Marsden and Marsden

[2011] FamCA 31

FAMILY COURT OF AUSTRALIA

MARSDEN & MARSDEN [2011] FamCA 31

FAMILY LAW – CHILDREN – with whom a child lives – supervised time – change of residence and school – injunctions

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422

APPLICANT:	Ms Marsden
RESPONDENT:	Mr Marsden

INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

FILE NUMBER: SYC 6980 of 2009

DATE DELIVERED: 28 January 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 25 January 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

RESPONDENT: Father in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Slade Manwaring Solicitors

Orders

1. Orders are made in terms of paragraphs 4, 5, 6, 7, and 8 of the Amended Application in a Case filed 21 January 2011 on behalf of the mother as set out hereunder:

   “4.That until further order, all previous Orders in relation to the father’s time with the children, [M] born […] May 2002, [A] born […] April 2004 and [V] born […] August 2007, shall be discharged and the father shall spend time with the children at [E] Contact Centre for no more than two hours every fortnight.

   5.That the mother have sole parental responsibility for the children in relation to all major decisions, and is not required to consult with the father in relation to any major decision relating to the children.

   6.That the mother be permitted to move from her current place of residence without informing the father of her new address.

   7.That the father be injuncted and restrained from moving to live within a 2 kilometre radius of the mother’s residence or the children’s schools or day care centre.

   8.That the father be injuncted and restrained from communicating with the mother via any means whatsoever except in writing through the mother’s legal representative.”

2. The Court noted that the permission contained in Order 6 is a permission limited to a new residence within the area bounded by the St George and Sutherland Shire areas.

3. The proceedings are adjourned to 9:30 am on 28 January 2011 before Justice Loughnan AND the parties are excused attendance on delivery of judgment.

IT IS NOTED that publication of this judgment under the pseudonym Marsden & Marsden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6980 of 2009

MS MARSDEN

Applicant

And

MR MARSDEN

Respondent

REASONS FOR JUDGMENT

1. These are interim parenting proceedings involving M, A and V, who are eight, six and three years of age respectively. 

2. The matter came before me in a duty list on 25 January 2011 for a hearing in relation to interim parenting orders and an application filed by the father that the mother be dealt with for contravention. The older children had been brought to court pursuant to orders made by Le Poer Trench J on 13 January 2011 and remained in the child minding room for the day. In those circumstances and given that the commencement of the school year is imminent I deemed it necessary for orders be made on the day. The submissions were completed late in the day and there was not time to give reasons and to allow the children to be collected. I made the following orders and told the parties I would publish reasons at 9.30 am on 28 January 2011.

3. I should record my gratitude to the father and the legal representatives for their cooperation during the hearing. Submissions commenced at about 12.35 pm. I gave the father about one hour and a further opportunity in reply. The legal representatives for the mother and the children had significantly less time. The father’s submissions were well constructed and presented and in a very difficult matter I was greatly assisted by thoughtful submissions on behalf of the parents and the children.

4. I made the following orders:

“1.Orders are made in terms of paragraphs 4, 5, 6, 7, and 8 of the Amended Application in a Case filed 21 January 2011 on behalf of the mother as set out hereunder:

‘4.     That until further order, all previous Orders in relation to the father’s time with the children, [M] born […] May 2002, [A] born […] April 2004 and [V] born […] August 2007, shall be discharged and the father shall spend time with the children at [E] Contact Centre for no more than two hours every fortnight.

5.     That the mother have sole parental responsibility for the children in relation to all major decisions, and is not required to consult with the father in relation to any major decision relating to the children.

6.     That the mother be permitted to move from her current place of residence without informing the father of her new address.

7.     That the father be injuncted and restrained from moving to live within a 2 kilometre radius of the mother’s residence or the children’s schools or day care centre.

8.     That the father be injuncted and restrained from communicating with the mother via any means whatsoever except in writing through the mother’s legal representative.’

2.The Court noted that the permission contained in Order 6 is a permission limited to a new residence within the area bounded by the St George and Sutherland Shire areas.

