Kocsis and Martin
[2007] FMCAfam 913
•2 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOCSIS & MARTIN | [2007] FMCAfam 913 |
| FAMILY LAW – Who the children are to live with – where DOCS involved in aiding mother’s parenting skills – issues of physical neglect – discipline problems – separating siblings – use of s.65L supervision order. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65L |
| Applicant: | MS KOCSIS |
| Respondent: | MR MARTIN |
| File number: | SYM 829 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 13 & 14 September 2007 |
| Date of last submission: | 14 September 2007 |
| Delivered at: | WWollongong |
| Delivered on: | 2 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barry |
| Solicitors for the Applicant: | Dribbus Kovacevic Lawyers |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Johnson & Sendall |
ORDERS
The mother and father have equal shared parental responsibility for the children B, born in October 2002 and A, born in November 2003 (the children).
Each parent retain sole parental responsibility for making decisions as to the day to day care, welfare and development of the children during the periods when the children are living with that parent.
The children live with the father.
Notwithstanding these orders, A is to commence living with his father no later than one calendar month from the date of making these orders and the mother is to do all things necessary to facilitate A moving to his father's home in order to implement this order.
That the children spend time with their mother from after school on Friday until 5.00pm Sunday each alternate weekend commencing from the second weekend after the making of these orders.
That the children spend time with the mother for one half of each school holiday period as agreed between the parties, but failing agreement, during the first half of holidays commencing in an odd-numbered year and the second half of school holidays commencing during an even-numbered year.
Notwithstanding any contrary order, the children live with the father as follows:-
(a)On such occasions as the parents agree from time to time;
(b)From 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day during even-numbered years;
(c)From 12.00 noon on Christmas Day until 12.00 noon on Boxing Day during odd-numbered years;
(d)From 9.00am Fathers Day until commencement of school on Monday morning;
(e)On the children’s birthday – commencing from the conclusion of school until 5pm if on a school day or from 9am until 1pm if on a non-school day during times the children are otherwise living with the Mother.
That the children shall spend time with the Mother as follows:-
(a)On such occasions as the parents agree from time to time;
(b)From 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day during odd-numbered years;
(c)From 12.00 noon on Christmas Day to 12.00 noon on Boxing Day during even numbered years;
(d)From 9am on Mother’s Day until the commencement of school on Monday morning.
(e)Upon the children’s birthday – commencing from the conclusion of school until 5.00pm if on a school day or from 9.00am until 1.00pm if on a non-school day during the times the children are otherwise living with the Father.
That the children shall have the following communication with the mother:-
(a)Reasonable telephone communication twice weekly during times the children are living with the father in accordance with these Orders;
(b)By email and webcam if the father is able to install these facilities in his home.
That the children shall have the following communication with the Father:-
(a) Reasonable telephone communication during times the children are spending time with the mother.
For the purpose of the implementation of these orders the father is to be responsible for the collection and return of the children from and to the mother's residence.
The mother and father keep each other informed of any medical issues or emergencies in relation to the children.
The mother and the father keep each other advised of their residential address and telephone number and advise of any change within 72 hours.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the children; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders;
(e)which involve the children, each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties, each of the parents is to take the following steps:-
(a)the father and the mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;
(b)the father and the mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Kocsis & Martin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 829 of 2006
| MS KOCSIS |
Applicant
And
| MR MARTIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case relates to B who was born on in October 2002 and is now five years old, and his brother, A, born in September 2003 who is four years old. The children's mother is Ms Kocsis, who is 30 years old. She has two other children from another relationship, E, who is nine years old and Z, who is six years old.
The children's father is Mr Martin. He is 58 years old. The mother is the applicant in these proceedings and the father the respondent.
In this case the father raises serious concerns about the mother's ability to care for B and A and he asks for an order that both children live with him but spend substantial and significant time with their mother.
During the course of this hearing the mother's position changed from her initial position that both boys live with her, to her final proposal that B live with his father and A live with his mother.
This is a particularly sad case. Both boys love both parents. Both parents love their children. There are no issues of violence, substance abuse or child abuse. The parents seem to have a good relationship, notwithstanding the breakdown of their relationship. There are, however, neglect issues relating to B and A that make this a sad case and a difficult one to decide.
