Osgood and Derby
[2011] FMCAfam 386
•28 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OSGOOD & DERBY | [2011] FMCAfam 386 |
| FAMILY LAW – Children – meaningful relationships with parents – capacity of parents – long and short term considerations – unacceptable risk of abuse – onus and standard of proof – change of surname. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995, s.140 |
| D and D [2005] FamCA 356 McCall & Clark [2009] FamCAFC 92 Mazorski & Albright [2007] FamCA 520 G & C [2006] FamCA 994 Napier and Hepburn (2006) FLC ¶93-303 Jones v Dunkel (1959) 101 CLR 298 Rice & Asplund (1979) FLC ¶90-725 |
| Applicant: | MR OSGOOD |
| Respondent: | MS DERBY |
| File Number: | MLC 10987 of 2009 |
| Judgment of: | McGuire FM |
| Hearing dates: | 31 January 2011, 1, 2, 4 and 11 February 2011 |
| Date of Last Submission: | 11 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Pearsons Barristers & Solicitors |
| Counsel for the Respondent: | Mr Glover |
| Solicitors for the Respondent: | Lander & Rogers Lawyers |
ORDERS
That all previous orders in respect of the children [X] born [in] 2004 and [Y] born [in] 2007 be discharged.
That the parents have equal shared parental responsibility for the children [X] and [Y].
That the children [X] and [Y] live with the father as follows:
(a)each second weekend between Friday at the conclusion of school/kindergarten and Monday at the commencement of school (with such time to conclude at the commencement of school Tuesday if Monday is a non-school day); and
(b)each year during a school term for two periods of one week each (not to be taken in the same school term) from the conclusion of school/kindergarten Friday until the commencement of school the following Friday (such periods to be in addition to the alternate weekends provided for in paragraph 3(a) above) and for this purpose:
(i)the father shall provide the mother not less than 21 days written notice of his proposal to have time; and
(ii)the father shall take the children to and/or from their school/kindergarten and any extra-curricular activity they are involved in during these periods; and
(c)for one half of each Victorian gazetted term school holiday period excluding the Easter periods as defined hereunder as agreed between the parties but failing agreement then for the first half of such holidays being from 5.00 pm on the Friday at the commencement of school holidays until the second Saturday of school holidays at 5.00 pm save as otherwise provided herein; and
(d)on a week-about basis during the Victorian gazetted summer school holidays as agreed between the parties and failing agreement then from the first Friday of school holidays at 5.00 pm until the second Friday at 5.00 pm and in each alternate week thereafter; and
(e)in any event at Christmas in 2012 from 5.00 pm on Christmas Eve until 3.00 pm on Christmas Day and in each alternate year thereafter; and
(f)in any event at Christmas in 2011 from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day and in each alternate year thereafter; and
(g)on each of the parents’ birthdays as follows:
(i)if the birthday falls on a non-school day from 10.00 am to 6.00 pm with changeover at [suburb omitted] McDonald’s Restaurant; and
(ii)if the birthday falls on a school day then from the conclusion of school/kindergarten until 8.00 pm with end changeover to be at the McDonald’s Restaurant at [suburb omitted] in Ballarat; and
(h)on each of the children’s birthdays the non-resident parent shall have time with them as follows:
(i)if the birthday falls on a school day from after school/kindergarten until 6.00 pm with changeover to be at the McDonald’s Restaurant at [suburb omitted] in Ballarat; and
(ii)if the birthday falls on a non-school day from 10.00 am to 2.00 pm with changeover at [suburb omitted] McDonald’s Restaurant;
and if either parent does not intend to spend their time pursuant to paragraphs 3(g) and 3(h) they shall notify the other parent by SMS text message and have telephone communication between 6.00 pm and 6.30 pm instead; and
(i)for the purposes of these orders the Easter period shall be defined to commence at 6.00 pm on the Thursday prior to Good Friday and conclude at 6.00 pm Easter Monday and the children spend time with the father as follows:
(i)each even year commencing 2012 from 6.00 pm Easter Saturday and concluding at 6.00 pm Easter Monday; and
(ii)each odd year commencing 2013 from 6.00 pm Thursday to 6.00 pm Easter Saturday;
and the children spend time with the mother for the remainder of the Easter period and for this purpose the Easter period shall be excluded from the first term school holidays and the balance of the said holiday period shall be spent equally with the children; and
(j)at such other times as agreed between the parties from time to time in writing.
That the children live with the mother at all other times.
That the children have telephone communication with the father each Tuesday and Thursday between 6.00 pm and 6.30 pm with the father to telephone the children at the mother’s landline/mobile number and the mother to make the children available to accept such telephone calls and assist the children in accepting the telephone calls and then allowing private conversation between the children and the father.
That during periods of the children living with the father during school holidays the mother have telephone communication with the children each Tuesday and Thursday between 6.00 pm and 6.30 pm with the mother to telephone the children at the father’s landline/mobile number and the father to make the children available to accept such telephone calls and assist the children in accepting the telephone calls and then allowing private conversation between the children and the mother.
That should Father’s Day fall on a day on which the children are not otherwise with the father then the children spend time with the father between 5.00 pm on the Saturday preceding Father’s Day until the commencement of school on the Monday.
That should Mother’s Day fall on a day on which the children are with the father pursuant to these orders then such time to cease at 5.00 pm on the day preceding Mother’s Day.
That the mother be and is hereby restrained from using or allowing the use of any surname for the children or either of them other than their given surname of “Osgood”.
That all changeovers take place pursuant to these orders at the children’s school/kindergarten and on non-school days then the changeovers take place at McDonald’s restaurant, [suburb omitted], or otherwise as agreed between the parties in writing or provided for herein.
That the parties and each of them be and are hereby restrained from inflicting corporal punishment on the children or either of them and from permitting or allowing any other person to inflict corporal punishment on the children or either of them.
That the parties and each of them be restrained from altering the children’s primary residential address and contact telephone numbers without first providing the other party with 14 days prior written notice of such intention and including in that notice the particulars of the proposed new address and telephone numbers.
That the mother and the father each forthwith do all such things, complete all such documents and attend as necessary and directed to complete a recognised post-separation parenting course and to complete such course within four calendar months of the date of these orders and upon completion provide the solicitors for the other parent with documentary evidence of completion of that course.
That the mother at her own cost attend upon Ms M psychologist of [address omitted] in Victoria within 14 days of the date of these orders for referral to a therapeutic psychologist and then attend on that psychologist when and for so long as is required and directed by the psychologist so as to address issues in respect of the mother’s attitude to parenting responsibilities referred to in these accompanying reasons.
That for these purposes the mother is ordered to provide Ms M with a copy of these orders and reasons and to provide the therapeutic psychologist with copies of these orders and reasons and copies of the family reports of Ms M dated 22 February 2010 and 22 October 2010.
