KEATON & KEATON
[2010] FMCAfam 835
•6 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEATON & KEATON | [2010] FMCAfam 835 |
| FAMILY LAW – Children – parenting orders – three children aged 17, 14 and 9 years – family violence issues – where father subject to parole conditions – whether orders should be final orders – whether orders should be interim orders to be reviewed after the father’s parole expires in February 2011 – whether orders should be subject to father continuing to attend a psychologist – whether there should be shared care on a month about basis – whether equal shared parental responsibility appropriate – whether any parenting order should be made for child aged 17 years – best interests of the children. |
| Family Law Act 1975, ss.60CA, 60CC, 60CG, 61DA |
| Applicant: | MS KEATON |
| First Respondent: | MR KEATON |
| File Number: | BRC 13009 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 12-13 April 2010 |
| Date of Last Submission: | 13 April 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | DA Family Lawyers |
| The first Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Andrew |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
All previous orders in respect of the child [X] born [in] 1993 are discharged.
The applicant mother is to have the sole parental responsibility for the said child [X] provided that the mother is to consult the respondent father on matters relating to the child’s educational and medical needs.
Unless otherwise agreed, the said child [X] is to continue to attend the [V] State High School until he completes his secondary education.
All previous orders in respect of the children [Y] born [in] 1996 and [Z] born [in] 2000 are discharged.
That the said children [Y] and [Z] are to live with the mother.
That the mother is to have sole parental responsibility for the said children [Y] and [Z] except that the mother is to consult with the father about issues concerning the said children’s:
(a)Education;
(b)Extra-curricular activities; and
(c)Long-term health and medical issues.
That the father is to have parental responsibility for the day to day needs of the children including in the case of medical emergencies whilst they are in his care as provided in these orders.
That the children [Y] and [Z] spend time with the father as follows:
(i)Each alternate weekend during school term time from after school Thursday until before school Tuesday, with the father to collect and deliver the children from and to school;
(ii)For half of all school holiday periods, being the first half in even numbered years and the second half in odd numbered years;
(iii)From 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day in even numbered years PROVIDED THAT the children spend time from 4:00 pm on Christmas Day until 4:00 pm on Boxing Day with the mother;
(iv)From 4:00 pm on Christmas Day until 4:00 pm on Boxing Day in odd numbered years PROVIDED THAT the children spend from 4:00 pm on Christmas Eve until 4:00 pm on Christmas Day with the mother;
(v)From 9:00 am until 6:00 pm on Father’s Day in each year;
(vi)From 3:00 pm on the Thursday before Good Friday until 10:00 am on Easter Sunday in odd numbered years PROVIDED THAT the children spend from 10:00 am on Easter Sunday until 6:00 pm on Easter Monday with the mother; and
(vii)For a period of two (2) hours on each of the children’s birthdays if such day falls on a school day and for a period of four (4) hours if such day falls on a weekend.
That the mother is to spend time with the children from 9:00 am to 6:00 pm on Mother’s Day in each year regardless of whether or not the children are spending time with the father in accordance with Order 8 above.
That each parent is to do all things necessary to facilitate the children telephoning the other parent at any reasonable time that they request to do so.
That during the times the children are not living with a particular parent that parent may telephone the children on up to two occasions each week between the hours of 6:30 pm and 8:00 pm.
That the changeover point for the children will be at their school wherever possible and otherwise as agreed between the parents at a place within the [R] Shire.
That each parent is to notify the other parent as soon as is reasonably possible of any medical or other emergency involving any of the children.
That each parent is to provide for the everyday needs of the children including providing all necessary items and clothing for the children whilst the children are spending time with that parent.
That the father is restrained from consuming any alcohol during the time when any of the children are spending time with him or for a period of twelve (12) hours beforehand.
That unless otherwise agreed the child [Y] is to continue to attend the [V] State High School until she completes her secondary education.
That unless otherwise agreed the child [Z] is to attend the [V] State School until he completes his primary education and thereafter is to attend the [V] State High School until he completes his secondary education.
That this order is authority for the father to obtain from the children’s schools and any health professionals treating any of the children all relevant information concerning the children.
That neither parent is to denigrate or criticise the other parent in the presence or hearing of any of the children or permit any third person to do so.
That within four (4) weeks of the date of these orders both parents are to attend for inclusion into the Parenting Orders Program run by Relationships Australia and complete that program.
That notwithstanding the provisions of Order 8 when each of the children [Y] and [Z] attains the age of 17 years they will determine what time they spend with each of their parents.