3.The proceedings are adjourned to 9:30 am on 28 January 2011 before Justice Loughnan AND the parties are excused attendance on delivery of judgment.”

1. What follows is the reasons for those orders.

2. The father was born in 1977 and as at the date of the hearing is 33 years of age. The mother was born in 1969 and is therefore 41. They started living together in 2000, were married in December 2001 and separated in November 2009. 

3. Parenting proceedings were commenced in the Federal Magistrates Court in 2009. The proceedings were subsequently transferred to the Family Court. The matter has been allocated to my docket and the first date of the Less Adversarial Trial came before me on 31 August 2010. On 10 September 2010 the second date of the LAT was adjourned to a date not earlier than 1 February 2011 and the following orders were made.

4. In fact the appointment of Dr W was not effected because among other reasons, arrangements cannot be made to service his fees. On 22 November 2010 I adjourned the proceedings to 18 April 2011 to assess the readiness of the proceedings for final trial and in relation to the funding for Dr W.

5. Since late 2009 there has been a series of interim parenting orders made in both Courts.

6. I have dealt with this background in various judgments but in particular in those of 13 July 2010 and 16 September 2010. Suffice it to say that Federal Magistrate Altobelli made orders on 2 December 2009 with the effect that the mother to have sole parental responsibility for the children, that they live with her and spend time with the father, initially supervised but after four weeks on an unsupervised overnight basis. Similar orders were made on 22 January 2010. On 22 March 2010 Federal Magistrate Sexton delivered a reserved judgment following a further hearing on 4 March 2010.  The learned Federal Magistrate made orders providing for, the boys to spend four nights and five days a fortnight with the father, and otherwise, with the mother and for V to spend less time with him.

7. The father lodged an appeal against her Honour’s decision and I gather the appeal was abandoned or withdrawn. 

8. The father rejects many of the findings and observations contained in the reasons of the learned Federal Magistrate. He contends that the appeal was discontinued only because it was thought there would be a final hearing soon. In paragraph 12 of his latest affidavit he says: “when the orders made by FM Sexton where made there was only evidence from the mother infront of her.” A reading of her Honour’s reasons for judgment make it clear that not only was there subpoenaed material but also affidavit evidence from the father. Her Honour deals in some detail with an application for adjournment of the father and found that the husband did have the opportunity to put further relevant evidence before the Court.

9. The matter was transferred to the Family Court.  It has been expedited. The matter came before me on 13 July 2010 and I made some minor changes to the orders of 22 March 2010. The matter came back before the court on the mother’s application.  The mother sought a suspension of the father’s time and, subject to Dr W’s report, supervised time through a contact centre. She sought restraints on the father’s communication with the children. The children’s lawyer supported an order whereby the parties would not attend upon extra curricular events for the children during the time they are with the other parent;  a variation of the midweek time to a Thursday to avoid the parties coming together;  an order for the boys to receive therapeutic counselling that had been offered through the O Public School;  that holiday exchanges be at the McDonald’s restaurant in southern Sydney; that the parties attend such communication counselling courses as are recommended by the independent child lawyer and that they meet the requirements and the costs of those programs. The father supported the ICL’s proposals.

10. On 16 September 2010 and 24 December 2010 I made relatively minor changes to the regime established by Federal Magistrate Sexton.

11. Notwithstanding that I adjourned the matter to 25 January 2011 the matter was back before the Court in early January 2011 and on 13 January 2011 Le Poer Trench J made the following orders:

    “1.These proceedings are adjourned to the 25^th January 2011 before Justice Loughnan.

    2.The Independent Children's Lawyer is requested to inquire into the allegations of the father which are contained in the father’s affidavits sworn 31 December 2010, 3 January 2011 and 11 January 2011, insofar as incidents are referred to in those documents which post-date the events of the 23^rd December 2010.

    3.The Independent Children's Lawyer is requested to inquire into allegations contained in the mother’s affidavit filed in court today which post-date 23^rd December 2010.

