Minahan and Balfour
[2008] FMCAfam 90
•3 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINAHAN & BALFOUR | [2008] FMCAfam 90 |
| FAMILY LAW – Three year old child – family violence – father’s past willingness to facilitate relationship with mother – allegations of abuse subsequently not pursued – presumption in favour equal shared parental responsibility not applicable – equal time not in child’s best interests. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA Family Law Amendment (Equal Shared Parental Responsibility) Act 2006 |
| Goode & Goode (2006) FamCA 1346 JG v B G (1994) FLC 92-515 at 81,316 KN v Child Representative & Ors (2006) FLC 93-284 |
| Applicant: | MR MINAHAN |
| Respondent: | MS BALFOUR |
| File number: | ADC1482 of 2007 |
| Judgment of: | Kelly FM |
| Hearing dates: | 21& 22 August & 29 October 2007, re‑opened 10 March 2008 |
| Date of last submission: | 10 March 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 3 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Ross |
| Solicitors for the Applicant: | Denise Rieniets & Associates |
| Counsel for the Respondent: | Mr M Boehm |
| Solicitors for the Respondent: | Clark Radin Lawyers |
ORDERS
The child [A] born in 2004 live with the mother SAVE as otherwise specified in these orders.
[A] live with the father as follows:
(a)until [A] commences school for three days and three nights each week at times to be agreed between the parties and in default of agreement from 12.00noon on Sunday until 12.00noon on Wednesday each week;
(b)upon [A] commencing school:
(i)in alternate weeks commencing in the first week of each school term from the conclusion of school on Thursday until the commencement of school on Monday (or Tuesday in the event of a public holiday);
(ii)in intervening weeks commencing in the second week of each school term from the conclusion of school on Thursday until the commencement of school on Friday;
(c)for one half of each school holiday period at times to be agreed between the parties.
[A] spend time with each parent on special occasions as agreed between the parties and in default of agreement as follows:
(a)with the father:
(i)from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day each year;
(ii)from 5.00pm on Christmas Eve until 3pm on Christmas Day commencing in 2008 and each alternate year thereafter;
(iii)from 3.00pm on Christmas Day until 12noon on Boxing Day commencing in 2009 and each alternate year thereafter;
(iv)if not already in the father’s care on [A]’s birthday or the father’s birthday from the conclusion of school (or 4.00pm if not a school day) until the commencement of school or 9.00 am the next day;
(v)if not already in the father’s care on Easter Sunday then from 3.00 pm until 12 noon on Easter Monday;
(vi)on other special occasions at times to be agreed.
(b)with the mother:
(i)from 5.00pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day each year;
(ii)from 5.00pm on Christmas Eve until 3pm on Christmas Day commencing in 2009 and each alternate year thereafter;
(iii)from 3.00pm on Christmas Day until 12noon on Boxing Day commencing in 2008 and each alternate year thereafter;
(iv)if not already in the mother’s care on [A]’s birthday or the mother’s birthday from the conclusion of school (or 4.00pm if not a school day) until the commencement of school or 9.00 am the next day;
(v)if not already in the mother’s care on Easter Sunday then from 3.00 pm until 12 noon on Easter Monday;
(vi)on other special occasions at times to be agreed.
All handovers take place at a neutral venue in [E] to be agreed between the parties until [A] commences school and thereafter handovers take place to and from school where appropriate and otherwise at the agreed handover venue in [E].
Each party has sole parental responsibility for decisions concerning [A] day to day care and welfare while she is in that parent’s care.
The parties consult about long term decisions regarding [A]’s health, education, welfare and development and participate in family dispute resolution appointments to assist them in reaching agreement on these matters.
In the event the parties cannot reach agreement the mother has sole parental responsibility for long term decisions regarding [A]’s health, education, welfare and development.
Each party is restrained from abusing or harassing the other parent and from discussing any matters not directly related to [A]’s care and welfare during handovers.
IT IS NOTED that publication of this judgment under the pseudonym Minahan & Balfour is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC1482 of 2007
| MR MINAHAN |
Applicant
And
| MS BALFOUR |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parties’ daughter [A] born in 2004. [A] is just three years old. The applicant, Mr Minahan, and the respondent, Ms Balfour initially separated before [A] turned two years of age. Following subsequent reconciliations, the parties finally separated in March 2007. [A]’s parents are unable to reach agreement regarding her long term care arrangements and seek the Court’s assistance in this regard.
Both parties are critical of the other party’s past behaviour. While they disagree about many aspects of their past relationship, it is to the credit of them both that neither party makes any significant criticism surrounding the day to day care for [A]. The parties acknowledge that they both play an important role in [A]’s life and that their daughter will benefit from being cared for by each of her parents on a regular basis.
Background
The father was born in 1977 and is 30 years of age. The mother was born in 1982 and is 25 years of age. The parties met in January 2003 and lived together in Adelaide for most of their relationship aside from a brief period in Darwin leading up to the final separation in March 2007.
The relationship was volatile from the start and the parties separated a number of times. The father says that the mother’s family background is one in which physical and verbal violence was “the norm” and that the mother’s own behaviour was often erratic and aggressive and that she assaulted him on occasions.
The mother agrees that the relationship was fraught with difficulties. She developed a gambling problem which placed significant financial pressure on their relationship. The mother says that the father was physically and emotionally abusive towards her and that he assaulted her on numerous occasions. The mother acknowledges that she also responded physically at times, but denies that she was the instigator of physical violence.
At the time of [A]’s birth in November 2004 the parties had separated. They resumed cohabitation after [A]’s birth but the relationship continued to be volatile and chaotic.
Following their separation in May 2006, the mother commenced a relationship with her present partner, Mr S. The father says that the mother was more interested in her new relationship and made no effort to maintain contact with [A] for some six months after separation. The mother says she and the father initially agreed to a five day rotating care arrangement but the father refused to comply after a few weeks. The father denies this.
I will set out my findings regarding the circumstances of [A]’s care across this period of time, but it is clear that [A] was primarily in the care of the father for most of the period between May and October 2006.
In October 2006 the parties reconciled again. The father was offered a contract to play for a Football Club in Darwin and moved there on
24 October 2006. The parties agreed that [A] would remain with the mother and that she and [A] would travel to Darwin over the next few weeks. In mid November the mother again ended the relationship and stayed in Adelaide. The father flew down to Adelaide on 20 November 2006 and returned to Darwin with [A] on 25 November 2006. The father alleges that the mother knew he was returning to Darwin and consented to [A] returning with him. The mother denies this.
The parties were unable to resolve their parenting arrangements and [A] did not see her mother for approximately two months across December 2006 and January 2007. Despite these difficulties, the parties reconciled again in February 2007 and the mother joined the family in Darwin. Within three weeks the mother decided that the relationship was not working. On 10 March 2007 without the father’s knowledge she returned to Adelaide with [A]. It was this event that led to these proceedings.