That the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Keaton & Keaton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Sydney |
BRC 13009 of 2007
| MS KEATON |
Applicant
And
| MR KEATON |
First Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of three children for orders that they live with her and that she and the father should have equal shared parental responsibility. The mother seeks orders that the children spend time with the father on alternate weekends, for half of the school holidays and at various times on other important days, such as Christmas Day, Boxing Day, Fathers’ Day and at Easter.
The father seeks that the parties should have sole parental responsibility for the children when the children are in their care and equal shared parental responsibility for the children in respect of their long term care, welfare and development. He also seeks that the children should spend equal time with the parents on a month-about basis, with the children spending the second and fourth weekend of the month with the other parent. The father also seeks orders about the schools that the children should attend and a number of other administrative and logistic issues.
The Independent Children’s Lawyer has proposed orders to this effect:
a)That the two younger children should live with the mother, who would have sole parental responsibility for the children except that she should consult with the father about issues concerning the children’s education, extra-curricular activities and long term health and medical issues;
b)That the children spend each alternate weekend with the father from after school Thursday until before school Monday, unless Monday is a pupil-free day from school, in which case the children would be with the father until the Tuesday;
c)That the children spend time with the father on special days like Fathers’ day, Christmas Day, Boxing Day and at Easter;
d)That the children will attend the [V] State School and [V] State High School according to their ages;
e)That the father continue to attend upon a psychologist on a monthly basis for a period of six months; and
f)Other ancillary orders.
Background
The father was born [in] 1961. The mother was born [in] 1963.
They commenced living together in about 1990 or June 1992[1]. They were married [in] 1995.
[1] The mother’s affidavit sworn 29.3.2010 claims at paragraph [3] that she commenced cohabitation with the father in June 1992.
There are three children of the marriage.
[X] was born [in] 1993. He is now 17 years of age.
The parties separated between September 1998 and March or April 1999.[2]
[2] Affidavit of Ms Keaton 29.3.2010 at paragraph [5]
[Y] was born [in] 1996. She is now 14 years of age.
[Z] was born [in] 2000. He is nine years old, and he will be ten on his next birthday.
The parties separated again from June to July 2002.[3]
[3] Ibid
The parties separated finally in October 2002. Initially, the children lived with the mother. They remained living with her until October or November 2003.
The mother commenced proceedings in the Family Court on
27th February 2004 seeking orders that the children should live with her. The father filed a response seeking that the children live with him.
On 22nd March 2004 interim orders were made by consent in the Family Court that the children would live with the father and have supervised contact with the mother. A Family Report was ordered and Ms B, a psychologist, was appointed a Court Expert for the purpose of preparing that report.
On 10th June 2004 further orders were made by the Family Court providing that the children would live with the mother at various times without supervision.
The children then lived with the father until November 2004.
A Domestic Violence Order was made against the Father at the [C] Magistrates Court on 9th July 2004.
On 5th October 2004 the Department of Child Safety intervened and, as a result, the children recommenced living with the mother.
On 10th November 2004 the parties entered into final consent orders in the Family Court, providing that:
·The children were to live with the mother
·The parents were to have joint responsibility for the long term care, welfare and development of the children
·From 8th January 2005 the children were to spend time with the father.
·The children were to attend [V] State School or [V] State high School depending on their ages.
·The children were to attend counselling.
On 25th January 2005 the mother made an application in the Family Court to vary the orders. On 25th February 2005 orders were made suspending the contact provisions of the orders and providing that the father would have supervised time with the children at the [B] Contact Centre.
A further Domestic Violence Order was made at the [C] Magistrates Court on 15th April 2005.
On 6th February 2006 the parties consented to orders so that the father would have telephone contact on Tuesdays and on special days.
The father was sentenced to imprisonment on 2nd April 2006 as a result of an assault on a police officer. He was incarcerated until October 2008.
The application was transferred from the Family Court to the Federal Magistrates Court at Brisbane on 2nd October 2008.
The father was released to parole on 15th October 2008.
On 21st October 2008 Jarrett FM made interim orders providing that the children were to live with the mother and would spend two hours each alternate Sunday with the father at the [R] Contact Centre.
On 18th November 2008 the parenting and property proceedings were listed for final hearing, which was to commence on 23rd February 2009.
The mother amended her application to provide that the children should live with her, that she have sole parental responsibility for the children and they should spend supervised time with the father at the [L] Contact Centre. The father filed an amended response on
27th January 2009, seeking that that the children live with each parent on a month about basis.
At the hearing in February 2009, Jarrett FM made interim orders by consent for the children to live with the mother and spend time with the father, which was to be unsupervised once a satisfactory report was received from Dr C about the father’s mental health.
On 7th September 2009 Jarrett FM ordered that the children’s time with the father should be unsupervised after the father obtained a referral to a clinical psychologist.
