Millard and Carson
[2016] FCCA 2770
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLARD & CARSON | [2016] FCCA 2770 |
| Catchwords: FAMILY LAW – Parenting – mother’s non-compliance with previous court orders restraining her from bringing the child into contact with the father of her youngest child – capacity to protect child from harm. |
| Legislation: Family Law Act 1975, ss.60B, 60B, 60CA, 60CC, 61DA, 64D, 64, 65D, 65DAA |
| Cases cited: Waterford & Waterford [2013] FamCA 33 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR MILLARD |
| Respondent: | MS CARSON |
| File Number: | DGC 3292 of 2008 |
| Judgment of: | Judge Harland |
| Hearing date: | 3 October 2016 |
| Date of Last Submission: | 3 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Clarkin |
| Solicitors for the Applicant: | John Snodgrass & Associates |
| Counsel for the Respondent: | Dr O'Brien |
| Solicitors for the Respondent: | Bayside Solicitors |
ORDERS
That the mother and father have equal shared parental responsibility for the child X born (omitted) 2003 (“X”)
That X live with the father.
That the mother’s time referred to below is to be supervised by the maternal grandmother at all times the mother and X are away from the maternal grandmother or the mother’s home and the maternal grandmother is to be in substantial attendance when X and her mother are at the maternal grandmother’s home or at the mother’s home.
That the parties will ensure that X attends competition sports events.
CONSENT ORDERS
That all previous orders be discharged.
That X spend time and communicate with the Mother as follows:
(a)during the school term alternate week from 4:30pm, Friday until 4:30pm, Sunday commencing Friday 4 November 2016.
(b)for half of all school term and long summer holidays week about on the dates agreed and in default of agreement, the first week after school ends from 3:00pm on Sunday to 3:00pm the following Sunday.
(c)on Mother’s Day each year from 9:00am to 6:00pm (if that day does not fall within times spent with the Mother);
(d)on each of X’s birthday and the Mother’s birthday for three hours if a school day from 5:00pm to 8:00pm and if a non-school day (if such birthday does not fall within the time spent with the Mother) four hours from 11:00am to 3:00pm or at the conclusion of a sporting/school event that day if X has sporting / school event that day;
(e)by telephone between 6:30pm and 7:00pm each Wednesday and each Saturday (when X is not otherwise spending time with the Mother) with the Father to ensure that X’s mobile phone (telephone: (omitted)) is charged and switched on to enable the call to proceed.
(f)from 12:00 noon Christmas Day to 5:00pm Boxing Day 2016 and each even year thereafter and from 3:00pm Christmas Eve to 12:00 noon Christmas Day 2017 and each odd year thereafter; and
(g)other times by agreement.
That X’s time with the Mother be suspended as follows:
(a)On Father’s Day each year from 9:00am to 6:00pm (if that day falls within time spent with the Mother);
(b)On each of X’s birthday and the Father’s birthday for a minimum of three hours if a school day from 5:00pm and 8:00pm and if a non-school day from 11:00am to 3:00pm or at the conclusion of a sporting/school event that day (if such birthdays fall within time spent with the Mother);
(c)From 3:00pm, Christmas Eve to 12:00 noon Christmas Day 2016 and each even year thereafter and from 12:00 noon Christmas Day 2017 and 3:00pm, Boxing Day and each odd year thereafter.
That the changeover take place at:
(a)The Father’s home on school days with the Maternal Grandmother collecting X; and
(b)Otherwise at the Maternal Grandmother’s home with the Father collecting X.
That the Father be permitted to telephone X between 6:30pm and 7:00pm on a Wednesday and each Saturday (when X is not otherwise spending time with the Father) with the Mother to ensure that X’s mobile phone (telephone: (omitted)) is charged and switched on to enable the call to proceed.
That each party facilitate X telephoning the other party at all reasonable times.
That the fortnightly arrangement in paragraph 5(a) above be suspended during all school holidays and continue on a fortnightly cycle when school resumes.
That each of the parties advise the other of any change in:
(a)addresses;
(b)mobile phone numbers; and
(c)landline numbers,
within forty-eight (48) hours of any change.
That each of the parties advise the other as soon as practicable of any serious illness or injury sustained by X together with details of any treating health professional.
That X continue to attend (omitted) Primary School in (omitted) to the end of 2016 and to attend (omitted) School from 2017.