The mother’s relationship with Mr S ended during her reconciliation with the father but she has now resumed this relationship. The mother and Mr S appear to be in a settled relationship and at the time of the trial in October 2007 were expecting a child, who was born in January 2008. The father also had other partners during the parties’ “on again/off again” relationship. He is presently in a relationship with Ms C and they recently commenced living together.
The father’s application was filed on 20 March 2007 and the parties entered into consent interim orders on 5 April 2007. The effect of those orders was that [A] would live with her mother each week from 10.00am Friday until 12.00noon Monday and with her father each week from 12.00noon Monday until 10.00am Friday. Further orders were made for handovers to occur at the paternal grandfather’s home at [O].
Both parties were restrained from removing [A] from the State of South Australia and from consuming illicit substances. Orders were made for random supervised drug screen testing although no requests for such testing were made by either party. The matter was then listed for trial and a family report ordered.
The father’s position
The father seeks to continue the present care arrangements for [A] such that she live with the mother each weekend from 10.00am Friday until 12.00noon Monday and with the father at all other times. He proposes the parties share special occasions.
The father now has a contract to play with the [D] Football Club, in Victoria. He hopes to continue that employment in the future, with the possibility of a coaching role within the Club. The father considers he has good prospects there as the Club president has offered him employment. During the course of the hearing the father put forward other shared parenting proposals that would facilitate the possibility of seasonal employment in [D] with the Football Club, but did not ultimately pursue those proposals.
The father points to his previous role as the child’s primary care giver across the latter half of 2006. He argues that the existing shared care arrangements have worked smoothly and there is no reason to change. While he acknowledges his employment through the [D] Football Club causes some practical difficulties, he argues they can be addressed and dealt with. However, the father was clear that his priority was to maintain a primary carer role for [A] and he would forego the employment opportunities in [D] if need be.
The father proposes that handovers take place at a mid-way point between his home at [G] and the mother’s home at [C] and suggested [P] or somewhere in that vicinity. He sought the existing injunction regarding interstate travel be removed as he would like [A] to travel with him to [D] from time to time.
With respect to the recent allegations of sexual abuse, the father denies any inappropriate contact with his daughter. He argues that the wife’s allegations were a malicious attempt to undermine his parenting role and his application before this Court and demonstrate the mother’s inability to focus on [A]’s best interests. Nonetheless the father still seeks an order that the parties share parental responsibility for [A] and that the existing care arrangements continue. While he acknowledges that communication between the parties is difficult at present, he is hopeful that it will improve in the future.
The mother’s position
The mother proposes that she have sole parental responsibility for [A] and that [A] live primarily in her care. She does not consider equal shared parental responsibility is in [A]’s best interests given the parties’ past conflict and her allegations of violence by the father.
The mother supports [A] maintaining a strong and significant relationship with the father and proposes that [A] spend substantial and significant time with her father each week from Friday until Monday, until she commences school. Once [A] is at school the mother would prefer to share the weekend time and proposes that [A] spend alternate weekends in the father’s care with an additional night during the intervening week.
The mother considers she is best placed to provide a stable ongoing home environment for [A]. She acknowledges the father was [A]’s primary care giver for a number of months in late 2006 but says this came about because he refused to allow [A] to spend time in her care. While the mother acknowledges the father is a competent parent, she believes his abusive behaviour to her (and to a previous partner) will have a detrimental effect on [A] as she is growing up.
As discussed further in this judgment, the mother made an allegation of sexual impropriety against the father. She withdrew the allegation once the matter had been investigated by the Child Protection Services.
The mother proposes handovers move to the Children’s Contact Centre at [S] to avoid direct communication with the father at handover, or alternatively to a more central location between the parties’ homes. The parties agree that school holidays should be shared and that [A] should spend time with each of them on special occasions.
The hearing
The trial commenced before me on 20 August 2007 and was adjourned part heard to 29 October 2007, with written submissions subsequently presented by counsel. The applicant relied upon his application filed 20 March 2007 and his trial affidavit sworn 15 August 2007. The mother relied upon her Response filed 2 April 2007 and her affidavits filed 2 April 2007 and 16 August 2007, along with the affidavit of her partner, Mr S, also filed 16 August 2007.
A family report was prepared by Ms Treya Derrington dated 8 August 2007. All witnesses were available for cross examination.
As discussed below, the parties were given leave to re-open the evidence following events that occurred in February 2008, just prior to judgment being delivered. The mother filed a further affidavit on 21 February 2008 and the father on 12 March 2008, along with an affidavit of his solicitor annexing documents from the Families SA file. Both parties gave further evidence on 12 March 2008, with cross examination limited to the recent events.
Legal principles
When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision making responsibilities. Section 60CC sets out the factors the Court must consider in determining what outcome will be in the child’s best interests. As discussed by the Full Court in Goode & Goode[1], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.
[1] Goode & Goode (2006) FamCA 1346
The primary considerations which I must take into account are the benefit to [A] in having a meaningful relationship with both of her parents and the need to protect [A] from the harm which may follow if she is exposed to abuse, neglect or family violence. At times these considerations are in direct conflict. For the reasons set out below, I conclude that family violence is a relevant factor in this case. While serious abuse allegations were raised in February 2008, those matters have been investigated and are no longer of concern to either party or to the Court.
There are thirteen additional considerations in s.60CC(3) which I must also take into account. I will address these considerations further in these reasons and will also consider the extent to which each party has fulfilled or failed to fulfil their parenting responsibilities both before and subsequent to separation (s.60CC(4),(4A)). The Court must also ensure that any parenting orders do not expose children to an unacceptable risk of family violence (s.60CG).
When making a parenting order the Court must consider s.61DA. This section requires the Court to presume that it is [A]’s best interests for her parents to have equal shared parental responsibility. The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in child abuse or family violence. The presumption may also be rebutted by evidence that suggests it is not in a child’s best interests for her parents to share parental responsibility equally.
An order for equal shared parental responsibility triggers the effect of s.65DAA which requires the Court to consider whether it is in a child’s best interests to spend equal time with each parent. If equal time is not seen to be in the child’s best interests the Court must consider the child spending substantial and significant time with each parent, which is defined to include weekday times as well as weekends, school holidays and special occasions.
I conclude that the presumption in favour of equal shared parental responsibility does not apply because of my findings about family violence and past parental conflict. While s.65DAA does not apply I nonetheless must consider the applications before me and assess all outcomes in determining [A]’s future care arrangements. Both proposals are akin to equal time or substantial and significant time as defined by s.65DAA.
Primary considerations
I am satisfied that [A] presently enjoys a meaningful relationship with both her parents and will benefit from these relationships continuing as she grows up. Ms Derrington described [A] as a child who “appeared confident about the love of each parent”[2]. She raised no concerns about the child’s relationship with either parent but noted [A]’s own presentation during the assessment possibly indicated that she had “some anxiety about her parenting situation”[3]. Both parents acknowledge the importance of [A]’s relationship with the other and I place significant weight upon this primary consideration in my determinations.
