McConaghy and Brace and Anor
[2013] FamCA 884
•14 November 2013
FAMILY COURT OF AUSTRALIA
| MCCONAGHY & BRACE AND ANOR | [2013] FamCA 884 |
| FAMILY LAW – CHILDREN – Final Orders – with whom a child should live – with whom a child should spend time – best interests – orders made for two of the children to live with the mother and spend no time with the father – orders made for the third child to live with the maternal aunt. |
| Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 60CG; 61DA; 64C; 65DAA Evidence Act 1995 (Cth) s 140 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) |
| MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Mr McConaghy |
| RESPONDENT: | Ms X Brace |
| SECOND RESPONDENT: | Ms Y Brace |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
| FILE NUMBER: | ADC | 4196 | of | 2009 |
| DATE DELIVERED: | 14 November 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Justice Dawe |
| HEARING DATE: | 16 & 17 February 2012 20 - 24 February 2012 2 & 3 April, 5 April 2012 16 April 2012; 27, 28 & 29 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kovacs |
| SOLICITOR FOR THE APPLICANT: | Sarah Cleland Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Eid |
SOLICITOR FOR THE FIRST RESPONDENT: | Wendy Botting |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Tredrea |
| SOLICITOR FOR THE SECOND RESPONDENT: | Condon Charles Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Boehm |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
Orders
The mother Ms X Brace have sole parental responsibility for the children D McConaghy born on … 2003 and E McConaghy born on … 2005.
All orders in relation to the father spending time with or communicating with the children D and E are discharged.
The children D and E live with the mother.
The maternal aunt Ms Y Brace have sole parental responsibility for the child J Brace born on … 2005.
The child J live with the maternal aunt.
The mother sign all such authorities requested by and forwarded by the father to enable the father at his cost to obtain information about D’s academic progress at school and her health from her general practitioner and copies of D’s school photographs.
The parties are restrained and an injunction is hereby granted restraining each of them from discussing the issue of J’s parentage to or in her presence or to or in the presence of either of D or E or from permitting any other person so to do until such time as the therapist and/or counsellor referred to in paragraph 8 hereof considers it appropriate and in J’s best interests to raise this topic with her by way of an assessment.
Within three [3] months from this date the maternal aunt identify an appropriately qualified therapist and/or counsellor who is to conduct an assessment in relation to who, how, when and under what conditions J’s parentage should be raised with the child.
The maternal aunt to communicate in writing to each of the mother and father the identity of the therapist and/or counsellor and arrangements to be put in place in respect of the assessment to be conducted by that person.
Each of the parties participate in the said assessment at the discretion of the counsellor and/or therapist.
The costs of the assessment be shared equally between the parties with the maternal aunt to advise each of the mother and the father in writing as to the anticipated costs of the assessment and arrangements for payment of each of the parties’ share of the costs.
The maternal aunt do keep the father informed each year as to J’s academic progress, health and interests by providing that information in writing to the father at his nominated address.
The appointment of the Independent Children’s Lawyer is discharged.
All matters are removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McConaghy & Brace and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4196 of 2009
| Mr McConaghy |
Applicant
And
| Ms X Brace |
First Respondent
And
| Ms Y Brace |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parenting orders to be made in relation to three children D McConaghy born in 2003, E McConaghy born in early 2005 and J Brace born in late 2005.
The children D and J are the biological children of the applicant father Mr McConaghy (“the father”) and the respondent mother Ms X Brace (“the mother”). The child J has however been raised by the maternal aunt (second respondent) Ms Y Brace. The child E is the biological child of the respondent mother and Mr L, who is now deceased.
The trial commenced in February 2012. After seven days the matter was adjourned part-heard to April 2012. Judgment was reserved on 16 April 2012. The trial was however reopened in July 2012. Further interim orders were made in September 2012. Further evidence was heard in November 2012. Judgment was reserved on 29 November 2012.
At the hearing the applicant father was represented by Ms Kovacs of counsel, the mother was represented by Mr Eid of counsel and the maternal aunt by Mr Tredrea of counsel.
Mr Boehm appeared as counsel for the Independent Children’s Lawyer.
At the conclusion of trial on 29 November 2012 when judgment was reserved, the Court made orders pending delivery of the final judgment. These included that the mother have sole parental responsibility for the children D and E and that D and E live with the mother. Orders were also made that any orders for the father to spend time with or communicate with D, E or J, were suspended. Interim orders were also made permitting the mother to move from G to the M region on certain conditions.
Summary of relevant background and issues
The applicant father was born in 1949 and is now aged 64. The mother was born on in 1977 and is now aged 36. The maternal aunt was born in 1981 and is now aged 32.
The mother and father commenced a relationship in Brisbane in 2001. At that time the mother also had children A, Z and Q by a previous relationship. For a time the mother and her older three children returned to live in Adelaide in 2002, but returned to live in Queensland in early 2003 following proceedings which were commenced by Mr W, the father of the children A and Z. In or around December 2003 the child D was born to the mother and father. The father commenced residing with the mother for a brief period in late 2003/early 2004.
In March 2004 the mother commenced a relationship with Mr L. Following an accident in which the mother was injured, the mother and Mr L resided together.
In July 2004 the relationship between the mother and Mr L ceased. The children A and Z went to live with their father, Mr W, on a permanent basis, with the mother seeing those children regularly.
The mother and father’s relationship ceased in August 2004, but resumed again in November 2004.
The child E was born in early 2005. At the time the mother believed Mr L to be E’s father. The child J was born in late 2005. The mother’s sister, the second respondent, Ms Y Brace, was present at the birth. The maternal aunt immediately took over the care of the child J who has continued to reside with and be cared for by the maternal aunt as if the child were hers since that time.
On 8 June 2006 a Consent Order was made by the Family Court of Australia in Brisbane in Action No BRF1589 of 2006 which read:
Between [Mr L]
Father
AND: [Ms Y Brace]
Mother
TERMS OF SETTLEMENT
THAT UNTIL FURTHER ORDER, THE PARTIES AGREE BY CONSENT:
1.That the child [E McConaghy Brace] (date of birth … 2005) reside with the Mother.
2.That the parties have joint responsibility for making decisions about the child’s long term care, welfare and development.
3.Father may have supervised contact at all reasonable times by agreement, and in particular to have contact once a week at the [O] Children’s Contact Centre, if a suitable time is available, or once a fortnight such contact to occur on Saturday.
4.The father agreed that he will undergo an ATODS course and also a parenting course and on the successful conclusion of those courses a certificate of completion and compliance will be made available to the Mother.
In about May 2007 the mother commenced a relationship with her current partner, Mr S.
In June 2007 after obtaining Housing Trust accommodation in town G, South Australia, the mother commenced residing with Mr S in G. The child D commenced living in G with the mother and Mr S in about June/July 2007.
Arrangements were made for D to spend time with the father in Queensland during school holidays. Thereafter there were difficulties between the mother and father making arrangements for D to spend time with the father, including times when the father took the children back to Queensland without the mother’s permission.
In October 2009, after a period of time spent with the children, the father returned E and Q to the mother’s parents’ home in town G, but refused to return D to the mother. Proceedings were commenced by the mother.
An order was made by Federal Magistrate Brown (as he then was) on 16 December 2009, which provided:
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
1.The child [D McConaghy] born … 2003 live with the mother from midday (Queensland time) on 22 December 2009 with the father to deliver the said child to the mother on Tuesday, 22 December 2009 at the … Police Station.
2.If the father fails to comply with order 1 hereof, pursuant to section 67U of the Family Law Act 1975 a Recovery Order be issued forthwith authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a)find and recover the said child [D McConaghy] born … 2003.
b)to deliver the said child to the mother at such place as the officers giving effect to the Recovery Order may agree.
c)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
3.Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of the child [D McConaghy] born … 2003 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
4.Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
5.Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 17 February 2010 at 9:15am (NOTING the father is at liberty to attend by telephone), to discuss the care, welfare and development of the child in an endeavor to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on … to confirm their attendance.
