NASH & MURRAY
[2014] FCCA 3171
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NASH & MURRAY | [2014] FCCA 3171 |
| Catchwords: FAMILY LAW – Interim parenting arrangements – lengthy history of litigation – significant allegations of coercive and controlling family violence raised by the mother – questions of mother’s parenting capacity raised by the father – allegations of drug use – children exposed to family violence – lengthy history of complaints to the department. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 65DAA(5), 65DAC, 67ZBA, 67ZBB, 69ZW, Part VII Division 8 Subdivision D |
| Goode & Goode (2006) FLC 93-286 Amador & Amador (2009) 43 Fam LR 268 U & U [2002] FLC 93-112 MRR V GR [2010] HCA 4 |
| Applicant: | MR NASH |
| Respondent: | MS MURRAY |
| File Number: | PAC 80 of 2012 |
| Judgment of: | Judge Harman |
| Hearing date: | 24 October 2014 |
| Date of Last Submission: | 24 October 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondent: | Mr Maddox |
| Solicitors for the Respondent: | Shades of Gray Lawyers |
ORDERS
Discharge all prior parenting orders with respect to the children, X born (omitted) 2008 and Y born (omitted) 2010.
Pending further order and pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y whilst they are in their respective care.
Pending further order, X and Y shall live with their mother.
Pending further order:
(a)The father shall be at liberty to communicate with the children X and Y twice per week, as agreed between the parents, or absent agreement between 5pm and 6pm Queensland time each Wednesday and Sunday such communication to occur by telephone or Skype;
(b)X and Y shall spend time with their father:
(i)For each short Queensland school holiday period from the afternoon of the first Saturday until the afternoon of the middle Saturday;
(ii)From 29 December 2014 until 5 January 2015 and from 23 December 2015 until 3 January 2016;
(c)The mother shall be responsible for arranging and paying for flights for the children during the December/January school holidays and the father shall be responsible for arranging and paying for flights for the term 1, 2 and 3 school holiday periods;
(d)For the purpose of changeover the parents shall meet at the (omitted) or Sydney airports (being (omitted) airport for the term 1, 2 and 3 school holidays and Sydney for the term 4 holidays) for the purpose of exchanging the children;
(e)Each parent shall give the other not less than 14 days’ notice of the flights they have booked for the children and their own flights to accompany the children;
(f)Each parent shall keep the other advised at all times of their telephone contact number/s and Skype address (if applicable) but each shall refrain from contacting the other using those services save in accordance with the above orders;
(g)Each parent shall forthwith and if they have not done so already do all things, sign all documents and give all consents and authorities necessary to cause the details of each parent to be recorded with any school or preschool attended by X or Y and shall do all things necessary to ensure that each parent can obtain directly from that school or preschool such information or reports as they desire;
Transfer these proceedings to the Townsville Registry of the Federal Circuit Court.
Request that the proceedings be listed for hearing with such expedition as can be accommodated and subject to the appropriate forensic preparation of the matter.
Ms Murray is permitted to collect the children, X and Y from the child minding services of the Family Court of Australia, Parramatta forthwith.
Pursuant to S.65DA(2) and S.62B, 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.
THE COURT ORDERS FURTHER IN CHAMBERS THAT:
The matter is listed for mention and directions 27 January 2015 at 10am before Judge Coker, in Townsville.
IT IS NOTED that publication of this judgment under the pseudonym Nash & Murray is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT PARRAMATTA |
PAC 80 of 2012
| MR NASH |
Applicant
And
| MS MURRAY |
Respondent
REASONS FOR JUDGMENT
These are proceedings with respect to interim parenting arrangements for two young children, namely:
X born (omitted) 2008 (who will shortly turn six); and
Y born (omitted) 2010 (who will shortly turn five)
The parties to the proceedings are the children’s parents, being their father, Mr Nash, who is the Applicant, and their mother, Ms Murray, who is the Respondent.
Material considered
In dealing with the proceedings today, I have read and considered each of the following documents.
In the case of the father I have read:
a)His Initiating Application filed 7 October 2014;
b)His Affidavit of evidence sworn or affirmed and filed 7 October 2014.
In the case of the Respondent I have read and considered:
a)Her Response filed 23 October 2014;
b)Her Affidavit of evidence sworn or affirmed and filed 23 October 2014;
c)Form 4 filed 24 October 2014; together with
d)A Case Outline document summarising the mother’s position.
I have also received two Exhibits being:
a)Exhibit A1 - an attendance record for the elder of the children, X, the only child presently attending school. The record relates to his past attendance at (omitted) Public School. That document certainly gives rise to a number of concerns with respect to the children’s past school attendance and his performance thereat; and
b)Exhibit R1, a supplementary or augmenting short Minute of Orders proposed by the mother expanding upon that which is sought in her Response.
Prior proceedings
These parties are not novices to Court proceedings. There are existing parenting Orders in force made by consent and on a final basis dated 27 September 2013. Those Orders were made in proceedings in which the interests of the children were independently represented.