    4.The Independent Children's Lawyer is granted leave to issue any subpoenas which he considers will be of assistance to the court for the appearance on the 25^th January 2011.

    5.The orders of 22 March 2010 are varied only to the extent that the children [M] born […] March 2002 and [A] born […] April 2004, are to remain in the care of the father between the 15^th January 2011 and the conclusion of the court day on the 25^th January 2011.

    6.The father is granted leave to issue subpoenas to the [H] Hospital, NSW Ambulance Service, NSW Police Service, Westmead Children’s Hospital.

    7.The mother is granted leave to issue a subpoena to the Department of Human Services in relation to any reports relative to the children on or following the 24^th December 2010 and also to the NSW Ambulance Service in relation to an incident involving the child [M] on 5 January 2011.

    8.The father is to bring the children [M] and [A] to the Court with him on 25 January 2011, and deliver them to the Counselling Section of the court pending the determination of the court of the parties’ competing applications in relation to interim residence and/or the time the children are to spend with each parent.

    9.The Director of Court Mediation is requested to provide a carer for the children on the 25^th January 2011.

    10.The Director General of the Department of Human Services (Community Services) is requested to intervene in the proceedings.”

The approach to interim parenting proceedings

1. The hearing was conducted on the papers and therefore it is not possible to make findings of fact on all or many disputed issues of fact.

2. There is an alarming quantity of evidence building up in these proceedings. For the purposes of this hearing, this being one of a number of other matters listed in judicial duty list, I was asked to read 11 affidavits in the wife’s case and 8 affidavits in the fathers case, several earlier judgments and a raft of exhibits from previous hearings and subpoenaed material. It was not possible to do that. The focus of this hearing is necessarily on events since the last hearing before me – 16 September 2010. The father relies on an affidavit from a local shop keeper. With the best will in the world that evidence cannot be of great utility in interim proceedings. With no disrespect to the deponent, she cannot qualify herself as an expert and her evidence raises as many questions as it answers. For example, in an affidavit that demonises the mother and her parenting and wholly supports the father, Ms R reports that she saw the mother and M on 7 December 2010 after M had run away from his mother. She reports that M said to his mother:

   “I want my dad and you are not showing him my report and school work, I want him to see it.”

3. That begs the question as to how M came to know of that issue. It may support the mother’s case that 8 year old M has been enlisted as an advocate for his father.

4. In Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 the Full Court gave guidance as to the framework for interim parenting.

The competing proposals of the parties

1. In the spirit of this case several applications have been filed recently. I understand that the mother seeks orders in terms of her Amended Application in a Case filed 21 January 2011. In effect she seeks that the father’s time with the children be reduced to no more than 2 hours a fortnight at the E Contact Centre. She seeks sole parental responsibility and to be relieved of the obligation to consult with the father. She seeks permission to move the children to an address not known to the father and that he be restrained from moving to live within 2 kilometres of her residence of the children’s school or pre school. She seeks that he be restrained from communicating with her other than through her lawyer in writing. The mother seeks that the parties submit to drug screens at the instance of the ICL. She seeks that the father file certain financial information in relation to his ability to contribute to the cost of the single expert. The mother necessarily seeks permission to change the school and preschool attended by the children.

2. The father filed applications on 31 December 2010 and on 5 and 11 January 2011. Nevertheless, it appears that the father seeks orders in accordance with his Affidavit sworn 3 January 2011 and filed 5 January 2011. Mr Holmes for the children referred me to those orders sought and there was no contradiction from the father. Why the affidavit set out different orders to the application it supports was not explained. Thus I understand that the father seeks that all three children live with him pending further order. He seeks sole parental responsibility. He seeks that the mother spend not more than 15 hours a week with the children by his agreement and in any event supervised by Mrs S or the E Contact Centre. He asks that the ICL seek to issue certain subpoenas. He seeks that the mother be restrained from putting cheese and sauce in the mouths or on the bodies of the children as a form of punishment.

3. When I pronounced the orders, an obviously upset father said that he would not spend time with the children under the conditions sought by the mother.