[2] Family Report at para.21
[3] Family Report at para.19
The second consideration focusses upon protecting [A] from the negative consequences of being subjected to, or exposed to abuse, neglect or family violence. Aside from the recent events in February 2008 which are discussed further in this judgment, there is no suggestion that [A] had been abused or neglected by either parent. However, it is clear that the parties’ relationship, both pre- and post-separation, has been characterised by conflict and family violence. This background has had an impact on the interpersonal relationship between the parties and upon [A] herself insofar as she has been affected by the dysfunctional parenting dynamic that exists between her parents.
The Family Law Act 1975 defines family violence to mean:
“conduct whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or reasonably to be apprehensive about, his or her personal wellbeing or safety.”[4]
[4] Family Law Act 1975, s.4
Both parties accuse the other of behaving in an abusive, aggressive and physically violent manner towards the other during the relationship. Ms Derrington’s report considered the mother’s allegations against the father. She noted that the mother’s presentation:
“… was consistent with that of a woman who has emerged from a situation of domestic abuse. She was wary, tearful, lacking in confidence, and described her past actions in a manner which was consistent with having been frightened to oppose the actions of the father until she secretively took the child from Darwin without his knowledge in March 2007.”[5]
[5] Family Report, para.23
Ms Derrington observed that the father “presented as a thoughtful, devoted father”. She went on to note there was little evidence during the assessment to support the father’s allegations that the mother “is enduringly manipulative and conniving”. She concludes that:
“If the court finds that there is evidence or support for the mother’s allegations about the father’s violence, then … it may follow that in other ways, the father may have provided distorted accounts of the past.”[6]
[6] Family Report, para.27
Ms Derrington concluded in her report that:
“[A] will fare best if she lives with her mother and spends substantial and significant time with her father. … [A]’s relationship with her father was clearly very positive and nurturing for her, and the child will benefit from having his involvement in various aspects of her life as she grows, including involvement in her schooling.”[7]
[7] Family Report, para.29
In the course of her evidence, Ms Derrington was careful to place equal emphasis on her concerns regarding family violence as well as the importance of [A]’s ongoing relationship with both her parents. Ms Derrington conceded that the recommendations in her report presupposed that the mother would present collaborative evidence about the father’s alleged violence to her and in previous relationships. If such evidence was not forthcoming, she agreed that her recommendations might be different.
When asked to comment upon the father’s allegations about the mother’s violence towards him, she described it as adding to an overall picture of “a messy, muddily, dysfunctional relationship”. She noted that the social science literature suggests that women and men experience family violence differently and that “male to female” violence tends to create a greater level of fear in a woman than “female to male” violence tends to create in a man.
Ms Derrington referred again to her report where she formed an impression of [A] as “a child who has needed to adapt to a parental power struggle”[8]. Ms Derrington noted that this can result in a child viewing one parent as more or less powerful and this can impact upon the child’s emotional relationship with each parent into the future. She speculated that the parties’ relationship probably fell somewhere in the middle of a continuum between emotional dysfunction at one end and “excessive chronic violence” at the other end. She went on to note that the social science literature suggests that the emotional welfare of young girls is particularly at risk when they grow up in an environment where they see their mother subjected to control and fear.
[8] Family Report, para.28
I will discuss the issue of family violence in more detail but I conclude that the need to protect [A] from the psychological harm that can result from exposure to family violence is significant in my determinations. I am also satisfied that [A] is not at risk of abuse in either parent’s care.
Additional considerations
In addressing the relevant considerations I have focussed on those factors that are most significant in my determinations – each parent’s willingness to support [A]’s relationship with the other parent, parenting capacity and family violence.
Section 60CC(3)(c) the parties’ willingness to support [A]’s relationship with the other parent
The mother alleges that the father actively undermined her relationship with [A] in the months following their separation in May 2006. She says the parties agreed to share responsibility for [A]’s care but she was unable to maintain this arrangement because of the father’s controlling and manipulative behaviour. The mother alleges that the father would only allow her to see [A] at his home or on his terms and that she was unable to challenge him in this regard.
The father paints a very different picture. He says the mother was disinterested in [A], preferring to spend time with her new partner,
Mr S. He says he tried to encourage the mother to spend time with [A]. The mother agrees that the father phoned and sent text messages regularly, but alleges the messages were about their relationship, not [A].
The mother conceded she took no action to remedy the situation in 2006. She did not come to Court or initiate mediation. When asked to explain why, the mother gave evidence that the father repeatedly reassured her that they could “sort it out”. When asked why she did not visit [A] at the father’s home as offered by him, the mother said that she feared the father might become violent or that he would not let her leave the property.
The mother was challenged about this evidence, particularly in light of her subsequent reconciliations with the father in November 2006 and February 2007. She acknowledged that her inaction was difficult to justify. Her only explanation was that she was “still in love with the father” and believed him when he said they would “sort things out”. She went on to say that she knew she shouldn’t still love him, but she did and so she believed his reassurances.
The mother’s evidence in this regard must be seen in the context of her circumstances at that time. She had left the father to start a new relationship with Mr S. I consider that her life in the months between May and November 2006 was more unsettled than she has described and that she did not actively pursue an equal parenting role across this time. However, I find that her evidence regarding the father’s controlling behaviour, his persistent telephone calls and his refusal to allow her time with [A] is genuine. The mother’s evidence about her confused emotional relationship with the father was given in an honest, open manner and I accept her evidence on this topic.
The father’s evidence was less compelling. He said he was concerned about the mother’s emotional stability and lifestyle at this time. The father agreed that he felt the mother needed to “prove herself” as stable before he would allow [A] to spend time with her away from his home. He agreed that across these months in 2006 he may have told the mother that she was “unstable”, “hopeless” and “needed to get her act together”. He agreed that he contacted the mother regularly, but said this was to encourage her to spend time with [A]. He denied sending multiple messages or telephone calls each day.
The father was worried that the mother may “take off” with [A]. He agreed that he insisted she come to his place to “talk about things”. He agreed that he would not allow the mother to see [A] in a public venue across this time because “he did not see the need for it”, on the basis that they had occasionally resumed an intimate relationship across this time and were “getting on well”.
The father’s apparent concern about the mother’s emotional stability is undermined by his decision to leave [A] with the mother in October 2006, while he went on ahead to Darwin. As far as I can determine, the only change that had occurred to alter the father’s perception of the mother as “unstable’ and “hopeless” across the preceding few months, was that he and the mother had reconciled. Likewise, it is difficult to accept the father’s evidence that the parties were “getting on well”, yet the father refused to leave [A] alone in the mother’s care.
I do not consider the father’s apparent concerns about the mother’s parenting capacity in the period May to October 2006 were genuine. His evidence about this period adds weight to the mother’s allegation that the father deliberately withheld [A], to force the mother to communicate with him about their relationship – a tactic that was ultimately successful, given their subsequent reconciliation.