The existing Orders provide that the parents have equal shared parental responsibility, the children live with their mother and spend time with their father each alternate weekend from 10am Saturday until 6pm Sunday, each Wednesday for a minimum of two hours and building up such that alternate weekend time would eventually, as has come to pass, commence on a Friday evening. Provision was also made for special occasions and other periods of time.
The parties agree on very little in these proceedings. However, one thing that is resoundingly clear from the evidence of each is that the Orders made 27 September 2013 have never really operated to prescribe the arrangements for these children. There is controversy as to the basis upon which this breakdown has occurred but there is no controversy as to the reality that the parties effectively commenced to live together and resumed cohabitation together shortly after the Orders were made.
The father suggests that this was at the behest of Ms Murray and that she had approached him, in fact, on the very day that the parties were at Court entering into the Orders made by consent, making overtures with respect to reconciliation. As a consequence, on the very evening that the Orders were made, the father then attended at the mother’s residence and it would seem, from that date or very shortly thereafter, began to stay at that residence substantially if not full time.
The mother, for her part, concedes the effective resumption of residence under the one roof, although she denies that the relationship was reconciled. The mother alleges that the father simply began to come to her home, sometimes with her consent and invitation and at other times over her opposition. The circumstances each describes are significantly at variance with the reality the other suggests they experienced.
What is also clear with respect to the past proceedings is that they were commenced in January 2012 by Ms Murray and by an ex parte Recovery Application made by her at that time. I make clear, I have not read any of the material filed by the parties in the earlier proceedings, purely perused the Orders made in those proceedings to seek to obtain some understanding of how the parties have come to be in such significant conflict.
The parties returned before the Court on a number of occasions throughout the earlier proceedings. There were a number of determinations made with respect to, for example, the striking out of subpoena and the like.
Ultimately a Family Report was ordered. The Report would appear to have been commissioned by an Order made 4 March 2013. However, I have not been taken to it and thus, I have not considered it.
Following the release of the Report and in June 2013 an urgent Application was filed by the father seeking parenting Orders, it would seem, substantially to enforce, as it was expressed in his Application in a Case, the then existing interim Orders.
It was noted in Orders made 12 August 2013 that the parties, who had previously advised the Court, or at least the family consultancy section, that they were attempting a reconciliation, were no longer intending to reconcile. It would seem also from the Notations contained within those Orders that for a period, for approximately six months prior thereto, that the children had not spent any time with their father. Thus, Orders were made for that time to resume commencing 14 August. It would seem from that Order that a Family Report had not in fact been prepared as the parties had not attended interviews.
These proceedings come before the Court as the consequence of a fresh urgent Application filed by Mr Nash on 7 October 2014. An attendance upon a Registrar occurred and an abridgment of time was granted, listing the proceedings before me on 14 October 2014. The Application arose in circumstances whereby Ms Murray alleged, and it would seem it is now conceded, had relocated herself and the children to (omitted).
The proceedings came before me 14 October 2014. On that date the matter was adjourned to today’s date for interim hearing and a number of Orders and directions were made, including:
a)Orders for the filing of material by the mother;
b)A request to the Department of Family and Community Services pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998, to provide a person history document;
c)An Order pursuant to section 69ZW of the Family Law Act 1975 (Cth) addressed to New South Wales Police.
The section 69ZW Order addressed to the Police would not appear to have been fully complied with. A response has been received from the Child Abuse Squad suggesting that no documents are held by them. However, the more mainstream COP system would not appear to have been searched and documents provided as yet. Clearly, the parties have had significant involvement and dealings with the police.
As a consequence of the Orders made on 14 October 2014 the mother was compelled to attend Court today in person notwithstanding that she and her attorneys are in Queensland. The mother has attended. The mother was also required to present the children to the child-minding service of the Court today, which she has done.
It is difficult to find common ground between the parties in relation to any aspect of their relationship with each other beyond the reality that, clearly, on at least two occasions, they have resumed cohabitation under the one roof, whether as a reconciliation or otherwise. The mother asserts that on each of those occasions she has not been a willing participant in any attempted reconciliation and that it has been something foisted upon her as part of what she describes in her evidence as a concerted and significant pattern of coercing and controlling family violence. The father denies all such allegations.
Certainly in the earlier part of this year an Application was made on the mother’s behalf by an Officer of Police for an Apprehended Domestic Violence Order. That Application would seem to have been made in February 2014 and on 23 April 2014 a final Apprehended Domestic Violence Order was made for a period of 12 months by a Magistrate of the Local Court Blacktown.
The father has indicated in his evidence that he either consented to or did not oppose the Order. The Order certainly demonstrates that the father was not present in Court when the Order was made. Orders were made in the statutory terms only. A copy of the complaint and thus, the facts and circumstances stated in the Order was sought by Police on behalf of the mother is not before the Court.
The material produced by the Department of Family and Community Services pursuant to the above request suggests a lengthy history of involvement between the parties and the Department. The most recent contact with the Department was on 2 September 2014. The document is equivocal as to what, if anything is intended to be done by the Department, although the most recent complaint is suggested as being “open”. There is no present action taken. All other prior complaints have been either merged or closed based on “competing priorities”.