6.The mother is restraining and injunction granted restraining her from changing the child’s place of residence from outside of [G] in the State of South Australia
7.The father have telephone communication with the child on Christmas Day and each Monday, Thursday and Saturday at 6:30pm (SA time) with the father to telephone the mother on her landline number ….
8.Further consideration of this matter is adjourned to 23 February 2010 at 9:30am NOTING the father can appear by telephone if not legally represented.
The current proceedings were commenced by the father on 17 February 2010. Shortly thereafter on 23 February 2010, interim orders were made including directions that the father spend time with D and E in school holidays on certain conditions.
Further interim orders included parentage testing to be carried out in relation to the child J. Mr L, the biological father of E, was at one time included in the proceedings and directions were given for his guardian to file documents in the proceedings.
In November 2010 an order was made that the parties, except the maternal aunt, Ms Y Brace, were restrained from discussing or making reference in any way whatsoever with the child J, or any of her half-siblings, the issue of her paternity.
The mother married Mr S in late 2010.
Ongoing orders were made by way of interim procedural directions and interim parenting orders.
Mr L died in Queensland in early 2011.
Various procedural orders were made in relation to subpoenas and the filing of documents. Interim orders were also made providing for the father to spend time with the children.
Various Family Consultant Reports were ordered and received.
In March 2011 proceedings were transferred from the Federal Magistrates Court (as it then was) to the Family Court of Australia, where it was estimated that the trial would take approximately five days.
As previously indicated the trial took much longer. It was necessary to adjourn the trial part heard. Following upon the judgment being reserved, the matter was reopened due to the change in circumstances. Further evidence was received.
Following upon the judgment being reserved in April 2012, the child D made statements indicating that she had been sexually assaulted by Mr C who was described as a friend of the mother.
The children D and E were interviewed by police. Mr C was arrested and charged with offences including indecent sexual assault upon D.
The way the parties dealt with these allegations was significant.
Following upon application made by the mother, the Court made orders on 23 July 2012. The affidavit of the mother filed in support of the Case Application in July 2012 dealt with the mother’s application for the immediate return of the children and the background to her being advised in July 2012 about the allegations concerning Mr C.
The father was served with the application on 17 July 2012. The father then made arrangements for E to be returned to the care of the maternal grandmother, rather than to the mother.
With the assistance of the step-mother of the half-siblings Z and A, E was returned to the care of the mother. Thereafter, the mother maintained that she had taken steps to prevent all of the children from having any contact whatsoever with Mr C.
As a result on 23 July 2012 it was not necessary to make the order sought by the mother for the immediate return of D and E. It was noted in the orders that it had taken place and that the trial was to be reopened.
Procedural directions were made for further evidence to be filed. Interim orders were made which suspended the father’s time with the children D and E.
The mother alleges that there has been a history of the father retaining the children and refusing to return them to her. It is alleged by the mother that in August 2004 the mother was required to issue proceedings for the return of the child D when the father unilaterally retained her.
The parties then reconciled. After the birth of E in early 2005 and the birth of J in late 2005, the parties finally separated in November 2006.
The mother also alleges that in October 2009 the father failed to return D in accordance with the agreement that had been reached. Subsequently, in December 2009, Court orders were made that D live with the mother and the father to deliver the child to the mother with a Recovery Order being made.
The mother made arrangements with the father for D and E to spend time with the father in Queensland from 3 July to 10 July 2012. On 10 July 2012 the father sent a message to the maternal grandmother, saying that he would not return the children. The father’s explanation was that the children had disclosed allegations of sexual abuse by Mr C and that police were taking steps to interview the children. Following upon the urgent application to the Family Court of Australia the children were returned to the mother’s care.
The mother was made aware of the allegations about sexual abuse by Mr C when she was contacted by police officers from G Police on or about 11 July 2012. At that time she was advised that Mr C had been arrested and was on bail with conditions not to approach the family directly or indirectly. He had been a person known to the mother and her family and had on occasions cared for the children.
The mother provided an affidavit sworn on 13 November 2012 in which she confirmed that her present husband, Mr S, no longer resided with the family. She maintained that there was still regular contact with him and that they remain good friends.
The mother also referred to the support she was receiving from Families SA.
Orders Sought
In the case outline prepared on behalf of the applicant father for the hearing before Federal Magistrate Brown (as he then was) in March 2011, the father sought orders that all three children live with him, that the mother and father have equal parental responsibility for the children, that the children spend time with the mother for one half of each school holiday period and at other times as agreed between the parties with children having telephone communication with the mother “whenever they wish”.
It was also proposed that the child J spend time with the maternal aunt and the maternal grandmother “as agreed between the parties and have telephone communication with them whenever she wishes”.
When the trial was resumed in November 2012, the father continued to seek orders that D and E live with him and that the children spend time with the mother for one week of each of the short school holidays and three weeks of the Christmas School Holidays in Adelaide supervised by the children’s grandparents.
In the original case outline relied upon by the mother in February 2012, the mother sought orders that she and the father have equal shared parental responsibility for D and J, that the mother have sole parental responsibility for E, that D and E live with the mother, J live with the maternal aunt and that the father spend time and communicate with D as agreed and failing agreement “as determined by the Court” and that the father and mother spend time with and communicate with J at times as may be agreed or as ordered by the Court.
When the trial resumed in November 2012, the mother continued to seek orders that D and E live with her and that J live with the maternal aunt. In her affidavit filed on 13 November 2012 the mother sought orders that provided for the father to have regular time spent, but that regular time spent only take place in South Australia and remain supervised.
The maternal aunt, Ms Y Brace, sought orders that the child J live with her and that she have sole parental responsibility for J. The orders sought by the maternal aunt in the case outline contained detailed and specific arrangements concerning the consultation between the maternal aunt and the mother and father concerning J’s welfare and time spent between J and her mother and father.
The submissions on behalf of the second respondent included proposals to inform J about her biological parents in a manner that it was submitted would reduce any emotional or psychological risk.
After the first part of the trial concluded the Independent Children’s Lawyer’s counsel provided the Court with proposed orders (12 April 2012). A summary of the orders proposed by the Independent Children’s Lawyer at that time was that the mother and father have equal shared parental responsibility for D, the mother have sole parental responsibility for E and the maternal aunt have sole parental responsibility for J. It was proposed that D and E live with the mother and that J live with the maternal aunt. At that time it was also proposed that D spend time with the father for one half of school holiday periods and that at other times as may be agreed. There were proposals for D to communicate regularly with the father by telephone.
It was proposed that E be given the option to attend visits with the father if she wished. The proposals also included arrangements for the sharing of the cost of the children’s travel. The detailed orders provided for injunctions restraining the parties from discussing J’s parentage with J or in her presence and making arrangements for therapist or counsellor to assist J, the parents and the maternal aunt, in explaining to J who her biological parents were once she reached the age of seven.
After hearing further evidence when the trial was reopened, the Court received further final submissions on the 29 November 2012.
The Independent Children’s Lawyer’s counsel submitted that, having heard the further evidence, the previous proposal of equal shared parental responsibility for D was not pursued. The Independent Children’s Lawyer asked the Court to make orders which provided for the mother to have sole parental responsibility for D and E and that the maternal aunt have sole parental responsibility for J.
The Independent Children’s Lawyer continued to maintain that it was in their best interests for D and E to remain living with the mother in South Australia and that J continue to live with the maternal aunt.
Further, following the evidence of the Family Consultant, counsel for the Independent Children’s Lawyer submitted that there should not be any time spent or communication between the father, D or E, nor J.
The Independent Children’s Lawyer continued to maintain that the maternal aunt should have sole parental care for J and the child J should live with the maternal aunt together with orders in relation to counselling concerning her biological parents.