That the mother confirm in writing to the father’s solicitors the date of her appointment with Ms M not later than 7 days after that appointment and also the name and professional address of the therapeutic psychologist recommended by Ms M and the date of the first appointment with that person.
That the father’s contravention application filed 26 October 2010 be dismissed.
That both parents be at liberty to correspond and/or communicate with the children in writing and/or by post and for this purpose each parent shall facilitate such communication with the children.
That the parents:
(a)keep each other at all times informed in relation to any medical and/or health issues (including emergencies) involving the children; and
(b)communicate any issues relating to the children by email and/or SMS text messaging.
That the mother forthwith do all acts and things necessary to authorise and/or direct the children’s schools/kindergarten to provide to the father (at his expense, if any) all correspondence and/or communication including (but not limited to) school reports, newsletters, parent/teacher information nights, sports days, concerts and all other events to which parents are invited or encouraged to attend.
NOTATION:
(A)That the parties agree that the child [Y] will attend [S] Primary School commencing 2013.
(B)That the parties agree that for the first term school holidays, the children spend equal time with each of the father and the mother.
(C)That pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Osgood & Derby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10987 of 2009
| MR OSGOOD |
Applicant
And
| MS DERBY |
Respondent
REASONS FOR JUDGMENT
This application concerns the two children of the parties being [X] born [in] 2004 (aged seven years) and [Y] born [in] 2007 (aged three years).
The father, Mr Osgood, commenced these proceedings in an application filed 8 December 2009. At that time he sought orders that [X] and [Y] live with the mother and spend time with him for three out of each four weekends. He asked for an order for equal shared parental responsibility. In her response the mother, Ms Derby, sought orders that the children live with her but spend limited time each weekend with the father such time to be supervised at a contact centre. She sought an order for sole parental responsibility. At that stage Ms Derby also raised financial issues. Those matters have since been resolved by the parties through final orders made on 28 June 2010.
The father filed an amended application in August 2010. He now seeks orders that the two boys live primarily with him and spend each second weekend with their mother from Friday until Sunday. The mother now proposes that the children spend time with the father as follows:
a)each alternate weekend between Friday afternoon and Monday morning;
b)for the first week of all school term holidays;
c)for 10 days during the summer school holidays from 8 January in each year;
d)for specific times on the children’s birthdays, at Christmas and Easter.
At the commencement of the trial Ms Derby continued to argue for sole parental responsibility for [X] and [Y] but that she notify the father of the decisions that she has made for them. However, in his final submissions, counsel for the mother indicated her position to be one favouring equal shared parental responsibility.
The father is soon to complete his studies at [omitted] and anticipates [working in metropolitan Melbourne]. The mother now lives in Ballarat and is not currently employed.
Both parents have re-partnered. Interestingly, no evidence was adduced from either of the new partners although as the evidence eventuated, they are of some significance to the proposals of each of the parties and also, particularly in respect of the mother’s partner Mr T, to some important facts at issue and for my determination.
The current arrangements for [X] and [Y] pursuant to interim orders made on 24 February 2010 are that they spend each second weekend with their father together with one night in the other week
for a meal. It seems, however, that this latter arrangement has not been practical and has not been taken up by the father since he has been
at [occupation omitted] from late 2010.
The father caused a contravention application to be filed on 26 October 2010. That application was adjourned for hearing to the same time
as the substantive hearing and it eventuated in those circumstances that it was not prosecuted. I mention this by way of background only and place no store on either the filing of the contravention application or its lack of prosecution.
The issues
The broad issues canvassed during this hearing are:
a)the father’s allegation that the mother’s partner has physically assaulted the children;
b)the father’s allegation that the mother’s partner has physically assaulted the mother in the presence of the children and that this has had a detrimental effect on the children;
c)
the mother’s allegation that the father has been violent to the children or, alternatively, threatened violence to the children and/or treated the children in what could only be described as
a demeaning and antisocial manner;
d)that the children or either of them are fearful of the father, the mother, or the mother’s partner;
e)that the mother deliberately frustrates the children’s relationship with the father and marginalises them in that relationship;
f)the genuineness of the father’s proposals for his care of the children and his capacity to put such proposals into practice.
The evidence
The Court was very much assisted by two family reports prepared
by Ms M, psychologist. Those reports are dated 22 February 2010 and 22 October 2010 respectively.
The applicant father relied on his affidavits filed 28 June 2010, 1 July 2010, 26 October 2010 (in respect of the contravention application) and 31 January 2011. The father also adduced evidence from his own father, Mr H, and from a brother, Mr J. Affidavits of both were filed with leave on 31 January 2011.
The mother relied on three affidavits filed 21 December 2009, 1 July 2010 and 17 December 2010. She adduced evidence in an affidavit from her father, Mr D, filed 17 December 2010.
The family reporter was cross-examined as were each of the parties and each of their witnesses.
This matter concerns mutual allegations between the parents of serious child abuse, including alleged assaults, as well as issues of deliberate marginalisation of the children from one parent by the other.
My determinations of fact are crucially important as to the ultimate orders I make and my views generally as to the best interest of these two boys. It is proper therefore that my intellectual task is carried
out within the proper evidentiary framework. The standard of proof applicable is “on the balance of probabilities”. The party asserting
a fact has an onus to prove that fact according to that standard. However, the seriousness of the allegation or assertion is also relevant. Carmody J analysed the “standard of proof” in family law proceedings in an unreported judgment of D and D.[1] His Honour observed
[1] [2005] FamCA 356.
at paragraph [140] and following:
140.The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Subsection (1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities. Sub-section (2) introduces notions of weight and variability into the forensic process.
…
145. Lord Nicholls discussed the relevant standard of proof to be applied in noncriminal proceedings in his judgment in Re H and Ors (Minors) (Sexual Abuse: Standard of Proof) [[1996] AC 563 at 586] in the context of a wardship application. His Lordship relevantly stated:
"Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not.
When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury… Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established".
146. What this means in a practical sense is the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [Re: Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.]
147.Thus, civil proof is not a simple matter of belief and persuasion but of "reasonable satisfaction" following a real search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s140(2) and other relevant variable factors, including those referred to by Dixon J in Briginshaw [See generally, A. Ligertwood, Australian Evidence, 4th Edition, Butterworths, 2004 at p. 82-83.] and in the light of the parties' respective power or capacity to produce or contradict it. [Blatch v Archer (1774) 1 Cawp 63 at 65; 98 ER 969 at 970. See also Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454 [36]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330[134].]
148.The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. However, the law looks for probability not certainty. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not.
149.Where, as here, proof of a fact in issue hinges on rational inferences based on circumstantial, as distinct from, direct evidence, the conclusion contended for must be rational and reasonably open. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes.
