Orton and Roe

[2008] FamCA 471

FAMILY COURT OF AUSTRALIA

ORTON & ROE [2008] FamCA 471

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Ms Orton

RESPONDENT: Mr Roe

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: PAC 35 of 2007

DATE DELIVERED: 4 June 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 21 & 22 May 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Sloane

SOLICITOR FOR THE RESPONDENT: Marsdens Law Group

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

Orders

I make the following orders:

1. That all existing orders in relation to the children:

   B born … December 2001, and

   E, born … August 2003

   (“the children”) be discharged.

2. That the parties have equal shared parental responsibility for the children.

3. That the children live with the father at all times other than the periods specified in order 4, during which they shall live with the mother.

4. That the children live with the mother as follows:

   Until the mother relocates to the L area:

   4.1each weekend from 11:00am on Saturday until 5:00pm on Sunday during school term time

   4.2for one half of all school holidays, being the first half unless the parties agree otherwise

   4.3for the purposes of orders 4.1 and 4.2 the father shall cause the children to be delivered to the mother’s residence at the commencement of their time with her and the mother shall cause them to be delivered to the father at his residence at the conclusion thereof

   From the time of the mother’s relocation to the L area:

   4.4from the conclusion of school on Thursday until the commencement of school on Monday in each alternate week during school term time and

   4.5from the conclusion of school on Tuesday until the commencement of school on Thursday in each other week during school term time

   4.6for one half of all school holidays, being the first half unless the parties agree otherwise

   4.7for the purposes of orders 4.4 and 4.5 the mother shall collect the children from and return them to their school or the father’s home, unless the parties agree otherwise

   4.8for the purposes of order 4.6 the father shall deliver the children to the mother’s residence at the commencement of such periods and the mother shall return them to the father’s residence at the conclusion thereof

5. 5.1      that the children spend time with the father from 12:00noon on Christmas Eve until 12:00noon on Christmas Day in 2009 and each alternate year thereafter

   5.2that the children spend time with the father from 12:00noon on Christmas Day until 12:00noon on Boxing Day in 2009 and each alternate year thereafter

   5.3that the mother cause the children to be delivered to the father’s residence at the commencement of the periods prescribed in orders 5.1 and 5.2 and the father cause them to be returned to the mother’s residence at the conclusion thereof.

6. That each of the parties do all things and execute all authorities necessary to ensure that both parents:

   6.1receive copies of school reports, newsletters and all information requested from the children’s teachers from time to time

   6.2receive all information relating to the children’s treatment by any health professional from time to time

   6.3keep each other informed at all times of their residential address and contact telephone number.

7. That each of the parents enrol in and complete, as soon as possible, a post-separation parenting course as recommended by the Family Consultant.

8. That the parties be at liberty to vary the provisions of these orders by agreement between them from time to time.

9. That 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.

10. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 35 of 2007

MS ORTON

Applicant

And

MR ROE

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Mr Roe (“the father”) and Ms Orton (“the mother”) are the parents of two children:

   B born … December 2001 (6) and

   E born … August 2003 (4).

   The father and the mother disagree as to what arrangements should be put in place for the care of their children.

2. The mother sought orders that the children live with each of their parents on a week-about basis.  This proposal was contingent on her moving from her present accommodation at M to the L area, which is where the father lives. 

3. The father sought orders that the children live with him primarily.  If the mother does not move closer to his home, he proposed that the children spend time with her each alternate weekend from after school on Friday until 4:00pm on Sunday and for half of all school holidays.  If the mother moves to the L area, the children would spend time with her each alternate weekend from after school on Friday to before school on Monday and for half of all school holidays. 

4. I had the assistance of an Independent Children’s Lawyer in the proceedings.  She proposed that the children live with their father and spend time with their mother each alternate weekend from 12:00noon on Saturday until 5:00pm on Sunday, together with half of all school holidays, if the mother lives outside the L area.  In the event that she moves closer to the home of the father, the children would spend time with their mother from after school on Thursday until the start of school on Monday in each alternate week and for half of all school holidays.

5. I had the benefit of a Family Report prepared by Family Consultant Mr G.  He recommended that the children continue to live with their father and spend time with their mother from after school on Friday until the start of school on Monday in each alternate week and for one night in each other week, on the basis that the mother moves closer to the father’s home.  The Family Consultant made no recommendation as to what time the children should spend with their mother during school holidays.