4. Mr Holmes is the ICL and ultimately, he supported the mother’s application.

The issues in dispute:

1. Whether the children should live with the mother and have only supervised time with the father or with the father and have only supervised time with the mother.

The agreed or uncontested relevant facts:

1. As I understand it, the following propositions are agreed:

   ·    The general pattern of living arrangements since separation is no longer in the best interests of the children.

   ·    The children have been extensively exposed to the parents’ conflict.

   ·    The mother has had difficulty in managing the children, particularly M.

   ·    M and A, in particular have strongly expressed a desire to live with or spend more time with the father.

   ·    M has run away from the mother, in search of the father on a number of occasions.

   ·    M has exaggerated the basis for his desire to run away from the mother.

The relevant the matters in s 60CC:

1. Section 60CC is the provision by reference to which the best interests of a child are identified. As to how the court takes those matters into account:

   Section 60CC(4):

   Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a) has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child; and

   (b)has facilitated, or failed to facilitate, the other parent:

   (i) participating in making decisions about major long-term issues in relation to the child; and

   (ii) spending time with the child; and

   (iii) communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   Section 60CC(4A) provides:

   If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. Dealing with the evidence before me under the relevant provisions:

   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.

3. These are proceedings in which each of the parties has conceded a loving relationship between the children and the other parent. Each has previously argued that the children should spend time with the other parent. Each seeks orders that the children continue to spend time with the other parent. As they both now seek that the other parent’s time be supervised, there is a real issue as to the nature or quality of the relationships. Thus I cannot make a finding as to the extent to which the parents have a meaningful relationship with them.

4. As to harm, the allegations have ebbed and flowed. Four days after Federal Magistrate Sexton’s orders of 22 March 2010 there is a record (one of scores of records about the parties at that station). The record follows the mother reporting a child at risk and reads:

   “At 6.30 pm on the 26/3/2010 party 1 attended [L] Police Station to report the child at risk was taken by her father (party 2) to a local doctor namely Dr [G] of [O] Medical Centre.

   The mother had heard the reason the child at risk was being taken to the Doctors was that the child had been molested/sexually assaulted. The mother did say the child had a rash around her bottom and in hindsight believes that the child at risk could have been sexually assault by the father on past visits and that he is now covering himself by taking the child to the doctors. The Mother and Father are separated and Family law court orders are in place. The father has access to the child at risk on Wednesdays and Friday-Saturday.

   Police contacted the father and he stated that he took the child to the Doctor as he believed the child may have been sexually assaulted. He had made allegations in the past that the Mothers Brother had sexually assaulted the child. An AVO was applied for by police. The AVO was dismissed at Court with insufficient evidence relating to these allegations.

   The doctor has made the determination that the child has not been molested or sexually assaulted. That she has a rash.

   There is significant history between the parties and allegations are forthcoming from both. There are no concerns that the children are not being cared for properly by each party.”

1. As I say the focus must be on recent events but that entry is revealing.

2. It follows from the evidence of the parties and of others that the children have been exposed to psychological harm. In his attempts to run away, M has been exposed to the risk of serious physical harm.

   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;

3. The children are 8, 6 and 3. The reported views of the boys would appear to strongly support the father’s application. There is no expert evidence as to their maturity or levels of understanding.

4. The applications of the parties are consistent with a fear of serious harm. In those circumstances, the views of young children would have no weight. By that I mean they would not be exposed to serious harm even if that was their wish and they would not be kept from a safe and loving arrangement even if they preferred a more dangerous placement.

5. As to the reliability of the views of the boys, the police were concerned on 23 August 2010 when they attended their school and asked each of them about what was said in each of the parent’s houses. Each gave the same dismissive answer. The attending police thought the children may have been coached.

6. On 23 December 2010 M ran away from his mother’s home. On 5 January 2011 he told L police that his mother had locked him in his bedroom with a key, had refused to release him to go to the toilet, that he wet his pants and had no spare (clothes) in his room and had to sleep in wet pants. The police then attended at the mother’s home and found that the bedroom door had no lock and that the room contained ample clothing and underwear for both boys. I put this to the father and he conceded that M had made up those details.