Complaints to the Department would appear to commence in 2008. It is to be noted, thus, that the complaints commenced shortly prior to the birth of the eldest children. The complaints at that point in time related to psychiatric ability of carer even though the child at that point was not yet born, and by November 2008 a suggested complaint with respect to suicide risk or attempted suicide by carer. During that period and, indeed, post-dating it and running into 2010, there are various complaints to the Department regarding the child or children’s exposure to domestic violence.
The allegations of family violence made by the mother are significant. They are denied in their totality. Mr Nash suggests that to the extent that there has been family violence at any time that it has been perpetrated upon him by Ms Murray.
The Best Practice Principles in Family Violence version 3.1 refers specifically to the gender-neutral nature of the definition of “family violence” within the Act. It does, however, address the nature of proof that might be expected or required:
Importantly, the Family Law Act does not require independent verification of allegations of family violence (such as police or medical reports) for a Court to be satisfied that it has occurred.
I pause there to note that no finding of fact can or will be made by me today. That is not to suggest that findings of fact cannot be made on an interim basis (see, for example, paragraph 68 of Goode & Goode (2006) FLC 93-286). However, the Court is urged to exercise extreme caution in making a finding of fact in circumstances where there is contested and conflicting evidence, often prepared, as it is in this case, on short notice and with no ability to seek full and appropriate material which may be of assistance in corroborating or disproving an allegation, nor any opportunity to test or challenge evidence.
The Best Practice Principles continue:
As the Full Court of the Family Court said in Amador & Amador (2009) 43 Fam LR 268: Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.
I, again, make clear that I do not propose to make any finding of fact regarding the mother’s allegations, nor would I consider it safe or appropriate to do so. That is not to suggest that they are disbelieved or dismissed, simply that they cannot be the subject of a concluded finding by the Court based on evidence which is reliable, plausible, probative and tested.
To the extent that the father complains that the complaints are completely false, malicious and, in fact, reflective of a disingenuous position or Ms Murray suggested to be the perpetrator of violence against him, I am not satisfied, similarly, that a finding of fact could be made dismissing or accepting those allegations. Thus, the Court is left, as it often is, almost inevitably so, with contested facts relating to the most serious, profound and significant issues that the legislation recognises.
Family violence is fundamental to all that is done by the Court. Indeed, it is so central to that which is done under the Act that prior to parties commencing proceedings they are exempted from attendance at Family Dispute Resolution in circumstances where there is a risk of family violence (see section 60I of the Act). Once proceedings are commenced before the Court, there are then significant obligations which the Court must address with respect to such allegations. I again hasten to add that they are at this point allegations not proven facts.
Subdivision D of Division 8 Part VII sets out the Court’s obligations. Particularly by reference to section 67ZBA of the Act, the Court has an obligation, whenever an allegation of family violence is raised, to ensure that appropriate Orders are made by reference to section 67ZBB of the Act. That includes taking action to ensure that appropriate evidence is obtained as expeditiously as possible. It is on that basis that the powers available under section 248 of the Children and Young Persons (Care and Protection) Act 1998 and section 69ZW of the Family Law Act 1975 have been used. They impose an onerous burden upon other stakeholders, the Department and the Police, but in a collaborative desire to share information and ensure the protection of children, and to ensure the Court's fulfilment of its obligations, those resources are used.
The Court is also required to ensure that Orders are made, of the Court's own motion if necessary, to ensure the protection of any child or any party. The Court may otherwise make such Orders as it considers appropriate and must deal with the issues raised by the allegations as expeditiously as possible. Clearly, this case requires expedition. The Court is required to take those actions as soon as practicable after the filing of a Form 4 which, regrettably, was not filed with the Response (but has now been filed), and to ensure that the allegations are treated with appropriate seriousness.
The seriousness that flows from allegations of family violence is made clear by the definitions of family violence and abuse in sections 4AB and 4 respectively. Section 4AB includes the definition of family violence:
Family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family … or causes that family member to be fearful.
Subsection (2) then sets out a number of illustrative examples of what constitute, singularly or collectively, family violence.
I incorporate the totality of section 4AB herein:
Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The examples of what might constitute a child being “exposed” to family violence are instructive. The subsection is expressed to be illustrative, not exhaustive, but includes children overhearing threats, seeing or hearing an assault, comforting or providing assistance to a member of the child's family, cleaning up a site after an assault has occurred or property has been damaged, or being present when police or ambulance officers attend.
On the evidence of the parties and, in fact, each of them, the children have been exposed to family violence in each of those respects. Such exposure is particularly significant as the definition of abuse in section 4 of the Act, includes as a basis for abuse:
Causing the child to suffer serious psychological harm, including but not limited to, when that harm is caused by the child being subjected to, or exposed to, family violence.
The impact of family violence upon children may manifest itself in many ways. One of the issues that potentially arises and again, as to which no finding is made but simply the observation that alternate interpretations are available, which might provide some clarity as to, for example, the school attendance difficulties young X has experienced.
The document tendered by the father, including a printout of an absence report, together with a letter dated 17 October 2014, addressed to “Whom it May Concern”, suggests that young X, throughout 2014, has had great difficulty in literacy and numeracy. Mr Nash suggests that the child has a learning difficulty that would be aggravated by the absences, which are then described as being 18 unjustified full day absences and 18 unjustified partial absences.