That without admission of each of the parties by themselves, their agents and servants be restrained from:
(a)Using corporal punishment on X or allowing anyone else to use corporal punishment;
(b)Criticising, belittling or in any way denigrating the other party or the other party’s family in the presence or within hearing of X; and
(c)Discussing these proceedings or any of the documents or reports in these proceedings with X or in the presences or within hearing of X.
That the Mother be restrained by injunction from permitting X to come into any contact whatsoever with Mr S (AKA Mr S) born (omitted) 1962.
That each of the parties take X to all medical counselling and allied health appointments that fall within the time when X is in their respective care.
That X continue counselling with a psychologist.
That the parties be at liberty to attend:
(a)school events where parents are invited to attend; and
(b)sporting events,
that X is participating in.
NOTING
That pursuant to S65DA(2) and S62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Millard & Carson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3292 of 2008
| MR MILLARD |
Applicant
And
| MS CARSON |
Respondent
REASONS FOR JUDGMENT
Much of the focus of this case centres on the risk Mr S presents to X and the mother’s capacity to protect him from that risk.
X was born on (omitted) 2003 (“X”) and is 12 years old. He lives with father and spends supervised time with his mother. Mr S is the father of the mother’s youngest child Y. He was the mother’s partner. There is some doubt as to whether or not their relationship has actually ended.
The parties have agreed on some parenting orders. They address time between the mother and X during school holidays and other special days.
The issues I have to determine are:
a)The risk Mr S represents to X;
b)The mother’s capacity to protect X;
c)Under what circumstances the requirements for the mother’s time to be supervised can be removed;
d)Under what circumstances the restriction on Mr S can be lifted;
e)Whether or not there should be any order for parentage testing and whether or not X should receive counselling about this issue;
f)The allocation of parental responsibility; and
g)Whether or not the parties should ensure X attends all his sporting activities.
The issues identified at [4a) and d)] are intertwined and are discussed at various points in these reasons.
This matter has a long history. It is necessary to refer to this history when considering the current dispute. The first Court proceedings were commenced on 23 September 2008 by the father. Final orders were made by consent on 15 February 2012. The relevant provisions in those orders included:
a)The parents had shared parental responsibility;
b)X live with the father;
c)X spend alternate weekends with the mother from Friday Tuesday;
d)Holiday time and special days.
Significantly, order 14 of the 2012 orders restrain the mother from permitting X to come into contact with Mr S.
Four family reports were prepared in the first set of proceedings.
The father commenced the current proceedings on 7 April 2015. The father commenced the proceedings because the mother breached order 14.
On 1 July 2015, interim consent orders were made providing for the mother to have two hours of supervised time a fortnight. On 27 October 2015 the mother’s time was increased by consent to alternate weekends to be supervised by the maternal grandmother at her home in (omitted). That order is somewhat contradictory as it also refers to the grandmother being in substantial attendance. The orders also provide for X to be enrolled at (omitted) high school. The matter was also listed for a two day final hearing.
A further family report was prepared by Ms A and released on 1 September 2016. Ms A was cross-examined.
Case preparation
Unfortunately it is necessary to comment on the case preparation. Both counsel were briefed very late. It is apparent that both felt there were aspects of the case preparation that was lacking. This was particularly so with respect to the mother’s solicitor. Neither solicitor attended the hearing to instruct counsel at any point during the two day hearing. Both counsel sought to enter into interim arrangements and to have a further hearing next year. That would have meant the hearing being delayed for a year as the next hearing dates are in October 2017. The parties wanted an updated family report which would have meant the family being interviewed for a sixth family report. That would not have served X’s best interests. The issues in this case are not new.
Inexplicably the mother’s solicitor, Mr Rothschild, did not prepare an affidavit by the maternal grandmother despite the fact that she has been supervising the mother’s time for a year. The maternal grandmother was in Court. The mother’s counsel, without objection, sought to prepare an affidavit by her overnight and have her called as a witness. As the father had completed his cross-examination the better course was to sit late and have her give her evidence in chief orally.
When the hearing resumed on the second morning the mother’s counsel sought to rely on an affidavit she prepared overnight by Mr S. It is apparent from that affidavit that Mr S had read the father’s affidavit and also knew about the evidence the father gave in cross examination. The father’s counsel objected to the affidavit saying it was tainted. If the affidavit was to be allowed then the hearing would have had to have been adjourned part heard but considering the contents, I did not allow the affidavit to be relied on. It had been prepared with the knowledge of the father’s cross-examination and therefore was prejudicial to the father and little or no weight could have been placed on it.
