Kane and Anor and Pallan
[2016] FCCA 115
•9 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANE & ANOR & PALLAN | [2016] FCCA 115 |
| Catchwords: FAMILY LAW – Parenting – joint application by maternal grandmother and mother – mother subsequent to application being filed fails to engage in the proceedings – contest as between maternal grandmother and father – consideration of psychological assessment of the father and family report prepared – application of such evidence to the facts available in relation to the proceedings and determination in all the circumstances of what reflects the best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 MRR v GR (2010) 240 CLR 461 |
| First Applicant: | MS KANE |
| Second Applicant: | MS SALMON |
| Respondent: | MR PALLAN |
| File Number: | TVC 615 of 2014 |
| Judgment of: | Judge Coker |
| Hearing date: | 12 October 2015 |
| Date of Last Submission: | 12 October 2015 |
| Delivered at: | Townsville |
| Delivered on: | 9 March 2016 |
REPRESENTATION
| Counsel for the First Applicant: | Mr Pack |
| Solicitors for the First Applicant: | Harrington Legal |
| Second Applicant: | No appearance |
| Respondent: | In person |
| Solicitors for the Independent Children’s Lawyer: | Greg Pohlmann Family Lawyers |
ORDERS
That the Maternal Grandmother have sole parental responsibility for the major long term care, welfare and development of the children, X born (omitted) 2009 and Y born (omitted) 2011.
In exercising sole parental responsibility the Maternal Grandmother shall, except in emergency:-
(a)Inform the Mother and the Father of any decision that needs to be made as early as practicable;
(b)If the Mother and or the Father have a view as to what the decision should be, that parent shall forthwith communicate this view to the Maternal Grandmother;
(c)The Maternal Grandmother will consider any view expressed by the parents;
(d)As soon as possible after the decision, the Maternal Grandmother will notify the parents of the decision.
That notwithstanding Order 1 and 2 herein:
(a)The Mother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her;
(b)The Father, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with him; and
(c)The Maternal Grandmother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her.
That the children live with the Maternal Grandmother.
That the children spend time with and communicate with the Mother as may be agreed from time to time with the Maternal Grandmother and failing agreement as may be otherwise ordered by a Court of competent jurisdiction.
That the children spend time with and communicate with the Father as may be agreed from time to time with the Maternal Grandmother and failing agreement as follows:
(a)For a period of up to three hours each consecutive Sunday between the hours of 1.00pm and 4.00pm for a period of eight weeks from the date of these Orders and upon the conclusion of 8 consecutive weeks; then
(b)For a period of up to six hours each alternate Saturday between 12 noon and 6.00pm for a period of sixteen (16) weeks and upon the conclusion of 8 consecutive fortnightly attendances; then
(c)Upon providing to the Maternal Grandmother confirmation that the Father has engaged with and secured the support of Relationships Australia in Bowen or an allied professional Family Support organisation with regard to his interactions with the children, overnight time with the children may proceed as follows:
(i)From 10.00am Saturday to 4.00pm Sunday each alternate weekend for a period of twelve (12) weeks, and upon the conclusion of 6 consecutive fortnightly attendances; then thereafter
(ii)Each alternate weekend from 4.00pm Friday to 4.00pm Sunday or Monday should the Monday be a public holiday or pupil free day.
That from the end of Term 3 gazetted school holidays 2016, provided the Father has fully complied with Orders 6(a) and (b), that the children spend time with the Father for one half of all gazetted school holiday vacation periods, being the first half in even numbered years and the second half in odd numbered years.
That from the end of the Term 3 gazetted school holidays, provided the Father has fully complied with Orders 6(a) and (b), the time with the Father pursuant to Orders (6)(c) is suspended during all gazetted school vacation periods.
That the Father’s time with the children pursuant to Orders 6(a) and (b) shall be confined to the (omitted)/(omitted) districts only.
That the Father advise the Maternal Grandmother at least 24 hours in advance if he is unable to spend time with the children;
That changeovers pursuant to Orders 6(a), (b) and 14 shall occur at the Maternal Grandmother’s residence and changeovers in relation to Order 6(c) and 7 shall occur at the Traffic Rest Area at (omitted).
That the children spend time with the Father when he would not otherwise have the children in his care on special days, and if not otherwise agreed, then on the Father’s and children’s birthdays, if a school day, from the conclusion of school until 7.00pm or from 10.00am until 3.00pm, if a non-school day.
That the children spend time with the Maternal Grandmother and the Mother on their birthdays should the children be otherwise in the care of the Father, from 10.00am until 5.00pm.
That the children spend time with the Father on Father’s Day from 9.00am to 6.30pm.
That the children spend time with the Maternal Grandmother or with the Mother as may be agreed on Mother’s Day from 9.00am to 6.30pm.
Commencing 2016/2017 Christmas School vacations period during the Christmas Day/ Boxing Day period, the parent/Maternal Grandmother who has the children living with him or her during the second half of that vacation period shall also spend time with the children from 11.00am Christmas Day until 3.00pm Boxing Day.
Subject to the Father complying with Orders 6(a) and (b), the children shall spend time with the Father from 11.00am Easter Sunday to 4.00pm Easter Monday in even numbered years and from 11.00am Easter Friday to 11.00am Easter Sunday in odd numbered years commencing in 2017.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the Father may communicate by telephone with the children unless otherwise agreed in writing, each Sunday and Wednesday between the hours of 6.00pm and 6.30pm with the Father to initiate the telephone call and the Maternal Grandmother to ensure the children are available to take the call in a quiet and private location.
That the parents and the Maternal Grandmother shall:-
(a)Keep each other informed at all times of their residential address and landline and mobile contact telephone number with written notification of any changes to be made within five days of any such change;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioner who treat the child and authorise the practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the Father, Mother and the Maternal Grandmother.
That the Maternal Grandmother authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children at the parent’s expense.
That the parents are to ensure that the children attend all school activities and extra-curricular activity in which the children are enrolled or participate including any lessons, practice sessions or games when the children are in their care.