It is suggested that on several occasions, although it is non-specific as to how many, that no one has come to collect him and none of the emergency contact numbers provided to the school have worked, and that on at least three occasions he has been left at school uncollected until 4pm or thereabouts.
A referral was made for X by the school to allow an examination of his strengths and weaknesses. By his semester 1 report X was struggling in all key learning areas. Within the classroom X is otherwise suggested to be generally compliant, to follow instructions, but to be somewhat distracted and disruptive of other students at times.
All of those behaviours are entirely consistent with that which Mr Nash alleges being, that Ms Murray suffers from significant difficulties in being able to parent the children on a day‑to‑day basis. They are also entirely consistent with Ms Murray and the children being subjected to and exposed to significant family violence and X’s deficits being a symptom or consequence thereof.
If the child is behaving in that fashion, if Ms Murray is expressed to be late, as she is, in delivering the child to school or not at all on 18 occasions, that is entirely consistent with what one might expect to see of a parent and a child who have been the victims of significant coercive and controlling violence. They are both equally plausible explanations for that behaviour.
As is submitted by Counsel for the mother one must also view those allegations within the following context:
a)During the totality of the period of absences, the parents were living together, thus it is a joint responsibility. Certainly, Mr Nash gives clear evidence that he was engaged in full-time employment, leaving home at 6am to 6.30am each morning, but having made lunch for the child before leaving. Thus, responsibility for the child's delivery devolved to Ms Murray. However, it was a joint responsibility.
b)Ms Murray suggests in her evidence although, as is fairly and frankly conceded by her Counsel, that Mr Nash is in no position to contest it or challenge it, the child is suggested to be doing much better in school now that the mother has removed him and enrolled him in a school at (omitted). If that is so then, again, it may be entirely consistent with a number of different hypotheses;
c)The mother gives an explanation for such lateness and difficulties in the child's attendance having occurred. In specifically responding to that allegation by the father, she suggests that it was related to violence that she experienced and other behaviours, such as being up until 3 or 4am, smoking methamphetamine with the father, another allegation completely denied by Mr Nash and as to which I am in no position to make a finding of fact. I simply acknowledge the explanation as provided by Ms Murray and note that the parties are, yet again, at odds with respect to that which actually occurred. They are the only people who are in a position to know.
Mr Nash, for his part, gives evidence that Ms Murray has, throughout their relationship and including during the period post the making of Orders, September 2013:
a)Engaged in significant violence towards him;
b)Been particularly neglectful and negligent as regards her duties as a parent, particularly but not limited to X's school attendance and work.
At one point, and whilst a finding is not drawn as a consequence of the means of expression, it is suggested, for example, at paragraph 29 of Mr Nash's Affidavit:
A couple of times I returned quite late from work and asked Ms Murray to do work with him, [being X]. She would procrastinate and you could see no interest until I would just do it with him. She showed very little concern about his learning difficulties.
That may be an accurate description. However, how it is expressed is somewhat curious, suggesting that Ms Murray was there to follow direction and that, presumably, if not inferentially, it was her job to attend to those needs within the household.
Mr Nash suggests that Ms Murray has experienced in the past and continues to experience now a number of difficulties with respect to her emotional or mental health. He describes that she was acting, “…totally manic and delusional” -
with paranoid thoughts and outbursts (see paragraph 39 of his Affidavit).
He accuses her, as a consequence of those difficulties or otherwise, of unfairly and without any basis accusing him of various behaviours, including sleeping with a number of her friends, sleeping with prostitutes, engaging in other promiscuous behaviours and having sex with his partner, with whom he had commenced a relationship prior to the making of Orders September 2013, in the presence of the children.
Ms Murray, for her part, focuses her evidence significantly upon what is portrayed in her evidence as a course of coercive and controlling family violence. She suggests, limiting her evidence fundamentally to that which is suggested to have occurred since Orders made 2013 (but alluding to the fact that her earlier material had set out significant allegations raised prior to the making of those Orders), that she has been the victim of physical assaults, derogatory taunts, financial control, belittlement, false allegations, destruction of property and regular threats, including threats to her life.
In aid of those allegations or in suggested corroboration thereof, Ms Murray suggests that Mr Nash is a member of one or more, as she describes, “outlaw motorcycle gangs”, has been engaged in significant drug dealing in her neighbourhood and that this was a significant stressor in their relationship. She refers to Mr Nash, in company with her, smoking methamphetamine as well as other drugs, including cocaine.
She complains that the level of coercion and control extended to and included, on one occasion at least, her being part of what she describes as a “racquet,” operated by Mr Nash marrying – it would seem fraudulently and other than in complete compliance with the terms and provisions of the Marriage Act 1961 – an “(country omitted) national”, so as to secure him immigration status. I need not take any of those issues further, simply to acknowledge that they are the allegations raised by Ms Murray.
Ms Murray has annexed to her material a copy of an Apprehended Domestic Violence Order together with a number of documents produced by third party sources offered as corroboration of Ms Murray’s allegations. No objection is taken to those documents. However, I am conscious that Mr Nash is self-represented and would not be in a position to be particularly conversant with the provisions of the Evidence Act 1995.