The father was cross examined about his refusal to allow the mother to speak to [A] on Christmas Day 2006. Having heard both parties, I accept the mother’s version of this event. The father agreed that he wanted to discuss certain issues with the mother before he would allow her to speak with [A]. It was clear that the father saw no difficulty with this approach, as he felt the issues were important and needed to be addressed. The father did not appreciate that it was unreasonable to impose pre-conditions on communication between [A] and her mother on Christmas Day, or any other day.
In the course of giving evidence about the events between May and October 2006, the father showed no insight into how his behaviour might be perceived as “controlling” or “manipulative” by the mother. While I do not consider the father was consciously attempting to exclude the mother from [A]’s life, I find his behaviour across this time to be largely self serving. He was focussed on drawing the mother back to a relationship with him, rather than on [A]’s need to maintain a relationship with each of her parents.
The father’s behaviour across this period raises concerns about his willingness to facilitate and encourage [A]’s relationship with the mother. The mother must also bear some responsibility for the events across that period of time. She was aware of the possibility of seeking legal advice and did not do so. Her inaction may be explained in part by her confused feelings about their relationship, but I consider her wish to consolidate a new relationship with Mr S also played a role and distracted her from an appropriate focus on [A]’s need to be cared for by both of her parents.
Fortunately the parties seemed to have moved forward from these past difficulties. They now understand and support [A]’s right to a relationship with both of her parents. The father believes that the recent allegation of abuse was a deliberate attempt by the mother to undermine his relationship with [A], but as discussed further in these reasons, I do not agree with this interpretation.
Section 60CC(3)(k) family violence
This is a significant factor in my determinations. Having considered the parties’ evidence and their demeanour whilst giving evidence on this topic, I am satisfied that both parties engaged in verbal and emotional abuse from time to time and that their arguments descended into physical violence. The mother conceded that she “hit out first” during an incident when the parties were driving through New South Wales in 2004 however I find that the father was the predominant perpetrator of physical and emotional violence in the family. I accept the mother’s evidence that she was fearful of the father’s aggressive and violent behaviour.
Violence during the father’s prior relationship
The mother tended a bundle of Police Incident Reports dating back to 2000, when the father was in a relationship with Ms G. (Exhibit “W1”). The father pleaded guilty to an assault upon Ms G in June 2000. The father was cross examined about this incident. He disputed the police version, insofar as he acknowledged slapping Ms G across the face but denied punching her. The father acknowledged telling the police that he did not hit Ms G to hurt her but rather to show her how much she had hurt him and that he assaulted her because he was angry.
The father was referred to the police records regarding Ms G’s application for a Domestic Violence Restraining Order. The Police Apprehension Report No 00X60931 says:
“The victim in this matter is [Ms G]. Victim states that for the last two years of her relationship with [Mr Minahan] she has been subject to domestic violence. Victim states she has been subjected to physical and emotional violence. Victim applying for Domestic Violence Restraint Order.”
In response to this the father acknowledged that there would be some truth in Ms G’s reports, at least insofar as emotional violence that took place.
Violence during the parties’ relationship
Both parties acknowledged that they fought with each other during the relationship. The father said that at times he needed to physically restrain the mother to stop her assaulting him. He conceded that he was violent to her on occasions but maintained that his violence was only in response to the mother’s aggression. The mother disputes this. She says that the father was the prime instigator and perpetrator of violence, whether physical, verbal or emotional.
The father acknowledged police involvement from time to time but generally suggested these incidents were exaggerated by the mother or by the police. The father was reluctant to take any responsibility for the fights or arguments that occurred. An example is the incident that occurred during the mother’s pregnancy with [A]. The mother gave a brief description of this incident in her August 2007 affidavit (at para. 10):
“I recall that when I was about six months pregnant I ended up in hospital as a result of his physical abuse. I was kept in hospital for four days for monitoring as I had lost amniotic fluid.”
The same incident is described by the father in his trial affidavit (at para.18):
“Recently [Ms Balfour] told me that she was going to tell the Court that she was hospitalised during her pregnancy with [A] because I had choked her. I deny this allegation. [Ms Balfour] was hospitalised for approximately three days during her pregnancy with [A] but not because I had choked her. The reason for the hospitalisation was because the baby was not getting enough oxygen and the situation had to be monitored.”
The hospital notes were subpoenaed and tendered by the mother (Exhibit “W2”). These notes are significant in that they show the mother was reporting episodes of violence by the father well prior to the parties’ separation in 2006. The entry for 28 July 2004 reads:
“Presenting to WAS stating that she has been assaulted by partner just now. He tried to strangle her – obvious recent bruising around neck. Denies being hit in any other part of body. Denies abdo trauma but tender RIF on palpitation. Also feels a little dizzy. --- not wanting to report incident to police at this stage but happy to see social workers after medical review.”
On examination the mother was noted as:
“distressed, neck stressed …. Neck bruising on anterior neck non tender vertebrae … Head no obvious bruising … Back NAD … Chest AEOK … Pain in neck on aspiration …”
Contrary to the father’s evidence, these notes indicate the mother was not hospitalised because of any difficulties experienced in the pregnancy per se, but because the father had assaulted her. There is no reason why the mother would have lied to hospital staff and this was not suggested by counsel for the father.
A social work consultation took place the following day. This entry reads:
“[Ms Balfour] has been with Mr Minahan for 18 months and three weeks after they got together he started being violent towards her:
· Classic DV – blaming herself ‘she stirs him up – all her fault’
· he has her bluffed about taking the baby away from her
· bashed her last year and she miscarried at 10 weeks
· laid assault charges last year then on 12 July 2004 stood at Pt Adel Magistrates Court and denied there had been further violence and asked for charges to be dropped
· a former partner of his was a victim and has a restraint order
· she has become isolated from family and friends
· has lost confidence and self esteem to the point of having generalised anxiety
· worried about coping on her own
· needs counselling – I will provide info – follow through pregnancy and also encourage her to have counselling in local community
· if she is with partner we need to notify FAYS at the birth. I will make general practice notification at this point.”
On 22 September 2004 a further social work entry reads:
“Referred by women’s outpatients. [Ms Balfour] said had returned to [Mr Minahan] after admission however he assaulted her again 3 weeks ago and she is now living with mother. Partner is demanding to be present at birth. She feels she has to let him. …”
At the time of the mother’s admission for [A]’s birth in November 2004, there is another entry:
“[Ms Balfour] experienced serious violence towards her during pregnancy by baby’s father [Minahan]. She has lived with her aunt since … He is trying to persuade her to live with him. I have organised a referral to CY & H and recommended her inclusion in the 2 year family home visiting programme.”
On 23 November 2004 a further social work note in the file indicates:
“high risk infant. Notification made. [Ms Balfour] the mother has returned to violence partner post natal. Two attempts strangle and bashing antenatal.”