At the conclusion of the trial in late November 2012, counsel for the maternal aunt maintained that if D and E have no contact with the father, then the same should apply to J. He maintained the position that J should remain living with the aunt who should have sole parental responsibility for J.
Taking into account the passage of time it was then proposed that the arrangements for J’s counselling should commence on her eighth birthday rather than on her seventh birthday.
Counsel for the mother made final submissions in November 2012 that mirrored the submissions of the Independent Children’s Lawyer namely, that the children D and E should live with the mother who shall have sole parental responsibility for them and that there be no time spent or communication with the father. Those orders were sought both as interim orders and final orders.
At the conclusion of the trial the father continued to maintain that there should be orders made which provided for D and E to reside primarily with him and for them to spend half the school holidays with the mother. This time with the mother was to be unsupervised.
On 29 November 2012 orders were made pending final judgment that the mother have sole parental responsibility for D and E, that they live with her, that she be permitted to move from G to the M region. The orders providing for the father to spend time with D and E were suspended.
Applicable Law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with matters relating to children. In particular sections 60B, 60CA, 60CC, 60CG, 61DA, 64C and 65DAA are relevant.
Set out below are the specific sections 60B, 60CA, 60CC, 61DA and 65DAA as they apply to these proceedings which were commenced in 2010.
Section 60B
Object 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.
Section 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 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.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 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 for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(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.
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), 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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), 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;
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.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child 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.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) 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 (paragraph 60CC(3)(c));
(b) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(6) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
The Family Court of Australia is a superior Court of record in which the provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) would normally apply. Section 140 of the Evidence Act provides:
Section 140
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(a)the nature of the subject-matter of the proceeding; and
(b)the gravity of the matters alleged.
The Court is however bound by the particular provisions of the Family Law Act 1975 (Cth) in Division 12A, subdivision D headed “Matters relating to evidence”. Section 69ZT provides:
Section 69ZT
Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child- related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re- examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b)a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
The requirements of s 65DAA were discussed by the High Court of Australia in the decision of MRR v GR (2010) 240 CLR 461. At paragraph 466 it states:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Discussion of Evidence
When the trial first began the father relied solely upon the affidavits which he had sworn (three affidavits 7 December 2009, 17 February 2010 and 8 February 2011) together with his Amended Application filed on 9 February 2011.
Subsequently, he relied on further affidavits when the case was reopened, being the affidavits filed on 20 August 2012 and 13 November 2012 and the affidavit of his solicitor, to which was attached documents produced pursuant to subpoenas to the Queensland Police Service and the Department of Communities (Child Safety) Queensland. He relied upon his mother’s affidavit sworn 28 November 2011 and the affidavit of Mr V e-filed on 17 February 2012.
The father gave oral evidence and was cross-examined in detail. During the cross-examination by counsel for the mother he was questioned about allegations that the mother had made and the police records concerning domestic violence. He admitted that there had been some incidents, but said that he did not start any of the incidents, but the mother did.
At times during this part of the cross-examination the father appeared to “smirk” or “giggle”.
During the cross-examination he was also asked whether he was prepared to enter into a shared care arrangement with the mother. The father said that he would agree to that if the mother lived in Queensland. Shortly, thereafter in cross-examination he was asked whether he had acknowledged that she was capable of looking after the children for fifty per cent of the time, and he replied words to the effect that he did not have confidence in her at all. This contradicted the previous offer he had made and was one example of the inconsistencies in his evidence and the apparent lack of understanding of the children’s needs.
In his cross-examination he also admitted discussing with the children D and E the background to the death of E’s father.
During this part of the cross-examination the father also said that during a conversation he had with E about her father’s death, she had said words to the effect that she wanted to kill herself, so she could be with her father. When asked immediately after that whether this was something she said a couple of times and therefore it was a serious problem he agreed, but then admitted that he had not told anyone about this, nor had he sought any help at the time.
When challenged as to whether he had informed the Family Consultant, Mr H, about this during the first interview he had by telephone with Mr H, he then said words to the effect that he did not know whether she was serious or joking. He then attempted to justify his behaviour saying words to the effect “he could have turned her back on her when he found out he was not her father”. He then attempted to excuse his lack of action by saying the child was only with him on holiday.
Subsequently, when cross-examined about telling the children D and E that E’s father was an intravenous drug user, he was also questioned about whether he had told the two girls that their mother used marijuana. During this evidence the father looked particularly uncomfortable.
At about the same time when questioned about whether he had told E that her father had “abused her as a baby” or had been a “nasty drunk” his reply was words to the effect that “he had made a joke at the time about the father not even changing [E’s] nappy”. At this time he appeared to think the evidence was amusing and laughed.
At one time during the cross-examination the father was being questioned about D and the weight to be given to D telling him that she wanted to live with him, taking into account her age. At one part of the cross-examination the father said words to the effect that he was only doing this (meaning the litigation) because D keeps telling him what she wants.
When questioned about the orders which he sought, the father confirmed that in the application he made on 17 February 2010 it indicated that he wanted the child J to live with him. On questioning about this, he said that it was not his intention that J live with him and that it was “just a standard order by my solicitor”. He confirmed in July 2010 he did not want an order that J live with him. He confirmed that he had always known that J was living with the maternal aunt.
During cross-examination he also said that he did not really believe at the time of the child’s birth and shortly thereafter, that he was the father of J. The father confirmed in cross-examination that if the Court decided that D and E were to live with the mother, then he would agree for J to continue to live with the maternal aunt.
During cross-examination by counsel for the Independent Children’s Lawyer, the father was questioned about his applications before the Court. He then told the Court that he was originally “trying to save [D]” but the solicitor said that he had to include all three children. He said at the time that he thought he had told the maternal aunt on the telephone that he was not seeking orders in relation to J.
When cross-examined by counsel for the Independent Children’s Lawyer, the father appeared vague in his answers about his future plans for the children, saying words to the effect that he “I would just like to keep them happy and that arrangements would be left to the children’s wishes”.
When cross-examined about the proposal he had for equal shared parental responsibility in the context of him not valuing the mother’s opinion, he said words to the effect that she could make her opinion known but he necessarily did not have to take notice of it. He gave his excuse for the application for equal shared parental responsibility that it was just “a standard order” and that he thought the parenting had to be shared.
When cross-examined about the results of the drug tests, one of which was delayed by four days after the request, and the other which indicated “very dilute urine”, the father denied that he was trying to hide any improper drug consumption. His response was that the urine was very diluted because he drank a lot of water.
The father admitted to smacking D once and E once. He then said it was once or twice. He said that he had been advised that it is probably not something that he should be doing. He admitted that it was appropriate for the mother to be concerned about that form of discipline by him.
The father’s evidence was unreliable. He demonstrated little insight into the needs of the children; showed little understanding of responsible parent behaviour. He had not given sufficient consideration of separation of children from each other and from the mother.
The father relied upon the evidence of the paternal grandmother. She resides in town U, Queensland, which she said was approximately four hours and 20 minutes away from Brisbane by train. She gave evidence of having contact with the children when they visited the father and that they had an active, happy time with him. Her evidence was generally supportive of her son.
The evidence of Mr V was related to the hours that the father worked. He did not know the father personally. He had not met him.
The mother relied on her affidavits filed on 24 February 2011 and 17 January 2012, the affidavits of Mr S filed on 24 February 2011 and 1 February 2012 and the Drug Screen Tests annexed to her solicitor’s affidavit filed on 23 January 2012.
The mother gave her evidence. The mother was questioned about the results of the drug test in December 2011. Her explanation was that she had been on painkillers and sleeping tablets. When asked about the cannabis result, she said that the weekend prior to the drug test that she had a very small “joint”, her explanation being the stresses from the psychiatrist appointment and the pain in her back.
Counsel for the father, Ms Kovacs, cross-examined the mother. The mother denied misleading the father about the children. She confirmed that he had paid some child support for E and that he had been named as the father on the birth certificate.