The terms of the father’s parole were varied on 16th December 2009 to contain a condition that he:
“have no contact with his ex wife, apart from when consulting about the care and supervision of their children”.
Evidence
The applicant mother relies on an affidavit sworn on 29th March 2010. She deposes that:
a)From 17 November 2003 until 10 November 2004 the children lived with their father in the former matrimonial home. Whilst the parties had agreed that the children would be returned after one month, the father refused to return the children to the mother’s care and insisted that the mother’s time with the children should be supervised.[4]
[4] Affidavit of Ms Keaton 29.3.2010 at paragraph [10]
b)The father’s behaviour became increasingly erratic and threatening towards her from November 2004.[5]
[5] Ibid at [26]
c)
A Dr W was engaged to prepare a psychiatric assessment of the parties. On 26th July 2005 Judicial Registrar Smith made an injunctive order restraining each party from directly or indirectly contacting Dr W or any member of his staff and/or attending
Dr W’s rooms at any time.[6]
[6] Ibid at [27] and Annexure “K”
d)The father attended the mother’s home on 2nd April 2006 and knocked at the door, asking to se the children. When she refused, he left but returned about 15 minutes later and began knocking on the front door and on a front window. The mother telephoned 000 and the police subsequently arrived.[7]
[7] Affidavit of Ms Keaton 29.3.2010 at [29] and Annexure “L”
e)The father was subsequently charged with breaching a domestic violence order, obstructing police and serious assaults on two police officers by dousing them with petrol.[8]
[8] Ibid at annexure “M”
f)He was imprisoned from July 2006 until October 2008, during which time he did not see the children, as he did not wish them to see him in prison.[9]
[9] Ibid [34]
g)After his release, the father commenced seeing the children under supervision at the [R] Contact Centre on 16th November 2008.[10]
[10] Ibid at [38]
h)Whilst orders were made permitting the father to have telephone communication with the children, the mother is of the view that telephone communication between the children and the father remains problematic.[11]
[11] Ibid at [45]-[46]
i)The [H] Children’s Contact Centre informed the mother’s solicitors that they had decided to cancel future supervised contact sessions with the father due to his aggressive and abusive behaviour towards their staff.[12]
[12] Ibid at [49]
j)The father informed the mother’s solicitors that the [L] Contact Centre had declined the use of their centre for his contact with the children and the [V] Contact Centre subsequently indicated that it was not prepared to facilitate contact.[13]
[13] Ibid at [50]-[51]
k)On 7th September 2009 Jarrett FM ordered that the father could spend unsupervised time with the children subject to his obtaining a referral to a clinical psychologist.[14]
[14] Ibid at [53]
l)The father commenced unsupervised time with the children on 13th September 2009.[15]
[15] Ibid at [55]
m)Dr C, the psychiatrist, reported on 18th November 2009 that there was no psychiatric impediment to the father having unsupervised time with the children.[16]
[16] Ibid at [60]
n)The father has had unsupervised time with the children since December 2009.[17]
[17] Ibid at [64]
o)
The children have been spending time with the father from after school on the Friday until Monday mornings, but the father has asked the mother if he could return the children to her early on the Monday mornings, because he has to leave for work at
7:30 am.[18]
[18] Ibid at [66]
p)The mother has also expressed concern that the father had on one occasion asked her to collect the child [Z] from school because he could not get away from work early enough.[19]
q)In her affidavit the mother makes observations about the children’s response to spending more time with the father. Her comments are almost entirely positive. She states:
From my observations [X] has enjoyed the time he has been spending with his father. I understand that the father has been helping [X] do up his old car and giving him helpful hints o driving. I understand that he also helps [X] with IT assignments for school.[20]
r)As to the middle child, [Y], she says:
From my observations, [Y] also appears to be enjoying her time wit the father. It seems that she missed having him in her life.[21]
s)As to the youngest child, [Z], the mother says:
[Z] has spent the least amount of time with the father and in my view seems to enjoy spending time with the father the most.[22]
t)In summary, the mother states:
The children seem genuinely happy to be spending time with the father again.[23]
[19] Ibid at [68]
[20] Affidavit of Ms Keaton 29.3.2010 at [71]
[21] Ibid at [73]
[22] Ibid at [74]
[23] Ibid at [82]
However, the mother expresses concern that the father does not appear to have enough flexibility in his current employment to spend more time with the children[24] and refers to instances where he has called on her to assist with arrangements for the children.
[24] Ibid at [88]
One concern the mother expresses arises from her history with the father and what she describes as the level of abuse and harassment that he directed towards her before he was imprisoned. She expresses a concern that if communication were to increase between them, she would face further abuse from him.[25]
[25] Ibid at [97]-[98]
In cross-examination by the father, the mother maintained her evidence in chief and stated that, whilst she did not know how he cared for the children while they were with him, she believed that he cared for them well.