The issue of Mr S’s relationship with the mother and treatment of X was a live issue dating back to the first proceedings. He could have been called as a witness much earlier. The mother is not working and is in receipt of Centrelink benefits. I do not know if she is in receipt of legal aid. Regardless of whether a client is a private payer or legally aided they are entitled to have their cases properly prepared with reasonable skill expected by legal practitioners. The affidavit the mother has filed in the proceedings was sworn or affirmed (the affidavit does not indicate which) on the 30 August 2016 and filed on 5 September 2016. The affidavit consists of 24 paragraphs. It contains headings addressing each of the subsections in s.60CC(2) and (3) of the Family Law Act 1975 (Cth) (“Family Law Act”). Rather than providing a narrative the affidavit addresses those subsections. It may be appropriate structure submissions in this way. It is not appropriate for an affidavit. The purpose of an affidavit is to provide the deponent’s evidence in chief. It provides the factual basis for submissions to be made along with the other evidence adduced at the hearing. An affidavit should not include submissions. Much of the mother’s affidavit does. For example under the heading section 60CC(30)(i) there is one sentence which simply says “both parties appeared to take the responsibilities of parenthood seriously”. That is not evidence. There are several other examples.
The father’s evidence
The father relied on three affidavits. In his first affidavit filed on 7 April 2015 he refers to the injunction restraining the mother from allowing Mr S to come into contact with X. He says this order was made because it had been established that Mr S had been violent to X.
The father says that Mr S has also threatened him and made abusive phone calls to him, as a result the father has an intervention order against Mr S which does not expire until 2020.
The father says the mother has continued her relationship with Mr S. She has a child named Y who was born on (omitted) 2014 and is now two and a half years old. Mr S is Y’s father.
The father says that in early 2014 X told him that his mother had moved into Mr S’s home and that Mr S was yelling at him and he often had to stay in his room for long periods of time. The father told the mother in light of X’s revelations, he was suspending the time arrangements and the parents attended mediation through legal aid. They agreed on a parenting plan which included an assurance by the mother that she would continue to comply with order 14 of the final orders made in 2012.
The father says that on 20 March 2015, X was suspended from school as he started becoming violent in the classroom. The father annexed a copy of the school record about that. He says X told him that he’d been staying at Mr S’s home and that he told his mother that he did not want to go there but his mother would take him there anyway. X told him that he stayed in his room and only came out when Mr S was not there. Recently Mr S poked him hard on his head whilst yelling at him and broke his bedroom door after X tried to keep him out of his bedroom.
The father says that the X also started soiling himself again. X has had problems with his bowels since birth and is on medication for it. The father says that the problems increase when he is stressed and anxious and that this has occurred previously when Mr S had assaulted and intimidated X.
The father says he started the proceedings because he cannot trust that the mother will protect X from Mr S given her ongoing failure to comply with Court orders.
The father filed a second affidavit on 26 October 2015. He says that since the interim orders were made for the mother to have supervised time X has become more settled and his school work has improved.
The father also complains that the mother has continued to tell X and others, including parents with children at X’s school, that he is not X’s father and that she is searching for X’s biological father and will arrange DNA testing. The father says that the Court had previously refused her application for DNA testing years ago. The father also complains about a couple of instances which were explored in cross-examination. I will deal with those issues separately.
The father’s third affidavit was filed 5 September 2016. He says that X’s soiling has improved except for around the time of the Court hearing and when it is suspected that the mother is talking about the proceedings with X.
The father complains that the mother is in breach of the orders because not all of the mother’s supervised time takes place at the maternal grandmother’s home in (omitted) but rather they take X to (hobby omitted) events in (omitted). The order which was made by consent is somewhat unclear but it is unreasonable and unrealistic to expect them to spend the whole of the weekend at the grandmother’s home. It would mean that X would not be able to go to the local park let alone his various sporting activities.
The mother has only filed one affidavit in these proceedings on 5 September 2016. The mother does not address the allegations with respect to Mr S in any detail. She simply says that she is spending supervised time because of the allegations with respect to Mr S and “if appropriate” she would be willing to consent to an order that X not come into contact with Mr S.
In cross-examination it was put to the father that the 2012 orders were made by consent, consequently there was no proof that Mr S was violent towards X. Whilst the orders were made by consent, it is important to note that both parents were legally represented and X’s interests were represented by an Independent Children’s Lawyer. The orders were approved by the Court. The Court does not simply rubber stamp consent orders. This Court is also not concerned with proving the allegations but assessing whether or not there is an unacceptable risk to the child.