It must be noted that the authors of these entries were not available for cross examination. Nonetheless these records indicate that the mother was making contemporaneous reports of the father’s violence across this time. I consider the hospital notes add significant weight to the reliability of the mother’s evidence. She has generally maintained a consistent version of past events and this consistency is highly relevant in my assessment of each party’s evidence regarding the violence within their relationship.
I take a similar attitude to the parties’ evidence regarding the incident that occurred in February/March 2005. The parties agree that an argument developed over a minor issue after the mother collected the father from a Food & Wine fair. The mother alleges that they were arguing at home and that the father chased her, grabbed her in a headlock and pushed her to the ground. She says he then sat on top of her and punched her in the face with both clenched fists for about 20 minutes while abusing her and spitting on her at least four times. She says the father tried to choke her by putting his hands around her neck and squeezing. The police notes indicate that the mother had a sore neck, red marks on neck, sore head and face, lumps on head and swelling around eyes and forehead.
The police attended the next day and arrested the father. The father was interviewed by the police and the police report alleges that the father said in interview that:
“… he hit the victim with an open right had (connecting with his palm at the base of his thumb) to the left hand side of her face. Stated he hit her only once. Stated he hit her “for no good reason” other than he was pushed to a point by her. Stated he hit her because he wanted her to calm down. Accused denied putting the victim in a headlock, sitting on her, chocking her, spitting on her or repeatedly hitting her … ”
The father was consistent in his denials. When asked whether he pushed her to the ground and sat on her, the father answered that “it didn’t happen like that”. He went on to say it was not a situation where he is a violent man assaulting a defenceless woman and described the mother as “full on aggressive and you can’t talk to her when she’s totally irrational like that”.
The father eventually conceded that he did sit across the mother with his knees on either side of her, holding her arms to try to control her and stop her assaulting him. The father conceded that he would have yelled at her. When asked whether he then began punching her to the head and face with clenched fists, the father answered “No”, saying that she would have had more bruising if he had done so.
The father further conceded that he may have been sitting on her “controlling her” for ten minutes, but not twenty minutes. He agreed that he slapped her across her face with an open hand. He conceded that the mother could not move away and probably could not avoid being hit by him as he was sitting on her. However the father was anxious to convey that this occurred in a situation where she had been giving him “a barrage of abuse and punches back”. The father was again charged with assault arising from this incident but the mother ultimately withdrew the complaint.
Counsel for the father urges the Court to find that the mother’s evidence on this and many other allegations of violence is simply unreliable. He referred to an earlier incident when the mother gave evidence in the Port Adelaide Magistrates Court that the father did not assault her as she had previously alleged. This sworn evidence contradicted her police statement (and her present evidence before this Court) and the charge was dismissed.
The mother agreed that her evidence in the two Courts is in conflict. She acknowledged that she lied on oath about the father’s behaviour when giving evidence in the Port Adelaide Magistrates Court. The mother gave evidence about the difficulties she experienced in separating from the father and how her ongoing feelings of love for him affected her capacity to disengage from the relationship.
There is no doubt that these events are detrimental to her credibility as a witness however I take into account that her evidence before me is consistent with her version of the relationship history given by her to the hospital social worker. The mother’s earlier evidence in the Magistrates Court was given at a time when the parties were still together and I am satisfied that she withdrew her police statement to preserve the relationship at that time. On balance, I am satisfied that the mother’s evidence before me is reliable and should be preferred over her earlier inconsistent evidence.
I find that the father’s violent behaviour towards the mother was at a higher level than he has acknowledged. I find that the father’s violence towards the mother was significant and ongoing. It created a family dynamic where the mother was fearful for her physical and emotional safety.
I note the comments made by the hospital social worker where she describes the relationship as “classic DV”. This view is echoed in Ms Derrington’s report, three years later, where she describes the mother’s demeanour as “… consistent with that of a woman who now realised how embroiled she had been in a dysfunctional relationship.”[9] Ms Derrington repeated this observation in the conclusion to her report where she says “The presentation of the mother was consistent with that of a woman who has emerged from a situation of domestic abuse.”[10]. I note that the subpoenaed material was not available to Ms Derrington at the time she wrote her report.
[9] Family Report, para.12
[10] Family Report, para.23
I concur with the conclusions reached by the hospital social worker and Ms Derrington that the mother’s behaviour is consistent with that of a woman trapped in a cycle of family violence. Her demeanour in the trial was congruent with her evidence, even when making admissions against her own interests in these proceedings.
Impact of violent behaviour
Ms Derrington was asked to comment upon her recommendations in the event the mother’s allegations of violence are supported by other evidence. Ms Derrington confirmed her recommendation that [A] should live primarily with the mother because such violent behaviour from the father demonstrates his lack of insight into the affect of this behaviour upon his daughter.
Ms Derrington also expressed concern about the power imbalance that can exist between parents where there is family violence. She noted that if the Court were to find that the father was ostensibly promoting [A]’s relationship with the mother while actually frustrating the relationship, such behaviour would raise further concerns about [A]’s welfare in the father’s primary care.
This is not a matter where [A] herself had been exposed to repeated violent incidents between her parents. Ms Derrington’s concerns focussed more on the long term emotional impact for a child who grows up in a situation where one parent may be “less powerful” because of past abuse, to the extent that their parenting is compromised. She noted that this outcome may deny a child the full benefit of both parties’ parenting capacity.
Given the findings I have made about the father’s aggressive and controlling behaviour towards the mother, I place significant weight upon Ms Derrington’s evidence about the impact such behaviour may have upon [A] and her experience of being parented by both her mother and her father.
Section 60CC(3)(f) the parenting capacity of each party
Section 60CC(3)(i) each party’s attitude towards [A] and towards the responsibilities of parenthood
There is no question that each party is able to provide for [A]’s day to day care. Some concerns were raised in the course of the hearing regarding [A]’s recent difficulties with toileting and sleeping. However, the mother agreed that these problems occurred as much in her home as in the father’s home. On balance, I consider these problems probably reflect [A]’s reaction to the stress these Court proceedings impose upon her parents, rather than any concern about either party’s parenting capacity.
I must also consider each parent’s capacity to provide for [A]’s emotional and intellectual needs into the future. In this regard Ms Derrington’s evidence is particularly significant. Ms Derrington was concerned that the history of family violence had created a power imbalance between the parties in their role as parents. She considered this was an ongoing factor in the parenting dynamic and in [A]’s emotional development.
Ms Derrington acknowledged that her recommendations presumed the mother was the victim of the father’s violence, not the other way around. I have already found that the father was violent to the mother within their relationship. This lead to the mother feeling fearful and disempowered both during the relationship and in the period since separation.
I consider the father has little insight into the impact his violent behaviour had upon the mother or upon [A]. I am also concerned by the father’s acknowledged aggressive behaviour to his previous partner, as this may indicate a pattern of family violence within his relationships.