During the cross-examination the mother also gave evidence about her ongoing health issues and present and proposed ongoing treatment and medication. She was cross-examined at length about the arrangements in place for the care of the children, what time she rose in the morning, who prepared the children’s meals and who generally attended to their care. In particular she was questioned about how much she relied upon her daughter Q’s assistance.
The mother was cross-examined about allegations concerning the failure to supervise the children adequately and the disruptions in the household, including the challenging behaviour of the children and the help that she had sought to assist her in their care.
The mother admitted that the older child Q had received counselling and had in the past exhibited difficult behaviour including learning difficulties.
During cross-examination she responded appropriately to questions about not allowing her seven year old daughter to make decisions about what was best for her as she was too young.
Counsel for the Independent Children’s Lawyer cross-examined the mother about her proposals for each of the children to spend time with the father, in particular, the arrangements she proposed for D to spend time with the father and her proposed plans to move from town G.
The mother gave evidence detailing the arrangements she had made for the assistance to be provided for her particularly in relation to the care of the children and household management.
Cross-examination of the mother by counsel for the Independent children’s Lawyer indicated that there had been domestic violence incidents involving the mother and her then partner, Mr S.
Mr S gave evidence. He said that he was living in G and he was unemployed. He gave his version of the domestic violence incidents which occurred whilst he was living with the mother and children in G. He said that he had apologised to the mother. He used words to the effect that he had lost his cool and had over-reacted.
When cross-examined by Ms Kovacs for the father, he referred to his observation of the mother’s attempts at disciplining the children and the difficulties in their relationship.
Counsel for the Independent Children’s Lawyer cross-examined Mr S in particular about allegations by the children that he had smacked E in particular.
Mr S admitted inappropriate behaviour at times, including disagreements with the mother which had involved the police.
The father was recalled for further cross-examination following upon a text message he had sent. During the cross-examination the father admitted that he had proposed that J live with the maternal aunt. He said that he would agree to this for as long as she could look after J. It was put to him that the arrangement he was proposing was an attempt by him to use J as a “bargaining chip”. His response certainly indicated that he was willing to agree to arrangements proposed for J’s future care.
The maternal aunt gave evidence about J’s health and developmental difficulties and the assistance she was hoping to receive, and in particular her current concerns about J being in the spectrum of autism.
The maternal aunt was cross-examined by Ms Kovacs, counsel for the father, at length about her motives for raising J as her own child from very early age.
The maternal aunt maintained that the father was aware of the arrangements and did not oppose them, nor did he suggest a paternity test after she was born.
The maternal aunt gave evidence about the advice she received about telling J about her actual parents, the age it should be done and the assistance she should receive for it. Her evidence was that the father had had very limited association with J and had never spoken directly to her.
During cross-examination the maternal aunt reluctantly conceded that eventually she would consider allowing J to spend time with the father provided that it was at the same time that D and E were also spending time with the father. She did not want to be forced into providing J to spend time with the father, nor communicate with him until she was satisfied that it was in J’s interest and that it was something that J wanted.
The maternal aunt was cross-examined in detail about her own health issues due to being overweight and osteoarthritis issues.
The counsel for the Independent Children’s Lawyer, Mr Boehm, cross-examined the maternal aunt and in particular obtained informed concerning her plans, both financially and in relation to future residence. She also gave evidence about proposals for J to be introduced to her father over a period of time and the possible time she would spend with the father if the relationship was positive and J expressed a desire to spend time with the father. She opposed any arrangement which required her to force the child to spend time with the father.
The maternal grandmother, Mrs B, gave her evidence. During cross-examination by counsel for the father, the maternal grandmother confirmed that she was in receipt of a disability pension due to a degenerative back condition.
When cross-examined by counsel for the mother, the maternal grandmother confirmed that her relationship with the mother was now good, but had in the past been difficult. Her evidence supported the mother’s case. She confirmed that the mother was receiving assistance in her household management from Social Services and that she would also provide the mother with support.
When cross-examined by counsel for the Independent Children’s Lawyer, the maternal grandmother said that she did not support J having a relationship with the father “at this stage”.
The evidence of support worker Ms P was interposed during cross-examination of the mother. She gave evidence about the assistance proposed to be provided to the mother in the future for her household skills and financial management.
During cross-examination of Ms P reference was also made to the domestic violence between the mother and her then partner, Mr S, in early 2011 and January 2012.
During cross-examination by counsel for the Independent Children’s Lawyer, particulars were given about the mother’s allegation that Mr S had tried to hit her during one of the domestic violence incident, which was reported. She acknowledged that the mother confirmed that Mr S had moved out and was only staying with her a few nights a week. The mother was continuing to have counselling about managing these difficulties.
When the matter resumed before me on 2 April 2012, the Case Worker, Ms P, was re-sworn and gave further evidence about her ongoing involvement with the family to assist the mother in managing the care of the children and other household responsibilities.
The maternal aunt, the second respondent, Ms Y Brace, was then recalled and gave further evidence concerning the welfare of the child J and the possible diagnosis for Autism and Asperger’s Syndrome.
The mother was then recalled and gave further evidence about developments since the last hearing which included the abusive messages she had received from the father and the difficulties the mother says she had in arranging the father to speak to the children on the telephone.
The father was then recalled and gave further evidence about the telephone calls and the messages. The father denied using the offensive language to which the mother referred.
He did however refer to being frustrated with what he claimed to be the mother’s behaviour. When cross-examined by counsel for the mother, he was asked about the number of calls he made on 26 March 2012. When confronted with the details of the calls and checking his own telephone, he admitted that there were two calls. He then said that he did not remember swearing at the mother. He then admitted that he had become annoyed with the mother and said words to the effect “what the fucks wrong with you, you stupid bitch”.
When cross-examined he admitted that this language was not appropriate. He however, continued to refer to his frustration and did not take responsibility for his abusive language.
The author of the Family Consultant’s report, Mr H, gave evidence on 3 April 2012. Counsel for the Independent Children’s Lawyer put the various parties’ proposals to Mr H. His evidence confirmed that J should continue to live with her aunt.
The expert’s evidence was that the father’s proposal paid no attention to the child’s views of the world and the close bond that J had with the aunt. He said the expert evidence was that the father’s proposed arrangement for J would “completely disrupt” the child emotionally.
He reiterated that the father’s proposal showed no understanding of how the arrangements might impact upon the child. Mr H’s evidence was that the mother’s behaviour in the past and her history suggested that she was a “fairly marginal parent”, but noted that the mother was receiving assistance and was the subject of scrutiny.
Similarly, in relation to the children D and E, the Family Consultant emphasised that the father’s proposed arrangement would disrupt their lives and did not provide the same scrutiny as the mother’s arrangements provided. His assessment was that the difficulties of the children would be a heavy responsibility for which the father was not well equipped.
When questioned about the issue of parental responsibility, Mr H emphasised the inability of the mother and father, or the father and aunt, to have any common understanding or an ability to discuss and negotiate. He also highlighted the distances between the parties.
Mr H’s evidence also expanded on the evidence of the arrangements which need to be made for J to be told about her correct parentage.
Counsel for the father cross-examined Mr H at length, emphasising the close relationship that the father claimed to have with the children D and E. Mr H maintained his cautious approach to informing J about her father and mother and the need to rely upon appropriate expert advice and assistance.
When cross-examined by counsel for the mother, Mr H was told that there had been a proposal by the father that D live with him, E live with the mother and that J live with the aunt. Mr H’s evidence was that this showed a lack of insight by the father if he was supporting the mother having one child but not two.
When he was referred to the abusive telephone message left by the father to the mother, Mr H said that this emphasised how much work needs to be done to bring about a common understanding of the parties’ parenting roles with the children.
Mr H’s evidence was that the father’s behaviour towards the mother and the way he expressed himself to the mother indicated that shared parenting could not succeed and any arrangement which required them working together concerning the children’s needs would just bring about further conflict.