The father has a personal safety intervention order in his favour against Mr S which does not expire until 2020. The father obtained the orders after Mr S made a series of threatening phone calls to the father including one when he was at the police station making a complaint. Mr S has not contacted the father since then. The father said that Mr S threatened to kill him and said he knew where the father lived and worked. He says this threat was a big part of the reason the final order was put in place for 6 years. The father says he tried to get X included in the order but the Court refused because there were already orders in place in this Court protecting X. Mr S did not attend the local Court hearing. If he wished to contest the order he could have done so. By not attending Court he acquiesced to an order being made against him.
The father’s evidence is that X told him on a number of occasions that Mr S yelled at him and grabbed him.
The father does not accept the mother’s claim that she is not living with Mr S. The mother would not reveal her address. She said she is staying with a friend who does not want her address revealed.
The father gave evidence that X is still frightened of Mr S. In July 2016 X saw Mr S’s car parked across the road from school and soiled his pants. Mr S’s car is distinctive as it has mag wheels and tinted windows. Mr S works at the (employer omitted) across the road from the school. The mother also gave evidence that she drives his car at times as it is cheaper to run than her car. The important issue here is X’s reaction to seeing Mr S’s car.
One of the father’s complaints is about (hobby omitted) which X participates in. He agrees that X enjoys (hobby omitted) and has won several trophies over the years. The father’s concern is that as the (hobby omitted) is in (omitted) which is some 200 meters away from Mr S’s home. The father says the mother takes X to the house with Y (the mother’s youngest son) to see Mr S. The father says that X mentions to him that the mother tells him that his bedroom is in Mr S’s house.
Whilst X has had no direct contact with Mr S had for well over a year, the father says that X is aware that Mr S is Y’s father and that Mr S is always going to be around. The issue is neither about restricting Mr S from seeing his son nor about restricting the mother’s ability to ensure Y sees his father. It is about ensuring that X does not come into contact with Mr S and that X has some confidence in his mother that she will not bring him into contact with Mr S against his wishes.
It is clear from the father’s evidence that the fact that X attends sporting activities at (omitted) causes the father to worry because it is close to where Mr S lives. The father says he would be happy for the mother to spend more time with X if Mr S was not around. He is happy for the maternal grandmother to supervise mother’s time as she will not allow Mr S to come into contact with X. The father remains concerned that the mother will not comply with the orders unless her time is supervised.
I accept that the father is genuinely concerned for X’s welfare and that he feels unable to trust the mother given her past attitude towards the orders and the injunction. The mother’s evidence in Court will not have given the father any confidence. I do not accept the suggestion which was put to the father in cross-examination that he is frustrating the mother’s time.
The father acknowledged the importance of X and Y’s relationship and that his concerns centred around Mr S’s violence towards himself and X, and the instability of the mother’s living arrangements.
Conflict
The father complains that he missed seeing X perform in a school play in the audience because the mother made a complaint about him to security. He says as a result he was not allowed in which resulted in X not seeing him in the audience. The father watched the performance from backstage. The mother says she did not see the father at the school.
The mother complains that the father was abusive when the mother and her mother attempted to collect X three hours early one day. The maternal grandmother says that the mother stayed in the car. The mother went into the father’s work to see if on the off chance X was available to be taken early. X was not there. The father says the mother came into his work place and was abusive.
There was another incident where X was returned three hours late. The father complains that he was not given an adequate explanation. The maternal grandmother says X’s sporting event ran late and she got caught in traffic.
It is neither necessary nor helpful to make determinations as to the rights and wrongs of these incidents. Rather what they show is the level of distrust and poor communication between the parties.
The father says that the only way he can have confidence that the mother is if she moved away from Mr S and married someone else.
It is clear that the trust between the parties has broken down and the mother needs to take responsibility for that.
The mother’s evidence
The mother’s evidence about her living arrangements since the parties separated in 2008 was somewhat confused. The mother says she is currently living in a friend’s home whose name is Ms J and has been living there since 2014. She says she moved in about four months after Y was born.
The mother says that after Y was born she moved in with Mr S at his home at (omitted) for Y’s sake. I do not accept the mother’s evidence that they were not in a relationship at that time.
The mother started working for Mr S and they lived at his (business omitted) where two offices were converted into bedrooms. In 2009 or 2010 she says they moved out of the (business omitted) because it was not big enough and X did not have anywhere to play.