That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:
(a)The Maternal Grandmother and the parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family dispute resolution Practitioner equally;
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Maternal Grandmother shall nominate which practitioner shall be consulted and advise in writing details of that practitioner, their fees, and availability to the Mother and Father.
None of the responsible adults, namely the Maternal Grandmother, Father or the Mother shall consume or indulge in illicit substances when the children are in their respective care.
The Father is hereby authorised to produce to Relationships Australia (or alternative service provider), the Report of Mr C filed on the 27 January 2015 to enable his compliance with Order 6(c).
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Kane & Anor & Pallan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 615 of 2014
| MS KANE |
First Applicant
And
| MS SALMON |
Second Applicant
And
| MR PALLAN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
On 17 June 2014, an initiating application was filed in this Court seeking orders in respect of the parenting of two children, X, born (omitted) 2009 and Y, born (omitted) 2011.
The children are the children of Ms Salmon, whom I shall refer to as the mother, and Mr Pallan, whom I shall refer to as the father. The application, however, was filed not only by the mother but also by Ms Kane, the maternal grandmother of the children.
APPLICATIONS:
The application that was filed was, therefore, a joint application by the maternal grandmother and the mother. It, however, sought orders primarily to the effect that the children be placed in the care of the maternal grandmother. The terms of the orders on a final basis were detailed in orders 1 through 7 of the initiating application of 17 June 2014. They were in these terms:
1. That the maternal grandmother have sole parental responsibility for the major long term issues of the grandchildren namely X born (omitted) 2009, and Y born (omitted) 2011 including but not limited to:
1.1The children’s education, (both current and future);
1.2The children’s religious and cultural upbringing;
1.3The children’s health
2. That the children reside with the maternal grandmother and spend supervised time with the mother as agreed by both parties. That the maternal grandmother supervise the time the children spend with the mother.
3. That the children spend supervised time (supervised by the maternal grandmother) with the father as agreed by both parties. Failing agreement as follows:
3.1Every second Saturday from 1pm – 5pm.
3.2On the children’s birthdays from 1pm – 5pm.
3.3On Father’s Day or Father’s birthday from 1pm – 5pm.
3.4On Christmas Day from 1pm – 5pm.
4. That both parents are at liberty to contact the children via telephone at all reasonable times as agreed between the parties and failing agreement, between 5.30pm and 7.00pm on Monday, Wednesday and Friday.
5. That the maternal grandmother facilitate the children communicating with either parent by telephone at reasonable times should the children express the wish to call the other parent.
6.That an injunction be issued restraining the Respondent from:-
a. Contacting the mother or maternal grandmother, whether directly or indirectly, by telephone, email, text message or any other means unless such contact is solely in relation to issues pertaining to the care, welfare and development of the child and is not threatening or abusive in any way;
b. Committing any acts of Family Violence against the children, mother, maternal grandmother or maternal grandmother’s partner;
c. Being under the influence of alcohol or illicit substances whilst spending time with the children.
7.That the Respondent pay the costs of the Application.
It was therefore, a contest between the maternal grandmother in conjunction with the mother, and the father. The father was self-represented. The response filed by him sought orders on a final basis, which were unparticularised at all, perhaps arising from the fact that the father was acting on his own behalf. The response sought an order in these terms:
(1) I would like to ask for my two children full time. Can be supervised by my mother or mother-in-law.
The father did not file any further amendments in relation to that order, but as is clear from the way the matter proceeded to hearing, the father’s position was simply to say that he was the only biological parent ready, willing and able to provide for and to meet the needs of the children and that, therefore, there should be a priority given to him over any other person, including particularly, the maternal grandmother.
THE ISSUES:
The issues that arose in relation to the matter were, unfortunately, not uncommon in proceedings before this or any other Court exercising jurisdiction under the provisions of the Family Law Act. However, they still gave rise to difficult considerations required to be met, in relation to the parenting of the children. Quite simply, there were concerns with regard to drug use and abuse by both parents, though the father’s position was to say that his use of illicit substances had either ceased or certainly significantly reduced, such that there was no issue of concern with regard to his capacity to provide for and to meet the needs of the children.
The father also contended that the maternal grandmother was a drug user and also raised allegations with regard to the health of the maternal grandmother and of her partner, relating not only to issues with regard to their physical wellbeing arising from matters that the father says relate to the age of the maternal grandmother and her partner, but also suggests that there are concerns with regard to drug use by the maternal grandmother, particularly as recent drug tests requested by the Independent Children’s Lawyer, who had been appointed in relation to the proceedings, gave rise to some substances being found within the analysis samples that were provided by the grandmother. She, however, indicates in her affidavit filed electronically on 8 October 2015 that any positives that were noted in drug tests arose from prescription medication that had been prescribed for her and that there was a legitimate and appropriate response, in relation to any positives that arose.
There were also concerns with regard to matters of domestic violence. It appears generally accepted that the relationship between the mother and the father was one in which domestic violence and family violence, as defined pursuant to the provisions of the Family Law Act loomed large, in relation to the proceedings. It was for those reasons that orders were made early on for the appointment of an Independent Children’s Lawyer to represent the children in these proceedings.
The Independent Children’s Lawyer facilitated the preparation of both a family report and a psychological assessment, in relation to the father. Following consideration of such matters, the Independent Children’s Lawyer then put forward proposals in relation to the future parenting of the children. Those proposals were contained within a draft order provided to the Court but also made available to the parties participating in the proceedings, the maternal grandmother and the father, prior to the commencement of the hearing.
The maternal grandmother indicated agreement to such orders being made, however, the father’s position was to contest such orders as not being reflective of the best interests of the children, for the reasons that I previously noted. The terms of the orders proposed by the Independent Children’s Lawyer were as follows:
1. That the Maternal Grandmother has sole parental responsibility for the major long term care, welfare and development of the children, X (born (omitted) 2009) and Y (born (omitted) 2011).
2. In exercising sole parental responsibility the maternal grandmother shall, except in emergency:-
(a)Inform the mother and the father of any decision that needs to be made as early as practicable;
(b)If the mother and or the father have a view as to what the decision should be, that parent shall forthwith communicate this view to the maternal grandmother;
(c)The maternal grandmother will consider any view expressed by the parents;
(d)As soon as possible after the decision, the maternal grandmother will notify the parents of the decision.