The law
The approach to be taken by the courts for determining parenting orders is now well established. Fundamentally, I must have the children’s best interests as my paramount consideration in making any determination as to their living arrangements.[2]
[2] Section 60CA of the Family Law Act 1975 (“the Act”).
Section 60B of the Family Law Act 1975 (“the Act”) sets out the objects and principles underlying those objects. Sub-section 60(1) states the objects as being:
…to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are set out in s.60B(2) of the Act as:
…(except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA of the Act provides that there be a presumption that parents have “equal shared parental responsibility” for the children. Such responsibility involves parents cooperatively making decisions relevant to children’s welfare in matters of long term importance such as issues of education, medical procedure, religion and similar.
That presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for those parents to have equal shared parental responsibility.[3] Alternatively,
the presumption does not apply if the evidence leads the Court
to a reasonable belief that a parent or a person living with that parent has engaged in abuse of a child or in family violence.[4] “Abuse” includes by definition “an assault” and “family violence” is defined
in the Act at s.4(1) as:… 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.
The notation to that definition at s.4(1) of the Act states:
A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
[3] Section 61DA(4) of the Act.
[4] Section 61DA(2) of the Act.
In this matter, at least at the conclusion of the evidence, each of the parties is seeking an order for equal shared parental responsibility. They do so whilst both urging the Court to make findings that the children have been subjected to incidents of violence whilst in the care of the other, findings of which would, of course, mean that
the presumption does not apply. Nevertheless, the Court retains discretion to make an order for equal shared parental responsibility
if it determines that such an order is in the best interests of the children.If the Court determines there to be an order for equal shared parental responsibility then a mandatory statutory course of consideration takes place. The Court must consider whether orders that the children spend equal time between the parents is in their best interests and reasonably practicable.[5] Neither party seeks such an order in the matter before me and indeed the father’s plans to live in suburban [A] and the mother to live in Ballarat might effectively preclude such an arrangement for all practical purposes.
[5] Section 65DAA(1) of the Act.
Secondly, however, the Court should consider whether orders
for children to spend “substantial and significant time” with each of the parents is in the best interests of the children and also reasonably practicable.[6] To this end, the Act at s.65DAA(3) defines “substantial and significant time” as:·days that fall on weekends and holidays; and
·days that do not fall on weekends or holidays; and
·days that allow the parent to be involved in the child’s daily routine, together with occasions and events that are of particular significance to the child; and
·time that the child spends with the parent allowing the child
to be involved in occasions and events that are of special significance to the parent.[6] Section 65DAA(2) of the Act.
Whether such an arrangement is “reasonably practicable” is a question of circumstance. The Act provides some assistance in s.65DAA(5) which states:
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.
In summary, factors such as geographical distance, communication, cooperation and willingness to acknowledge the children’s relationship with the other parent are crucial factors in making orders for substantial and significant time workable. Many of these considerations are
at issue in the matter now before me.An investigation as to what constitutes the children’s best interests
is necessary in order to determine whether the presumption of equal shared parental responsibility is rebutted and also as to the children’s living arrangements generally and their time with each of their parents.Section 60CC(2), (3) and (4) of the Act provides numerous mandatory considerations to be referenced in respect of the probative evidence and the parties’ proposals. These considerations are divided at s.60CC(2) into “primary” considerations and at s.60CC(3) into “additional” considerations. No single reference is mandated as more determinative than another and relevance will vary according to the facts of each case. It seems however, that the two primary considerations under s.60CC(2) provide the framework for the Court’s consideration of the numerous matters under s.60CC(3).
The two primary considerations are directly relevant to the issues before me. They are, as set out in s.60CC(2) of the Act:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC factors
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
Whilst the Act does not define “meaningful relationship”, courts at first instance now have the benefit of some superior court authority
in respect of the concept.The Full Court in McCall & Clark[7] made
a detailed analysis of the notion of “meaningful relationship”. Their Honours referred to a number of decisions at first instance including that of Brown J in Mazorski & Albright[8] and Bennett J in G & C[9]
in concluding a preferred interpretation of the task for the Court being a prospective one with an emphasis on “qualitative” rather than “quantitative” considerations.
[7] [2009] FamCAFC 92.
[8] [2007] FamCA 520.
[9] [2006] FamCA 994.
Ms Derby and Mr Osgood separated as long ago as May 2009. Both [X] and [Y] have lived with the mother ever since and it is clear that they have a major attachment with her.
In a matter which is characterised by the children being very young, virtually no parental communication or cooperation, and mutual serious allegations between the parents together with periods of the mother stopping the children’s time with the father, one might expect that
the children’s relationship with their father would be problematic. Nevertheless, the observations of the family reporter in both her reports paint a different picture. In her first report from February 2010
at paragraphs 34 to 36, Ms M observes:[X] loves both parents and it is likely that he is primarily attached to Ms Derby. [X] is also strongly attached to his father and he is very close to him. When his father arrived and entered the waiting room where the children, Ms Derby and her parents waited, despite his excitement to see his father, [X] was careful not to go to his father until he saw that his mother permitted the interaction. Given the conflict between his parents, [X] was wary of the two parents being at the same venue.
[X] was very happy to be with his father and did not want the session to end. At the conclusion of the observation of the children with their father, [X] became silent and ceased speaking and interacting when I announced that the time had come to say goodbye to their father. He became withdrawn and had difficulty responding to my questions about why he had become quiet. His father gently spoke to him and [X] preferred to speak to me through his father. Mr Osgood relayed to me why [X] was sad. He was saddened because he had to separate from his father and [X] did not want him to go…
[X] explained that he misses his father and wants to spend more time with him. He loves seeing his father on weekends and sleeping at his place. He thought he had “4 more sleeps” before he could see his father again…
And at paragraph 38 Ms M observes:
In his dreams and play representations [X] considered his father as a nurturer and rescuer. Even when playing with the toys during the session with his mother, [X] placed himself in a bed with his father and [Y] shared a bed with his mother.
In respect of [Y], who was only about 20 months of age when his parents separated, Ms M notes at paragraph 40 of her first report:
He is primarily attached to his mother and also has a very good attachment with his father. He was immensely delighted to see his father and sometimes competed for his father’s attention.
Ms M’s second report was prepared some nine months after her first. At paragraph 52 of that report and in respect of [Y] she observes:
[Y] appeared equally content in the company of both parents. His language had noticeably developed and although he had little tantrums when he was with both parents, he settled more quickly with his father. He was clearly unhappy when his father left and
I consider that his attachment to his father is significantly greater than that which I observed at the last set of interviews.I conclude, despite the difficulties for these children set out above, that both children have an attachment to each of their parents. They have bonded and significant relationships with both their mother and their father. Despite their young ages, both children obviously recognise and relate to Mr Osgood as their father.