The mother was asked to describe the living area in the (business omitted). She said there was one bedroom upstairs and one bedroom downstairs. The toilet and bathroom were downstairs. She says X was never locked in his room and never shut himself in his room. There is no toilet upstairs. The mother said that X slept in the room downstairs and Mr S slept upstairs as they needed privacy.
The maternal grandmother contradicted the mother’s evidence on this point. The maternal grandmother gave very clear evidence that X’s bedroom was upstairs and that he was not allowed to go to the toilet unaccompanied. This is consistent with complaints X made to his father.
For a couple of years she lived with her mother her mother’s home at (omitted) together with Mr S.
She lived in a cabin park in (omitted) between 2012 and 2014. She says Mr S lived there too but in a separate cabin and that they were not together.
The mother says that when she was in hospital giving birth to X she met Mr S’s daughter Ms K and they became friends. When she separated from the father and moved out of the home she says that she moved into Ms K’s home and that Mr S helped her move. The mother says that she and Mr S were friends and did not start a relationship until about (omitted) 2009.
The mother says that since Y was born and after she moved out she sometimes stays with Y and Mr S in his house. This is mainly so Y can see Mr S. There are no parenting orders in place between them and she takes Y to Mr S’s home every day for a couple of hours after Mr S finishes work. She says Mr S does not come to see her.
The mother confirmed that Mr S has a distinctive car with tinted windows and mag wheels and says that she was using his car as her transmission failed and Mr S was fixing it. She said she often drives his car when she has to drive to her mother’s home because it is cheaper to run and uses less petrol.
The mother says she is planning to move closer to where X and the father are living. She says she has made more than 20 applications for rental properties in the (omitted) area that have not been successful. She is hoping that she will find something by the end of the year.
The maternal grandmother’s evidence
The maternal grandmother was an active member of her local RSL. For years she has taken the children to a benefit event at the RSL in November, she would like to continue to do that each year. She says the children enjoy it. She also said that there is a Melbourne cup event with the children to dress up in costumes. The father says he is happy for X to attend those events.
The grandmother is retired. She says she has not had any difficulties with Mr S. She says he is a good father to Y and has been good to the mother. She said “he’s done nothing to me”. She says the mother takes Y around to see Mr S for a few hours when he is to working. The split was amicable. The grandmother says she last saw Mr S weeks before the hearing only in passing. She stayed that night at his home when she came to see X in his school play. She stayed overnight so she did not have to drive back home at night.
The maternal grandmother said that X has never said anything negative to her about Mr S. X used to tell her about Mr S taking him fishing. She says that Mr S has always been civil to her and that he was not aggressive towards the mother just verbal, and never laid a hand on X. This evidence which was given during her oral evidence in chief was concerning to me.
She describes X as a happy normal boy who is loving and caring. She says his bowel problems are not good and she worries that he will be picked on at school because he often smells bad.
X is a real team sports person and he loves sports just as her two daughters. She says Mr S has not had any involvement with X’s sport and “he is not allowed near X anyway”. She says the father is not interested in X’s sports. X told the report writer that both his parents come and watch him play sports.
She says the father “rubs me the wrong way. It’s just the way it is”.
Whilst I have some concerns about the maternal grandmother with respect to her opinions about the father and Mr S she impressed as someone who will obey directions of the Court. Also significantly, X trusts her not to allow the mother to expose him to Mr S.
The family report writer
Ms A prepared a family report dated 1 September 2016. The family had participated in four family reports prepared in the earlier proceedings. Ms A read the updated report by Dr W dated 9 February 2012 which was released a few days before the final consent orders were made. She said that report provided background. It had been conducted four years earlier so she was focusing on the family issues today.
Ms A reports at paragraph 7 that she is in the process of leaving Mr S and has moved in with a friend. The father told the report writer that the mother has made this claim in the past during Court assessments and in the lead up to Court dates but that it has not turned out to be true. The father expressed concern that once the Court proceedings are over the mother will bring X into contact with Mr S again.
The father says that the mother frequently emails X about coming to live with her.
The mother wants X to live in a week about arrangement with her and the father. She told the report writer that she did not want to disclose her address and that if she was successful in her application she would relocate to the (omitted) area. As I pointed out at the hearing that this is a classic chicken and egg scenario. The Court would not entertain making an order for week about with her current accommodation being unknown. As I will explain there are other reasons for finding that a week about arrangement would not be in X’s best interests.
The mother told the report writer that she separated from Mr S in March 2016. She said Mr S threatened her but she did not want to repeat what he said. She felt his ongoing verbal violence was having a negative impact on Y. The mother then said that she was waiting for the intervention order to expire so that the restriction on Mr S spending time with X would be lifted.