The evidence of Dr N, a Child and Family Counsellor confirmed that it was important not to undermine the relationship J had with the aunt, who she believed to be her mother. His evidence maintained that the older the child was the better it would be for that information to be managed by her. He also indicated that all the messages given to the child concerning her relationship should be consistent and that the process of assessing the child and making arrangements to inform the child of her parentage should be progressed slowly. It was important not to undermine the child’s secure attachment with her aunt.
During his evidence he was particularly cautious about the benefit and timing of any proposed interaction between the father and J.
Dr T gave evidence concerning the medical treatment he provided to the mother and his diagnosis of her condition, physical difficulties (including injury to her shoulder), depression and anxiety.
He was cross-examined at length by the father’s counsel concerning the medication he had prescribed and the difficulties arising for the mother caused by her obesity, depression and anxiety.
During cross-examination by counsel for the Independent Children’s Lawyer, Dr T emphasised the need for the mother to continue with counselling, assistance from a mental health social worker and the need to ensure that the mother improved her health and avoided any drug dependencies.
On 16 April 2012 I heard detailed submissions from counsel and reserved judgment.
On 13 September 2012, the matter was brought back before me as a result of the father retaining D and E. The mother made arrangements for the return of the children.
The father’s position was that D had been sexually assaulted by a friend of the mother’s whilst she was meant to be in the care of the mother.
Further affidavit material was received and directions made for the further hearing of the matter. The Case was reopened. The following interims orders were made on 13 September 2012:
1.The matter is listed to 27, 28 and 29 November 2012 for the reopening of the evidence in relation to this matter before the Honourable Justice Dawe.
2.The parties are to file and serve any affidavits they wish to rely on by 4.00 pm on 12 November 2012.
3.Leave is given to the father to issue a subpoena to:
a) Detective [W] to give evidence and copies of documents in relation to the allegations of the children [D] and [E] concerning Mr [C] PROVIDED THAT any objection to give evidence or produce documents is listed before a Registrar and if necessary a Judge before 12 November 2012;
b) South Australian Police for their records and made returnable to a Registrar in the usual way.
4.Leave is granted to the parties’ solicitors to inspect and if necessary copy documents produced under subpoena to:
c)Queensland Department of Communities (Child Safety)
d)Families SA
e)Queensland Police
ON CONDITION that no copies of any documents are released to any of the parties other than the Independent Children’s Lawyer.
5.The parties take the necessary steps to register with the [M] Children’s Contact Service (“CCS”) and that the father spend supervised time with the children [D] and [E] at the CCS at times available at that service during the September/October 2012 school holidays.
6.Leave is granted to the parties’ solicitors and the Independent Children’s Lawyer to inspect and if necessary copy documents pursuant to all of the subpoenas which have been issued ON CONDITION that the copies are not made available to the parties and retained by the solicitors subject to the copies being made available to the Court by way of annexures to affidavits where necessary.
7.Until further order the father have telephone contact with the children once per week and providing such telephone contact take place if supervised by the mother.
8.The question of the mother’s costs in relation to the Application in a Case filed on 13 July 2012 is reserved to the final hearing.
When the matter resumed before me on 27 November 2012, I heard submissions in relation to further evidence and subpoena material. On behalf of the father, it was submitted that the mother’s capacity to keep the children safe was impaired. It was submitted on behalf of the father, that the mother had “facilitated and enabled” a sexual assault of the children by a neighbour and friend, Mr C, because she had used him as a baby-sitter.
The father was recalled to give further evidence. His evidence was that in July 2012 after hearing the comments made by the children, he had planned to return the children but after the interviews with the police it was too late to get to the airport. When asked “when he intended to return the children” he said that he was going to earn some money within a couple of weeks.
His evidence in relation to why he had not returned the children was confused and inconsistent, referring either to the children not wanting to go back to their mother, or the need for him to find the money to buy the tickets.
During cross-examination by counsel for the mother, the father admitted that he knew about the allegations in April 2012, but had done nothing about it. It was only then when being cross-examined about his awareness and failure to act, that the father conceded that he now realised that he should have done something in April 2012, rather than leaving it until July 2012.
During the cross-examination he confirmed that he had been told information by D on the Thursday evening, but did not take any action until the Monday morning. It was put to the father in cross-examination that it was entirely possible that the incidents to which E was referring was an incident which occurred between Q and her boyfriend I, and not Q and Mr C. He denied this and said that E had told him that the reference was to Mr C trying to “rape” Q.
Notwithstanding this evidence, the father again confirmed that he had not made any contact with the mother about this in April 2012 and had not taken any action himself until July 2012.
When cross-examined about the information E had given him about seeing Mr C “raping” Q, he confirmed that it seemed to him that it was something someone had said to E and she was repeating it. He said E was not upset at the time and confirmed that she seemed to be repeating something someone had told her. He then confirmed that D had “backed her up” and said “Yeah that happened”. When further questioned about the information he had been given, he changed his evidence by saying that he did not know whether to believe E at the time.
The father was also questioned about whether he had asked E who had told her this and he replied “No he had not asked her”. When asked “why?” his response was words to the effect that “I guess I was in shock”.
The mother was then recalled and gave evidence further evidence confirming that her daughter Q continued to live with her. She was then cross-examined by counsel for the father which in particular dealt with her relationship with Mr C.
The mother gave evidence about the friendship she had with him and his assistance he had given her in relation to child minding. She said that she had no reason to believe that he would behave inappropriately with the children. She confirmed that as soon as she heard of the allegation she had ceased any contact with Mr C, nor did she permit the children to have any contact with him. She had no reason to disbelieve the statement that D had made concerning Mr C’s behaviour. She said that if she had known of Mr C’s previous police involvement she would have acted sooner.
The mother’s evidence was that Mr C had come to her as someone recommended by the church and had been involved in youth camps and youth groups.
During the mother’s cross-examination, she gave convincing evidence that she believed that Mr C was an appropriate person to be assisting her in the care of the children. She denied having any prior knowledge of Mr C’s use of pornography.
The mother gave evidence about the arrangements she had made to protect the children whilst they were in G to ensure that they did not come into contact with Mr C. She vehemently denied any occasion when she had walked in to find Mr C having sex with Q.
During the cross-examination she gave detailed information about the history of the family relationship with Mr C and his daughter, SS, who was a friend of D at school and who visited the house regularly.
The mother also gave detailed evidence about the difficulties she and the children were experiencing in the small community of G and her wish to move from the town with the children.
The mother also gave evidence about a conversation she had had with her daughter Q about Q being concerned in 2011 that she may be pregnant and the conversation that she had had with Q whilst the other children were in the car. She thought the other children were asleep. There was a conversation about Q’s friend, also called I, having “forced himself” on Q. The mother could not explain why there was a different story allegedly being passed on to the father by the other children.
Mr H, the Family Consultant, was again called to give further evidence on 29 November 2012. He gave evidence about a visit he had conducted to the mother’s home, describing it as not lavish, but describing it as “not super tidy and not super clean”. He maintained his recommendations that both D and E remain in the mother’s primary care in South Australia. When asked about his recommendations for the father to spend time with D and E, he raised his concern about issues, including about whenever they visit the father something will happen, in similar ways it has in the past, causing increasing disruption for both of the children.
Mr H gave evidence that his recommendation was that the time spent should be suspended. He expressed concern about the impact upon the children if they were not returned by the father promptly.
The Family Consultant was told of the father’s proposal that the children live with him and spend time in Adelaide with the mother supervised by the grandparents and if the grandparents were not available, then supervised by him. The Family Consultant did not support this proposal. He emphasised that the parents were highly conflicted. His evidence was that this proposal from the father showed a completely inappropriate attitude and lack of insight to the children’s needs.
When cross-examined by counsel for the maternal aunt, Mr H confirmed that it would, in the ordinary sense, be best if the father was involved in the arrangements to explain to J about her parents, however this would require the father to develop realistic expectations and would depend upon the father’s attitude at the time.