Background
The father and the mother commenced cohabitation on 22 January 2001. At that time the mother's first son, from a previous relationship, E, was just over two and a half years old. His brother, Z, had only just been born. Even though the father in these proceedings is, for all practical purposes, the main father figure in E and Z's life, and has been for most of their life, these proceedings do not relate to E and Z. They will continue to live with their mother and, it seems to be the common hope of all parties to this case, that they would continue to spend time with their step-siblings, B and A, no matter what the outcome of this case.
B and A's parents separated on 21 January 2006. The mother lived in W and, initially, both B and A remained in her care. The father lived in G; about 90 minutes drive away from the mother. It seems as if by August 2006, after a period during which B spent increasing time with his father, he remained in his care. On 14 September 2006 orders were made in WWollongong Local Court, by consent, providing that B live with each parent on an equal shared basis, during alternate weeks. Notwithstanding that, the agreed reality is that for all practical purposes since those orders were made; B has lived with his father and A with his mother.
It seems common ground between the parents that the children would spend time with each other each weekend. Both parents agree that there should be an order for equal shared parental responsibility for the children.
The mother does not work outside of the home. She is in receipt of social security benefits. She is of BN background and does not have any immediate family in Australia. In her evidence she presented to me as being quite lonely and isolated and often overwhelmed with the responsibilities of parenthood. She is clearly an intelligent, articulate woman who presented her evidence with dignity.
The father is employed as a supervisor but as a result of a work-related injury, is unable to work and is in receipt of Worker's Compensation benefits. He lives with his elderly father.
Both B and A have health needs that will be discussed during the course of these reasons.
The Issues
Deciding this case is determined by reference to what is in the best interests of B and A having regard to the proposals advanced by both the mother and the father. This broad question about what is in the children's best interests can be answered by reference to a number of subsidiary, and more specific questions that I set out below:-
a)Which of the parents' proposals provides the greatest opportunity for the children to have the benefit of a meaningful relationship with both parents? (s.60CC(2)(a)).
b)Is there the need to protect either or both of the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s.60CC(2)(b)) or arising out of the capacity of the children's parents to provide for their needs, including emotional and intellectual needs? (s.60CC(3)(f)).
c)What is the nature of the relationship that the children have with each parent, each other, and their half-siblings, E and Z, and how does each proposal impact on those relationships? (s.60CC(3)(b) and (d)).
d)Is there an issue about the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent? (s.60CC(3)(c)).
e)What impact will each proposal have in terms of changes in the children's circumstances, including the likely effect of any separation from a parent or any other child with whom he or she has been living? (s.60CC(3)(d)).
f)Are there any issues about practical difficulty and expense of a child spending time with and communicating with a parent such that those difficulties will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis? (s.60CC(3)(e)).
g)
Are there any issues relating to the parent's attitudes towards the children and to their responsibilities of parenthood?
(s.60CC(3)(i)).
I record that section 60CC refers to other matters which, in my opinion, are not relevant to the facts of this case. In broad terms, subject only to the issue of specifically dealing with the Family Report, I propose to deal with the evidence having regard to the questions I have set out above.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration; s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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 interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Evidence
The evidence consisted of the affidavits of the mother and the father and the Family Report prepared by Family Consultant, Mr S, dated 19 March 2007. The Family Consultant and the parents gave evidence and were cross-examined. There was also considerable evidence before me in the form of the New South Wales Department of Community Services file relating to the family.
The Family Report
Before providing an overview of the Family Report and of the evidence provided by the Family Consultant, it is important to record that after the Family Consultant gave evidence the mother's proposal to the Court changed, in that the mother was no longer seeking an order that B live with her. In addition, at the time that the Family Report was prepared, the Family Consultant did not have available to her the Department of Community Services file. However, at my insistence, her oral evidence was interrupted to ensure that she was given the opportunity to read that file before giving further evidence.
By way of overview of the contents of the Family Report, the Family Consultant observed that B was closely attached to his father and indeed, was unable to cope with being away from him for long periods. A was more evenly attached between both parents. The Family Consultant was confident that cooperative parenting is likely between the mother and the father whatever the outcome of this case. She was clearly concerned about B's close attachment to his father but ultimately felt that this should not be changed and B should continue living with him. The Family Consultant was confident that A could cope with living with either parent. Whilst A had always been primarily cared for by his mother, once he goes to school, the Family Consultant appears to have left open the possibility of A going to live with his father. It is anticipated by all parties that A will go to school in 2009.