The mother then went on to tell the report writer that Mr S wanted to clear his name and that X had never been exposed to harm by Mr S. The report writer observed that she made this comment after expressing concern about Mr S’s verbally threatening and aggressive behaviour in front of Y.
X told the report writer that he does not want to live with his mother because Mr S lives there. He wants his time to continue to be supervised so that he can be sure that Mr S is not there. Supervision makes him feel safe. He told the report writer that before supervision was put in place his mother would constantly expose him to Mr S. He said this occurred even though the mother knew she was not supposed to. It is clear that X feels he cannot trust his mother to protect him from Mr S and whist I have some concerns about comments the maternal grandmother made during her evidence, it is clear that X trusts his grandmother will not allow Mr S to be in his presence.
X enjoys spending time with Y but worries about him because Mr S is his father.
The report writer did not conduct observations because X was anxious about the possibility that the mother would bring Mr S to the assessment. The mother said she never intended to do that. Whilst in some circumstances this would be a major limitation of the report, in this case it is not because the parents’ relationship with X is not in dispute. The case turns on the issue of risk. Observation sessions would not assist in assessing this risk.
The report writer expressed concern that the mother has a “significant lack of insight into the anxiety and fear X experiences at the thought that he may come into contact with Mr S into the future”. This is at the heart of the matter. If the mother was truly separated from Mr S, with no intention of reuniting at some point, then there should be no need for her to ever bring Mr S into contact with X. X does not need to see Mr S for his relationship with Y to be maintained and to develop further. The orders the parties have consented to provide for that. Even if the mother does not think Mr S is any risk to X it is troubling that she does not seem able to acknowledge that X is afraid of him and is unable to reassure him that he does not have to see him. In fact the mother seems to do the opposite. X and his father have good reason for not trusting the mother in this regard. Unfortunately this means that in the circumstances of this case supervision of the mother’s time must continue indefinitely. If the order for supervision is discharged it is highly likely that the mother will bring X into contact with Mr S which would place X at an unacceptable risk of harm.
I do not believe the mother when she says her relationship with Mr S is over. Her evidence was inconsistent and her explanations as to why she wants the ban on Mr S to be lifted in future, given her assertion that they are not in a relationship was unconvincing. I do not believe her denials that she did not continue to expose X to Mr S after the injunctive order was made. During the course of cross-examination the mother changed her evidence and stated that thinking about it she did not want X spending any time with Mr S. She also said that she has been in temporary accommodation with her friend for the past two years. I do not accept her evidence. I agree with Ms A’s opinion that the mother’s relationship with Mr S is unstable. I find it is likely to be an off again on again relationship and the chances are high that they will continue to be in a relationship even if they maintain separate homes.
The mother said that Mr S never hit her and that the violence was “just verbal”. She said she understood that violence was not only physical but can also be emotional and psychological.
Ms A rejected the suggestion put to her in cross-examination by the mother’s counsel that the mother was confused about when she was and was not in a relationship with Mr S because of her intellectual disability. Ms A said the mother was very clear in her views and her impression is that Mr S is always in the background.
Ms A gave evidence that X raised the issue of Mr S freely and she had the sense he was fearful of Mr S because of his past experience of Mr S.
She also said that the crux of the issue is that the father cannot be assured that the mother will not bring Mr S into contact with X if she is given the opportunity to do so as she has a history of doing just that in spite of the injunction being in place. She was supportive of the mother having time during school holidays and attending X’s sporting and school activities. She did not accept the proposition that there was less of a risk at sporting events that the mother would not bring Mr S into contact with X. One of the father’s complaints is that (hobby omitted) takes place close to Mr S’s home.
Ms A did not support a shared care arrangement given the history and the acrimony between the parties which X has been in the middle of for years.
Parental responsibility
The mother complains that the father does not offer her the opportunity to partake in decision-making for X. The father says the parties have no effective means of communication.
The mother seeks that the parties continued to share parental responsibility. The father seeks sole parental responsibility.
X is already enrolled in high school the next year. The likely ongoing major issue for X is his health and in particular his bowel condition.
There is no suggestion of family violence between the parties. I need to be satisfied and that if the parties poor communication and conflict is such that it would not be in X’s best interest for his parents to share parental responsibility. This is a decision that should not be made lightly as it is generally good for children to have a meaningful relationship with both parents and for both parents to have input into the long term major issues impacting on that child’s care, welfare and development.