Having established that such relationships exist for these two children with both of their parents, prima facie the task for the Court is to formulate a set of orders or regime which benefits those relationships and assists in them continuing and flourishing.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The spectre of family violence looms large in this matter. There is no lack of allegation but the ages of the children make direct corroboration difficult and the task for the Court in establishing whether or not
these children are at an “unacceptable risk of abuse” in either
the mother’s household or the father’s household is equally difficult. The allegations by each parent against the other are detailed
and graphic. It is not the role of this Court to conduct a criminal
trial. Rather, the Court must consider a past factual situation
in determining whether or not there is a future risk to children with one or both of their parents. That is, the factual investigation does
not remove the paramount task for the Court being to consider what set of orders ultimately are in the best interests of the children in the future. As the Full Court in Napier and Hepburn[10] noted at [81,120]:There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[10] (2006) FLC ¶93-303.
The ultimate focus for the Court is on the degree of risk for
the children and not simply a finding of fact. That often presents evidentiary difficulties. The children may not be of an age to properly rationalise and articulate the allegations. Corroboration in the form
of adult witnesses and medical evidence may not be forthcoming.
The allegations may surface within the context of antagonistic
and untrusting parents having recently suffered their own relationship breakdown. For example, in the matter now before me the allegations from each parent are of events which are alleged to have occurred after separation. Whilst notifications have apparently been made to the child protection authorities, no proper forensic investigation has been carried out (perhaps due to the family reporter in this matter dissuading those authorities from further interview of the children). The possibility
of false and malicious allegation together with a misunderstanding
of children’s statements due to an air of mistrust must always
be considered.The two-step process for the Court in considering the concept
of “unacceptable risk” is firstly to look at the allegations of abuse and the evidence in support of each and then to evaluate the magnitude
of risk to the children in respect to the form of relationship proposed.The Court must be satisfied according to the civil standard of proof[11] that a parent has abused a child or is at risk of abusing a child. Regardless of a positive finding, the Court must also determine whether there is an unacceptable risk for the child.
[11] Section 140 of the Evidence Act 1995.
The mother’s allegations against the father
The mother makes some historical allegations of domestic violence directed to her during the course of and at the end of the relationship. However, it seems that she acquiesced to a regular and unconditional relationship between the children and the father in the months following separation. Her more pertinent allegations are set out in the second family report and allegedly came to light after the children spent time with the father on 5 October 2010. The interviews for
the second family report were to take place on 14 October 2010.
At paragraph 31 of her second report Ms M states:Nevertheless she fully trusts [X] as telling her the truth when he reported to her that his father hit him and gave her a long list of other alleged abuses by his father. On return from spending school holidays with their father, [X] was said to be bloated and according to him had not used his bowels because he is too frightened of using his father’s toilet. [X] was said to have also had a bruise. The children returned from holidays with their father on Sunday 26 September. Ms Derby took [X] to the hospital emergency on Friday 1 October 2010 where he was said to have been treated to assist his bowel function. The children spent time with their father on Tuesday 5 October and [X] allegedly made the disclosures on Wednesday 6 October.
Ms Derby wrote each of the statements [X] was alleged to have said and they include the following:a.Daddy punched me
b.I slept on the floor (while his father and [Y] slept on the bunks);
c.I was left at daddy’s on my own;
d.Daddy and [Y] went out to the park and there was no-one to help me;
e. Daddy said he does not like me anymore;
f.Daddy said he never wanted me
g. Daddy made me sad;
h.Daddy is not nice to me;
i. Daddy says nasty words eg. Shut up, fuck off, I’ll punch you.
j.Daddy tells [Y] to punch [names omitted] (Mr T’s children);
k. Daddy keeps me awake at night and doesn’t let me sleep and wakes me up when I fall asleep;
l.Daddy doesn’t love me;
m.Daddy doesn’t give me kisses and hugs, not say I love you and not talk to me;
n. Daddy doesn’t feed me – [Y] has 5 and I get only one.
In the following paragraph, being paragraph 32 of the same report,
Ms M notes:She [Ms Derby] also believed that Mr Osgood would do those acts complained of by [X], even the more extreme ones, such as punching him and leaving him on his own, because she claimed that he did those things during the marriage.
If these particulars are alleged to have been perpetrated on [X] “during the marriage” then they do not appear in Ms Derby’s affidavit material as one would expect. She refers to being herself the victim of some violence and [X] witnessing some alleged violence but does not allege violence to [X] prior to the separation.
Ms Derby confirmed to the family reporter that she believed [X]’s allegations. In cross-examination Ms Derby confirmed that she continues to believe some of [X]’s allegations against his father. However, also in cross-examination Ms Derby gave the following rather extraordinary response:
After Ms M’s second report I sat down with [X] and he told me that some of the things he told me were in fact lies.
Ms Derby swore to the truth of her trial affidavit on 15 December 2010. For reasons that remain unexplained, the fact of [X] conceding some of his allegations about his father to have been lies does not receive mention in that affidavit although that same document repeats the allegations in detail. At paragraph 43 of her affidavit Ms Derby says:
Subsequently, on 22 October 2010, Ms M’s updated Family Report was released. It addressed in some detail the concerns raised by both myself and the Father regarding statements allegedly made by the children. Whilst I cannot comment as to the veracity of the Father’s assertions regarding statements made to him by the children, I gave serious consideration to Ms M’s comments regarding those statements made to me by the children. I do not pretend that this process of consideration was easy, or fast, as given the history of violence during our relationship and the conflict following our separation, as well as the long pattern of the children’s at time [sic] disturbing behaviour following the time with the Father, my concerns for their wellbeing and welfare was paramount. Whilst I remained extremely concerned as to the statements made to me by the children, and their behaviour following their time with the Father, on 25 October 2010 (being three days after the release of the updated Family Report by
Ms M), I instructed my solicitors to send correspondence to the Father’s solicitors making clear that I would henceforth facilitate a resumption of the children’s time with the Father. That time has continued until the present date.
Put simply, it beggars belief that Ms Derby would take the trouble to detail the allegations in her response in her affidavit but neglect
to include the important fact that [X] had apparently told her that some of the allegations were lies.The allegations are of course serious and one might expect some form of corroboration where, for example, the child is alleged to have been punched by his father. There is no evidence of injury consistent with that allegation except Ms Derby stating in her affidavit sworn
15 December 2010 at paragraph 35:I had noticed a small bruise on [X]’s forehead, which I had at that point taken to be the result of ordinary childhood play.
The timing of the allegations and the interviews by Ms M also assumes some relevance. Those interviews were conducted on 14 October 2010. The allegations were made on 6 October 2010. Ms Derby apparently took the allegations so seriously that she unilaterally ceased the children’s time with the father. Yet in her report at paragraph 51 Ms M summarises her observations of [X] with his father as:
In summary, I consider that [X] was more relaxed and comfortable when in the presence of his father. He was noticeably content, more talkative, interacted more with his father and there was more physical contact and affection. He identified with his father and looks forward to seeing him. He needed to be reassured that he would again be seeing his father soon. There was no indication at all that this child was fearful of his father as alleged by Ms Derby. On the contrary I noted that there was a clear sense of fear and vigilance of his mother’s reaction and an absence of affection during the interactions.