The Family Consultant of course acknowledged the concern about separating siblings but felt that, subject to the other matters I will shortly refer to, it would work for the children in this case. The Family Consultant did express some concerns, however, about the proposals for the children to spend all of their weekends together, at either the father's home or the mother's home. Such concern derived from the possible isolation this would create from the respective communities in which the boys live. In other words; spending time with their brothers and half-brothers means spending less time with, for example, the other children with whom they would otherwise interact on a weekend.
Having said all of that, the Family Consultant clearly articulated the concerns that had been expressed by the father in relation to issues of safety in the mother's household and the well-being of the mother and the children whilst in her care. At the time of writing the report, the Family Consultant did not have any objective evidence available before her.
After the Family Consultant had the opportunity to read the Department of Community Services file she agreed that this evidence indicated the mother needed real assistance with her parenting skills. She agreed that the material tended to confirm the father's concerns about the state of the mother's household and her inability to discipline the children. She agreed that it tended to confirm the father's concerns about the children's health, confirmed her recommendations in relation to B living with his father and certainly raised issues of concern for the other children in the mother's care.
She gave evidence in response to a question asked by me, that in view of the DOCS material, A would be living in a safer environment with his father compared to his mother. The Family Consultant expressed a hope that perhaps, over time, and with the need to care for only two children rather than three or four children, the mother would be able to become a more capable provider.
The Family Consultant also agreed in cross-examination, however, that the mother had at least now recognised the need for assistance and was receiving it and had taken steps to improve the physical condition of her home, as well as undertaking parenting programs. The Family Consultant did point out, however, that the mother was still dependent upon the support of the Department of Community Services in order to achieve what she has.
The recommendations that were contained in the Family Report are set out at paragraphs 41-44:-
41. It is recommended that the parents have shared parental responsibility for B and A;
42. It is recommended that B lives with his father;
43. Should the court find the mother is unable to adequately care for the children, then it is recommended that A live with his mother, E and Z spend time with the father on alternate weekends.
44. Should the Court find that the mother is able to adequately care for the children, it is recommended that B spend alternate weekends living with the mother (so that B and A are together each weekend).
At the conclusion of the Family Consultant's evidence I formed the view that her recommendation that B live with his father was strengthened. However, recommendations 43 and 44 (both of which assume A live with his mother) needed to be revised in view of the evidence from the Department of Community Services file. I was left with the clear impression from the Family Consultant's evidence, that it was now her view that A should live with his father, and her recommendation was that both boys spend each alternate weekend living with their mother, thus giving them the opportunity to also spend time with E and Z.
The Family Report and the Family Consultant's oral evidence, particularly after having read the Department of Community Service's file, is persuasive evidence from an independent expert and I need to give it significant weight, subject of course to the other evidence in this case.
The Department of Community Services File
Because of the significance of the evidence contained in this file, it is important that I provide an overview of this evidence. The files were tendered by the respondent father and became exhibit R1. This evidence largely speaks for itself. I will provide an overview only. As I indicated above, I felt that the mother gave her evidence with grace and dignity and I am not prepared to detract from that by setting out, in a public document, the actual details of the many and serious concerns raised by the Department of Community Services in relation to the household. It would also not do justice to the significant efforts the mother has made, in a comparatively short time frame, to improve the standard of life in her household and to enhance her parenting skills.
The family appears to have been first drawn to the attention of the department in August 2006 and, in general terms, the concerns expressed in the file relate to the neglect of the children and possible psychological abuse to them. All four children, i.e. A, B, E and Z appear to have been the subject of notifications from time to time. The first reported home visit by the department is dated 22 September 2006. The file note creates a disturbing picture of a home that was in very poor state of cleanliness, with serious issues raised about hygiene and the mother's capacity to cope.
The department provides extensive assistance to the mother and children in the period right up until the hearing. The file records the need for the mother to improve her basic parenting skills, including age-appropriate disciplinary methods and an understanding of child development. It is clear that the department felt that she had insufficient coping skills, particularly as regards the behaviour of the children. They also had concerns about difficulty managing her finances and her isolation.