3. That notwithstanding Order 1 and 2 herein:
(a)The Mother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her;
(b)The Father, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with him; and
(c)The Maternal grandmother, shall be responsible for the day-to-day care, welfare and development of the children whilst the children are living with or spending time with her.
4. That the children live with the Maternal grandmother and spend time with and communicate with their Mother and the Father as may be agreed from time to time, failing agreement as follows -:
(a)With the mother at all times as the maternal grandmother and the mother shall agree.
(b)With the Father:
(i) For a period of up to three hours each consecutive Sunday between the hours of 1.00pm and 4.00pm for a period of eight weeks then –
(ii) For a period of up to six hours each alternate Saturday between 12 noon and 6.00pm for a period of sixteen (16) weeks;
(iii) The fathers time with the children in Orders 4(b)(i) and (ii) shall be confined to the (omitted)/(omitted) districts only;
(iv) Upon the father having complied with Orders 4(b)(i), (ii) and (iii) and upon providing to the maternal grandmother confirmation that the father has engaged with and secured the support of Relationships Australia in (omitted) or an allied professional Family Support organisation to satisfy paragraph 58 of the recommendations of the Family Report writer, Mr C then overnight time with the children may proceed as follows –
(v) From 10.00am Saturday to 4.00pm Sunday each alternate weekend for a period of twelve (12) weeks, thereafter –
(vi) Each alternate weekend from 4.00pm Friday to 4.00pm Sunday;
(vii) Commencing in June 2016 with the Father for one half of all gazette school holiday vacation periods, being the first half in even numbered years and the second half in odd numbered years;
(viii) That from June 2016, the time with the mother and father pursuant to Orders (4)(a) and (4)(b)(i) to (vi) (both inclusive) are suspended during all gazetted school vacation periods.
(ix) That the father advise the maternal grandmother at least 24 hours in advance if he is unable to spend time with the children;
(x) Changeovers in relation to Orders 4(b)(i)(ii),(iii) and 7 shall occur at the maternal grandmother’s residence and changeovers in relation to Orders 4(b)(v)(vi)(vii) and 9 shall occur at the Traffic Rest Area at (omitted).
5. That the children spend time with the father who would not otherwise have the children in his care on special days, and if not otherwise agreed, on the father’s and children’s birthdays, if a school day, from the conclusion of school until 7.00pm or from 10.00am until 3.00pm, if a non-school day.
6. That the children spend time with the maternal grandmother’s and the mother’s birthdays, if a school day, from the conclusion of school until 7.00pm or from 10.00am until 5.00pm, if a non-school day.
7. With the Father on Father’s Day from 9.00am to 6.30pm.
8. With the Mother or Maternal grandmother on Mother’s Day from 9.00am to 6.30pm.
9. With the father from 10.00am to 4.00pm Boxing Day 2015.
10.Commencing 2016/2017 Christmas School vacations period during the Christmas Day/ Boxing Day period, the parent/ maternal grandmother who has the children living with him or her during the second half of that vacation period shall also spend time with the children from 11.00am Christmas Day until 3.00pm Boxing Day.
11.Subject to the father complying Orders 4(b)(i),(ii) and (iii) the children shall spend time with the father from 11.00am Easter Sunday to 4.00pm Easter Monday in even numbered years and from 11.00am Easter Friday to 11.00am Easter Sunday in odd numbered years but otherwise his Easter time in 2016 shall be from 10.00am to 4.00pm Easter Sunday.
12.That the children shall spend time with the maternal grandmother and the mother from 11.00am Easter Sunday to 4.00pm Easter Monday in odd numbered years and from 11.00am Easter Friday to 11.00am Easter Sunday in even numbered years.
13.That for the purposes of defining the first and second half of gazetted school holidays periods, the following apply:
FOR THE MARCH/APRIL HOLIDAY THAT INCLUDES THE EASTER WEEKEND HOLIDAYS
(a)The first half of the gazetted end of Term 1 school holiday period shall be from after school on Thursday preceding Good Friday until 4.00pm on the second Saturday of that holiday period;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 4.00pm on the second Saturday following the Easter weekend to before school on the first day of the next term;
FOR ALL HOLIDAY PERIODS INCLUDING THE MARCH/APRIL HOLIDAY PERIODS THAT DOES NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 9.00am on the first Saturday of the school vacation period until 4.00pm on the Saturday of the middle weekend of such holiday period;
(d)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 4.00pm on the Saturday of the middle weekend of the school holiday period until 4.00pm on the Saturday prior to the first day of the next term;
(e)The first half of the gazetted Christmas school holiday period from 9.00am on the first Saturday of the Christmas school holiday period and concludes at 4.00pm on the Saturday falling approximately 22 days later (usually between 30 December and 2 January);
(f)The second half of the gazetted Christmas school holiday period commences from 4.00pm on the Saturday in the middle weekend of the Christmas school holiday period (usually between 30 December and 2 January) and concludes at 4.00pm on the Saturday prior to the first day of the next school term in the New Year.
14.That the father may communicate by telephone with the children unless otherwise agreed, each Sunday and Wednesday between the hours of 6.00pm and 6.30pm with the father to initiate the telephone call and the maternal grandmother to ensure the children are available to take the call in a quiet and private location.
15.That the parents and the maternal grandmother shall:-
(a)Keep each other informed at all times of their residential address and landline and mobile contact telephone number with written notification of any changes to be made within five days of any such change;
(b)Keep the other parent informed of the names and address of any treating medical or other health practitioner who treat the child and authorise the practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the father, mother and the maternal grandmother.
16.That the maternal grandmother authorise, by this Order, the school attended by the children to give each parent information about the children’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children at the parent’s expense.
17.That the parents are to ensure that the children attend all school activities and extra-curricular activity in which the children are enrolled or participates including any lessons, practice sessions or games.
18.That the process to be used for resolving disputes about the terms or operations of these orders shall be as follows:
(a)The maternal grandmother and the parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family dispute resolution Practitioner equally;
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the maternal grandmother shall nominate which practitioner shall be consulted and advise in writing details of that practitioner, their fees, and availability to the Mother and Father.