In cross-examination by counsel for the Independent Children’s Lawyer, Mr Andrew, the mother expressed a wish for better communication between her and the children’s father and said “The children are quite settled at the moment when Mum and Dad aren’t fighting”.
The father’s most recent affidavit was one sworn on 14th January 2009, which is regrettable, in that the information contained in it was over a year old. It also contains a number of complaints about perceived failures by various Registrars of the Family Court and Jarrett FM in this Court which are quite irrelevant to the matters to be decided. The bulk of the affidavit is more of a submission on the father’s part or a commentary on the lengthy history of this matter since 2005 and, not surprisingly, is of no assistance to the Court in determining what is in the best interests of the children.
In cross-examination by Mr Linklater-Steele of counsel, who appeared for the mother, the father said that he was on parole until February 2011. conditions of his parole, as he knew them, were that;
a)He has to report monthly;
b)He may not leave the State of Queensland;
c)He may not drink alcohol;
d)He may not administer to himself illicit drugs;
e)He must not reoffend; and
f)He must abide by order of the Family Court.
The father said that it was hard for him to be actively involved with the children’s schooling, although he confirmed the mother’s evidence that he had been assisting [X] with his assignments in IT and also in his studies of law and chemistry. He stated his belief that the children still wish to spend more time with him.
The father referred to his previous behaviour which led to his incarceration, saying that he had been “grossly stressed-out” and did not cope emotionally with handing the children back to the mother.
Surprisingly, the father expressed the concern that the mother was actively trying to undermine his relationship with [X], although not with the younger two children.
He also stated that he paid child support at the rate of $140.00 per month, which is the amount prescribed by the Child Support Agency.
The father said that he was currently under the care of a psychologist, and had been since October 2009, as recommended by Dr C. He said that he would comply with the recommendation. He agreed with the statement by Ms B that “This is the best I’ve been travelling emotionally for the last five years”.
Referring to his drinking, the father said that he did not propose to do anything except have a social drink once his parole is over. He said:
I may have a social drink – I won’t say I’ll never have a drink again. Previously, I was using alcohol for self-medicating and drinking to excess”.
He expressed the view that [Y] should have the freedom of choice as to when she spends time with each parent.
In cross-examination by Mr Andrew, the father conceded that if he had behaved differently in the past he would not have had such difficulty with the [H] Contact Centre, but he would not agree that this applied in his dealing with [V].
The father said that depression had set in after he had given the children back. He would drink, go to sleep, wake up a couple of hours later and drink again. He said that he was becoming more aware of himself and what is happening. When his parole conditions expire, he does not intend to take up excessive drinking again and he did not intend to drink alone.
The father was asked what he would do if the Court were to make orders along the lines of the mother’s proposals. He said:
“There’s not much I can do about it. I’d just have to accept it.
He went on to say that it would not affect the way he dealt with the children.
The father’s cross examination concluded late on the first day of the hearing. As he was not represented he was allowed until the following morning to consider his own “re-examination” arising from cross-examination. He told the Court that he had no issue with contributing half the costs of extra-curricular activities, but wanted the mother to contribute half the cost of a horse for [Y].
The father went on to say that he could actually sew and do most domestic duties which would enable him to care for the children’s physical needs. He expressed the view that [X] should be given the option of choice as to when he spent time with each parent. He also stated that he believed that it was better for the children to spend time with him and the mother in longer blocks rather than shorter visits. He considered month about time, attempting to correlate odd months and even months on order to coincide with birthdays, Mother’s Day and Father’s Day.
Expert Reports
The Court has had the assistance of expert reports from Dr C, a psychiatrist, and Ms B, a psychologist.
Dr C did not give oral evidence. His report was annexed to his affidavit sworn 22nd June 2009. Dr C was provided with relevant documents by the Independent Children’s Lawyer and his affidavit with the Rules relating to expert evidence in this Court.
Dr C described how he had examined the father and obtained a comprehensive history from him. Dr C found no evidence of a significant anxiety or depressive illness but expressed concern about the father’s history. He described the father as expressing the belief that the mother had sought to undermine his relationships with the children and expected that to continue.
Dr C made the following recommendations:
At a very minimum, I think he needs to be reviewed by a clinical psychologist on a regular basis over the six months transition as indicated in the orders. This would provide, I think, a degree of reassurance that his condition has not relapsed, that he is coping with the transition and that his former patterns of behaviour are not re-emerging.