Background

1. The father, who is now 37, and the mother, who is now 35, began to live together in 1996 or 1997.  They separated late in 2003 or early in 2004.  After the birth of B in December 2001 the father served two terms of imprisonment.  He was incarcerated from 8 December 2002 until March 2003 and again between September 2004 and March 2005.  The father’s mother, the paternal grandmother, assisted the mother with the care of the children during the father’s 2002/2003 sentence.  The mother cared for the children while the father was in prison in 2004/2005.

2. Both parents have a lengthy history of drug abuse.  They each assert that they are now drug-free and there was no evidence to the contrary.  The father is currently on a methadone program and takes 30mg of this medication per day.  On medical advice, he intends to remain on methadone treatment indefinitely.  The mother has previously been on a methadone program, which she apparently completed approximately two years ago. 

3. Each of the parents has a criminal record, with that of the father being much more extensive and serious than that of the mother.  They have each had recent brushes with the law.  The father was convicted of shoplifting in July 2007 and the mother is currently facing charges of malicious damage to property, arising from an incident in March 2008.

4. On 15 January 2006 the father was hit by a car and suffered quite serious injuries.  He has not been able to work since this accident.  In addition, he has recently been diagnosed with epilepsy. 

5. The children have lived with their father since about June 2006.  On 20 June 2006 interim orders were made that they live with him if the mother was in a program of drug rehabilitation at H Centre, until her release by an authorised person.  The orders provided that the children were to live with the mother if she was not at H Centre.

6. The mother left H Centre, however, without completing the rehabilitation program and the children stayed with the father.  On 5 December 2006 interim orders were made by consent in the Federal Magistrates Court, which provided that the children live with their father and spend supervised time with their mother.  On 22 February 2007 further interim orders were made by consent, to the effect that the children spend unsupervised time with their mother each week from 12:00noon on Saturday until 5:00pm on Sunday. 

Approach to These Proceedings

1. The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.

2. In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration:  section 60CA.  In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).

3. Section 60CC(2) contains two ‘primary considerations’ which apply to the determination of what is in a child’s best interests.  The first consideration is the benefit to a child of having a meaningful relationship with both parents.  The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence.  Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.

4. Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent.  In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child.  It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.

5. Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.  This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.

6. It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1).  The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).

7. Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order.  This  presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility:  section 61DA(4).

8. It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent.  The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.

9. If an order provides that two or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached.  These decisions are to be made jointly by the persons who share parental responsibility for the child.  Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision.  It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues:  section 65DAE.

10. If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent.  If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent:  section 65DAA.

11. In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration:  section 60CA.  The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

The Primary Considerations

section 60CC(2)(a):           the benefit to the child of having a meaningful relationship with both of the child’s parents; 

1. It is inherent in the proposals of the parties that they both accept that the children will benefit from a meaningful relationship with each of their parents.  Similarly, the proposals of the Independent Children’s Lawyer and the recommendations of the Family Consultant must imply that they too are of the view that the children will benefit from an ongoing, meaningful relationship with each of their parents.  There was nothing at all in the evidence which persuades me to take a contrary view.

   section 60CC(2)(b):          the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

2. The mother has made allegations that the father sexually assaulted E.  These complaints arose for the first time in the Local Court at Campbelltown in June 2006.  The mother repeated these allegations during the Family Report interviews in August 2007.  The father vehemently denied that he sexually abused E.

3. There was nothing in the evidence which would support the allegation that the father has sexually abused E.  The mother claimed that she relied on the opinion of a Dr A in making these allegations.  There was no evidence from this doctor.

4. The father obtained records from the general practitioners’ surgery, which he annexed to his affidavit sworn on 9 May 2008.  These documents relate to two consultations in 2004, when E was aged 8 months and 13 months.

5. The only evidence of any sexual abuse of E by the father was the uncorroborated complaints of the mother.  There was no evidence of a complaint by the child herself.  There was nothing whatsoever to indicate any action by the Department of Community Services or the police.  The father’s denials have been consistent.  In these circumstances, I am comfortable in finding to the requisite standard that E has not been sexually abused by her father.

6. Otherwise, there was nothing in the evidence which gives rise to a concern that the children require protection from physical or psychological harm arising from being subjected or exposed to abuse, neglect or family violence.  There is no doubt that there are real concerns as to the parental capacity of each of the parties, which I will address below in these reasons.