19.None of the responsible adults, namely the maternal grandmother, father or the mother shall consume or indulge in illicit substances when the children are in their respective care.
20.The father is hereby authorised to produce to Relationships Australia (or alternative service provider) the Report of Mr C filed on the 27 January 2015 to enable his compliance with Order 4(b)(iv)
THE EVIDENCE:
As is evident from the comments just made by me in relation to this matter, there were only two participants in the proceedings before the Court. They were the applicant maternal grandmother and the father. The mother failed to participate in the proceedings to any real extent other than to be involved in the initial application filed on 17 June 2014. The family report that was prepared by Mr C noted that the mother did not participate in the report process, though she was given the opportunity to do so. At paragraph 22 of the report filed on 27 January 2015, Mr C notes:
Ms Salmon states that she does not believe she is capable of looking after the children, nor is she able to protect them from their father, Mr Pallan. Ms Salmon states that she believes the children’s best interests are to live with her mother, who is able to offer them the stability and security that they need.
Mr C went on to note in his report, that whilst the mother acknowledged that where there were occasions where she did not visit the children notwithstanding that arrangements had been put in place for her to see them and to spend time with them, the mother did not appear to understand the negative impact on the children of her unreliability. That, unfortunately, was a recurrent theme in these proceedings, relating not only to the mother but also to the father. I shall come to the report of Mr C a little later in these reasons.
THE PARTIES:
I had the opportunity during the proceedings of seeing both the maternal grandmother and the father in the witness box. I also, of course, had the opportunity to read the affidavits that were filed by both the maternal grandmother and the father and to note their demeanour in the witness box. I should indicate that the maternal grandmother was, I thought, an impressive witness.
The maternal grandmother detailed her circumstances in her affidavit filed on 8 September 2015. She noted that she was living at (omitted) in (omitted) with her partner, Mr K, and that at the home at (omitted), there are all of the facilities required for the provision of the needs of the children. The children the subject of these proceedings have been in the care of the maternal grandmother for some considerable time.
The father set out to criticise the circumstances that existed in relation to the maternal grandmother’s accommodation, noting that, in her affidavit, she referred to her residence being a five-bedroom home whilst, in her oral evidence, she noted that it was, as she described it, four-plus bedrooms with a verandah area turned into a fifth sleeping area.
The maternal grandmother was cross-examination by the Independent Children’s Lawyer, particularly in relation to issues with regard to both the mother and the father’s interaction with the children. She emphasised that both the mother and the father had generally failed to involve themselves in the children’s lives. Insofar as the father was concerned she noted particularly that there had been lengthy periods where there was little if any physical or telephone contact between the father and the children and strenuously denied any steps taken by her to preclude the father from the opportunity to interact with the children. In particular the maternal grandmother denied issues as suggested by the father with regard to threats made to him by she or other family members, including Mr K, and that the father had the opportunity to interact with the children but had chosen for various reasons not to do so.
In particular the maternal grandmother was asked by the independent children whether anything had been done to intimidate or to directly threaten the father. The maternal grandmother indicated that that had not been the case. She noted that she had, as she put it, “Tried to just be in the area” and in more recent times, if the father had spent time with the children alone at the home, it was with her in another place.
The maternal grandmother also indicated that she was supportive of the proposals put forward by the independent children’s lawyer with regard to the development of the opportunity for time to be spent with the father, working towards, no doubt, in the end significant and substantial periods of time being spent with the father. The maternal grandmother indicated that she had no objections to such arrangements and when asked about the father’s suggestion that she had limited his opportunities to spend time with the children because of other activities being in place, she noted particularly that there was nothing that could not be rearranged, if the father actually sought to spend time with the children.
I must say that I found the maternal grandmother an honest witness. I would have no doubt that she recognises the importance of the children’s opportunity for a relationship with the parents and is acutely aware of the hurt that the children experience, particularly in circumstances where arrangements are made by the father to spend time with the children, and then he does not do so. She noted especially, of the children’s upset when the father indicated that he would attend and then did not do so or indicated that he would spend more substantial periods of time with the children and then did not do so.
When cross-examined by the father, the maternal grandmother was frank about her own behaviours in the past and in respect of difficulties that arise, particularly with regard to her family circumstances. She acknowledged that the children’s mother was in her assessment, “still having drug issues”, and that there were concerns about the mother’s criminal behaviour. She also acknowledged that there were circumstances where her son Mr Pallan had failed to act appropriately, as well as in particular that she had used marijuana with the father and the children’s mother.
She denied, however, that she had provided the marijuana and in fact indicated that it had been provided for use by her and the mother, by the father.
The maternal grandmother was struggling in the circumstances to do the best for the children. She recognised the importance philosophically, but also practically, of these boys having a relationship with both of their parents but also recognised the obvious importance of ensuring that there were protective arrangements in place. Quite simply, the grandmother expressed concern that both the mother and the father were unable to properly appreciate the importance of the relationship that she had with the children, developed over a significant period when neither parent was ready, willing or properly able to provide for the children.
As well she recognised the need for the children to have their relationship with both parents, but in this instance particularly the father, facilitated and developed. The father’s lack of appreciation of the child focus that arose from such a proposal was a factor of some particular significance.
As I say, the maternal grandmother’s evidence in relation to this matter was impressive, child-focused and recognised the various competing issues that arose, with regard to meeting the needs of these children.
Insofar as the father was concerned, I should note at the commencement of these reasons that I have absolutely no doubt whatsoever as to the father’s real desire to have significance if not priority in relation to the parenting of the children. Having said that, however, there are a considerable number of issues that give rise to concerns with regard to the father.
His approach in relation to the matter was one of fairness to him. He repeated during his oral evidence in these proceedings on a number of occasions the statement, that it’s not fair. The question of fairness, with respect, has nothing whatsoever to do with the best interests of the children, the subject of these or any other proceedings. It is a question of ensuring that the best interests and the welfare of the children are to the fore. The father’s position was to simply repeat ad nauseam that he was the father and it was his, “right” to care for the children, notwithstanding that he had been unable or unwilling to properly do so for a significant period of time, prior to these proceedings being commenced.