The mother will be spending substantial and significant time with X. I am not satisfied that the communication difficulties between the parents are at such a level that the mother should be excluded from participating in the decision making for the major issues concerning X’s care welfare and development.
It is in X’s best interests that his parents continue to share equally parental responsibility.
Trophies
The father says that X has won several trophies in later years and that X wants to display them in his bedroom. The paternal grandmother says that she has paid for all of the (hobby omitted) enrolments and thinks the trophy should stay with her and the mother.
After it was pointed out that it is not about the adults but about X she somewhat grudgingly said that the trophies could be split and X could choose which ones he wanted to take.
I have some concerns about this and raised it with Ms A. She had same concerns as me that this just puts X in the middle of the conflict where he becomes responsible for managing a dispute between the adults. X should simply be allowed to move his belongings between the two households as he wishes. The trophies are his. I decline to make an order about the trophies.
Sporting commitments
The parties agree that X enjoys sport and is a talented (hobby omitted). When he was with his mother he was involved in (hobby omitted). He plays (hobby omitted) on Sundays. He has won several sporting trophies. The mother often comes to see X play during times he is in the father’s care. The father gave evidence that she has no difficulty with the mother attending X’s sporting events and does not require the maternal grandmother to accompany the mother on these occasions as X is in his care. The orders provided for the continuation of the ultimate weekend arrangements. The father says he does not want to commit to taking X to his sporting commitments on Saturdays because during that time he needs to work on Saturdays and X spends time with his uncle and cousins.
X often spends time with his cousins when he is with his mother and paternal grandmother as the father’s brother and the mother’s sister are de facto partners. They stay out of the arguments between the parents and spend time with both.
The father says that the mother makes arrangements with X directly and doesn’t tell him such that if the father has other commitments on the Saturday and cannot take X to his sport he becomes disappointed. He says that sometimes X does not want to go and he is getting too old to do (hobby omitted).
As it is clearly an activity X greatly enjoys, the father should ensure that X can participate in sporting activities except for those occasions with social or family events or other special occasions. In the event the father needs to work on a Saturday that X would otherwise be in his care then the father should give the mother the opportunity to take X to his sporting events provided that her mother can supervise that time.
The father takes X to see Dr B GP who has been treating X since he was a baby. He prescribes medication for X’s bowel condition.
Telephone communication and welfare checks
Both parties complain about telephone communication. The father says the mother does not call within the timeframe which is provided for in the orders. The mother says she cannot get through to X during the specified times.
Various proposals were suggested during the course of the hearing. The parties have addressed this in the consent orders handed up to the Court after the conclusion of the hearing.
The mother has caused the police to conduct welfare checks on X at the father’s home on three occasions since these proceedings began. The most recent check was carried out on Friday, 30 September 2016. The mother asked the police to conduct of these checks after not being able to speak to X by telephone for a couple of days. She conceded that she made no attempts to contact the father by text or email before doing this. The father says that the last check was carried out at 1.00am. The mother says the police reported back to her at 9.00pm. Particularly given the fact that there are no risk issues raised in the father’s household the mother has overreacted. It was also apparent in an answer during cross examination about this that she did not appreciate that this could be disruptive and cause anxiety for X.
Parentage testing
Parentage testing was in issue in previous proceedings. The mother has told others that the father is not the biological father of X. The mother was married to the father when X was born. She claims they were living separately under the one roof but did not include in her affidavit that the father is not X’s biological father.
The family report writer formed the opinion that the mother lacked insight into how devastating this could be for X.
The mother said the father is not X’s biological father and she was intending to locate his biological father. She said she thought X should know who his biological father is. She showed limited insight into how this might impact X.
The report writer was under the impression that the issue of paternity was conceded. It is not. The mother raised it in earlier proceedings.
Ms A said it is not the right time to deal with this issue given the high level of conflict that X is in the middle of. I have some doubts as to the mother’s bona fides with respect to this issue. She has raised it previously. She does not provide any evidence as to who she thinks the biological father might be and shows no insight into how distressing it could be for X if she were to raise this issue again. If she wants to pursue this issue in the future she will need to do it properly.
Agreement and submissions
At the end of the hearing the parties agreed on consent orders addressing some of the issues in dispute. They address the issue of the mother’s time on alternate weekends, school holidays and special times and telephone contact.
Somewhat confusingly the order made by consent with respect to the maternal grandmother’s involvement with the mother’s time reads as follows:
That such time is to be supervised by the Maternal Grandmother and occur at the Maternal Grandmother’s home in (omitted) and she is to be in substantial attendance.