These are interim proceedings. The documents tendered are identified as largely, if not completely, business records. I am satisfied that it is appropriate that they be considered for these proceedings. They are the best and most objective evidence available.
There are a number of documents produced from Ms Murray’s former general practitioner covering periods in 2011 and 2012 being during the course of the prior proceedings. Those records attest to the regular attendance of Ms Murray, with the children, upon the doctor for help to meet their healthcare needs, including their immunisations being up to date and the suggestion that whenever they have been presented that they have been well-presented and the doctor has had no concerns for the safety, wellbeing or care of the children.
Ms Murray has also annexed to her Affidavit a report from a Domestic Violence Resource Centre, a Women’s Centre and a Patient Health Summary from her current general practitioner. The documents that are annexed are corroborative of Ms Murray’s statements to those persons but are not corroborative beyond that extent. That is not a criticism of the drafting of the documents or otherwise. However, the documents repeat and reaffirm that which Ms Murray has raised with those services rather than undertaking any assessment or otherwise.
However, the documents annexed by Ms Murray do provide a level of plausibility, consistency and contemporaneous reportage of that contained in Ms Murray’s evidence which cannot be ignored. That is as far as it takes the allegations. It does not provide independent corroboration. It does not permit or allow a finding of fact at this time. It does give me some confidence that if the mother’s evidence is taken on its face that it suggests such a concerning level of family violence that warrants real caution.
I must proceed to deal with the matter by reference to the legislative pathway in considering the position of each party and determining the matter on the basis of “what if the allegations are true and what if they are not?”
Before doing so I propose to highlight two aspects of the evidence.
The proposals of the parties
Mr Nash, for his part, seeks Orders, irrespective of whether the mother returns from (omitted) or otherwise, for both children to pass to live in his care. Indeed, he seeks an Order for that to be so and for the Police to secure it if necessary together with an Order for sole parental responsibility. He does not propose any Order regarding the children’s time with or communication with the mother.
The mother, for her part, proposes that the children live with her, that she have sole parental responsibility and that she be permitted, on both a final and an interim basis, to live with the children in (omitted). The mother proposes communication between the father and the children twice per week by telephone or Skype together with periods of face to face time for the majority or totality of each Queensland school holiday period and with arrangements made for the sharing of cost for the children’s transportation by air between the parties.
Consideration of material
I pause to observe that I have read and considered each of the documents identified above together with the submissions made by Counsel for the mother and by Mr Nash. To the extent that I’ve not referred to the totality of evidence, I make clear that it has all been considered. Time does not permit a detailed enumeration or further discussion of that evidence nor would it be helpful in any event, it being contained within the documents that the parties have filed.
I propose to refer to further aspects of the evidence in dealing with the legislative pathway. Such reference is intended to be illustrative and connected with those factors rather than suggesting that it is the only evidence taken into account.
The legislative pathway
I am reminded by section 60CA of the Act that in all that is done I must consider the children’s best interests as the paramount.
I must then turn to the objects and principles in section 60B of the Act. The objects and principles do not form part of the substantive law but inform the manner in which the Court should interpret and apply the substantive provisions to the facts of the case such as they are, in this case, with precious little agreed.
As I have indicated, the only agreed fact would appear to be that the parties have, for a significant period from the date of or shortly after the making of Orders 23 September 2013, lived in the same accommodation. On that basis, I am satisfied that those Orders should not be considered as being that which has operated between these parties nor as Orders which should be enforced. I propose to consider the matter afresh and to deal with circumstances as they presently stand as there has clearly been a significant change in circumstances as a consequence of the joint residence under the one roof.
The objects and principles require that the Court endeavour to ensure that the best interests of children are met through children having the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests as well as by ensuring that children are protected from physical or psychological harm through exposure to abuse, neglect or family violence.
The objects, whilst they do not form part of the substantive law, largely mirror the primary considerations in section 60CC of the Act. I am satisfied that the same prioritisation that section 60CC(2A) requires with respect to the primary considerations should apply to the objects.
The children have a number of rights established by the principles, being a right to know and be cared for by both of their parents and to spend time on a regular basis and communicate on a regular basis with both of their parents. That is, of course, subject to the caveat that it is not so when the Court is satisfied that it would be contrary to their best interests.
I am satisfied that the objects and principles can and should thus be further considered and referred to in dealing with section 60CC of the Act.
I am then required to turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and, if it does, determine whether it is rebutted.
There are, clearly, significant allegations of family violence and abuse raised by each parent of the other. I am not in a position to make findings on the evidence available. Accordingly, on its face, the presumption would apply. However, I am satisfied that subsection (3) should apply. These are interim proceedings and the significance of the allegations raised by the parties is such, particularly in the case of the mother, that if one ultimately accepts her evidence, the extent of coercive and controlling violence is significant, and the presumption would not apply. In those circumstances I am satisfied that it would be inappropriate for the presumption to apply.
On that basis I propose, in due course, to make an Order pursuant to section 61C of the Act for the parents and each of them to have parental responsibility at such times as the children are in their respective care.