When cross-examined by counsel for the mother, Mr H conceded that he did not believe the parents had the capacity to have equal shared parenting in relation to the child D. He said that the father had no goodwill towards the mother. He therefore did not further support any equal shared parenting arrangement for D as this may just lead to further conflict and further Court cases.
When questioned in relation to the ongoing relationship between D and the father, Mr H’s evidence was that it appeared the father focussed on what was bad about the mother and did not support the mother in any way. His evidence was that the father was very negative and focussed on damaging her relationship with the children. His view that any further time between the father and the children would be at risk of causing further ongoing problems, such as the need for recovery orders.
When cross-examined by counsel for the father, Mr H conceded that he had not further interviewed the father. He conceded that the father’s behaviour may have been one of a parent concerned to protect the children.
Mr Boehm, counsel for the Independent Children’s Lawyer, made final submissions in which he sought orders that the mother have sole parental responsibility for D and E and that the father not have any shared parental responsibility for the child J.
Counsel for the Independent Children’s Lawyer maintained that it was not in the children’s interest for the father to have a parental decision making role because of the conflict between the parents. He continued to maintain that J should reside with the maternal aunt and that D and E should remain living with the mother in South Australia. He also submitted that it would be in the children’s best interests for there to be no face to face time between E and the father and supported the Family Consultant’s evidence that the attitude of the father and the evidence that had been heard established that if there was any benefit to D for maintaining a relationship with the father this was outweighed by the risk that would be caused to D and incidentally, E, by any ongoing relationship.
Counsel for the Independent Children’s Lawyer emphasised the inconsistency in the father’s case, where once he was maintaining that the mother should have only supervised time and was now maintaining that the mother should have unsupervised time. Counsel also emphasised submissions that the father had an extreme lack of insight and poor judgment concerning the children’s welfare.
Counsel for the Independent Children’s Lawyer maintained that the evidence indicated that the father’s poor attitude would continue to destabilise the mother’s household and that therefore the time the children spent with the father should cease immediately.
Mr Treadrea, counsel for the maternal aunt, maintained that the maternal aunt should have sole parental responsibility and that there should be no time spent or contact between J and the father. The suggestion of counselling for J to advise her about her parentage was suggested to commence when she was at least eight years old.
Counsel for the mother submitted that following upon the evidence of the Family Consultant, the submissions for the mother were that it was not in the children’s best interests for there to be any arrangements involving shared parental responsibility or for the children to spend time with the father. Counsel emphasised the father’s failure to take action when he was made aware of suggested possible concerns regarding the children’s welfare in April, but took no action until July 2012. Counsel again emphasised the father’s alleged lack of insight and self-interest.
On behalf of the mother it was maintained that she was protective and had cooperated with the authorities.
On behalf of the father, counsel submitted that the reopening of the case indicated that the father was concerned with the need to protect the children. It was submitted that the mother’s attitude and responsibilities as a parent were called into question and raised the possibility that there was unnecessary risk of harm. Emphasis was placed on the allegations were that abuse occurred whilst the children were in the mother’s care, she having utilised Mr C as a baby-sitter. The father’s case was that the mother had not been vigilant enough to protect the children, or be aware of the issues concerning the children.
It was submitted that D and E should reside primarily with the father and that the mother should have time spent with the children on half school holidays.
Findings and Conclusions
Section 61DA requires the Court to apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibilities (see s 61DA(2) and s 61DA(4)).
The evidence indicates that although D has developed a relationship with the father over the years, the relationship between the mother and father was, and continues to be extremely volatile. There is no capacity to make cooperative decisions concerning the child, whether it is long term or short term.
In relation to the child E, the mother has exercised parental responsibility for the child since her birth, with limited input from E’s father, who is now deceased.
The mother and father have not carried out their role as parents for J, nor exercised parental responsibility since very shortly after the child’s birth. The maternal aunt has not only had the care of the child, but has also exercised parental responsibility for the child.
In all of these circumstances and taking into account particularly the history of the relationship between the mother, father and maternal aunt, the presumption of equal shared parental responsibility being in the children’s best interests is rebutted.
The provisions of s 65DAA are therefore not applicable to this matter.
Even if the provisions of s 65DAA were to apply in this matter, the distance between the parties’ homes and the considerable difficulty in communication between the parties is significant. The provisions of s 65DAA(5) require the Court to consider reasonable practicality in terms of (a) how far apart the parents live from each other and (b) their current and future capacity to implement an arrangement for the child spending equal or substantial and significant time, together with (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise. These factors clearly indicate in this matter that there is no reasonable practicality in the children spending equal time or substantial and significant time with the mother and the father and, in the case of J, the maternal aunt and the mother and father.
Section 60CC
These proceedings were commenced before the amendments to the Act which were made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). The primary considerations require the Court to consider the benefit to the children of having a meaningful relationship with both of the children’s parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
As is frequently the case, in this matter there is a significant need to balance the possible benefit to the children having a meaningful relationship with the mother and father against the need to protect the children from harm.
In relation to the child J I accept the evidence of the maternal aunt and the numerous experts that it is necessary to ensure that J is protected emotionally and psychologically from any early or inappropriate gaining of the knowledge of her actual parentage.
The evidence clearly indicates that J is bonded to the maternal aunt as her primary caregiver and that there would be significant psychological risk if this primary relationship were disrupted.
Whilst the mother and the maternal aunt are capable of cooperating in the future, I do not accept that the father is capable of communicating and cooperating with the maternal aunt and mother to ensure that the emotional and psychological health of J is protected.
Any benefit therefore that might exist in the child having a relationship with the father is considerably outweighed by the need to protect the child from the psychological and emotional harm that might arise from the actions of the father, even if those actions are not considered to be abuse, neglect or family violence.
I accept also the evidence of the experts that J should be informed of her true parentage in due course and with the assistance of appropriate counsellors and experts.
The child E has had the benefit of a meaningful relationship with her mother. Her father is now deceased.
The father maintained that D and E were at risk of harm because he alleged the mother was unable to provide appropriate supervision and care for the children. I accept that the evidence concerning the mother’s failure to maintain proper standards and supervision of the children in the past has been an appropriate concern for their welfare. The evidence now indicates that the mother has accepted the assistance provided by the welfare authorities. The Welfare Officer’s evidence indicates that she was responding well and the concerns for the mother’s care of the children had reduced considerably.
The father’s case was also based upon his alleged concerns for the welfare of the children due to the allegations concerning the risk of sexual abuse of the children whilst being cared for by Mr C. I accept the evidence of the mother that she was not aware of any inappropriate behaviour by Mr C until after the police investigation had commenced. I accept the mother has thereafter taken all necessary steps to protect the children.
The father’s behaviour also raises serious concern, particularly in relation to the failure of the father to take any action between April 2012 and July 2012 when serious concerns about the children’s welfare had apparently been raised by the children at the earlier time.
Having heard the evidence of the mother, the father, the welfare officers and other experts I am satisfied that the mother did not knowingly or negligently, expose any of the children to abuse.
(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;
J was born in late 2005. At the time of the hearing she was not aware that her maternal aunt was not her mother. Any views expressed by J need to be considered in light of that fact. Taking into account her present understanding that her maternal aunt is her mother, the view she expressed should not be given significant weight.
Mr H, the Family Consultant, prepared several family reports. He interviewed the children several times. In his report of 22 August 2010 he refers to his interview with D who was then aged six years and seven months. During that interview D was said to have given “a clear and definite” opinion that she liked living with her mother. She described her as a good mum. When asked whether she would like to live with her father all of the time, rather than with her mother, D answered “I would like the whole family to live together because my family is separated all over the world” (page 11 of the Family Consultant’s report).
During that interview D also referred to “[Mr S]” as her step-dad and said “he is nice” (page 11 of the Family Consultant’s report).