I think that such ongoing treatment and monitoring would provide Mr Keaton with the opportunity to ventilate his concerns and also to cope with the difficulties that will undoubtedly arise as a result of increased contact with the children and through them, his ex wife. I do not think in these circumstances that the difficulties that this presents for Mr Keaton can be underestimated.
I do not think there is a need for any antidepressant medication at the current time but I do think that appropriate monitoring is needed and support is essential…
I think there is some benefit in a process whereby he receives some psychological support over a period of time and that an independent reassessment of his progress be undertaken down the track.[26]
[26] Affidavit of Dr C 22.6.2009 Annexure “B”
Ms B has prepared a number of reports in relation to this family since 2004. Her updated report is annexed to her affidavit sworn 22nd January 2010.
In her report, Ms B referred to interviews with both parents and with the children. She also observed the interaction of each parent with the children.
Ms B’s evaluation of the parties’ elder son, [X], was positive:
[X] presented as quite a mature sixteen and a half year old. He has grown into a thoughtful and responsible young man who has a great deal of respect for both parents, despite the not inconsiderable emotional trauma and other forms disruption endured since their separation and the fact that his father has spent time in prison and is on parole. Since early in 2009, [X] has had the freedom to spend more time with his father than his younger siblings. He has taken advantage of this on a number of occasions but reported having a preference overall to spend time with each of his parents at the same time as his younger siblings, to avoid too much disintegration of the family…[X] indicated that he could cope with whatever shared care regimen was decided on for him and his younger siblings.[27]
[27] Affidavit of Ms B 22.1.2010 Annexure “B”
Ms B also gave the parties’ daughter [Y] a positive evaluation, describing her as “quite a mature thirteen year old who has a close attachment to both parents…[Y] liked the idea of being able to decide when she went to her father’s place…My own opinion is that [Y] is still not sufficiently mature to be given the responsibility for making such decisions.[28]
[28] Affidavit of Ms B Annexure “B”
Ms B described [Z] in this way:
[Z] presented as a developmentally normal nine year old who has been thoroughly enjoying catching up on lost time with his father since weekend visits with the father resumed. He was the most enthusiastic advocate of the father’s month about proposal for care. He seemed, however, to be basing this on the desire to spend more time with his father and to have not considered any other factors.[29]
[29] Ibid
Ms B described the mother in positive terms:
Her mental health problems would appear to be a thing of the past…It was refreshing to hear her speak about the benefits to the children of spending time with their father….She would appear to have made an effort to let go of her hostility towards the father over his perceived lack of support for her parenting of the children – both financially and emotionally – and to want the children to develop their relationships with him.[30]
[30] Ibid
Mr Keaton, too, received a positive assessment from Ms B in her report:
Over the course of more than five years during which I have been involved with this family, I have not seen Mr Keaton apparently so settled and content with his lot in life. He appears to have reconciled the past, accepted responsibility for his own part in the dispute and the consequences for his relationships with his children and put aside or dealt with angst in relation to the failure of his relationship with Ms Keaton. The most significant change for him would appear to have resulted from his acknowledgment that he had a serious drinking problem and his consequent total abstinence from alcohol. He demonstrated signs of stability in that he has retained a job long term and appears reasonably happy with it, has not changed residence and has been coping with his day to day life as a single person. No doubt his greater freedom in relation to spending time with the children has contributed significantly to the improvement in his mental health.[31]
[31] Affidavit of Ms B 22.1.2010 Annexure “B”
Ms B noted that the mother was open to the idea of [X] being able to come and go as he wished.
When considering the parties’ proposals, Ms B recommended that the parties have equal shared parental responsibility. She did not support the father’s proposal of shared care on a month about basis, saying:
Considering the fact that the father will be on parole until February 2011 and has, as recently as the second half of 2009, been chastised by Community Corrections for his poor communication with Parole Officers, his future is still too tenuous in my view to cause the children to leave the stability of living primarily with their mother for a month about arrangement between the parents.[32]
[32] Ibid
Ms B recommended that the children should continue to live with their mother and spend every second weekend with their father, from after school on Friday to before school on Monday. She recommended that they should spend half the school holidays with him.
As for [X], Ms B recommended that he have the right to decide how he distributes his time between his parents and his other activities. She went on to recommend that “this also applies for [Y] and [Z] once they reach the age of sixteen years”.[33]
[33] Ibid
Ms B gave oral evidence. She stated that her recommendations were “not necessarily set in concrete” and that a proposal that the children spend each alternate week from Thursday after school to Monday after school would not necessarily have a negative impact on the children.
When asked by counsel for the mother whether [X] should be subject to any order of the Court Ms B replied “Probably not”. However, she reiterated her view that it was not appropriate for [Y] at her age to be “calling the shots”. [Y] is going on 14, which is a difficult age, and she would have the power to play one parent off against the other.