Lest I am wrong in that regard, I am satisfied that if the presumption applied that it could be rebutted on an interim basis as one of the few things that these parents agree on is their present inability to communicate with each other, thus rendering equal shared parental responsibility entirely impractical.
In any event, I am satisfied that proceeding by reference to subsection (3) is the appropriate course.
As the presumption does not apply I am not obliged to consider equal or substantial and significant time. That does not preclude the Court considering equal or substantial and significant time and I propose to consider all time arrangements, at large, by reference to section 60CC of the Act to which I now turn and incorporating therein section 65DAA(5) of the Act, dealing with the reasonable practicability.
I must commence with the primary considerations being:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical and psychological harm.
As is cogently submitted by Counsel for the mother, subsection (2A) compels that protection be prioritised over all other considerations. Indeed, that is entirely consistent with the International Convention on the Rights of the Child, the objects and principles and the Court’s obligations pursuant to section 67ZBA.
As regards the children’s meaningful relationship with each parent I have very little evidence. It would seem that the children have a relationship with each parent. Neither speaks to any significant extent regarding that relationship.
What is clear from the little evidence before the Court at this time and particularly that which is unchallenged, derived, as it is, from concession or the Court’s own record, is that for a significant period of 2013 the children spent no time with their father.
I make clear that this is not to conflate time and a relationship. They are separate things. Time is a function of the relationship and not the converse. However, there was clearly a significant period of no communication between the father and the children. The impact that that has had upon such relationship as may have existed at separation is uncertain.
Certainly, on either parent’s version of events, the children have lived in a household which has involved significant disruption, comings and goings and significant stress, conflict and violence. On that basis, I would have some difficulty, even if evidence were presented, in finding that the children’s relationships were secure, strong or safe. That is on the basis that, if the children have been exposed to such behaviours, it could well have had some profound impact upon them. That is not to assume that it has but, clearly, the behaviours demonstrated by young X in the school records that are produced would suggest that something is going on for him. It may be connected with the circumstances of his parents’ relationship. It may be, as Mr Nash urges the Court to accept, entirely as a consequence of the mother’s incapacities and deficiencies. It may be as a consequence of the children’s exposure to a variety of behaviours including significant violence. But whatever the cause it is his best interests that are paramount.
What all of those things make irresistible, however, is that the children’s relationship with the parents cannot presently be significantly assessed with any confidence. The benefit of the children having a meaningful relationship can only be achieved through an absence of stress, conflict and family violence. Clearly, the parties being present together, notwithstanding the suggested numerous attempts at reconciliation, does not create that environment for these children. Accordingly, any benefit to these children of having a meaningful relationship or any prospect of developing one will be dependent upon the parents having little, if any, communication with each other.
That would also obviate against equal shared parental responsibility. The obligations created by section 65DAC of the Act cannot be achieved in terms of consultation and genuine effort of resolution of dispute without communication or effective or healthy communication.
As regards the need to protect the children, each parent suggests that this is a significant concern as regards, in the mother’s case, family violence and, through exposure thereto, abuse and, in the father’s case, family violence, abuse and neglect.
As I am not in a position to make findings as to the cause of the disadvantage and deficiencies presently experienced in the upbringing of these children the best I can do is to accept that there is risk on the basis of the allegations each raises and risk in either of the competing proposals.
The clear reality is that the children have, irrespective of whether it has been fulsome care or not, been significantly cared for by their mother since 2011 and to the present. Certainly there have been periods of time when the father has been present. However, that has excluded significantly the period from at least mid-2014, if not earlier, and a period of not less than six months during 2013. That is not to suggest that this was a withdrawal by the father. It may well be, as he would no doubt allege, entirely as a consequence of Ms Murray’s behaviours. However, during those periods the mother has provided the predominance of care. During those periods also, on the best evidence that is available, being the reports from the mother’s general practitioner who has also seen and treated the children, the children have not been apprehended by that medical practitioner to be significantly disadvantaged, unkempt, poorly presented or uncared for.
In those circumstances, whilst there remains an apprehension of risk from each side, I must balance the risks that would follow in the future. If the mother’s allegations of serious, long-standing, coercive and controlling violence are true, the psychological, indeed physical, impact upon the mother and these children is profound. That is not to suggest that it is found to be so, simply that it is the consideration which must be given to her evidence and, if it is ultimately proven, something which may well follow. If the mother has been the victim of coercive and controlling violence of the nature that she has described, it would impact upon her capacity to provide for herself, let alone the children, both physically and emotionally. As indicated at the outset that may be one of the bases upon which X’s school presentation and performance might be explained.
If the father’s allegations are true, the children will not be cared for properly, they will not be presented to school and they will not be fed, clothed, housed, bathed or otherwise cared for. However, without finding that these allegations can be rejected, there is at least some comfort in that provided by the general practitioner’s notes being, that when the father has been absent the children are observed to be clean and well cared for.
Accordingly, in balancing those two possible interpretations and thus two possible bases of risk for these children in the unsatisfactory circumstance where risk is apprehended in each proposal, the mother’s proposals would be preferred.