So that it is clear I do not think it is reasonable to expect that all of the mother’s time take place at the maternal grandmother’s home in (omitted). This has not been what has been happening. The mother and grandmother take X to his (hobby omitted) activities. It would be unduly restrictive for X for him to have to stay at his grandmother’s home the whole weekend not being able to go out anywhere.
I am of the view that the maternal grandmother being in substantial attendance in not enough. The mother cannot be trusted not to bring Mr S into contact with X if her time is not supervised. This does not prevent the mother from attending X’s sporting activities without her mother when X is in his father’s care.
Legal Principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There is no doubt that X has a meaningful relationship with both parents and that this will continue.
There are 13 additional considerations which are set out in s.60CC(3).
X’s views are very clear. He wants to live primarily with his father. Whilst it is clear that he also wants to spend time with his mother and is close to his maternal grandmother, he does not trust that his mother will keep him safe from Mr S.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence as between the parents in this case. The supervision order protects X from being exposed to an unacceptable risk of harm by Mr S.
I am satisfied that both parents want to be involved in the decision-making for X’s welfare and have taken the opportunity to do so, despite disagreements between the parties about this and failures to consult with each other at times.
X is lucky to have close and loving relationships with extended family members on both sides of his family including his paternal grandmother and cousins.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent. I have already made a finding that the parents should continue to have equal shared parental responsibility.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR & GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At [13] of the judgment the High Court said:
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 in 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 court has the 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. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (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.
The mother conceded that an equal shared time arrangement is not currently practicable but wishes for a mechanism where she could seek unsupervised equal time. Currently the distance between the father’s home and the maternal grandmother prevents there from being more than alternate weekend time during school term. The level of conflict between the parties is such that an equal time arrangement would be unworkable and likely to be stressful for X. Even more importantly the likelihood of X coming into contact with Mr S would be much greater if for no other reason because he is Y’s father. For reasons it is not appropriate to make provision for the mother’s time to increase to equal time in the future. An equal time arrangement would also not be workable given the supervision requirements.
I am cognisant of the fact that indefinite supervision orders should only be made in exceptional circumstances and that there needs to be cogent reasons for making that order. The supervision order is onerous on the maternal grandmother as she needs to be present throughout the mother’s time. It is unrealistic to expect the maternal grandmother to supervise the time at home as that would require her to be in the same room as X at all times. It is sufficient if she be at the home. When they go out the maternal grandmother must supervise to avoid the possibility of X coming into contact with Mr S. The concern expressed in many of the cases discussing indefinite supervision is the lack of a review mechanism. Ultimately it is a matter of discretion.[1]
[1] See Moose & Moose (2008) FLC 93-375, per May J at 82,628; in Slater v Light (2013) 48 Fam LR 573; Carpenter & Lund (2008) FLC 93-377; Gorman & Huffman & Anor [2016] FamCAFC 174.
It is significant that in this case supervision will not be at a contact centre but will by the maternal grandmother who has a close and loving relationship with X. X is confident in her and she is willing to continue to perform that role. As X matures he may feel less concerned about Mr S but that is an unknown. I find that ongoing supervision is necessary because I cannot be confident that the mother will protect X from Mr S. It is clear that neither the mother nor the maternal grandmother accept that Mr S is a threat to X. The difference is that that the maternal grandmother has shown she is willing to comply with the restriction and gave straight forward evidence about that. The mother has breached the orders previously and most concerning despite saying she is no longer in a relationship with Mr S she still wants to be able to bring X into contact with him in the future. The raises real concerns about the mother’s parenting capacity in so far as providing for X’s emotional and psychological needs. It is also apparent that the mother is unable to accept that X is afraid of Mr S and that the idea of coming into contact with him causes distress. It would be one thing if the mother disagreed with X but respected his views but I do not think she does.
The mother’s evidence with respect to Mr S was inconsistent she was keen to paint a positive picture of him. I do not find the mother to be a reliable witness. I am not satisfied that the mother will not live with Mr S again once some time has passed after the conclusion of the proceeding. I cannot propose orders that would move away from the mother’s time being supervised.
I am satisfied that these orders are the least likely to lead to further proceedings. It would not be in X’s best interests to have the issues with respect to Mr S reviewed again.
Conclusion
I am satisfied that the orders appearing at the beginning of these reasons are in X’s best interests. They enable him to maintain his significant relationships with his mother, half-brother and extended family whilst protecting from further harm.
I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 28 October 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Consent
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