In summary, given the contrary nature of Ms Derby’s evidence, together with the lack of corroboration and the observations of the family reporter, I am unable to find to the requisite standard of proof that [X] was the subject of violence at the hands of his father
as alleged or at all. The particulars of the allegations are in many ways simply incredible. Should they have occurred then one would reasonably expect some reluctance or hesitancy in the child which was not obvious when seen with the father. The difficulty remaining for the Court is to reconcile the mother’s evidence that she, at the very least, has lingering beliefs in respect of the veracity of [X]’s statements allegedly made to her with the orders that she seeks which are for the children to spend lengthy periods of time including a number of weeks in school holiday periods and such time to be unconditional. The only relevant condition sought by the mother is one that both parties
be restrained from using corporal punishment on the children. That is, the allegations said to be made by [X] are serious. The mother says she believes the child. These being the premises, then it is difficult
to contemplate that she proposes unconditional time for the children with the father.
The father’s allegations against the mother and her partner
In the main the father’s allegations against the mother and Mr T, her partner, in respect of violence towards the children relate to occasions post-separation. The father alleges that the children have been subjected to corporal punishment by the mother. She made some admissions in this regard to the family reporter and in her affidavits. However, regardless of the general community view as to the use of corporal punishment as a form of discipline, I am of the view that appropriate injunctive orders would suitably address this issue.
The father, however, raises further specific serious allegations. He says that it is these matters that convinced him in July 2010 to amend his application so as to seek an order that the children live primarily with him. In her final address, counsel for the father repeated that he seeks orders in the terms of his amended application filed 9 August 2010. Those orders would provide inter alia that the children spend time with the mother each alternate weekend from Friday after school until Monday morning together with lengthy block periods during school holidays. Nowhere in that document, and somewhat extraordinarily, are conditions sought in respect of the children’s time with the mother except that both parents “attend counselling”. It is, of course, open
for the Court to impose such conditions or injunctive orders as it sees fit in the interests of the children. He seeks orders in these terms despite the serious allegations of physical violence directed at the mother’s partner, Mr T, and the mother’s apparent refusal
to acknowledge that violence.In his final affidavit affirmed on 31 January 2011 at paragraph 17(u), the father says:
as for the contents of paragraph 56, I say that [Y] frequently expresses his distress, frustration and anxiety over being smacked, put in time out, having his mouth washed out with soap and being put to bed without dinner. He has asked me on several occasions to “come to Mummy and [Mr T]’s Daddy and sort it out”…
It is generally agreed between the parties that the child [X] unfortunately walked into the bedroom shared by the mother and Mr T and saw them engaged in sexual activity. [X] has referred to Mr T as “Mr T the Vampire”. It is likely on the evidence that [X] interpreted what he saw as a form of violence being perpetrated on his mother by Mr T.
In his affidavit sworn 1 July 2010 the father says at paragraphs 5 and 6 and in respect of 29 June 2010:
Very soon after the children arrived at [Mr & Ms J’s] home, they described to me an incident which had occurred only days earlier at [Ms Derby]’s [sic] her current partner, Mr T’s home, the exact date they were not aware of given their ages. The children told me that on the morning of the incident, [Ms Derby] and Mr T had an argument, both verbal and physical. [Ms Derby] and Mr T were arguing quite loudly which caused [Y] to leave his bed and go into the corridor to see what was going on. When [Y] entered, Mr T grabbed him by the scuff [sic] of the neck and lifted him up. Mr T then proceeded to carry [Y] in this manner to his bedroom where he dumped him on his bed and yelled at him to stay there.
[X] told me that the fighting continued and he saw Mr T smack [Ms Derby] across the face and [Ms Derby] do the same to Mr T in response a couple of times. [X] described to me both [Ms Derby] and Mr T having red marks on their faces and Mr T kicking [Ms Derby] in the stomach several times. He drew me a picture to describe the event in the communication [sic] which I was writing in at the time.
A drawing purported to be made by [X] and in respect of these events has been put into evidence. Ms M also had the benefit of discussing [X]’s drawings directly with him.
In an affidavit filed 28 June 2010 and at a time when he still proposed that the children lived primarily with their mother, the father states
at paragraphs 30 to 32 and under the heading “physical punishment” that:Both children have complained to me on many occasions that they have been smacked by hand and, on one occasion, a plastic wooden spoon or kitchen utensil, by their mother, her boyfriend Mr T and Mr T’s mother.
[X] told me about 4 weeks ago that [Y] had been crying in bed at night and that Mr T come [sic] in and smacked him with a black plastic kitchen spoon.
The children complain about physical punishment when with or in [Ms Derby]’s care. They are very animated and upset when they relay these incidences [sic] to me which seem to have occurred on almost every occasion that they are with me.
In cross-examination at the trial Mr Osgood volunteered that:
[X] is one of those kids with quite a strong imagination.
I can only infer that this understanding may have influenced
Mr Osgood against amending his application earlier and at a time when he was presumably armed with these allegations.The second family report was prepared in October 2010 and following the father amending his application to seek “live with” orders in July 2010. At paragraphs 30 and 31 of that document Ms M reports:
Ms Derby was highly positive about her relationship with her partner, Mr T, and strongly denied any allegations of violence. She said that if he had been assaulted as alleged, she would not live with him. She acknowledged that they did have an argument one night just prior to the July hearing and that she and the children stayed in [omitted] for some days, but she claimed that it had been a planned visit and not because of the argument. She explained [X]’s reporting of [Mr T]’s [sic] assaults as wrong, that [X] was confused and that instead it had been Mr Osgood who had slapped and kicked her on the day of separation in 2008. She believed that [X] “lied” to his father because [X] is afraid of him.
Nevertheless, she fully trusts [X] is telling her the truth when he reported to her that his father hit him and gave her a long list of other alleged abuses by his father.
And at paragraph 33 of the same document Ms M states:
Ms Derby continued to have no doubt about the truth of the statements to her by [X] although she denied the events reported to Mr Osgood by [X] and said that [X] lied to his father. She did not consider it possible that [X] would be frightened of her nor that he would say what he believed she wanted to hear.
At paragraphs 46 to 48 and when interviewing [X], Ms M notes:
I asked [X] to tell me about the drawings and notes his father had given me. I numbered each from 1 to 7 for ease of identification and we discussed each of them. The first, is
a drawing of a man in a green jumper with two clearly marked protruding teeth. Drawing number 7 is similar. [X] easily identified the drawing as being of Mr T but he refused to identify the two markings as teeth or refer to them as vampire teeth.
