.
As to s.60CC(3)(i), both parents have demonstrated a good attitude to the responsibilities of parenthood, except in relation to the safety issues mentioned above, and except that the mother suspended time between [X] and [Y] and their father without reasonable justification.
Paragraphs 60CC(3)(j) and (k) are not relevant in the present context.
As to s.60CC(3)(l), it would be preferable to make the order that is in the best interests of [X] and [Y] at present, whether or not that might lead to further litigation in the future.
As to s.60CC(3)(m), the other relevant facts and circumstances are the physical and psychological risks of [X] and [Y] participating in their father’s shooting activities, and the ridicule [Y] has been subjected to for participating in those activities.
On balance, taking into account all the relevant matters, it is not in the best interests of [X] and [Y] that the father be permitted to shoot, use or display firearms, or allow anyone else to do so, in [X] or [Y]’s presence, at least until they get junior shooters’ licences, and, even then, only in accordance with the terms of the licences. I consider that [X] and [Y] will be able to continue their meaningful relationship with their father whether they go shooting with him or not. I accept that the risks of participating in shooting are small, but so are the benefits and the potential harm is very serious indeed. I consider that the father is not particularly safety conscious. He needs the risks of any particular conduct to be clearly spelled out to him before he understands them. He establishes rules, but does not, and perhaps cannot, ensure that they are always followed.
In addition, [Y] at least is too young to cope emotionally with witnessing violent death. Moreover, [Y] has been ridiculed for participating in shooting expeditions. It is not in his best interests that he be encouraged to participate in an activity that exposes him to ridicule by his peers. There will be orders in accordance with these reasons.
Other matters
The parties seemed to assume that once [X] and [Y] turned 12, they would be able to obtain junior shooter’s licences, and then shoot rabbits and foxes on the father’s property, provided that he was in their presence and that he held an adult shooter’s licence. That does not appear to me to be correct. Section 22 of the Firearms Act 1996 (Vic) permits a person between the ages of 12 and 18 to obtain a licence for certain sorts of guns “for the purpose of receiving instruction in the use of such firearms or engaging in sport or target shooting competitions.” Junior licences are subject to certain conditions, including those contained in item 4 of schedule 2 of the Firearms Act 1996 (Vic). They include the conditions that the junior licence holder:
a)must only receive instruction at an approved shooting range or in accordance with the regulations; and
b)must only carry or use a gun for sport or target shooting competitions at an approved shooting range.
The Firearms Regulations 2008 contain many restrictions on how and when a junior licence holder may receive instruction. Regulation 22(b) requires that the shooter shoots only at a target that has a backstop within 20 metres behind it that is capable of stopping any projectile that passes through or beyond the target. Regulation 22(e) provides that the activity must not take place between the hours of sunset and sunrise.
The parties may wish to obtain legal advice on the effect of the Firearms Act 1996 (Vic) and the Firearms Regulations 2008 (Vic). However, on my reading, [X] and [Y] will not be able to shoot rabbits or other animals on their father’s property or elsewhere until they are 18 years old and have adult shooter’s licences.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 4 September 2008
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