These children are six and four years of age. They have been in need of protection from their mother and their father, as a result of the behaviours of the mother and the father. The father’s position was to say that the relationship between he and the mother was toxic and that there were no issues of concern that arose since there had been a separation between he and the mother. He indicated, that separation had occurred in January of 2013, and that as there had been no further domestic violence incidents, that there were no other issues that needed to be addressed.
However, it is clear that that is not the case. The fact that the father has not come to the attention of the police for some little while is pleasing, but it is only a small step in the long road that needs to be followed by the father, to show that he is able to beneficially and continually provide for and to ensure that the best interests and the needs of the children are met. The father’s view was that as his relationship with the mother was over, and there was no further violence in his current relationship, though it is, only a new relationship, there are no concerns.
He appeared to have no appreciation or insight into the dynamics that would arise as well as to have no insight into the inherent difficulties in parenting 3 children 6 years of age and under, with limited experience and resources.
The father failed to provide any information of any real significance at all, with regard to his circumstances. He indicated that he was living at (omitted) with his partner Ms A and their daughter. He noted that the residence was a four bedroom home and that the boys would have a room and that the home was large and had a fenced pool.
Little else of any significance was provided with regard to information in relation to the matter and whilst it is clear that the father has had some health issues of his own in the past, it is unclear exactly what his circumstances might currently be, particularly with regard to his capacity to provide for and to meet the needs of the children, both financial and emotional. Quite simply, the father, in my assessment, fell far short of being able to at all satisfy the court that he was in a position where he could provide for and meet their needs.
The father indicated that his position could be described as, “The boys need their father”. The father indicated that he had completed a triple-P parenting program and that as far as he was concerned, that was all that was necessary to satisfy the court that he was a changed man, that drugs and domestic violence did not any longer loom as a concern in relation to his life and that he was fully able to provide for the children.
That may or may not be the case, and only time will tell, but the real concern here is that the father’s view was that his wishes must prevail, because that would be “fair” and that the children’s need for stability, settled arrangements and a secure environment were matters which were of little consequence, because he was their father.
The father was asked whether he had read the report of Mr C. He indicated that he had, and also gave evidence that he felt intimated by Mr C. When asked if he could explain what he meant by that, the best that he could suggest was there was, “a vibe that I couldn’t get along with him”, and that he generally could not understand the questions that were asked.
Frankly, the father’s intimidation arises, in my assessment, not from anything inappropriate in the way that Mr C dealt with the father, but rather that he did not like being challenged about the lack of real consideration of the children, in relation to what arrangements could be put in place. The father’s position in relation to redeveloping and establishing his relationship with the children went to one side, because it was not convenient to him to do so.
It was noteworthy, for example, that when challenged in relation to why he had not spent time with the children, his response was to suggest that he had a broken leg, which is acknowledged, and that he had been in and out of hospital, and that therefore he could not spend a period of up to six months with the children, because, with a broken leg, he could not, “run away if he was threatened”.
Adults and parents in particular, make appropriate arrangements. If there was anything genuine in relation to the threats that were suggested to have been made toward the father, then they would properly have been able to be dealt with. The father simply used it as an excuse to explain the otherwise unexplainable, insofar as his failure to properly engage with the children.
When questioned about the proposals put forward by the independent children’s lawyer and suggestions of where a changeover could occur, his responses were indicative of his failure to appreciate that there might be concerns greater than his wishes. He simply said, “No, there won’t be no changeovers. I want it to be at the (omitted) Police Station”, and when asked whether if that was ordered he would comply with the handovers at the (omitted) Police Station, incredibly, he immediately indicated that he would not do so, because the children would be in his care.
The fact is, that the father saw no way but his way and failed entirely to appreciate the importance of first and foremost ensuring that the children were comfortable, secure and settled in any arrangements that were in place.
It was troubling that the father downplayed issues with regard to domestic violence. When questioned at length about the information contained within the police reports, he denied or downplayed what was included therein. It was noteworthy, for example, that he categorically denied having said to the mother on an occasion when the police were present, “I’m going to fucking kill you, slut.” He denied also an indication that the police noted the father pointing at the mother in January of 2012 and making a throat-cutting motion.
His response to that was telling. He said, “I didn’t do that. They just talk shit.” He then went on to ask rhetorical question, “Do I look like an immature little fuckwit or something?” Unfortunately, the response to that rhetorically would be that he certainly was immature and he certainly failed in any way to appreciate that there were greater considerations than what he simply wanted, in relation to the children.
The father failed entirely to realise that his obligations arose not because of the biological relationship between he and the children, but rather as a requirement to meet the emotional needs of the children. Quite simply, the father was immature and failed to in any way appreciate that there were concerns with regard to his past behaviours. And it would seem even to date, his present behaviours in failing to engage with the children because it wasn’t the way that he wanted things done indicate his immaturity and lack of insight.
The father was cross-examined, I thought, very gently by the Independent Children's Lawyer, in relation to this matter. It was understandable that the independent children’s lawyer was seeking, I thought, to give the father the opportunity to actually consider the needs of the children. He failed fundamentally at any time, however, to do so, and arising from that failure were the ongoing concerns that were held, in relation to the father’s capacity to meet the needs of the children.
It was troubling in the extreme that when asked by the independent children’s lawyer how many times he had been in jail, he laughed before answering the question. There seemed to be little, if any, real appreciation by the father of the concerns that must arise from his past behaviours and the risks that arise, in relation to the future needs of the children being met.
Toward the end of cross-examination by the Independent Children’s Lawyer, the father was asked whether he appreciated what was being suggested by the Independent Children’s Lawyer, as an appropriate way forward. He noted that he had been advised to seek legal advice, but that legal aid had not been provided. The father then went on, however, to reiterate his recurring theme, that it was not fair. He said, “I just want my three kids together, I miss them.” He then went on, rather tragically, I thought, to explain his motivation, and I certainly do not suggest for a moment that the father’s wishes are not genuine.