   (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);

7. The focus of the proceedings is necessarily on the relationship between the children and their parents. The children come into contact with the sister and mother of the mother and have seen the sister and mother of the father. The father seeks that Mrs S supervise the mother. It may be that is a concession that she has a good relationship with the children. There is no evidence about the children’s relationship with those persons.

8. As I noted in my reasons of 16 September 2010, in the course of the first date of the final trial:

   18.      ……

   Each of the parties professed encouragement for a loving relationship between the children and the other parent.  The father said, among other things:

   All I want is an outcome where the children spend good quality time with me, they spend good quality time with [Mrs Marsden]

   19.      that’s the mother –

   and they are in an environment which is as stable as possible.  I believe they need to have a good relationship with myself, they need to have a good relationship with [the mother], and we need to encourage and promote that relationship. 

   20.      “I know [the mother] loves them,” he went on later:

   I don’t think she’s a bad person.  I think she has moments where she gets a bit down and things go a bit crazy but at the end of the day we are both their parents.  They love me and they love her and they shouldn’t have to decide between which parents they want to stay with.

   21.      The mother said, among other things:

   I would like to give him the children more.  It just – there needs to be an end to all this drama.  ………

9. Notwithstanding those sentiments the parties are increasingly critical of the nature of the relationship between the other parent and the children. The husband argues that the mother cannot cope with the boys. He argues that she is inattentive to the needs of the children, citing the occasions when she has not contacted them and failed to promptly (or at all) attend on M and V in hospital.

10. It is the mother’s case that the father uses the children to harass and intimidate and control her and that he denigrates her to and in the presence of the children.

11. In turn, the parties deny the allegations made against them. This issue is confused by the fact that at various times since separation the parties have each promoted, agreed to and asked the court to order, extensive, overnight, unsupervised time between the children and the other parent. Normally that would suggest that the parties are not entirely sincere in their criticisms.

12. I cannot make a finding in relation to this issue.

    (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;

13. As is stated above, the parties have at various times promoted, agreed to and asked the court to order, extensive, overnight, unsupervised time between the children and the other parent. However, for the purpose of this hearing the parties seek that the time between the other parent and the children be circumscribed.

(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;

1. This is of great concern and there is no expert evidence on the issue.

2. Under the father’s proposal, the children, who have lived substantially with the mother all of their lives, will no longer live with her. On the other hand, the father told me that he would not spend time with the children under the conditions sought by the mother. Thus, if he maintained that position, the effect of the mother’s proposal would be that the children would not see the father at all. Even under the mother’s proposal, the father’s time with the children would be reduced dramatically.

3. The effect of those things depends on what is happening now. If the father’s allegations are correct then the risks to the children of the mother’s inappropriate discipline and inability to properly parent the children would be reduced by limiting the time and by supervision. If the mother’s allegations are correct then the father’s opportunity to traumatise the children and to influence them against her would be curtailed by time and supervision.

4. The mother’s proposals involve a change in school and pre school. No submissions were made on this issue but I accept that in the normal course it would be highly undesirable for there to be a further, interim change. The boys were at school in the H area at separation, then moved to O. With the possibility of a further change after the final hearing, another change at this time is highly undesirable.

5. There is no expert evidence on this issue.

   (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;

6. The parties live very close together. Each of them proposes supervision. Supervision under a commercial arrangement, under either parent’s proposal will involve some inconvenience and cost. The father has a good income but asserts that it is over committed and that he has debts. I understand that the mother does not have paid employment and is in receipt of legal aid.

   (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;

7. Each of the parties asserts that the other is or may be, mentally ill. Each seeks that the other be assessed for mental illness. There is no independent evidence. There is some support in the background facts for these assertions.

8. There are the facts identified by FM Sexton in her judgment of 22 March 2010 to which I referred in my previous decisions. On two occasions the father was taken for a mental health assessment at H Hospital. In May of 2009, he was referred to a Psychiatrist, perhaps in relation to a Post Traumatic Stress Disorder. I understand that the father saw some service in East Timor. On 2 June 2009, Dr K recorded that the father:

   Loses his temper, has a short fuse, cries easily.