In that report Mr H also deals with his interview with E whom he described as approaching the interview “coyly and cautiously”. She appeared shy and reserved (page 11 of the first Family Consultant’s report). At that interview E was aware that the father in these proceedings was not her father. She referred to her father Mr L as her dad. During that interview E did not appear to be sure as to whether she would be seeing Mr McConaghy, or how much time she would spend with him, but said “it will be good seeing [Mr McConaghy]”
In a subsequent interview with the children referred to in pages 16, 17 and 18 of the first Family Consultant’s report, E reported that she had been having a good time with Mr McConaghy. When asked, said that she was not looking forward to returning to her mother’s care. Her explanation for this is that the mother was bossy and Q (her older step-sister) is very bossy. E also complained to Mr H that the mother’s partner, Mr S, “smacks us a lot”.
During that second interview, D was asked where she would like to live and she said in Queensland so that they could go swimming. She said that she had had a good time with her father and would like to live with him. When asked why, D replied “I don’t know”. D then went on to say that she wanted her parents to live together in one big house in Queensland.
At the conclusion of his report, Mr H says at page 22:
The children are too immature to give any clear direction to this case. The children would appear to enjoy a good relationship with all of the adults. It is clear that they are easily influenced. Their lives are complicated; both children have complex relationships with the adults around them. Their loyalties vary depending on who they are with. The children obviously enjoyed their time with Mr [McConaghy]. Both children are comfortable and confident in their relationship with Mr [McConaghy].
In an updated assessment report of 28 February 2011, Mr H again interviewed the children. He reported on his interviews with the children D and E.
In the interview E was asked about her recent visit to Mr McConaghy in Queensland. She was asked whether she would like to go back to visit him and she replied, “I don’t want to go back. It is not much fun. I want to go to … to visit my Nanny and cousins.” (Page 6 of the second report). When asked if she liked being with Mr McConaghy she replied, “I sort of like being with [Mr McConaghy], I’m not very sure.” She said in response to a question of how Mr McConaghy treated her, she said “he is nice to me.”.
At that interview, E was aware that her father had recently died.
Mr H also interviewed D. She said “it was fun seeing Dad.” During that interview she said that she wanted to spend more time with the father. When asked what it was like living with the mother she said “it is sort of good here.” When asked where she would like to live she answered “I would like to live with my Dad because we have a fun time with him.” (Page 8 of report).
At the conclusion of the report Mr H stated at page 18:
[The children D and E] are no better able to suggest the direction this matter should take than when the writer spoke with them during the course of the first assessment. These two children have no clear or developed understanding of the issues. They are unable to make an independent decision about where their best interests lie. They have no understanding of how their lives would change if they were placed in the care of Mr [McConaghy]. They have no understanding of how their relationships with their mother and each other would change if they went to live with Mr [McConaghy].
A further assessment was carried out by Mr H in February 2012. Mr H sets out the interviews he undertook with D and E. D reported that it had been good seeing her father and was fun. They had been swimming, visiting the park and shopping. At page 8 of the report it says:
[D] had something to tell the writer. She said, “I would like to live with Dad because I don’t often get to see him.” The writer asked her how she would feel about being away from her mother. [D] said, “I would miss Mum.
The report indicates that D had not discussed this with her mother, but when asked how she had worked out the arrangement for school holiday time with her mother, D reported that her father and she had discussed what would happen if she was living with her father. D was asked, but said she did not know if she would miss E if she was living in Queensland and E was living in South Australia. She did say however that they did not get along and that they fight each other.
When the Family Consultant interviewed E on this occasion, E reported that the time she spent with Mr McConaghy was “sometimes good sometimes bad. We threw tomatoes on the roof.” Similarly, when she was asked if she liked Mr McConaghy, E replied, “sometimes yes, sometimes no.” The following exchange also took place:
The writer asked [E] what it had been like for her when she had recently visited Mr [McConaghy]. [E] said, “I got into a lot of trouble because I was naughty.” The writer asked [E] what happened when she was naughty. She replied, “He throws me outside and he smacks me and he smacks [D].”
The writer asked [E] why she is naughty when she is with Mr [McConaghy]. She answered, “he says things about my Dad like he didn’t look after me.”
The writer asked [E] if she knew who she would like to live with Mr [McConaghy] or her mother. [E] said, “I’m not sure who I want to live with.”
On page 14 of the report it states:
[D] clearly wanted to live with [Mr McConaghy]. It is unlikely that she understands what this means at a practical level. She recognizes that she will miss her mother. [D] and her father have worked out a way of dealing with this by the parents taking it in turns during holiday periods to alternate their visits to where each other is living. This plan does nothing to address the broad range of emotional issues which will confront [D] if she is living away from her mother.
In the addendum report prepared by Mr H on 14 February 2012 he deals with the interview with J and reported upon her presentation, but the interview did not deal with issues concerning J’s views.
Following the reopening of the case and planned resumption of the trial, the Family Consultant, travelled to G in early November 2012. He interviewed both D and E.
During that interview, D indicated that she had been frightened to return to her mother. She gave the excuse that “a person over there (she was pointing towards a wall and in the directions of the neighbours) threatened to kill me.”. This was a reference to Mr C. When she was asked whether she was still feeling frightened in her mother’s care, D answered “I feel safe now”.
When asked where she would like to live, D said that she wanted to live with her father “because every time I go back (to Mum) I don’t want to go back because I want to live with Dad”. She said that she would not miss her mother if she was with her father and that she missed her father because “I don’t get to see him much”.
The writer asked [D] where her father is living now. [D] replied, “Dad lives with a girl. I don’t know her name, she lives up the stairs.” [D] continued on, “I think Dad will move house.” [D] did not know where her father might move or what his living arrangements would be.
The writer asked [D] about school. She said, “A girl at school is mean to me. We are usually good friends. She comes over here (to the house) and she is mean to me. The writer asked [D] if she has told her teacher that this girl is mean to her. [D] replied, “at school we are great friends.”
The Family Consultant reported that initially E refused to be interviewed on this occasion. The Family Consultant says in the report that E said that she had had a good visit, she said “I like seeing [Mr McConaghy]”. When asked what she had done with Mr McConaghy on the last visit with him, E replied, “I can’t remember my last time …”.
When specifically asked whether she would like to live with Mr McConaghy, E replied, “I don’t know who I want to live with”.
Under the heading of “Assessment” the Family Consultant wrote:
Despite the comments made by the children to the writer about how they want their living conditions organised both girls appear to be well settled back in their mother’s care. [E] said that she is not sure where she would like to live. [D] was very definite that she wants to live with her father. Both children remain far too immature to make an informed and independent decision about where they should live and how their living arrangements should be organised.
Over a period of time the views of the child E have changed slightly. The child D has continued to assert her desire to live with the father in recent times. The Family Consultant however has concluded that the views of the children should not be given significant weight in this matter. The views however will be considered as one of the issues taking into account the ages of the children, the background to the interviews and relationships with each of the adults concerned.
(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);
The evidence has established that J considers her maternal aunt to be her mother. The relationship she has with the maternal aunt is a mother/daughter relationship formed over the child’s life. J has a more distant relationship with her biological mother and a very limited relationship with the father.
J has enjoyed frequent time with D and E. She has had the benefit of a friendly relationship with them interacting as close friends from time to time.
D has had a close and ongoing relationship with her father.
E has had a relationship with Mr McConaghy, whom she describes as “…”. She has been aware for a considerable period of time that he is not her father. At times E’s relationship with Mr McConaghy has not been a relationship which would be similar to a parent/child relationship.
Mr McConaghy has, from time to time, sought orders which would leave E with the mother, whilst D lived with him. The nature of the relationship between Mr McConaghy and E is therefore considered to be superficial and not one of a parent/child type relationship.
The mother has a strong parent/child relationship with both D and E, who relate to her as their mother.
(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;
E is the child of the mother. The child’s father is deceased. This provision does not relate to the child E.