She said that she had actually seen a month-about arrangement work, but stresses that it involved very cooperative parents and a child not of school age.
In reply to cross-examination by Mr Keaton, Ms B stated that [Z] was a nine year old who “loves his Dad” and wanted to spend as much time with him as he could. Asked about recommending more time, Ms B conceded:
“I think an extra night”.
In cross-examination by counsel for the Independent Children’s lawyer, Ms B stated firmly:
“There is always a benefit for the children in the litigation being over.”
Submissions
The Independent Children’s Lawyer proposes that no order be made in respect of [X].
The submission is that he is now 17 years of age and appears to have a secure and intact relationship with his father.
The Independent Children’s Lawyer proposes that orders be made regarding the children [Y] and [Z] to provide that:
a)The children continue to live with the mother;
b)The mother is to have sole parental responsibility for the children but consult with the father about issues concerning the children’s:
i)Education;
ii)Extra-curricular activities; and
iii)Long term health and medical issues;
c)The children spend time with the father:
i)on alternate weekends from after school Thursday until before school Monday unless the Monday is a pupil free day at school, in which case until before school on Tuesday;
ii)for half of the school holidays;
iii)special days such as Christmas Eve, Christmas Day, Boxing Day, Father’s Day and not Mother’s Day;
d)that the Mother spend time with the children on Mother’s Day;
e)the parents are to facilitate telephone communication between the children and the other parent;
f)the changeover point will be at school wherever possible;
g)the children are to attend [V] State High School and [V] State School;
h)the father to obtain information from the children’s schools;
i)the father to continue to attend upon a psychologist on not less than a monthly basis for 6 months; and
j)both parties are to attend for inclusion into the Parenting Orders Program.
Mr Andrew of counsel, who appeared for the Independent Children’s Lawyer, submitted that the children’s views clearly indicated that they wanted to spend more time with the father. However, it was not in the younger children’s best interests to be given the same freedom to choose the time with each parent that was recommended for [X].
The mother has historically provided for the care of the children, but the children still enjoy a close relationship with the father. Ms B described the father as in the best state that she has seen him for the past five years.
However, Mr Andrew submitted that there is still a need to be cautious because the father’s position is still too tenuous for the children to be with him on a month about basis. The father is certainly making progress but there is still a need for some monitoring of his behaviour.
The mother has concerns about the father’s stability and reliability. Unsupervised time between the children and the father is a comparatively recent development, having only started in September 2009.
As to schooling, it was submitted that the father is a positive influence on the children. They should remain at their present schools.
Mr Andrew submitted that it was in the best interests of the children to see their father from after school Thursday until before school Monday. However, midweek time with the father was not recommended by the Independent Children’s Lawyer because it poses an opportunity for further conflict between the parties.
The Independent children’s lawyer does not see any reason why the children spending half of the school holidays with their father would not be in their best interests.
Mr Andrew further submitted that it would be desirable for the parties to attend the Parenting orders program run by Relationships Australia.
The mother seeks orders that the three children live with her and the parents should have equal shared parental responsibility for the children. She seeks orders that the children spend time with the father:
a)Each alternate weekend from after school Friday until before school Monday with the father to collect the children from school and deliver them to school;
b)For half of the school holidays;
c)Christmas Day, Boxing Day, Easter Sunday to Easter Monday, Father’s Day etc; and
d)Other ancillary orders.
The mother’s proposal acknowledged that [X] was 16 years of age at the time the mother’s amended case outline was written (although he has since turned 17) and may not wish to participate in arrangements proposed for the younger children. The mother proposes that the parties should use their best endeavours to respect [X]’s wishes and, if there is a dispute, the parties would make arrangements for him to attend upon a counsellor to resolve the dispute.
Mr Linklater-Steele, for the mother, submitted that the parties’ history showed that three different contact centres had refused to be involved because of the father’s behaviour. However, the Court could have confidence that the mother could be trusted to advance weekend contact between the children and the father from Thursday to Monday on alternate weekends.
He submitted that the father is untested in a number of areas and the mother needs to be comfortable as to how the matter has progressed. In 2009 the father had been having difficulty with his parole officers about his supervision whilst on parole. The mother’s great concern is that routine activities could cause the father to have problems.
It was also submitted that the father is not yet ready to take on a greater parenting role. He has done little to prepare himself for taking on the care of the children for half of the time. The father’s capacity is unproven. He should have further psychologist supervision. It was also submitted that the father should not consume alcohol whilst the children are in his care of for 24 hours beforehand.
Further, Mr Linklater-Steele submitted that the father’s proposal for month-about care is not the “creature of the children” (but the father’s own idea. It is not appropriate in the circumstances.