It is important to record the fact that these proceedings have been pending since 4 September 2006 when the mother commenced proceedings in Wollongong Local Court. It was originally listed for hearing before me on 24 May 2007 during the circuit week to Wollongong, but was not reached. It was then set down for hearing on 13 September 2007. The evidence indicates that the father raised the issues that are so clearly documented in the Department of Community Services file from right at the beginning of the litigation. Notwithstanding this, the Department of Community Services file indicates that it was not until early September 2007 that the Department of Community Services file starts to reflect an improvement in the physical conditions of the mother's household. The concerns about the children's behaviour seemed to continue unabated. In short, the file paints a picture of a significant improvement in the physical living environment of B, A, E and Z, but continuing struggles with the mother in terms of her parenting capacity.
Meaningful Relationship
All of the evidence indicates that B and A have a meaningful relationship with both parents. Whichever proposal I were to accept would have negligible impact on that meaningful relationship. It does not matter whether these boys live together or apart or with one parent or the other; I am satisfied on the evidence that orders can be crafted that ensure that the boys spend time with the other parent and each other if necessary, so that the existing meaningful relationship can be maintained.
Protecting the Children
The most important factor in this case is making an order that protects B and A from the risk of harm as a result of being neglected. The risk of neglect arises out of the relative incapacity of the children's mother to meet their physical, emotional and intellectual needs. The evidence presented in the DOCS material raises serious issues about the mother's capacity to adequately parent B and A. The manifestations of this lack of capacity arise in the form of the unhealthy home in which they have lived, the health problems that all of the children have experienced (but particularly B) the mother's inability to appropriately discipline the children (but particularly Z), concerns about the mother's ability to financially manage the household, possible mental health issues experienced by the mother and a general lack of insight by the mother into the nature and extent of the problems that she is experiencing.
Mr Alexander, counsel for the father, cross-examined the mother thoroughly, but with respect and sensitivity. In her cross-examination she confirmed most, if not all, of the issues to which I have referred in the last paragraph. She agreed that her son, Z, missed 40 days from school in 2006 as a result of dental problems. She agreed that the Department of Community Services file describes his teeth as rotting. When it was put to her, however, that his teeth were not in a good condition, she said words to the effect that:
It was just like every other young child.
When the descriptions of the children's behaviour extracted from the DOCS file were put to her; she simply described it as, words to the effect:
Just kids' stuff.
She agreed that she frequently spent time watching movies during the day and on the internet at night. It was put to her that at a time when she was having financial difficulty providing food for the children, she was incurring a very large telecommunications debt. Her response was to the effect that that's how much it costs - but that did not mean that she did not care for the children.
When it was put to her that the children have significant problems, she again asserted that, in effect, no, they were just like other children.
She minimised the problem of absences from school. In relation to the condition of the house; she described it as reasonably clean and being no danger to the children even though an entry on the DOCS file dated 14 May 2007 describes it as, in effect, one of the worst houses ever visited by that officer.
She minimised the occasions when she had to borrow money to buy food.
I find that by any objective measure if B and A were to remain living with their mother in her home, there would be the risk that they would suffer physical or psychological harm as a result of neglect. Even though the evidence indicates that the mother has made significant progress in improving the physical state of her home, her parenting capacity remains a significant concern. I believe there is a real risk that A will follow in the footsteps of Z and E in terms of the experiences and problems they have had to date.
By contrast, the evidence indicates no such concerns about the risk of harm to the children whilst in the father's household.
I record here, for the mother's benefit, that I do not wish her to take my findings as an indication that she is a "bad mother". As I explained to her in Court, my task is to make a decision that is in the best interests of B and A and not to label either parent as good or bad. The mother is not a bad mother. She clearly loves her children and wants to provide for them but, for some reason, lacks the capacity to do so.
This consideration is, of course, a primary consideration under s.60CC(2). Clearly it points towards an order that would see A living with his father and spending time with his mother. Of course, there are other considerations that I will now examine. It is possible that the cumulative effect of the additional considerations under s.60CC(3) would point to a different order. As it turns out, the additional considerations do not have that effect so I will need to consider these additional considerations by reference to their relevance to an order that sees A going to live with his father.