In relation to the child D, the mother has in the past demonstrated a willingness to facilitate the relationship between D and the father. The recent events, particularly the father’s behaviour in retaining D contrary to Court orders, provides the mother with an explanation for her current attitude towards no longer assisting or facilitating that relationship.
The child J is the child of the mother and father. Both were aware that J had been placed with the maternal aunt. In the unusual circumstances of this matter, the provisions of s 60CC(3)(c) before the amendments are not significant.
(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;
The evidence indicates that there is likely to be a significant, detrimental effect upon the child J if there was a separation from the maternal aunt. I accept the evidence of the Family Consultant in the family report and oral evidence indicating that such psychological and emotional effect is likely to be seriously detrimental to the child’s welfare.
In relation to the children D and E, I also accept the evidence of the Family Consultant and the evidence of the mother and her witnesses which indicate that the detrimental effects upon the children are likely to be significant if they are removed from her care and moved to the care of the father in Queensland.
It is also necessary to consider the likely effect upon the children of any cessation of their time spent with D’s father. I have taken into account the strongly voiced opinion of the Family Consultant concerning the detrimental effect upon the children of the father’s behaviour in retaining the children on occasions.
The evidence indicates that the father’s lack of insight and oppositional attitude towards the mother supports the cessation of the children spending time with him.
The likely effect of an arrangement whereby they do not spend any time with the father is that they will have a more stable, reliable, emotionally and psychologically healthier lifestyle.
Whilst the children continue to reside with the mother, it is more probably that they will spend regular time with J. If the children D and E were to live with the father, the ongoing future time that they would spend with or have a relationship with J is likely to be more limited.
(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;
The evidence referred to the difficulty which has existed in the practical arrangements for the children to travel to spend time with the father and return to the care of the mother. There are significant practical difficulties and significant expense for the parties in making arrangements for the children D and E to spend time with the father.
There would also be significant practical difficulty for J to spend time or communicate with the father because of the risk of serious emotional and psychological harm if this were to occur before proper arrangements had been made for J to understand, cope and appreciate her special circumstances.
As far as communication is concerned, the difficult relationship between the mother and father is a separate factor to be considered. I accept the evidence of the Family Consultant which strongly recommended that all communication with the father cease for the present time, with a view to enabling the children to have a more settled existence and less involvement in the antagonistic relationship between the mother and father.
(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;
and
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
The evidence of the welfare officers and to a lesser extent other witnesses indicated concerns about the mother’s capacity to provide appropriate practical day to day care for each of the children and ensure that their educational needs are met. This also called into question the mother’s attitude towards the responsibility of parenthood and how they were demonstrated by the mother.
Notwithstanding the concerns expressed I accept the evidence of the welfare officer that the mother had taken on the advice and assistance being provided to her and which would continue to be provided to her. As a result the mother’s capacity and attitude had significantly improved. The mother’s past health issues were the subject of considerable concern, however steps had been taken to improve her health and lifestyle.
In the final report prepared by the Family Consultant it was stated:
There have been long term problems in the mother’s parenting. Despite her problems she has demonstrated her willingness to open her parenting of the children to scrutiny and to seek appropriate help and support in her parenting of the children. She continues to do this.
The Family Consultant maintained these views in his oral evidence. I accept his evidence.
In the same report the Family Consultant referred to the father’s actions. He concluded:
Mr [McConaghy’s] actions have done nothing to settle or stabilise the children’s lives. His actions have done nothing to protect [D] or to assure her safety. Mr [McConaghy’s] actions start to raise serious concerns about his future intentions towards [D]. It is clear that he want this child placed in his full time care. It remains unclear what future tactics and strategies he will use to have the child live with him.
Mr [McConaghy] is a potentially highly destabilising influence on [D]. The emotional costs to [D] of continuing to have a relationship with her father are close to reaching the point where the benefits to the child will be outweighed by the possible disadvantages to her.
Mr [McConaghy] is disinclined to support the mother’s parenting of the children. He is highly negative and critical of her parenting. It is unlikely that Mr [McConaghy] will end his quest to have [D] placed in his full time care. This will mean that [D’s] life will remain unsettled and muddled. Her loyalties will be under constant strain and stress. Each time she visits her father she can not be certain that she will be returned to her mother. This will become an increasingly distressing and emotionally pressured situation for the child.
The opinions of the Family Consultant are supported by the evidence of the parties and their witnesses. The father remained negative and critical. I accept the submissions of the Independent Children’s Lawyer that the father’s evidence indicated that he lacked insight as to the needs of the children. The father’s evidence was more focussed on obtaining what he wished and punishing the mother.
Although there were significant difficulties assessed in the development and possible diagnosis for J, the evidence indicated that the maternal aunt had shown appropriate attitude towards her responsibilities as the primary care giver for J, had acted as her mother and had the capacity, with the assistance of appropriate medical and psychological experts, to provide for J’s needs, including her 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;
and
(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;
These are not specifically relevant in these proceedings.
(j)any family violence involving the child or a member of the child's family;
The allegations concerning the behaviour of Mr C were significant. These arose after the trial had concluded on the first occasion.
There are other significant issues concerning the difficulties in the relationship between the mother and father when they had resided together, or were communicating about the children’s needs.
The mother’s evidence was that she had separated from her current partner, Mr S, but that he was still visiting the home from time to time.
The evidence indicates that the mother has from time to time had difficulty in maintaining a peaceful environment for the children. I accept the evidence of the mother concerning her relationship with Mr S. I accept that the mother understands the importance of protecting the children from being exposed to any violence or inappropriate behaviour.
I accept the mother took steps as soon as she became aware of the risk to the children brought about from being in contact with Mr C and has taken appropriate steps to prevent the children from coming into contact or being concerned about coming into contact with him.
(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;
Not relevant.
(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;
In this matter it is significant that the mother, father and maternal aunt have been involved in ongoing proceedings for a considerable period of time. I accept that it would be much less disruptive for the children and therefore in their best interests if the orders were made that would be least likely lead to further proceedings.
The father has in the past failed to return the children to the mother, notwithstanding the existence of orders. This has led to further proceedings. The orders proposed by the Independent Children’s Lawyer discharging any orders for the father to spend time with the children D and E, are orders of the nature which would make it least likely to lead to further proceedings.
In relation to the child J, I accept the evidence of the experts that proper arrangements should be made for expert assistance to be provided to the maternal aunt and J before any steps are taken to inform J about her parentage.
(m)any other fact or circumstance that the court thinks is relevant.
All of the relevant facts and circumstances have been mentioned in the factors set out above. The mother has, and should continue to have, assistance from Families SA.
Conclusion
Notwithstanding the difficulties which the mother has had in maintaining a proper household for the children and the disruptive lifestyle experienced by the children, I am not satisfied that the best interests of either D or E indicate that they should live with the father.
The father’s lack of insight concerning the children’s needs, and in particular his lack of insight in relation to the impact upon the children of his actions in retaining the children, are significant factors which weigh against any order in his favour, whether it be for the children to live with him or spend time with him.
Although the mother has had difficulties in caring for the children and providing for their proper needs, I am satisfied that, with the assistance of her various supporters, the children D and E remaining in her care is a better option for the children, than moving to the father’s care.
The father’s proposal to separate D and E is one of the significant indications of his lack of insight into the children’s needs.
The mother has the capacity to provide for D and E with her supporters. The children remaining together is clearly in their best interests.
Similarly, whilst the children D and E remain with the mother, it is more likely that they will be able to continue to have a relationship with J.
In this unusual matter the best interests of J clearly indicate that she should continue to live with the maternal aunt, whom she understands is her mother and who has the capacity to provide appropriately for her. This arrangement will also allow J to continue to maintain a friendship with D and E.
The orders proposed by the Independent Children’s Lawyer, and accepted by the mother and maternal aunt, for J to be given assistance in understanding her correct situation, are orders which are also in J’s best interests.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 November 2013.
Associate:
Date: 14 November 2013
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Costs
-
Remedies
0
1
3