Past drug use
Both parties have acknowledged past drug use. They each accuse the other of excessive marijuana use on a daily basis. The mother acknowledged her drug use was excessive and took steps in late 2006 to reduce her consumption. The father says he has also reduced his marijuana use. I am satisfied that neither party has a significant problem with marijuana use now that would impact upon my assessment of their parenting capacity.
Mother’s gambling
The mother previously suffered a significant gambling addiction. She acknowledged that her behaviour caused arguments in the relationship and conceded that at times she had gambled away funds necessary for the household, such as rent money. The mother sought to cast her gambling as a reactive response to the difficulties within her relationship with the father. Be that as it may, there is no doubt the mother’s gambling was a significant problem within the relationship.
The mother gave evidence that she no longer gambles on a regular basis and does not consider that she has a problem. The father did not present any evidence to suggest that ongoing gambling was a problem within the mother’s life and I accept the mother’s evidence in this regard.
Driving unlicensed
Both parties acknowledged that in the past they have routinely driven while unlicensed and at times while the vehicles were unregistered and uninsured. This reflects poorly upon both parties. The mother has now obtained her licence. The father is in the process of gaining his licence. There was some dispute about whether the father had continued to drive unlicensed after giving a formal undertaking not to do so. I do not consider this is a significant factor save that the father may experience practical difficulties in participating in the travel arrangements for [A] in the event that he does not soon obtain his full licence.
Both parties have incurred significant road traffic penalties and fines in the past. However I am satisfied that they are both now taking the necessary steps to deal with those problems and will put in place the necessary arrangements to discharge their outstanding fines.
Communication between the parties
In addition to my concerns surrounding family violence, I consider there are ongoing communication difficulties between the parties which undermine their capacity to negotiate future parenting issues, based on their evidence and demeanour in the witness box. Both parties gave evidence about problems at handovers. One particular example arose in April 2007 when the father tried to discuss with the mother his concerns that he had contracted a sexually transmitted disease from her.
It should have been clear to the father that this was not an appropriate venue for such a discussion. The father was obviously frustrated by his limited opportunities to communicate directly with the mother. However, his decision to raise such a sensitive topic at handover, and then to further draw Mr S into the exchange, raises concerns that he is unaware of the impact of parental conflict upon [A].
Even on the last day of trial, the parties disagreed about whether they had been engaged in “positive discussions” about parenting arrangements over the last few weeks (as described by the father) or whether he had been “bombarding the mother with proposals for what he wanted” (as described by counsel for the mother).
The mother gave evidence that she thought future parenting negotiations would be difficult and that she would “probably give in” to the father. When asked to comment further the mother talked about the father always having to have things “his way” and that she would just “shut up and do what [she] was told because it was easier”.
It is in [A]’s best interests that her parents communicate openly and respectfully with each other. Unfortunately I do not consider they have demonstrated that capacity to date. Hopefully this situation may improve once these proceedings are finalised, although the recent events will not have helped in this regard.
Recent allegation of sexual abuse
The Court was ready to deliver judgment on 8 February 2008. Just prior to doing so, the mother raised an allegation that [A] had made disclosures suggesting the father may have behaved in a sexually improper way towards her. In the circumstances the Court determined it was appropriate to re-open the hearing and hear further evidence from each party.
The Court was first made aware of the allegations by correspondence and then by submissions from counsel on 8 February. In this hearing the Court was aware of the involvement of Families SA and the SA Police, but had no independent information about the extent of their involvement. The hearing was adjourned to 12 February, when orders were made in accordance with the orders now pronounced, but on an interim basis, with [A]’s time in the father’s care to be supervised.
At that time the only information available was the mother’s allegations, an oral summary of Dr B’s concerns and notification to Families SA and the advice from SA Police (passed on via the mother’s solicitor) that Families SA were taking no further action. This seemed surprising, in circumstances where Families SA had received a GP notification. In any event the trial was re-opened and a hearing date set for 12 March 2008.
Turning now to the sworn evidence, the mother says that [A] made some disturbing comments in early February 2008, as set out in paragraphs 5-8 of her affidavit. She says she reported the comments to the Child Abuse Hotline and was advised to have [A] examined by her GP. The mother did so and Dr B examined [A] on 4 February 2008. On the basis of her examination Dr B also made a notification. From the Families SA notes it seems that Dr B’s notification included references to [A] having “no visible hymen” and “the child’s vaginal walls are fully visible” (Annexure “A”, affidavit of DM Rieniets sworn 12 March 2008, at page 7).
The mother then contacted the police and Families SA . Those agencies considered the notifications, including Dr B’s report. They interviewed the mother and sought further background information, (Families SA notes, page 8). The mother raised other concerns such as [A] suffering from a sore vagina for some months, giving “adult” kisses” and using adult language such as “nipples’ and “balls”. Families SA staff also spoke with the father, who claimed the mother was fabricating the allegations in the context of these Court proceedings.
The Families SA notes show that on 8 February 2008 the agencies held a strategy discussion and consulted with staff from Child Protection Services. The CPS medical staff considered that the GP’s examination and report was unreliable, in terms of the physical findings. In the absence of further information of significant concern from the mother, they concluded that there was no basis for a full CPS investigation. This view was confirmed by Families SA and the SA Police.
In late February 2008 [A] made further concerning comments to her auntie, who was herself a mandated notifier. In light of this further notification, Families SA and CPS decided a full investigation was warranted. A CPS psychologist assessed [A] but concluded she was too young to participate in a forensic interview. Given the events surrounding the initial allegations, concerns were also raised that [A]’s earlier disclosures may have been “rehearsed” (Families SA notes, page 5).
Importantly, a full physical examination was undertaken by Dr D, the senior medical clinician with CPS. Dr D concluded that the earlier findings of the GP were inaccurate. He specifically noted that there were no physical abnormalities detected. Although it is not recorded in the Families SA notes, the mother gave evidence that she spoke with Dr D after this examination. He reassured her that [A]’s hymen was intact and there were no physical indicators of sexual abuse.
The mother has taken great comfort from these findings. In the course of the hearing on 12 March she gave evidence that she accepts the findings and is satisfied that [A] has not been sexually abused by the father or anyone else. The mother said that she had initially found it difficult to believe that the father could have abused their daughter but felt she had no choice but to act upon her daughter’s comments.
The father is not convinced by the mother’s change of heart. He believes the mother concocted the allegations of abuse to advance her case before the Court. The father’s frustration and resentment is understandable. He has been accused of abusing his child; endured supervised time with his daughter and has seen these events expose [A] to two intrusive physical examinations.
The father accuses the mother of coaching [A] to make the allegations. This is one possible explanation, but by no means the only explanation of the mother’s notification. The mother acknowledged that she asked [A] again about the child’s comments. She says she did so because she was shocked and didn’t know what to believe.