Additional Considerations

1. I have paid careful regard to each of the considerations set out in section 60CC(3).  I will refer only to those factors which bear on my decision in these proceedings.

   Section 60CC(3)(a):          any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

2. There was no independent evidence as to the views of either B or E as to where they wish to live or what time they want to spend with each of their parents.  The mother deposed that, in December 2007, B said to her:  “Mum I want to stay with you”.  It would not be surprising if the child had made this statement, as he has spent relatively limited time with his mother for a period approaching two years.

3. The ages of the children militate against any significant weight being attached to their views.  In any event, as noted, there was no independent evidence of their views.

   Section 60Cc(3)(b):  the nature of the relationship of the child with:

   (i)each of the child’s parents;  and

   (ii)other persons (including any grandparent or other relative of the child);

4. The Family Consultant made this assessment of the children’s relationships with significant adults in their lives:

   “The children appear to trust and have formed bonds with each of the adults with whom they interacted during the observations for this report.  The interview, in which the children participated, shows that they see themselves as siblings in the same familial unit, and that they are aware of a schedule by which they spend time with their father and with their mother.  Indeed, the manner in which [the mother] successfully encouraged the children to leave her care and accompany merely me to my office suggests that they entrust themselves to her judgment.”

   This favourable assessment includes the paternal grandmother and her husband, whom the Family Consultant observed with the children. 

5. Each of the parties readily conceded that the other parent loves the children.  To the advantage of B and E, the paternal grandmother enjoys and fosters good relationships with a number of members of the mother’s family.

   Section 60CC(3)(c):          the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

6. The evidence raised doubts as to the willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship for the children with the other parent.  The mother made allegations of sexual abuse against the father, although she did not seem to advance these complaints with any enthusiasm during the hearing.  In fact, she said:  “I will never know” and made no proposal for the children’s time with their father to be supervised. 

7. Concerns were expressed by the Family Consultant and the Independent Children’s Lawyer about the mother’s statement to Mr G that she “owns” the children and that “they are mine”.  These remarks were said to be indicative of a desire on her part to minimise the role of the father in the children’s lives or even to exclude him completely.

8. In my view, the mother’s proposal for an equal time arrangement would not indicate that she wishes to marginalise the children’s father.  I am inclined to accept her evidence, which was unchallenged, that she wants to develop a more cooperative co-parenting relationship with the father. 

9. For his part the father said:  “I believe we can discuss things about the children” and “I would say our relationship is improving over time”.  In this context, it should be remembered that the mother recently stayed overnight at the father’s home on two occasions.  He invited her to stay and they both accompanied the children to school on the following morning.  In addition, he invited her to the children’s baptismal celebration in about March 2008 and she attended with members of her family. 

1. The Family Consultant expressed concerns as to the father’s reluctance to allow the children to spend school holiday time with their mother in October 2007.  The fact is, however, that they did so although there were no court orders providing for school holiday time. 

2. For these reasons I am not as pessimistic as the Independent Children’s Lawyer or the Family Consultant as to the ability of each of the parents to encourage and facilitate a close, ongoing relationship for the children with the other.  I propose to order that they each attend a Post Separation Parenting course, which hopefully will assist them to build on what they had so far achieved. 

   Section 60CC(3)(d):          the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents;  or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

3. There was no evidence as to the likely effect on the children of any changes to their present circumstances, other than the Family Consultant’s opinion that a separation from their father “would possibly distress them”.  Mr G’s recommendation for an increase in the children’s time with their mother from the present two days per fortnight to four  nights per fortnight must mean that he is of the view that that a change to the present arrangements will be of benefit to them. 

   Section 60Cc(3)(e):  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

4. There are real practical difficulties in the children’s being able to spend time with each of their parents, due to the distance between their homes.  Neither of the parties is in a position to do the travel by car, so they are totally reliant on public transport.  The journey between M and L involves two buses and two trains and takes 2½ to 3 hours, if there are no delays.

5. The mother gave unchallenged evidence that she has taken steps to exchange her Housing Department accommodation at M for premises in the L area.  Certainly, she could have done so much earlier than two weeks ago but the fact is that she has now made this decision and initiated the move.  She said, and I accept, that a house could become available at any time and that she should be able to move within three months.  The proposed relocation will eliminate these difficulties.