The nature of the children’s relationship with their parents, each other and their brothers
As indicated above, the evidence indicates that the children have a good relationship with each other, their parents and with E and Z. Indeed, the evidence indicates that E and Z have a good relationship with the father as well, even though he is not their natural father. The boys all seem to enjoy a good relationship with each other, but one of the issues raised in the evidence is the mother's inability to protect the children from their behaviour towards one another. For example, the DOCS file contains a reference to the mother reporting that Z hits the other boys all of the time. In her evidence, the Family Consultant explained that sibling hitting is quite normal, but the mother's inability to control this is the real concern. I do not think this detracts from the fact that the boys have a good relationship with each other.
Even on the mother's proposal, B and A would be separated, as, indeed; they have been for some time now. Unlike many other cases in this jurisdiction, separating the siblings is not a significant issue having regard to the other major issues that have arisen. The impact of placing A with his father is that he is removed from a day to day relationship with E and Z. This, of course, needs to be balanced against protecting him from the concerns I have about neglect in the mother's household. It seems relatively common ground between the parties that the boys should be spending time together with each other, as well as with their mother, on an alternating weekend basis, and that is the order I intend to make in order to minimise the impact of the orders on the relationships that the children have, and the changes that they will experience.
I record here that it was the Family Consultant who expressed the hope that if the mother's responsibility on a day to day basis is to care for only E and Z, that this will take some pressure off her and help her to regain some parenting skills. I also express that hope.
Overall, an order that A lives with his father and spends time with his mother will impact on the nature of the relationship that he has with both parents and will expose him to changes in circumstances, including separation from E and Z. Whilst these are important considerations, they need to be balanced against the benefit to him, both in the short term and short and long term of placing him in an environment where he will be better cared for, as well as being reunited with his brother, B.
The proposals of both the mother and the father were initially framed in terms of the children spending each weekend with the other parent, but the context of that was that B and A would be separated and thus they would be spending each weekend together, albeit at the home of a different parent. The Family Consultant expressed concern about such an arrangement because it prevented the boys from being a part of their respective communities and thus, for example, getting involved in local sports activities, spending time with school friends, et cetera. It would also mean a tremendous amount of travel for the children each weekend. I think it is more appropriate, and in the best interests of the children, to be spending each alternate weekend with their mother and with E and Z.
Willingness and ability of parents to facilitate and encourage a close and continuing relationship between the child and other parent
The evidence indicates that in the year leading up to the final hearing, both parents were, at times and in their own way, controlling and manipulative of the other spending time with the child who was living with them; whether as a result of a Court order or simply the status quo. It was somewhat curious that neither parent took any action arising out of the non-compliance with the order made in Wollongong local Court on 14 September 2006 that B live one week with each parent. It probably does not change much at the end of the day. Indeed, I would be more concerned about the existing arrangement being conducive to the parents spending time with both children and B and A spending time with each other than I would be about the proposed order that sees A and B re-united, but at their father's house.
I have no doubt that the father will facilitate the boys' ongoing relationship with their mother by way of telephone communication during the week as well as other forms of electronic communication, perhaps by email and web-cam, particularly having regard to the mother being computer literate.
The father gave me the clear impression in his evidence that he understood the benefits to the children of spending time with their mother and with E and Z. I am satisfied that both parents have the requisite willingness and ability for the purposes of s.60CC(3)(c).
Issues of practical difficulty and expense
In this case the geographical distance that separates the parties, namely a 90 minute drive, is not such as to create a level of difficulty that substantially affects the child's right to maintain personal relations and direct contact with both parents on a regular basis. Issues of practical difficulty and expense have not arisen to date and I cannot see it arising in the future.
Attitudes to the children and responsibilities of parenthood
The father's attitude about paying child support was less than exemplary. He caught up with his child support payments just in time for the final hearing of this matter. This will not disentitle him, on the facts of this case, from having a primary financial responsibility for the children. He will discover for himself what an onerous financial responsibility it is and what it is like to receive minimal financial assistance from the other parent because of her circumstances.
He is currently in receipt of worker's compensation benefits as a result of an injury that occurred on 30 January 2007. He is fit for certain duties only and is uncertain about returning to work. He says that looking after the children is his first priority. I think that at his age it is less likely that he will return to work, thus meaning that he will be able to personally shoulder the responsibility for caring for the children.