9. More recently Dr K gave the husband a clean bill of health. The father submits that even if he suffered from Post Traumatic Stress Disorder, and there is no evidence that he does, there is no suggestion that it would adversely affect his parenting. The father says that he is willing to undergo an independent mental health assessment.

10. According to the records of the NSW Police[1] the father attended L Police Station on 4 & 5 January 2011. He told police that M said he wanted to be with his dead grandfather. The father returned later to complain about the refusal of the police to take out an AVO against the mother. The police asked him why he did not seek medical help for his son and he replied that he was too busy trying to get the AVO. He stated that it would be the fault of police if his son killed himself. He was again asked to obtain medical attention for his son. The record goes on:

    “A short time later [the father] contacted the police station to apologise and stated that he was breaching his court order. It was strongly suggested that he abide by the order and that if he had concerns for his children and they were founded police would check on the welfare of his children.”

    [1] Events E42857525 and E43082047

11. It was suggested that the children be handed back to the mother at the station later that night.

12. Acting Inspector P records that later that night she was sitting about 10 metres from the front counter. She could hear screaming, both children’s voices and a male voice. She walked to the counter and saw the father at the front door trying to grab two children and take them out of the door. The mother was standing at the counter in the foyer, looking towards the father and children. Another officer said to Acting Inspector P that the father was screaming to the children that they hate their mother. Acting Inspector P records that the father was at the front door yelling “They hate their mother, I am taking them.” She could see that both children were extremely distressed and crying. The father was screaming and the mother stood saying nothing at the counter. The mother said to the Acting Inspector “He always does this.” The father yelled “They hate their mother. You hate your mother, don’t you?” Acting Inspector P records that the children were hysterical. She walked towards the front door of the station and told the father to calm down. He walked quickly outside and grabbed the children. Three other police officers followed him and the children. The father says it was 5 or 6 police officers. The Acting Inspector said “What are you doing, look at the children.” She says he was still screaming.

13. Acting Inspector P then walked the children inside to talk to them away from the parents. M walked away, saw his mother and clenched his fists and said to her: “I hate you. I hate you.” The police sent the father away but he refused. Ultimately, Acting Inspector P observed that the children calmed down. She later saw the children laughing and playing and the younger child was being hugged by the mother. She observed that the children were calm and happy to go home with their mother. Police arranged for the mother and children to leave through the basement to avoid a possible contact with the father.

14. The father has made a complaint against the NSW Police in relation to this incident and I take it that he disagrees with the substance of the police record. The father notes that the mother does not corroborate the police record in her written evidence and I accept that is so.

15. The father refers to the fact that a previous JIRT investigation cleared him of coaching the children. I do not have that detail before me but I accept for the purposes of these proceedings that that is so.

16. It is the mother’s case that her parenting has been impaired and would be made difficult or possible if the father continues to have significant involvement in the lives of her and the children. The mother says she was diagnosed with Depression in 2007 and takes medication for Depression. The mother regularly sees a counsellor.

17. On 28 December 2010 the mother peremptorily removed V from the father’s care, mistakenly thinking that handover was 10.00am rather than 12.00 noon.

18. The mother has alighted upon a discipline strategy for the boys involving requiring them to consume cheese or tomato sauce. The mother says that on 5 December 2010 M had been violent and rude to his brother and sister. She said to him “If you don’t behave you are going to have to eat cheese.” She had given this warning previously but never acted on it. When the mother tried to administer the cheese the child would not open his mouth and continued to try and kick and scream at her. Out of frustration she threw some grated cheese at M and most of it fell to the ground. She discussed this with her counsellor and with the police and the Family Consultant. The mother concedes that her action was not the most appropriate form of discipline in the circumstances.