   Section 60Cc(3)(f):            the capacity of:

   (i)each of the child’s parents;  and

   (ii)     any other person (including any grandparent or other relative of the child);  to provide for the needs of the child, including emotional and intellectual needs;

   Section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

6. There are real problems with the parental capacity and attitude of both the father and the mother.  The Family Consultant summarised his concerns as follows in relation to the mother:

   “But has her judgment served her well when she, with her dogged determination to convince people that [the father] has sexually abused the children, fails to understand that her children need her and their father?  She plans, under the rubric of protecting the children, to forbid him to interact with the children and, contrarily, permit him to interact under supervision with the children. Her logic fails to consider that the children have grown up in his charge for 1¼ years and that separation from him will possibly distress them.  Moreover, her pronouncement of ownership of these children suggests that she wishes to exclude [the father] from decisions that will affect their children.”

   As noted, however, the mother has now resiled completely from her insistence on supervision of the children’s time with their father and she did not really seem to advance the allegation of sexual abuse during the hearing. 

7. As to the father, the Family Consultant summarised his concerns as follows:

   “But do [the father’s] plans for the children provide the means by which they can maintain, let alone develop, their respective bonds with their mother?  For the October holidays, he reluctantly permitted the children to spend 5 days with [their mother] because she tells lies.  Furthermore, he complained that [B’s] attendance at school deprives [the father] of time with this boy.  [The father’s] demands suggest that he fails to understand the needs of the children and simultaneously insinuates that he plans to satisfy his emotional needs before he fulfils those needs in his children.”

8. In his oral evidence, the Family Consultant expressed the view that neither parent has insight into the impact of their drug use on the children.  Fundamentally, Mr G was of the opinion that neither parent is child-focussed.  He assessed that “the children are merely a vehicle for each parent’s needs” and that “these parents are immature and have emotional/psychological needs which must be met”. 

9. In the case of the father, the Family Consultant observed:  “My impression is that he wanted [B] to be with him, almost as a toy to fulfil his needs”.  In my view this assessment coincides with the view of the paternal grandmother and her husband that the absence of the children from the father’s life “would destroy him” if he did not rear them”.  The extent of B’s absences from school are a matter of considerable concern in this context and generally.

10. There were several specific examples, in the evidence of each party, displaying a lack of child focus and insight into the emotional needs of B and E.  In my view it would not be useful to detail all of these matters in these reasons.  It is sufficient to record that I am satisfied that both of the parties lack the personal resources to consistently put the children’s needs ahead of his or her own. 

    Section 60CC(3)(j):  any family violence involving the child or a member of the child’s family;

    Section 60CC(3)(k)           :          any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order;  or

    (ii)     the making of the order was contested by a person;

11. There are no current family violence orders.  Allegations of family violence did not play a role in the proceedings. 

Conclusion

The Presumption Of Equal Shared Parental Responsibility

1. Both the father and the Independent Children’s Lawyer sought an order that the parties have equal shared parental responsibility.  Nothing in the evidence suggests that this presumption does not apply or has been rebutted.  It seems to me to be clear that the children’s mother and father should have equal shared parental responsibility.

2. The result is that I am required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal time with each of their parents.  Obviously, an equal time regime is a practical impossibility until the mother moves to the L area.

3. In reality, the children have had some measure of stability in the care of their father for almost two years.  I am not at all sure that this stability could be maintained if a week-about arrangement is introduced.  The mother has shown a degree of unreliability in taking up all opportunities available to her to spend time with the children.  I am thus left with some concerns as to whether she is capable of consistently attending to all of their needs in an equal time arrangement.

4. I have similar concerns about the father’s capacity but the difference is that he has solid, guaranteed support from his mother and stepfather.  Effectively, they have provided a safety net for the children. 

5. In terms of parental capacity and ability to focus on the needs of the children, there is little or no distinction between the father and the mother.  In my view the best outcome for B and E involves substantial and significant time with each parent, with a maximum opportunity for the paternal grandparents to play a meaningful role in their lives.  These considerations lead me to the view that there should be a substantial increase in the time which the children spend with their mother, once she moves to the L area.  The children should have an opportunity to spend time with both parents on weekdays as well as weekends and to have them both involved in significant events in their lives.

6. I will make orders which cover both the period prior to the mother’s relocation and subsequently.  Pending the relocation the travel problems prevent any real increase in the time when the children are in the care of their mother, other than during school holidays.  Once the move has been accomplished, the children will be able to spend much more time with their mother.

I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              4 June 2008