It is easy in hindsight to be critical of the mother’s decision to question [A] across this period of time. However the father also discussed the allegations with [A] when she was in his care. He says that her answers to him prove that the mother told [A] what to say, but it could equally be a situation where a young child such as [A] simply gave each parent answers that made sense to her three year old perception of the world. I consider both parties have inadvertently influenced [A]’s comments to them but I do not consider the mother has deliberately coached [A], as suggested by the father.
I have assessed each party’s evidence in the context of the overall hearing. Nothing in the mother’s presentation during the first part of the trial lead me to assess her as vindictive or in any way attempting to manipulate the Court process. One would think that if the mother was bringing the allegation in an attempt influence the Court outcome, she would have done so prior to the trial commencing, rather than so late in the piece.
Equally I accept the father’s evidence that he has never behaved inappropriately toward [A]. Nothing in the father’s presentation in the whole of the trial gave any cause for concern. On the contrary, aside from the interpersonal difficulties in the adult relationship, as discussed above, my assessment of the father concurred with the assessment by Ms Derrington that he was – and continues to be – a loving father to [A].
It is unfortunate that the past interpersonal difficulties between the parties are such that the mother did not feel able to contact the father and discuss her concerns following [A]’s comments to her. It is even more unfortunate that Families SA did not decide an immediate CPS investigation was warranted. It is hardly surprising that the mother’s concerns increased after her attendance with Dr B and the initial response from Families SA may have seemed somewhat ‘half hearted’, from the mother’s perspective. If a full CPS investigation had been undertaken, then the mother would have received the reassurance that followed from Dr D’s forensic medical examination much earlier and this whole situation may have resolved more quickly.
Other Concerns in the Families SA records
The father noted that the Families SA records included an earlier finding of “abuse confirmed” against the mother and argued this should be taken into account in the Court’s final determinations. This incident related to the mother leaving [A] unsupervised for between 10 to 30 minutes in January 2005, when [A] was only two months old. The mother and [A] were staying in a hotel while the mother received assistance to access emergency housing.
The mother was interviewed by Families SA and took appropriate responsibility for her actions. She was co-operative when interviewed, saying she thought she had only been gone for a few minutes. The Intake notes suggest that the workers were satisfied with the mother’s general presentation and care of [A] but were concerned as she was a “young mother who is socially isolated and in a vulnerable situation due to DV.” (at page 19).
Neither party was cross examined on this or any other “historical” matters raised in the Families SA notes. In circumstances where the father does not now allege that the mother is unable to provide appropriate day to day care for [A], I do not consider this or other past incidents within the Families SA records should affect my decision.
Section 60CC(3)(d) the likely effect of any changes in [A]’s circumstances
[A]’s parenting arrangements were unsettled for a number of months prior to the parties’ final separation in March 2007. [A] spent approximately five months in the sole care of her father, followed by her parents’ reconciliation in October 2006. She then spent four weeks in the sole care of her mother in Adelaide followed by eight weeks in the sole care of her father in Darwin. Another brief reconciliation was followed by a further eight weeks or so in the sole care of her mother before the orders of 5 April 2007 came into effect.
Ms Derrington commented upon [A]’s anxious presentation in the assessment. Ms Derrington goes on to describe [A] as:
“… apparently excited that both her parents were present, but there was an edge of worry and sadness there as well in how she behaved.
In the writer’s view, [A]’s presentation indicated this little girl may have internalised the unsettled feelings of her mother about the arrangements in place for the child. Certainly, [A] appeared confident about the love of each of her parents.”
Ms Derrington saw the family in August 2007, only four months after the split week shared care arrangements commenced. The above comments indicate that [A] has suffered a negative emotional reaction to her unsettled parenting arrangements over the previous twelve months. It is important that the orders I now make provide some stability for [A]’s future care arrangements.
Given that both parties are proposing that [A] continue to spend significant time in the care of the other, I am satisfied that any change to the existing parenting arrangement will be manageable, provided the orders establish a stable routine for [A].
Section 60CC(3)(a) views of the child
Given [A]’s age, her views were not sought by Ms Derrington. [A] is too young to express any significant view that would carry weight in the Court’s decision.
Section 60CC(3)(b) [A]’s relationship with her parents and significant others
There is no doubt that [A] enjoys a strong and meaningful relationship with each of her parents. Ms Derrington concluded that it was important for [A]’s future development to ensure that she maintains a significant relationship with both parents. This continues to be acknowledged and supported by both parties, now that the recent allegations have been investigated.
[A] also has relationships with her extended maternal and paternal family. She sees her paternal grandfather regularly at handovers. The mother lived with her aunt around the time of [A]’s birth. The maternal grandparents now live in Melbourne but the mother’s sister and other family members live in Adelaide. I have no doubt the mother will support [A]’s ongoing relationship with her extended family.
The father was critical of the mother’s family of origin, describing them as “a very dysfunctional and abusive family”.[12] The mother denies this, saying she grew up in a loving and supportive family. The mother concedes that the police were called to an altercation between the maternal grandmother and the father but attributed this to the hostility between her parents and the father, rather than any ongoing dysfunctional behaviour within her family.
[12] Family Report, para.7
The mother is now living with Mr S. Mr S conceded that their relationship had been through some difficulties when the mother and Mr Minahan reconciled in late 2006 and again in February 2007. Mr S felt the mother returned to Mr Minahan because she missed [A], rather than because of her feelings for the father. Despite this “rocky” start, both the mother and Mr S described their present relationship as settled and stable. As noted above, they recently gave birth to their new child in January 2008.
The father told Ms Derrington “that he did have some concerns” about Mr S but he did not present any evidence to identify or clarify these concerns. Mr S participated in the family assessment and
Ms Derrington did not raise any issues about his interaction with [A]. In the absence of any contrary evidence, I am satisfied that [A] enjoys a comfortable relationship with Mr S.
The father has also re-partnered. [A] has had less opportunity to interact with Ms C, as she has lived in [D] until recently. While there is no evidence before the Court from Ms C, the mother acknowledged that [A] should adapt easily to her father’s new partner and did not object to Ms C taking on a supportive caring role in [A]’s life. Indeed, the mother did not oppose Ms C acting as supervisor over recent weeks.
Section 60CC(3)(e) practical difficulty and expense
Both parties live in Adelaide at the present time. They live a moderate distance apart but I am confident that they will be able to make the necessary arrangements to facilitate handovers. However once [A] commences school, the distance between the mother’s home in [C] and the father’s home in [G] will make a shared parenting regime more difficult to manage.
The father’s proposal to live and work part-time in [D] is an added complicating factor. While the father repeatedly made it clear that he would forego his football career in [D] if need be, he was equally clear that he wished to pursue that opportunity if at all possible.
The father initially gave evidence that he thought [A] would cope moving between Adelaide and [D] on a regular basis during the football season. He felt she would enjoy the family based Football Club environment and that he and [A] should be able to pursue this option now, as it would be lost to him once she starts school. By the end of the hearing in 2007, the father seemed to concede that at best he would be able to take on a part-time role in the Football Club in [D], preferably based around the time [A] was in the mother’s care in Adelaide.