19. As to the tomato sauce the mother says that she made A take tomato sauce by squirting it in his mouth on once occasion after A had been repeatedly using the word “fuck”. The mother says that was effective and that that she has not been told that this form of punishment is inappropriate by any Relationships Australia counsellor.

20. The father submits that the mother’s reaction to M running away on a number of occasions has been inadequate, too slow and exposed him to danger. He points to occasions when the mother has not pressed for the return of M or the boys even though he has expressed a willingness to hand them over. It is not possible to make findings on the basis of these incidents.

    (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;

21. The children are young. There are two boys and a girl. There is no significant expert evidence in relation to them. The boys were assisted by counsellors at the O Public School and I understand that that assistance has ceased. The parties agreed to the boys seeing counsellors at the Hospital but that assistance has been declined because of the children are the subject of these proceedings.

22. The mother says that in 2010 she spoke to a GP to whom M had been taken by the father in relation to a sore neck. The mother says she spoke to the GP on speakerphone and that the GP said that M may be suffering severe anxiety, would be referred to a Psychologist, may have Tourette’s syndrome and the GP was really concerned about his behaviour. The mother says she tried to arrange a Psychologist and the father objected.

23. The parties each allege that the other acted to prevent the boys having counselling. I cannot make findings about that.

24. M ran away from the mother on 23 October 2010. The father says that he spoke to M at some length to the effect that he cannot fight with his mother and cannot run away. Nevertheless, M ran away from the mother twice on 7 December 2010. M ran away from the mother on 23 December 2010. M ran away from the mother on 8 January 2011.

    (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;

25. This does not apply.

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

26. The father cites various incidents that demonstrate that the mother is not focussed on the best interest of the children. They do not establish the findings he seeks. For example he notes that when a child suffered appendicitis in 2008 it was he that called the ambulance, notwithstanding that he was at work and the mother was at home with the child.  The notes of the ambulance service for 9 October 2008 note “APPENDICITIS CALLER NOT ON SCENE MOTHER ON SCENE JUST HAD A HYSTERECTOMY”.

27. As to two recent incidents: the father complains that the mother did not attend on Sutherland hospital on 17 January 2011 when her sister took V there following an adverse reaction to walnuts. The mother says that on 17 January she left V with her sister while she ran errands and saw her counsellor. She was in contact with her sister and spoke to the attending doctor by phone. The mother says she attended at the hospital some hours later but only because the hospital would not release the child to her sister or to the father.

28. There is a similar complaint by the father in relation to an incident when the father took M to St George Hospital when he broke his arm. The mother says that she spoke to the relevant doctor on the phone, because of the problems that occurred on 17 January 2011.

    (j) any family violence involving the child or a member of the child’s family;

29. The mother alleges that the father was violent to her during their relationship. She asserts that is the reason for her ongoing counselling. Federal Magistrate Sexton noted concessions apparently made by the father to health professionals about his anger and verbal abuse and controlling behaviour in relation to the mother. The father denies the allegations.

30. I cannot make findings about this issue.

    (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;

31. There was an interim AVO against the father but the application was dismissed at a substantive hearing.

    (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;

32. There is no doubt that would be preferable but this is a difficult concept in interim proceedings.

    (m) any other fact or circumstance that the court thinks is relevant.

33. Nothing comes to attention here.

Does the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child apply or not?

1. In other words: are there reasonable grounds to believe there has been abuse of the child or family violence or, in these interim proceedings, does the Court consider it appropriate to apply the presumption?

2. The presumption should not apply here. Each of the parties seeks sole parental responsibility. The parties have demonstrated that they are often incapable of co-operative parenting.

   If the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests:

3. This does not apply.

   If the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable:

4. This does not apply.

   If equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable:

5. This does not apply.

   If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s 60CC:

1. This does not apply.

If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC?

1. I refer to the considerations of the section 60CC factors above.

In any event consider equal time or substantial and significant time

1. Neither of the parties seeks equal time and the issue was not addressed by submissions made during the hearing. Had it been sought, the relationship between the parties and the nature of the allegations are such as to strongly argue against such an arrangement.