The real concern, however, is that the father has not shown a capacity to put into effect what he proposes. He suggested in answer to a question by the Independent Children’s Lawyer that if he were given a chance, we would all be proud of him. He went on to note that he did not have his father in his life when he was young and that he wanted to be a good father.
I hope that the father will be able to do so, but there are obviously concerns that arise with regard to the father’s maturity and any real appreciation of the obligations that arise, with regard to the parenting of these two boys.
The father was deprecating of the maternal grandmother, notwithstanding that it was she and only she who has stood up for the boys and ensured that their best interests were met, when the father was unwilling or unable to do so. Quite simply, the father’s immaturity and lack of appreciation of the best interests of the children being something to be considered ahead of what his wishes might be, was of very great concern in relation to this matter.
THE FAMILY REPORT:
As I indicated, a family report was commissioned by the Independent Children’s Lawyer, as well as, arising from the recommendations contained in the family report, the preparation of a psychological assessment by Ms M. The parties did not require either the report writer or Ms M to be available for cross-examination. Obviously, therefore, the evidence that they have given, particularly that contained within their respective reports, is unchallenged.
Insofar as Ms M’s report is concerned, that being a report annexed to the affidavit of Ms M filed on 8 October 2015. It is noteworthy that under the heading Opinion, Ms M says:
It is my professional opinion that X and Y will not be at risk of harm or neglect should they spend unsupervised time with Mr Pallan. Mr Pallan did tell me if supervision of time spent was an issue that the mother of Ms A was prepared to be the supervisor. It is further my opinion that the critical issue will be any interaction between Mr Pallan, Ms Kane or Ms Salmon regarding the time spent by X and Y with their father and his family.
Ms M went on to note at paragraph 26 concerns which are, to a significant degree, a reflection of those issues which I have addressed in relation to Mr Pallan. She said:
Mr Pallan deemphasised the difficulties he had managing anger when he was in a relationship with Ms Salmon. He told me that he felt that it was the nature of his relationship with Ms Salmon and her family, especially Ms Kane, motivated his anger. Mr Pallan stated several times that he had not had any difficulties with anger since he exited the relationship with Ms Salmon and limited any contact with her or Ms Kane. He also indicated that he had not engaged in any antisocial behaviour since he has been in a relationship with Ms A.
Ms M went on at paragraph 27 to note:
It is reasonable to suggest that there was a synergy in the former relationship of Mr Pallan and Ms Salmon which, resulted in ‘mutual crazy making’ with poorly regulated affect and behaviour as outcomes. It is unlikely that there would be much of a possibility for cooperative parenting by Mr Pallan and Ms Salmon of X and Y. I expect that Ms Kane would adhere to any directions in orders made by the court as regards time spent by the children with Mr Pallan. It is imperative that these directions be clear and unambiguous to avoid the emergence of conflict between the parties regarding time spent and communication by X and Y with Mr Pallan.
My assessments in relation to this matter were of a similar nature. I have no doubt that the maternal grandmother would facilitate time to be spent by the children with their father and would do so because she recognised that it was in the best interests of the children. The issue here is not the grandmother’s cooperation or adherence to the orders, but rather the father’s willingness to actually put the children to the fore, to put himself out and to be the parent to the children that they properly deserve. I was generally assisted by the report of Ms M and, in particular, the observations that were made.
Additionally, I had the opportunity of considering the report prepared by Mr C in relation to this matter. Mr C noted in particular on a number of occasions that the father’s position was, as the father emphasised in his evidence before this Court, that he was the father and that he should care for the boys. There was a total lack of appreciation, however, noted by Mr C in relation to the father recognising that there was a greater consideration than his rights or what might be fair, and that was the need to ensure that the children’s best interests were to the fore.
Insofar as the report relating to the father is concerned, it reiterates the issues that have arisen, particularly with regard to the father spending time with the children. At paragraph 27, there is, if you like, the clear indication of the father blaming everyone else for his own real failures to appreciate the importance of meeting the needs of the children. Mr C notes:
When Mr Pallan failed to arrive at the maternal grandmother’s home in December 2014 for a prearranged visit with the children, he blamed Ms Kane and her solicitor, stating that they had recently sent a letter indicating they required three days notice so he simply “didn’t turn up”. On the second occasion, Mr Pallan and Ms A attended the material grandmother’s home however were 40 minutes late, and when challenged with the reaction of the children, in particular, X, who was waiting for him, he appeared to have no understanding or insight into the impact of his failure to attend as arranged on the children.
That succinctly outlines the concerns that arise, in relation to the father’s parenting of the children. He wants genuinely to be a good father and a parent to these children, and he is the only biological parent seeking to take on that role. But there is little, if any, real appreciation by the father of the actual importance of him showing his ability to step up and to meet the needs of the children.
Insofar as the maternal grandmother is concerned, Mr C noted at paragraph 33 the total commitment that the maternal grandmother has to the children. He notes, rather, as follows:
Ms Kane appears totally committed to the children, committed to their short and medium long care, and wishes that Ms Salmon would demonstrate the necessary maturity that would allow her to care for her own children. Ms Kane voices her support and some sympathy for Mr Pallan and spoke of her wish for him to be ‘a father to the boys’ but has significant reservations regarding his emotional ability to care for the children without putting them at risk and struggles to imagine Mr Pallan caring for the children because of his propensity for violence, immaturity and the lack of significant change since she has known him.
It is, again, a succinct assessment of these proceedings and of the very real and understandable concerns that are held, with regard to the children.
Insofar as the observations of the father and Ms A with the children, as well as of the maternal grandmother with the children, it is noteworthy that the distress caused particularly to the child X was an issue of concern. Mr C noted that X became agitated when the father was late. At paragraph 36 of the report, Mr C says:
The children were observed at their maternal grandmother’s waiting for their father to arrive for his prearranged visit, which had just been cancelled. X in particular was constantly asking questions of both his grandmother and to Mr K about where his father was, when he was coming, why he wasn’t coming. X was clearly distressed but distracted by Mr K, who demonstrated highly appropriate patience and comments as he engaged with X to take his mind off the non-appearance of his father. On the second occasion, when Mr Pallan was 40 minutes late, X again was constantly asking when his father was coming and what the time was. Again, it was Mr K who engaged with X both verbally and by working with him to fix a scooter and managed to take his mind off the lateness of his father.