The father submitted that there is no medical reason for the denial to him of increased contact. The mother has repeatedly spoken of the benefit to the children of increased contact with their father. Ms B, the psychologist, has spoken of the benefits of increased contact.
The father noted that the orders proposed by the Independent Children’s lawyer and by the mother were final orders. He suggested that the Court should make interim orders, which could be reviewed after his parole expires on 9th February 2011.
Mr Keaton questioned the necessity for him to continue to see the psychologist. He has attended the psychologist since September or October 2009 and queried why he would need another six months.
In reply, Mr Linklater-Steele submitted that the orders made should be final orders. The applicant mother has had enough; the parties have been litigating for half of [Z]’s lifetime.
Interim Order
The decision was reserved. Noting that the next weekend when the children were to be with the father was in fact a long weekend due to a public holiday, I considered that it was appropriate to order that the children should remain with the father for the public holiday Monday. The parties consented to that arrangement. Accordingly, I made the following interim order:
BY CONSENT UNTIL FURTHER ORDER for the purpose of all time that the children spend with the father on alternate weekends the time is to commence after school on Friday and conclude before school on Monday unless the Monday is a public holiday or a pupil-free day in which case the time will conclude before school on Tuesday, with the father to collect and deliver the children from and to school.
The relevant law
The best interests of the children must be the paramount consideration for a Court when deciding whether to make particular parenting order for a child (Family Law Act 1975, s.60CA). The Court determines what is in the children’s best interests by considering the matters set out in s.60CC(2), the primary considerations, and s.60CC(3), the additional considerations.
The Court must also apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility, unless:
a)The presumption does not apply because a parent of the child has engaged in abuse of one or more of the children or family violence (s.61DA(2);
b)The presumption is rebutted by evidence that satisfies the court that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
The Court must consider the risk of family violence and, consistently with the children’s best interests being the paramount consideration, ensure that any order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence (s.60CG).
Conclusions
Interim Orders or Final Orders
I am firmly of the view that the Orders made by the Court should be final orders. As has been submitted on behalf of the mother, the parties have been engaged in litigation since 2004. There must be an end to litigation.
The Family Law Act requires the court to consider 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 children (s.60CC(l)). The father’s proposal that the Court should only make interim orders that would be subject to review after his parole expires in February 2011 would have the inevitable effect of bringing these parties back to Court next year. As Ms B said in her evidence:
There is always a benefit for the children in the litigation being over.
It is not in the best interests of the children to make interim orders that would see their parents back in Court for another hearing next year. The Court will be making final orders.
Parental responsibility
There have been family violence orders made in this matter. The [C] Magistrates Court made Domestic Violence Orders on 9th July 2004 and 15th April 2005. I am satisfied that the presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility does not apply. In any event, the history of friction between the parties and their continuing suspicion of each other’s ability and motives is sufficient for the Court to be satisfied that it would not be in the children’s best interests for their parents to have equal shared parental responsibility.
In my view, that responsibility should lie with the mother, although I am satisfied that the father should have responsibility for the children’s day to day care, welfare and development at times when they are in his care.
Whether Parenting Orders should apply to the child [X]
[X] was born [in] 1993. He has now attained the age of 17. Ms B described him in January 2010 in her most recent report as “quite a mature sixteen and a half year old…a thoughtful and responsible young man who has a great deal of respect for both parents…[34]. He appears to be able to make considered choices about how he spends his time with each parent and derives benefit from engaging with his father in various activities.
[34] Affidavit of Ms B 2.1.2010 Annexure “B”
I am not satisfied that it will be of assistance to make parenting orders for [X] except to provide that he should continue to attend the [V] State High School unless the parties otherwise agree, which counsel for the mother submits in the mother’s amended Case Outline filed in Court on 13th April 2010.
Parenting Orders in respect of [Y] and [Z]
Considerations in respect of the two younger children include the benefit to the children in having a meaningful relationship with each parent whilst ensuring that they are protected from physical or psychological harm. The children have a close attachment to each parent and, notwithstanding their parents’ troubled history, are obviously benefiting from their relationship with both their mother and their father.
Clearly, there is some concern about the father’s previous erratic behaviour, including his excessive drinking. It would not be in the children’s best interests if he were to resume his previous behaviour of drinking to excess whilst the children were in his care. However, it is a condition of the father’s parole that he not drink alcohol, and he has given evidence which shows that he understands the dangers of other than occasional social drinking once his parole expires. Nevertheless, for the children’s benefit, I consider it appropriate to order that the father not consume alcohol whilst the children are in his care or for
12 hours beforehand.