Conclusion

1. It is submitted on behalf of the children that after many interim hearings it is necessary to grant one of the parents’ applications. It would not be appropriate to take a third course such as splitting the children and the current orders have been given every opportunity to work. Mr Holmes said the court should be concerned about incidents such as the father taking the boys to the Police station at 9.45 pm on New Years Eve which seemed to be for a tactical purpose.

2. Mr Holmes conceded that this is a difficult decision. He initially suggested that it would be important to hear from the mother’s solicitor about strategies that the mother would adopt in the future to deal with defiant behaviour from M and A. Nothing was forthcoming and indeed that would require evidence rather than final submissions. Despite that deficiency the ICL favoured the mother’s proposal and the supplementary orders she seeks.

3. As to New Years Eve the father explained that he and the children were on their way to a New Years Eve event and that the boys had had a sleep during the day. Nevertheless the facts are concerning.

4. I confess that this was a decision that caused me great disquiet. On their presentation before me in August the parties appeared as decent, loving parents who respected the role of the other parent, albeit with some reservations. At times they have agreed to changes in the orders for the benefit of the other parent and the children - an action entirely inconsistent with the most serious of the allegations they have variously made against each other. However, the parties have been unable to maintain any semblance of co-operative parenting for more than a few months at a time. They have exposed the children to conflict, danger and upset. They made many applications to change the interim arrangements and were warned on occasions that one of them would be effectively shut out.

5. I understand that there is a dispute as to the version of events at L Police station recorded by the police in respect of 5 January 2011. I cannot make a finding about that but by the same token I cannot ignore the risk that the police version is accurate. As the husband himself says, it is inconsistent with records of his earlier presentations at the station. The venom and sustained nature of the behaviour described by the police would represent unacceptable behaviour and would be unambiguously not in the best interests of the children. It would also be consistent with the wife’s general case. There are several examples of the boys taking up advocacy on behalf of the father, including in relation to living or spending more time with him, him seeing school reports, travel to Queensland.

6. On the other hand there is a real risk that the mother cannot manage the children, particularly the boys. Even when they have not seen their father for a week or more, even when he is interstate or otherwise not available, they have defied her. She says she has family support but she has presumably had that support for nearly 12 months. I take it that is why she moved to O. There is some evidence that M needs clinical support with his behaviour and he may well represent a parenting challenge to any parent.

7. Taking the circumstances together, since separation there have been a number of consistent interim decisions whereby the children have mainly been in the care of the mother. Since that time none of those decisions has been directly challenged in the sense of a prosecuted application for review or an appeal. Since that time the children have come to the attention of many compellable notifiers – school and pre-school teachers, school counsellors, medical practitioners, as well as the police on scores of occasions. As the father says, they came to the attention of the JIRT team. Despite the father reporting that individual police officers made disparaging comments to him about the mother’s mental health, I am not aware of any report or action by any of those compellable notifiers going to impugn the mother’s parenting or to suggest that they are not safe in her care.

8. While the main focus has been on the boys, V has been living with the mother for an even greater proportion of the time since separation. No party seeks that the children be split and there is no proper basis for changing her primary care giver.

9. The shared regime has not worked. The risks associated with the mother’s proposals are very concerning but for the reasons given above her proposal is to be preferred.

10. I note that on 13 January 2011 a request issued to the Director General of the Department of Human Services under section 91B to intervene in the proceedings. If favourable attention is given to that request the matter should be quickly re-examined, at least in relation to what support might be available to the family.

11. There was also a contravention application before the court on 25 January 2011. I told the father that the sole purpose of contravention proceedings is to cause compliance with orders and that depending on the outcome of the parenting proceedings the contravention proceedings may be unnecessary. That proved to be the case. In any event the application seeks to deal with many alleged breaches from December 2009 to date. It is an abuse of process to save up breaches and bring proceedings long after the event. The allegations are in some instances rolled up, making the charging process difficult without the consent of the respondent. Finally, as framed, the application would require a day or more to hear.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 28 January 2011.

Associate: 

Date:  28 January 2011