Mr C goes on at paragraph 37 to note:
When Mr Pallan and Ms A arrived, X was extremely excited, and Y stood slightly apart, watching. Mr Pallan had brought a tablet, as X had broken his the previous week, and X was very excited to receive his gift, and Mr Pallan spent the next hour interacting with X and his new tablet.
The interaction was no doubt appropriate, but it was traumatic and distressing for both children, but particularly X, as a result of the father’s failure to meet even the most basic of requirements with regard to ensuring that he was available at the times that were required.
Mr C goes on under the heading, “Issues and Discussion”, to note the concerns that arise with regard to domestic violence. In that respect, it is particularly noteworthy that Mr C notes that the father categorically denies these allegations, claiming assaults by the mother, and that is repeated in his evidence both contained within affidavits and given orally, and yet there is repeated evidence of the father’s domestic violence within the relationship with the mother.
The father cannot simply rely upon statements that he wasn’t heard, when there were repeated instances where he had the opportunity to be heard in relation to matters and failed to do so. His not giving evidence, or his not attending, as he put it, “at the cop shop”, when required and otherwise, simply do not hold weight against the obvious evidence of repeated concerns with regard to domestic violence. Mr C notes that:
The current arrangements whilst meeting the requirements for the protection of the children, place significant pressure on both Ms Kane and Mr Pallan and some discussion was had with Ms Kane regarding the possibility of Mr Pallan taking the children away from her home for a few hours with the proviso that Mr Pallan remain in (omitted), return the children should they become distressed or unruly, and whilst Ms Kane has her concerns, she is generally supportive of this being a better opportunity for Mr Pallan and the children to establish their relationships.
Such recommendations were made by Mr C in the report and have been taken up by the Independent Children’s Lawyer, but it is unfortunately clear that the father, again, I would assess, because of his lack of insight and immaturity, fails to realise that such steps are the stepping stones toward a complete and thorough relationship with the children.
The father needs to recognise that it is he and only he who must take the steps in relation to developing his relationship with the children. The biological connection is of little real consequence when the best interests of the children are clearly not able to be met at the present time and, in particular, that arises as a result of the attachments that are clearly in place between the children and their maternal grandmother. At paragraph 53, Mr C notes:
Mr Pallan did not appear to engage in any meaningful sense nor indeed does Ms Salmon. The allegations and counter-allegations are serious and will have an impact on future considerations for the children and on any medium-term plans and any medium-term plans may need to be made after these issues are explored before the court.
Mr C also notes at paragraph 54:
In the short term, however, the children’s needs are clearly met by remaining with their maternal grandmother and by them spending time with their parents and that they demonstrate some basic responsibility towards the emotional health of the children by turning up and spending time with them as promised.
The recommendations, then clearly flowing from the concerns and assessments, are that the children live with the maternal grandmother and that there be opportunities for the relationship to develop. I was assisted by the report prepared by Mr C in relation to this matter.
As I noted previously, one of the recommendations was that there be a psychological assessment of the father, as a result of the difficulties that arise, as assessed by both Mr C and the father, in their interactions with each other.
To that extent, it is noteworthy that those issues were specifically addressed by Ms M and were not challenged in any event. Ms M says at the first of two paragraph 27s in her report the following:
Mr Pallan did tell me that he felt very uncomfortable (and probably became angry) when challenged by probing questions or close scrutiny of his conduct by Mr C, the family report writer. I expect that Mr C was looking for some evidence that Mr Pallan was able to manage his behaviour under challenging circumstances without resorting to anger. If this was the case, and based on the information available to me, Mr C was using acceptable practices in interviewing that would meet a standard consistent with professional conduct.
I make reference to that because it is important that the father should understand, that simply because he didn’t like the manner of questioning or the direction that the questions took in relation to such matters, did not make them inappropriate or in any way biased or unreasonable. They reflected the need to assess the best interests of these children.
THE LAW:
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption 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 ss 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, 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 in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that there is the presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
In Heath & Hemming (No 2) [2011] FamCA 749, a decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
DISCUSSION:
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). I have already outlined at some particular length the various matters that have arisen as a result of the evidence that has fallen in relation to this matter and obviously now need to apply those findings to the considerations to be looked at in relation to this matter.
The first step of identifying the proposals of the parties is detailed early in these reasons. The maternal grandmother sets out at length what is proposed and is noteworthy that the Independent Children’s Lawyer generally was supportive of those proposals, though clearly considered that there should be opportunities for the father’s time with the children and development of the father’s relationship with the children to be expanded upon. The father’s position, as noted in paragraph 4 of these reasons, was to simply suggest that he was the biological father of the children, that the children should be in his care, and made some initial suggestion of supervision, but that never seems to have been otherwise pursued.
There was no suggestion of any other alternatives being considered or proposed by the court and it is clear that the real distinction relates to whether the children should live with the father without there being any real proposals otherwise in respect of time with the mother or grandmother, or as proposed by the grandmother and generally supported by the Independent Children’s Lawyer, the children live with the grandmother, she have responsibility for decisions to be made, and the father show a clear intent to foster and develop his relationship with the children.
It is necessary then, considering the objects and principles as set out in section 60B(1) and (2), to undertake the consideration of what would constitute meeting the best interests of the children. That would normally be a quite lengthy process, but in my assessment of this case it is not necessary to engage in such a detailed consideration as might otherwise be required. I say that in the sense that there are some matters which loom so large in these proceedings that they overwhelm others which might generally have some greater weight.
Those considerations can be noted as arising from the provisions of 60CC(2)(a) and (b), (2A) and (3)(b), (c), (d), (f), (i) and (j). Section 60CC(2)(a) requires there to be consideration of the child having a meaningful relationship with both of the child’s parents. That simply does not exist.
The mother has been a passing figure in their lives for many years and her failure to engage in these proceedings can be seen as either a significant dereliction in her responsibilities and obligations as a parent, or alternatively, a possible insight being shown by the mother of her inability to provide for the children and the need to put in place the best arrangements that could be facilitated.