It was clear that it was a subject he tried to avoid.The third was a note which [X] said he wrote. It states “Mr T vampire he kicked my mummy”. [X] read it to me but in doing so omitted to say the word “vampire”. Mr Osgood had alleged that [X] is punished by his mother if he refers to Mr T as “Mr T the vampire”. [X] did so of his own accord during the first interview and he said that he had given Mr T that name.
The fourth is a drawing of a woman with a green body and a very sad face (down turned mouth and with tears) whom he identified as his mother and a long green leg hitting his mother. In clear terms [X] said it was a drawing of “Mr T kicking his mother” and proceeded to say that he saw “Mr T kick his mother in her tummy”. It happened in Ballarat and he was in the car. He “cried and was scared”.
In the first family report from February 2010 Ms M reports Ms Derby as saying at paragraph 24:
Mr T has two children of similar ages and she admitted that her boyfriend has disciplined the children by putting them in “time out” but he only does this when all four children are together. She claimed that she is the only one who physically chastises the children.
The mother in her evidence in cross-examination denied that Mr T was violent to the children. Her own father gave evidence. He similarly would not accept any allegations in respect of Mr T. He did, however, admit knowledge of arguments between Ms Derby and Mr T and on at least one occasion Ms Derby had come with the children to stay at his home.
Mr T is the subject of two broad allegations. Firstly, there is an allegation that he has been violent to the mother in the presence of the children. Secondly, there is the allegation that he has been violent or overly aggressive directly to the children. Mr T did not take part in the interviews for the family report in October 2010 which was after these allegations had been made. Mr T has not been interviewed by the child protection authorities. He did not provide an affidavit and was not cross-examined in respect of these allegations although he appeared to be present in court throughout the proceedings. Counsel for the mother submits that no inference should be drawn by the failure of Mr T to address these allegations given that the mother herself denies them outright. Counsel for the father submits that the Court may draw an inference against the mother’s version of events under the rule in Jones v Dunkel[12] due to his failure to give evidence. The inference open to the Court is that if Mr T had provided an affidavit or given evidence then that evidence would not have assisted the mother’s case. No proper explanation, other than the mother’s denial, was given to the Court for the failure of Mr T to give evidence. In cross-examination the mother said that Mr T in fact wanted to give evidence but did not do so “on the advice of my solicitors”. If I accept this evidence then it could only add weight towards the drawing of inference against the mother.
[12] (1959) 101 CLR 298.
Prima facie the allegations of the children are of some concern.
They apparently caused the father to amend his application to seek orders for the children to live primarily with him. The evidence of the family reporter, and both parents, is that [X] exhibits a high degree
of anxiety. In his affidavit sworn and filed 1 July 2010 the father relates a conversation with [X] on 29 June 2010 where the child particularises an incident between his mother and Mr T. [X]’s drawings and his interview with Ms M are corroborative.
In an affidavit sworn and filed just three days previously on 28 June 2010 the father related his concerns in more general terms
at paragraphs 30 to 32 under the heading “physical punishment” where the children are said to have complained to him of being “smacked” and hit with a “plastic wooden spoon” by the mother, Mr T and also
Mr T’s own mother.In that same affidavit of 28 June 2010, and despite the above, the father proposes that the children live primarily with the mother.
The children have also complained of having their mouths washed out with soap.
Ms M interviewed [X] in October 2010 for her second report. She had been provided with a number of [X]’s drawings. Although [X] seems to refer to the incident between his mother and Mr T and seeing his mother and Mr T engaged in sexual activity, I can find no reference in either of Ms M’s reports or from her evidence in Court where [X] has volunteered to her the same particulars of his complaint to his father.
Given the evidence of the father and of Ms M, I am of the view that the unexplained failure of Mr T to give evidence allows me to draw the inference that any evidence he did give would not have been favourable to the mother’s case. I do not accept the submissions of counsel for the mother that her denials suffice and hence do not necessitate Mr T giving evidence. Ms Derby is the alleged victim of the domestic violence witnessed by the children. She continues to live with the alleged perpetrator. Mr T was apparently available to give evidence in respect of these issues. He chose not to. In my view the inference under Jones v Dunkel
is available to me with that inference being that his truthful evidence would not have assisted the mother’s case. Given the evidence as a whole including that of the mother herself, the father, Ms M and the mother’s own father together with the inferences I draw, I am satisfied on the balance of probabilities that there was an incident of domestic violence between the mother and
Mr T and witnessed by the children.
In respect of Mr T, I turn to the allegations directly in relation to the children. Again, they are broadly denied by the mother. The mother’s own father also broadly denies any allegations in respect of Mr T but within context his evidence is of little value. He simply was not in the presence of the mother, Mr T and the children at all relevant times. I am asked to draw a further inference against the mother’s case by the failure of Mr T to give evidence and answer these allegations against him. The principle in Jones v Dunkel does not provide for a mandatory inference to be drawn against a party not adducing certain evidence. Rather, it creates discretion in the Court to do so. Obviously, any such inference must relate to the probity of the evidence and the circumstances regarding that evidence.
The allegations set out in the father’s affidavit sworn 28 June 2010 and set out above are broad and lacking in particulars. It is noteworthy that they did not at that stage cause the father to seek primary care of the children. He was still prepared to delegate that role to the mother. Those allegations, however, involve alleged assault in the form
of prima facie unacceptable corporal punishment. The father’s following affidavit sworn 1 July 2010 particularises the incident between the mother and Mr T. At its highest it alleges that [Y] was removed by Mr T from the vicinity of that incident albeit perhaps in an aggressive manner.
There is no corroboration from the family reports of the children’s statements to their father and despite them being interviewed alone by Ms M. There is no evidence of forensic investigation by authorities such as the Department of Human Services or Victoria Police. There is no medical evidence of injury. Taking the available evidence at its highest, and whilst I am satisfied that Mr T did remove [Y] from exposure to the argument between he and Ms Derby, I cannot be satisfied to the requisite standard that the children have been assaulted by Mr T. Consequently, I do not draw any negative inferences from his failure to give evidence in respect of this matter although, of course, if he had done so then there may have been some general assistance to the Court if only in seeing and hearing the adult whom the mother proposes live in the children’s household.
In summary, therefore, I am not persuaded that [X]’s allegations
to his mother about his father have any factual basis. I am satisfied that the children witnessed an altercation between their mother and Mr T and that there was a physical element to that argument. I cannot be satisfied that Mr T has assaulted the children as alleged although I think it highly likely that he did remove [Y] from being exposed to his argument to Ms Derby.
Mr Osgood raises a further issue about the children being exposed to firearms, and perhaps present at some duck shooting, when in
Ms Derby’s care. The mother denies that this is the case. No evidence was adduced nor submissions made as to any alleged illegality or manifest danger to the children. I can simply make no findings in this regard.