The benefit of the children having a meaningful relationship attaches to the same consideration. If the mother, as she alleges, has been the victim of coercive and controlling violence, that would impact upon both her relationship with the children and the father’s relationship with the children. The mother’s relationship would be undermined. The father’s would be an unhealthy relationship. If the father’s allegations are true, the children’s potential to develop a meaningful relationship with their mother is limited. If she is neglectful and slothful in her care, mentally unwell or emotionally unstable, she is unlikely to develop a meaningful relationship and the children clearly would benefit from care by their father if he were absent the various complaints and criticisms levelled by the mother. However, that with those allegations in the mix there is the potential for that proposal to provide mutual disadvantage.
Additional Considerations
Views
There is no real evidence of the children’s views. The mother led some evidence that the children are settled, happy and comfortable where they are and, indeed, happier than they were. However that evidence could well be criticised, and I am sure would be by Mr Nash if he were represented, as a self-serving statement which he can neither challenge nor test. Accordingly, there is simply no agreed or reliable evidence of the children’s views.
Nature of the children’s relationship with each parent and other persons
The children have a variety of relationships that fall generally within their social capital - school friends, peers and the like. Both children attend school or pre-school both when they have been in Sydney and now they are in (omitted). The children also have a number of extended family members both in Sydney and, it seems, less so numerically, in (omitted).
The nature of the children’s relationship with their parents, as I have already indicated, is difficult to assess. On balance, if one approached the matter from the perspective of what if the mother’s allegations are true versus untrue and the same exercise is undertaken with respect to the father’s allegations, the possibility of the children developing a meaningful relationship with each or either of their parents is going to be most greatly influenced by these parents having little, if anything, to do with each other. Clearly when they are present together, the level of conflict and distress that follows, whether they are connected to some premorbidity of the parties or either of them, is such that it could not be helpful to the children, their development, their emotional functioning or their development of a relationship with their parents.
That would provide some very little support to the mother’s proposals in that if she is better able to function, the children will be better cared for by her, assuming that the allegations made as to her neglectful care are not as extreme as alleged, and her capacity to be emotionally satisfied and meet their needs would be accentuated. There is no clear evidence that this is so other than the annexures to the mother’s material particularly that of her current general practitioner, suggesting that she has made such statements.
If the allegations of Mr Nash are true then the children’s relationship with their mother will continue to suffer if they remain in her care and she is neglectful of them. The benefit to them of passing to their father’s care might well be suggested. It would certainly provide a greater opportunity for their physical needs to be met, and potentially their emotional and intellectual needs, although the father’s evidence is completely deficient any suggestion as to how he would meet those needs nor are the allegations established as true or more probably true.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spending time or communicating with the children
Each is critical of the other in this regard. I cannot make any finding that would make the factor of assistance.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
There is no real evidence before the Court as to any financial arrangement between these parties at present. Accordingly, it is of little assistance.
Likely effect of any change, including separation from either parent, or other children or other people
Clearly, the paternal grandmother has had a significant role in assisting with these children. On the mother’s case on the other hand, if the mother’s evidence is ultimately accepted, the paternal grandmother has, to some extent, been complicit in the perpetration of family violence, stepping in whenever incidents have occurred to remove the children, thankfully so, but taking no active step to seek to address the behaviour of her son. The grandmother is not on Affidavit.
Those allegations are denied by Mr Nash who suggests his mother has simply been caring and loving for the children which I accept, on either version of events, suggests that her care of the children has been beneficial to them.
The children have other relatives in Sydney. The children have other relatives in (omitted). It is clear from the mother’s material, albeit perhaps expressed through the annexures rather than directly, that she is living with relatives now and thus has their support.
Practical difficulty and expense
I incorporate therein section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents, as they presently reside, live a significant distance from each other - over two hours by plane between Sydney and (omitted).
On the father’s proposal that may or may not change. The father does not seek an Order for the mother’s return, only that the children pass to live with him.
On the mother’s proposal it will continue.
The distance apart that the parents live clearly would obviate against any shared or substantial and significant care arrangement.
I note, by reference to the High Court’s decision in U & U [2002] FLC 93-112 if nothing else, setting the parameters for the Orders made in the proceedings by reference to the parties’ proposals that the father makes no proposal for the children to spend any time with their mother or communicate with her in any fashion.
The mother proposes substantial periods of time between the children and their father, but limited to school holidays, and thus it could not be incorporated within the definition of either equal or substantial and significant time.
As the High Court also made clear in MRR V GR [2010] HCA 4, the Court must engage in a prospective exercise and thus not conflate its considerations. It is not for the Court to determine the optimal arrangement that might exist for a child and then work backwards, as it were, to achieve that by making Orders that will make it so. Accordingly, the temptation must be resisted, if indeed it is present, to determine an arrangement which would be ideal and to then achieve it through Orders of the Court. It is not the Court’s role nor can it ever be so.
These children, if not all children, would no doubt do best in life if they were to live with both of their parents who were happy together and in a relationship absent violence. That would not appear to have been anything that these children have experienced at any time in the recent past, if ever. Accordingly, the Court simply cannot achieve outcomes that would be ideal, only that which is practical.
Over distance, clearly, there will be problems. The children will need to travel by air. The children are not of an age where they can travel unaccompanied. Accordingly, there will be greater cost, in that an adult will need to accompany them and travel on each occasion.