The father has shown an ongoing desire to be a father to these children. However, he has repeatedly let himself and the children down. Mr C identified the father’s failure to attend at times arranged to meet with he and the children. He noted the father’s lateness and in particular noted, as did I, the father’s immaturity and lack of appreciation of what actually must be done to ensure that the children’s best interests are to the fore. The father’s repeated statements as to him being young and the biological parent display the overwhelming lack of insight that the father has in relation to the actual needs of the children for consistency and stability in their lives. Additionally, the father failed in any way to acknowledge the importance of the maternal grandmother to the children, their primary attachment to her, and the effect upon the children that would flow from any radical change that might occur from what has existed for a considerable time and, more particularly, what has provided the only real stability in these children’s lives.
The children have a right to a meaningful relationship with their parents but overriding that is the absolute requirement to regard the best interests of the child as the paramount consideration.
The issue of a meaningful relationship is counter-balanced or at least must be considered in terms of the need to protect children from physical or psychological harm arising from alternate living arrangements. Section 60CC(2A) requires that a court give greater consideration to that factor than the benefit that might flow from fostering a meaningful relationship with the parents. There is an absolute need to ensure that there are protective arrangements in place and that requires more than simply “pat” statements to the effect that “I’ve changed”, “violent and criminal behaviours no longer exist” and “drugs are not significant within the household”.
The best indicator of that is the recent past and whilst the father says that circumstances have changed, time will tell and the father must show his determination to foster and develop a proper relationship with the children. Radical change, as suggested by the father, is in no way in the best interests of these children. It would be psychologically harmful and were it to be the case that the father’s assurances fell flat, then there would also be the obvious physical risks to the welfare of the children.
When considered together, the overwhelming balance or weight requires the consideration of the need to protect the children until there is far greater certainty about the future and the father’s determination to be the parent that he says he wishes to be.
The additional considerations have to a significant degree been touched upon by me already in these reasons. The primary attachment of these children is to the maternal grandmother. The relationship with the mother is flimsy at best, and with the father is clearly needy, particularly when considering the child X, but is not in any real way fostered or developed by the father. Only the grandmother has the established commitment to the children and relationship with the children, and the father, whilst expressing the desire to be a good father, has failed to in any way be able to satisfy me that that is actually what will occur. In time, such a finding might be open but presently, the most significant relationship, in fact to any real extent, the only significant relationship is that which currently exists between the grandmother and the boys.
Consideration of the extent of each parent’s involvement in the children’s lives showcases the shortfall by both parents, though I accept more so by the mother, and their failures to take proper opportunities to involve themselves in all aspects of the children’s lives. The father had excuses, including fear of the grandmother’s family, injuries that prevented him from travelling, financial circumstances that precluded an ability to attend with the boys, and most disappointing of all, blame being laid at the feet of others for not telling him what he should do or where he should be. Quite simply, the father has failed to display any mature attitude to parenting and that clearly explains why the father has failed to participate in the children’s lives properly.
Until such time as the father is actually able to show a mature, child focussed approach to his responsibilities with regard to the parenting of the children and the steps that he is prepared to take to participate in all aspects of the lives of the children, and it will require a gradual progression and time, there is little that could be found favourable to the father’s position other than his mere words.
The court must consider the effect of changes that are likely to arise should a child’s circumstances be varied. It is not difficult to envisage the most damaging of consequences for these boys, should it be ordered that changes as envisaged by the father, were to occur and the father then failed to meet the responsibilities that fell upon him.
I have already commented at length about the father’s lack of insight into the consequences of changes proposed by him, his failure to take the opportunity to properly engage in all aspects of the children’s lives, and the need to show, not only himself, the grandmother and the court, but most importantly, the boys, that he is there for them and will remain in the long term there for them. When simply considering those matters, the balance between the grandmother’s obvious ability to provide for the emotional and intellectual needs of the children, and to display the proper attitude to the responsibilities of parenthood, as opposed to the father’s fundamental failures to do so, is overwhelmingly favourable to the position taken by the grandmother.
I have already commented upon the issue of domestic and family violence and its significance in relation to this determination. It is unnecessary for me to say more under a consideration of section 60CC(3)(j) than that the father has been found to be the perpetrator of violence and certainly from his perspective, has been the victim of violence, but no matter what, family violence has loomed as a significant consideration within the father’s household.
As required, therefore, there must then be the application of these findings in respect of the evidence to assist in the determination of what is in the best interests of these children. Overwhelmingly, the proposals by the grandmother, refined by the Independent Children’s Lawyer, reflect arrangements which consider all aspects of these children’s lives and provide the best opportunities for a relationship with the father to be fostered and developed.
As noted previously, there is of course the need to consider the provisions of section 61DA and whether the presumption of the best interests of the child being met by the parents having equal shared parental responsibility is appropriate in the circumstances. As I would hope is clear from these reasons, the presumption is in my assessment rebutted as it could and would not be in the best interests of these children when all of the evidence is considered. The only significant person who has stood up for these children and has ensured that their best interests are to the fore and being met is the grandmother. The presumption of equal shared parental responsibility vesting in the parents or sole parental responsibility vesting in one parent is clearly rebutted as it could not possibly be considered to be in the best interests of the children.
This is particularly so when the best interests of the children are so significantly entwined with the relationship that they have with the maternal grandmother and the steps that she has taken to provide nurture and support for the children.
In such circumstances, the provisions of section 65DAA are not triggered and as such it then becomes necessary to make orders consistent with the findings that have been made.
There can be little else said in relation to this matter than that the proposals put forward by the Independent Children’s Lawyer and supported by the maternal grandmother, are the orders which provide the best arrangements for the parenting of the children now and the greatest opportunities for the father to show that he will be the parent that he wishes to be and to establish the relationship with the children that he and I would find also the grandmother, ultimately wish to achieve.
The orders of the court detailed at the commencement of these reasons reflect such appropriate arrangements in relation to the parenting of these children and provide the best opportunities now and into the future.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 9 March 2016
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Family Law
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Procedural Fairness
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