It remains, however, quite clear from Ms M’s reports and from the evidence of each of the parents that [X] consistently displays symptoms of anxiety. Each of the parents directs the blame for this condition on the other parent with reference to particulars of violence. A close reading of Ms M’s reports, however, suggests a further explanation. Ms M notes [X]’s reaction at the interviews to possible conflict between his parents. He was reluctant to have them come together in the same locality. His anxiety was manifest at these times. Any reading of the evidence and the affidavits and confirmed
by my observation of the parents in the witness box leads to only one conclusion being that these young children, and particularly [X], are abundantly aware of the entrenched conflict between their parents and have been exposed to that conflict. There is no sign yet of that conflict having abated. These parents do not communicate in respect of their children. There is unchallenged evidence as to incidents of childish but confronting behaviour, including by Mr T, at changeovers. The failure of both parents to see and understand the effect of this ongoing conflict on [X] is demonstrative of poor parenting in general.
Additional considerations
Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views
The children are both very young and not of an age where the Court would ordinarily expect them to be able to rationalise and articulate any views as to their living arrangements. However, the observations of the family reporter are consistently that the children wish to spend regular time with their father. These observations are of natural inclinations of young children and the importance of such evidence
is as to the lack of reluctance or hesitancy in the children when seen with their father and within the context of the issue between the parents.
Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)
Ms M observes [Y] to be attached primarily to the mother. This is not surprising given the fact that he was an infant when the parents separated. Ms Derby has been the primary parent of both children since their separation. Nevertheless, some observations by Ms M are consistent with my own observations of the mother in the witness box. She consistently gave her answers in a cold and emotionless manner. Her focus was on the negatives of the father. She was unable to say anything positive about the children’s relationship with him. This element of her personality was most evident when it was put to her that Mr Osgood loved his children. Her spontaneous response was enlightening when she said “he thinks that he loves them”.
To the contrary, Ms M was more complimentary as to the nature
of the relationship between the children and their father. At paragraphs 40 and 43 of her second report Ms M observes:
… Both children were happy and eager to see him and [X] ran ahead. He kissed and cuddled his father and both children did not want the session to end. [Y] cried and wanted to leave with him to go to his father’s place. [X] was visibly sad and wanted to know when he will be able to see him again. Mr Osgood easily and gently managed both boys even when both were demanding his attention…
[X] was more expansive in his comments when he was with his father. He was able to express his feelings to his father without fear or reticence…
At paragraphs 17 and 18 of her first report Ms M says:
The children were immensely delighted to see their father. They played with him and each wanted to interact with him. [X] and his father kept talking for most of the time and [X] ensured that he engaged his dad with various questions. Mr Osgood divided his attention well between the two boys and was at ease with managing both children at the same time. He was very gentle and patient and never confronted the children. He was able to redirect behaviour and intervene without saying no or raising his voice or admonishing the children…
Mr Osgood demonstrated excellent parenting skills and his love and care of the children were evident. Mr Osgood had a good knowledge of the children’s needs and interests and it was clear that he had been involved in the children’s day to day care. Both children love their father and were highly demonstrative of their affection for him. [Y]’s face lit up each time he and his father interacted, he sat with and on his father and he was at ease in his father’s company. When [X] became anxious about his father having to leave Mr Osgood gently cuddled and reassured him and gave him his necklace to hold so [X] could feel more secure.
Mr Osgood’s [sic] had the ability to gently and without being intrusive, speak to [X] to find out what was upsetting him and to engage him so that the child came out of his withdrawal or anxiety. From a psychological point of view, Mr Osgood’s interventions with both children, and particularly his management of [X]’s anxiety and [Y]’s tantrum, were excellent.
At paragraph 27 of the first report Ms M observes:
Although Ms Derby was able to say that the children look forward to seeing their father and [X] counts the days, she was reluctant to admit they have a good relationship with him.
And at paragraph 29 of the same report:
The children have a close relationship with their mother and are attached to her. Her parenting style is very different to that of the father and she used disciplinary messages to control behaviour. Her manner of controlling tantrums was different to that of
Mr Osgood and despite her more stern intervention [Y] had
a mild tantrum and cried. She was inclined to be able to deal with one child at a time.
At paragraph 40 and in respect of [Y], Ms M says:
He is primarily attached to his mother and also has a very good attachment with his father. He was immensely delighted to see his father and sometimes competed for his father’s attention.
The differences in the parenting demeanour and style are further noted at paragraph 41 of the second report when Ms M notes:
Ms Derby’s interaction with the children had a different character. Neither child greeted her… I noted that [X] was very worried and watched her carefully for her reaction. He had
a pained expression and appeared quite frightened… Ms Derby tended to only interact with [Y] and ignored [X] when he sought her attention until he asked several times. She again used stern and disapproving language to manage a small argument between the children. There was little or no physical contact between the children and their mother.
The conflict between these two parents escalated only some time after their separation and then became more entrenched. It is clear that the father has had an ongoing relationship with his children and that they are both bonded to him. Again, there was no evidence from Ms M of any reluctance on the part of the children in respect of their father. What is noteworthy, however, is the difference in parenting styles between the applicant and the respondent. These observations are also consistent with the demeanour of each of the parents in giving their evidence in these proceedings.
Section 60CC(3)(c) – the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
There is no evidence before the Court of any probity to suggest that the father is either unable or unwilling to encourage the children’s relationship with their mother. Indeed, until recently he has been reluctant to pursue the role of primary parent of the children and content for the mother to continue this task. He was, however, notably unable to give any positive aspects of the mother when asked in cross-examination. In my view this is demonstrative more of the parents’ own relationship more so than his views of the mother’s parenting capacity. Ms M observed and said during cross-examination:
Certainly the father is much more positive about the mother than she is of him.
The evidence gives rise to a number of concerns in respect of the mother. Again, her voluntary and unguarded response to the simple proposition that Mr Osgood loves his children being that “he thinks he does” is demonstrative of her negative attitude. Once such an attitude is entrenched then it may be incompatible with an acknowledgement
of the importance for children to have continuing relationships with both their parents after separation. There are a number of allegations made against the mother which add to the concerns that she may, either deliberately or subconsciously, attempt to marginalise that relationship for the children. She has stopped the children’s time with their father on at least two separate occasions. On my findings, she has done
so without justification. On one occasion the children went some weeks without seeing their father because the mother demanded formal court orders even after the drawing of a parenting agreement.
Such behaviour does her no credit as an objective and understanding parent.