The children’s views, as expressed to Ms B, are that they wish to spend more time with their father. Ms B’s report shows that the children are of a level of maturity to consider those views, but, on balance, I am not prepared to accede to make an order that would have [Y], who has just turned fourteen, being able to make her own decisions about when she will be spending time with each parent. As Ms B points out, she has not reached a sufficient level of maturity to make those decisions for herself. However, it is clear that she wishes to spend more time with her father and there should be provision made for that to happen.
[Z] has been described as a developmentally normal child who clearly loves his father and wants to spend more time with him. Again, this is something that should be favourably considered. However, whilst [Z] has shown support for the father’s proposal that the children should spend time with each parent on a month about basis, this is not necessarily in his best interests. I take into account that he is only nine years of age.
The children clearly have a good relationship with each parent. They appear to have good relationships with each other.
The mother has shown a willingness and ability to encourage a close and continuing relationship between the children and their father, although she is still wary of his ability to cope with all the demands of parenthood. She is also doubtful that her interaction with the father will be smooth. The mother has conceded that the children are enjoying spending more time with the father, which is to her credit.
The father has had less to say on this subject, except to express a fear that the mother is somehow trying to undermine his relationship with [X]. I have seen no evidence of that.
There is little difficulty in the children spending time with each parent. They both live in Brisbane and it is possible for the children to maintain a relationship with each parent without difficulty.
The mother expresses some doubt about the father’s capacity to provide for the needs of the children, although she concedes that he takes an interest in their education and has assisted [X] with various projects, including doing up an old car. He is described as untried in this area, although it is clear from Ms B’s report that the father’s mental state is the best that she seen in five years of working with this family.
Both parents appear keen to take an active role in the parenting of their children and to undertake the responsibilities of parenthood.
The previous history of family violence is relevant to the Court’s determination, noting that the father is still on parole for an offence involving violence against two police officers who were called out to attend a disturbance at the mother’s home. There have been family violence orders made by the Magistrates Court.
Nevertheless, the father now appears to demonstrate an awareness of the need to comply with the parole conditions and refrain from the unstable behaviour that has caused trouble, not least to him, in the recent past. He is not drinking, he has a stable employment and demonstrates a wish to have a good relationship with his children. The fact that the children clearly want to spend more time with him speaks loudly about the way they perceive him as a loving father.
It appears to be in the children’s best interests to spend more time with their father during the school term. Whilst I am not persuaded that the month about blocks proposed by the father is a workable arrangement, I am of the view that the evidence supports an arrangement whereby the children spend more time with the father than the alternate weekends proposed by the mother.
This is not a situation where it would be of benefit to the children to spend a day or two in the middle of the off week, because there is a need to keep changeovers to a minimum to avoid friction between the parents.
Changeover should be at school wherever possible, which means that the father would collect the children from school and return them to school. He will need to make the necessary arrangements with his employer to allow this to happen, and not rely on the mother to assist him.
As to the time spent, the Independent Children’s Lawyer suggests alternate weekends from after school Thursday until before school Monday, unless Monday is a pupil free day, in which case the time would be extended to before school on Tuesday. Ms B said in evidence that an extra night in the care of the father would be of benefit to the children, and in my view it would assist if there were to be a regular arrangement where the children would spend time with their father each alternate week from after school Thursday until before school on Tuesday, whether or not the Monday is a public holiday or a pupil free day from school. Thus, the children will spend five nights in their father’s home each fortnight, and the time will include both school time and weekends. This will enable the father to be aware of the children’s activities at school.
The Independent Children’s Lawyer submits that when [Y] and [Z] reach the age of 16 years, they, too, will have the ability to determine what time they spend with each parent.
I am doubtful that this is necessarily in the children’s best interests. However, I consider that the same consideration apply to them as applies to [X], which is, that they can make their own decisions about spending time with their parents when they attain the age of 17 years.
Attendance upon a Psychologist and attendance at the Parenting Orders Program
The Independent Children’s Lawyer submits that the father should continue to attend upon a psychologist on not less than a monthly basis for another six months or longer and that both parents should attend for inclusion in the Parenting Orders Program run by Relationships Australia.
In my view, the need for the father to continue to attend upon a psychologist as a condition of parenting orders has probably passed. It is time for him to “stand on his own two feet” in dealing with the responsibilities of parenthood. I am fortified in that view by the fact that he is still under parole supervision until February next year, and also by the fact that there do not appear to have been any untoward incidents since the matter was heard in April. There has been no application to bring the matter back to Court because of any incident between the parents.
I am of the view, however, that it would be desirable for the parents to attend the Parenting Orders Program, and I will order accordingly.
The Independent Children’s Lawyer, who has provided great assistance to the Court, will be discharged.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 6 August 2010
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