The father’s proposals cannot be assessed as to practicality as there are no proposals for time. The mother’s proposals will be expensive.
The parents’ current and future capacity to implement arrangements for the children spending substantial or equal time would appear non-existent on the father’s proposals or the mother’s proposals.
The parents’ capacity to communicate and resolve difficulties is similarly non-existent. Indeed, effective and healthy communication between them, on either version of events, has not existed for some time, if ever.
The impact of these parental deficiencies or deficiencies in the parental dynamic upon the children, I am satisfied, can best be focused upon and addressed by these children being removed from the cauldron, the maelstrom of conflict that has been circumjacent to their lives to date.
The capacity of each parent and other persons to provide for the children’s needs
Significant issues are raised by Mr Nash as to the mother’s capacity, suggesting that the lengthy history of Departmental involvement is focused upon her incapacity rather than other issues.
The Person History document would suggest that the basis of Departmental concerns has been family violence, at least historically, and as recently as 2010, it had been part of the Department’s concern. Whilst there may possibly be an open report at the moment, from the father’s evidence, it is clear that any present investigation is based on his reports alone and thus, similar to the mother’s assertion that the children are settled, self-serving..
The capacity of each of these parents, if one accepted the evidence of the other, is non-existent. Mr Nash suggests that Ms Murray cannot look after these children on any level. Ms Murray suggests that whilst Mr Nash has the capacity to meet the children’s physical needs that he has rarely, if ever, done so in the past and that he has been far more focused upon his relationship with the mother and his own needs and interests. It is impossible to determine which is more accurate. It is possible they are both accurate and connected.
Maturity, sex, lifestyle and background of the children and the parents
These are very tiny children. They require protection from conflict. They require their needs to be met by grown-ups and they need their needs to be met by parents who are functioning.
The mother’s case is that she cannot and will not cope or function if she is required to return to Sydney with the children. Whilst there is no significant evidence to support or corroborate that assertion, it is made on oath and that which is produced from her medical practitioners and the services with which she has engaged would lend some support to it. However, I make clear that this is not a finding that it is so.
On Mr Nash’s case, the children’s needs simply cannot be met by Ms Murray, and whilst he is non-specific as to how he would propose to meet them, he seeks that he be given that opportunity.
Aboriginality
Neither parent nor the children identify as Aboriginal or Torres Strait Islander.
The attitude to the children, and the responsibilities of parenthood, demonstrated by each of the parents
Each is fundamentally critical of the other. Consideration of this factor cannot advance the matter.
Family violence
I cannot and do not make a finding of fact as to the allegations of family violence raised by each parent. I must deal with those allegations on the basis of “what if they are true and what if they are not”. I must take each set of allegations on their face and, analogous to the hearing of an interlocutory application, take the evidence on its face and at its highest.
The consequences for these children, if the mother’s allegations are true, are disastrous. The consequences for the children, if the father’s allegations are true, are similarly, but not to the same standard, disastrous. Safeguards can be put into place to address the father’s allegation.
It is difficult, if not impossible to understand how it could be put in place to safeguard against the consequences of the mother’s allegations of coercive and controlling violence. Indeed, it is fundamental to the mother’s case that her removal to the distance that she has put between herself and Mr Nash is the only safe distance that she feels will allow her to cope and function, having, as she does, the benefit of family supports whilst there.
The mother’s undisputed evidence is that immediately following, if not, the very same day that Orders were made on 27 September 2013 these parties, who had been locked in litigation for some little time, including a period of six months when the children had spent no time with their father, suddenly found themselves under the one roof. Whether that was at the invitation of Ms Murray or at the insistence of as a consequence of oppression by Mr Nash cannot be determined. However, if one looks at the allegations and how they might sit with each, it sits more comfortably with Ms Murray’s.
Family violence orders
There is an Order. The nature of the Order is to provide statutory Orders only. The circumstances are not known save that it was made in the father’s absence but after his service. The evidence relied upon is not available nor are any findings made by the Court.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
These parties have a history of litigation. It is not lengthy, but it suggests an inability by them to cooperate or to operate under Orders made by the Court, even when made by consent. It has simply never happened. There was the period in 2013 when time broke down altogether, and, on the same day as final Orders were made by this Court, the parties commenced living under the one roof on whatever basis. Thus those Orders became completely irrelevant and unworkable.
In those circumstances, I am satisfied the best that can be done is to:
a)Keep distance between the parties; and
b)Expedite the hearing of these proceedings as far as can be possible.
In the intervening period, however, I am satisfied for the above reasons that the slight balance tips in favour of Ms Murray’s proposals. They will provide for some vigilance and supervision of Ms Murray’s care and with adequate and significant supports. Those proposals will provide significant distance between the parties, physically and emotionally. The mother’s proposals will provide the ability to ensure that the children are not exposed to yet another resumption of residence or regular and repeated contact between these parents, which, clearly, is problematic on any level.
If the mother’s proposals win favour as they do then I am satisfied that the proceedings must be transferred to Townsville. The children and the preponderance of evidence relating to them will be there and an Independent Children’s Lawyer, if appointed, will need to be from there.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 19 May 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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