It became clear during the trial that the father had not thought through the issues arising from his “part time relocation” to [D]. While he gave evidence that [A] would cope with the changes imposed by a part-time move to [D], his evidence on this topic seemed to vary depending on the nature of the question.
The father acknowledges that [A] will remain living in Adelaide. However there is no reason why she should not occasionally join her father on weekends in [D]. I am satisfied that the father will make proper arrangements for [A]’s care during his match playing commitments.
Section 60CC(3)(g) the maturity, lifestyle, culture and traditions of the child and either parent
The mother is of Maori heritage. While this was not a focus in the trial, it is nonetheless important for [A] to grow up knowing the culture and traditions of both her parents. All children are entitled to know and feel proud of their cultural heritage. Insofar as the father was highly critical about the mother’s extended family, he will need to ensure that his hostility towards [A]’s extended maternal family does not undermine [A]’s own identification with her Maori heritage as she grows up.
Section 60CC(3)(l) orders least likely to lead to further proceedings
I do not consider this factor weighs in my determinations. Hopefully both parties will endeavour to move forward in their co-parenting relationship once these court proceedings are concluded.
Section 60CC(3)(m) any other relevant fact or circumstance
I do not consider there are any other matters that affect my decision.
Conclusion
While family violence is only one of the factors I must take into account, protecting [A] from exposure to family violence is as a primary consideration in s.60CC(2). This highlights how detrimental it can be for children to grow up in an atmosphere of violence or fear. Some years prior to the 2006 amendments to the Family Law Act[13] Chisholm J said:
“Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period.”[14]
His Honour’s comments were cited with approval by the Full Court in KN v Child Representative and Ors.[15]
[13] Family Law Amendment (Equal Shared Parental Responsibility) Act 2006
[14] JG v B G (1994) FLC 92-515 at 81,316
[15] KN v Child Representative & Ors (2006) FLC 93-284 at para.95
In light of the violence within this family and the impact it has had upon the mother, I do not consider an order for equal shared parental responsibility is in [A]’s best interests. When I consider each party’s demeanour in the witness box I am concerned that the power dynamic between the parties will make it difficult for the mother to participate fully in decision making about [A]’s future as she still feels overborne by the father’s personality.
I consider that the mother has a greater capacity to consider both parents’ views with an appropriate focus on [A]’s best interests. My decision about [A]’s future parenting arrangements is not based upon either party’s love for their daughter, or upon their general day to day parenting capacity. While the father clearly loves [A], at times his own needs and aspirations may limit his capacity to consider an alternative view put forward by the mother, where that view conflicts with his own.
In my view the mother is more likely to hear and reflect upon any views expressed by the father and take his views and concerns into account, even if the parties disagree abut a particular issue. The parties should endeavour to reach agreement about [A]’s welfare but in the event the parties are unable to reach agreement on long term issues I conclude that the mother should retain parental responsibility for such matters.
The recent events in February 2008 have not altered my assessment of each party in this regard. Clearly these allegations have further damaged the co-parenting relationship. The father argues that mother’s actions were a deliberate attempt to undermine his role in [A]’s life, which not only disrupted his parenting time with [A] but exposed the child to unnecessary medical examinations.
I do not agree with this characterisation of the mother’s actions. Any parent would be concerned by the child’s comments. It is unfortunate that the mother’s concerns were amplified by the GP’s involvement, but I accept the mother’s evidence that she is reassured by the findings of Dr D.
I accept her evidence that she no longer believes that the father has in any way behaved inappropriately with [A]. I accept the father’s evidence that he has never behaved inappropriately towards his daughter. In light of the evidence given by each party on 12 March 2008 I do not consider it is necessary to hear further evidence from Ms Derrington. I am satisfied that both parents will be able to move forward from the difficulties of the last 2 months.
Regarding [A]’s future living arrangements, I conclude that it is preferable that she live primarily in the care of her mother. In this regard I place particular weight upon the evidence of Ms Derrington and my findings about family violence within the relationship.
I am not satisfied that equal shared care is appropriate, given the parental conflict and poor communication at present. The existing arrangement where [A] spends each weekend with one parent and week days with the other does not reflect [A]’s future best interests. Children need to enjoy both weekend and week day time in the care of each parent, as reflected in the Family Law Act.
The mother supports [A] spending time with the father on three nights per week until she commences school. This proposal is an indication of the mother’s willingness to support [A]’s best interests and her relationship with the father. Accordingly I order that [A] live with her father on 3 days per week until she commences school, to take place on days to be agreed between the parties. If the parties are unable to reach agreement, then the orders will be structured so that [A] can enjoy a part of each weekend with both parents while also facilitating the father’s football career in [D].
In the longer term once [A] commences school I consider an arrangement where she lives with the father across an extended weekend in one week and another night in the intervening week will be in [A]’s best interests. It will allow [A] to continue a strong and significant relationship with both of her parents whilst maintaining a stable and settled home base in the care of her mother.
The father may choose to spend time based in [D] during the football season and that will be a matter for the parties to consider. I am hopeful that the parties will be able to negotiate such changes provided that the overall parenting dynamic is one where they can both negotiate without either parent feeling intimidated or overwhelmed by the other. Hopefully these orders provide a basis for a more balanced parenting relationship in the future.
The parties will share school holiday arrangements between them and the orders provide a framework for special occasions subject to any further agreement that may be negotiated between them. Obviously there will be numerous long term issues for the parties to resolve as [A] gets older. These orders direct the parties to participate in family dispute resolution appointments in the event they are unable to reach agreement by informal negotiation.
Regarding handover arrangements, I had not initially considered a Contact Centre was appropriate, particularly as the suggested centre at [S] would involve significantly more travel for the father. Clearly recent events have imposed still greater strain upon the parties’ co-parenting relationship, however both parties need to ensure that the handovers occur smoothly to minimise any negative impact upon [A].
Ultimately handovers should take place to and from school or kindergarten, where possible, to further limit conflict between the parties. In the meantime given the orders I now make, the parties will be unable to utilise a Contact Centre on at least one occasion each week, as such centres only operate on weekend days.
On balance, given the flexibility within the orders, I consider that handovers at a Contact Centre are impractical. Accordingly I will order handovers take place at a midway point such as [E], at a neutral venue to be agreed between the parties. I consider it is appropriate to restrain the parties from harassing each other at handovers, to ensure that [A] is not exposed to further conflict between her parents.
There is no need to continue the existing injunction regarding interstate travel, as it is implicit within these orders that [A] continues to reside in Adelaide. Neither party seeks ongoing injunctions regarding drug use. It is illegal for either party to drive without a license and I do not consider it is necessary to make an injunction in this regard.
I make orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Kelly FM.
Associate:
Date: 3 April 2008.
[11] Family Report, paras.20-21
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