As for the mother, for the reasons that I have set out above, she does not presently have the capacity to undertake the responsibilities of parenthood. She certainly loves the children and is able, probably more often than not, but certainly not always, to provide for their basic needs. I am satisfied that she will be able to look after the children during the periods when they spend time with her. For the time being, however, she lacks the capacity to satisfactorily undertake the necessary responsibilities associated with parenthood.
Conclusion about s.60CC Considerations
In conclusion, the balance of the primary and additional considerations all point towards an order that A lives with his father and be reunited with his brother, B. Both boys will be able to maintain a meaningful relationship with their mother and their brothers, E and Z as a result of the orders proposed for them to live with their mother each alternate weekend.
The section 65L argument
Mr Barry appeared as counsel for the mother in this case. It is hard to imagine how the mother's case could have been presented better. His submissions, in particular, were comprehensive and thoughtful. Clearly recognising the difficulties that faced his client's case, particularly after the Family Consultant had modified her recommendations to take into account the DOCS evidence, he submitted that it would be possible for me to leave A with his mother provided I made an order under s.65L of the Act.
Section 65L provides as follows:
(1) If a court makes a parenting order in relation to a child, the court may also, subject to subsection (2), make either or both of the following orders:
(a) an order requiring compliance with the parenting order, as far as practicable, to be supervised by a family consultant;
(b) an order requiring a family consultant to give any party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order.
(2) In deciding whether to make a particular order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Mr Barry submitted that it was an unnecessarily dramatic change for A to be removed from his mother's care at this stage. He submitted that the situation in the mother's household was fluid and that significant improvements in the physical condition of the home were apparent and that she was recognising the need for some assistance with parenting and was responding to the same. He submitted that the better alternative from A's perspective was for him to remain with his mother, but that I appoint a Family Consultant to provide assistance to the mother and to monitor her parenting of A.
He submitted that I could make orders, even detailed orders, addressing the issues that were raised by the Department of Community Services and secure compliance with those orders by a Family Consultant supervising the same. He strongly submitted that I ought to take into account the total isolation of the mother, the medical problems she has experienced in the past, and the achievements made in a relatively short time.
Mr Alexander submitted that the degree of supervision required was well beyond anything contemplated by s.65L of the Act. Moreover, he submitted supervision is not enough. He pointed out that the Department of Community Services has already been involved in the life of the mother and the children for 12 months. Notwithstanding that, in reality the improvements have been limited to physical ones, occurring very late in the overall scheme of things, and curiously accelerating in pace as the hearing moved nearer. Notwithstanding the full support of the Department of Community Services they continued, according to the evidence, to have concerns about the mother's parenting skills as recently as June and July this year. He submitted that supervision was an unnecessary and risky experiment.
I accept and agree with the submissions of Mr Alexander. Section 65L is not appropriate in a case such as this one. The Department of Community Services has resources to assist this family well beyond the resources available through Family Consultants engaged by or through this Court. In any event, one of the additional considerations I need to take into account, pursuant to s.60CC(3)(l) is the making of an order that would be least likely to lead to the institution of further proceedings in relation to the child. Imposing a s.65L supervision requirement is almost necessarily predicated on the making of an interim order, or a final order that is potentially subject to review at the period of supervision. Ongoing litigation is not in the best interests of these children or indeed of the mother and father.
Final Orders
The father's Amended Response filed 13 December 2006 and the proposal he put to the Family Consultant, both indicated that A live with the father when he commences school in 2009. However, at the commencement of the second day of the hearing I was informed by his counsel that the father's position was that he sought orders for A identical to the orders sought for B. I am satisfied that the evidence positively indicates the need for A to come to live with his father much sooner than when he commences school in 2009.
As it will be necessary no doubt for the father to make some arrangements in anticipation of A coming to live with him, I will provide for A to move to live with his father in one month's time.
E and Z
Obviously, I do not have jurisdiction to make orders in relation to E and Z, but my impression is that both parents thought it was important that all four siblings spent as much time together as they possibly could. I encourage the parents to discuss these issues. It might be possible, for example, for E and Z to spend time with the other boys at the father's residence during weekends when B and A would be with their father anyway. This may well provide some respite for the mother. Similar arrangements might be implemented for the school holidays. These are matters for the parents to consider and I certainly encourage them to do so.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 2 November 2007
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