Similarly, there was an incident at Christmas 2010 where the mother allegedly acted unilaterally to change an informal arrangement reached between the parties. Consent orders were agreed restoring the father’s time with the children in late 2010. Outside of court and those orders,
I am satisfied that there was a collateral agreement between the parties and arranged by their legal representatives which would have
the children spending time over the Christmas festive season with the father. The mother reneged on that agreement and relied on previous orders which would not have the children going to their father until some time in January. I am satisfied that she acted this way in full knowledge and understanding and contrary to the agreement to which she was a party. Her attempts to explain away and add ambiguity were unsatisfactory and unconvincing. Rather, I am satisfied that she acted entirely in her own interests and not in those of the children. Indeed, when pressed in cross-examination, the mother conceded her knowledge of the collateral agreement.
Significantly, the mother moved to Ballarat in mid-2010. In her evidence in court she indicated that she was of the belief that she had given notice to the father. Much correspondence between solicitors was tendered to the Court and any reading of the chronology and contents of that correspondence leads only to the conclusion that
the mother made a unilateral move of the children to Ballarat and did so without consultation with the father and advised him only after the event. Similarly, she enrolled [X] in the school of her choice without consultation with the father. Documents brought to court under subpoena to [X]’s school and tendered in evidence further suggests the tendency of the mother to act unilaterally and to exclude the father from participation in important decisions in respect of their children. For example, those documents suggest the mother’s preferred name
for [X] at the school to be her own surname. Overall, and despite her denials, I am satisfied that the mother did act unilaterally in respect
of this move. It is equally clear that the mother had signed [X]’s school enrolment at [S] School in Ballarat about 10 days before advising the father of her move.
The father alleges that the mother attempted to exclude him from [X]’s school function. It seems that Mr T has a child at the school and would be present. She says she wanted only to keep the two men apart. Even accepting this explanation, the fact remains that Ms Derby acts in a unilateral way. She sees herself as the decision maker and that she involves the father only after the decision is made and acted upon. Her moving to Ballarat and enrolling [X] in a particular school are prime examples. When challenged in this assumed role she acts as if of right. She must realise that in family law matters it is the children who have the rights and in a broad sense it is the parents who bear the responsibilities.
Unfortunately it seems that Ms Derby’s extended family is imbued with her own views. Mr D, the mother’s father, gave evidence. Although presenting as an articulate gentleman, he was clearly partisan to the mother’s case. When confronted with the opinion of Ms M that [X] was frightened of Mr T, this witness responded:
Yes, but it depends on my view of the report overall. I thought the report was very questionable.
He accepts his daughter’s denials of the allegations against Mr T including one that she was the victim of assault. He concedes that he has not independently raised these matters with Mr T and says blandly:
Yes, because I had faith in Mr T and his relationship with [Ms Derby].
Specifically, as to [X]’s allegation that he had witnessed his mother being assaulted by Mr T, Mr D responded “at the time it was viewed as a silly allegation”. He did, however, give a response to one issue that tends to corroborate my findings generally as to the mother’s tendency to act out of self interest. In respect of the mother reneging from the collateral agreement for Christmas time for the children with the father in 2010, Mr D readily acknowledged “she was concerned it was inequitable”.
The mother’s strong personal antipathy for the father was evident from the witness box. Nevertheless, her personal views are in conflict with the general observations of the family reporter as to the children’s relationship with their father. As such, I find some force in the submission of counsel for the father that the strong relationship between the children and the father exists “despite her” and not “because of her”. The mother did on an occasion send or cause
to be sent to [X]’s school a copy of a solicitor’s letter setting out her litany of concerns in respect of the father. She did so without the courtesy of a copy of that letter being sent to the father’s solicitors. The mother took [X] to a psychologist during the course of this litigation without first requesting the agreement or participation of the father. The mother presents as a person carrying entrenched and residual animosity towards her former partner. She has thus far been unable to separate her own feelings from her responsibility to encourage and facilitate the children’s relationship with their father despite the objective evidence of the strength of that relationship and it being one that these two boys want. In the earlier family report she volunteers to Ms M at paragraph 2:
Ms Derby does not want the children to spend more time with their father nor to have any telephone contact.
Even after the benefit of two family reports setting out an objective view of the children’s relationship with their father, Ms Derby was relatively unmoved in the witness box as to her views of the children’s relationship with their father. She came across as a person reluctantly conceding only the minimum time necessary for the children with their father and to be disinclined to consider any normal forms
of cooperation and communication so as to allow the relationship with their father to flourish.
As a part of her application, Ms Derby seeks an order that the children’s surnames be changed so as to include her own surname.
The children’s birth certificates are currently registered as “Osgood”. The children have habitually used that surname. When challenged
as to this part of her application, and its rationale, Ms Derby gave reasons directed only to her and her family in support of the proposed change. Again the focus was on herself rather than on the children. Generally, there was an inability by her to acknowledge that
it is possible for the children to maintain a beneficial relationship with their father despite her own views of him. As a consequence, this Court will be obliged to make orders in some detail ensuring
the continuation of the children’s relationship with their father
as I cannot have confidence from the mother’s evidence and attitude and history that she would voluntarily encourage such a relationship.
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the children), with whom they have been living
The children are still young and have lived all of their lives with their mother and for most of their lives primarily with their mother.
The nature of their relationship with Mr T is unknown except for some scant evidence from the mother herself which not surprisingly was complimentary of that relationship. Had Mr T chosen to give evidence then the Court would have been appraised of a person who is proposed by the mother to be a permanent resident in their household and apparent adult role model for them. Such evidence would ordinarily be expected to be adduced so that the Court could make a full and proper determination as to the children’s best interests where there is a dispute as to primary place of residence.
Ms M in her two reports comments on the attachment of the children being primarily to their mother although notes in her second report an improvement or progress in [Y]’s attachment to his father.
The children have now lived in Ballarat and [X] has attended school in Ballarat since mid-2010. This is a fact that I must consider despite my findings as to the mother’s unilateral move of the children and enrolment of [X] in school. Although he is still in primary school, the father’s proposal would necessitate some significant changes
for [X] in both his primary place of living and his school. Given the general anxiety observed in [X] and the primary attachment noted
by Ms M for [Y] with the mother, such changes would assume some significance. However, change for children in their lives is not unusual and at times inevitable. If such a change was to occur then the positive observations of Ms M as to the parenting skills and capacity of the father together with his bonded relationship with both children would, in my view, alleviate much of the stress and anxiety for these two young boys from such a significant change as proposed by the father.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s rights to maintain personal relations and direct contact with both parents on
a regular basis
Each parent’s proposal would see the children spending regular time with the other parent. The mother’s reluctance to cooperate in “extra” time or telephone time is of concern. Any form of “flexibility”
does not figure in her proposals, her demeanour or her attitude.
This is a pity given the objective evidence of the children’s good relationship with their father and the difficulties which will flow from his shift work as a [occupation omitted]. The fact that the mother has relocated and added distance to the equation is also concerning given that the father previously had the advantage of seeing the children on alternate weekends and on a night in the off-week. However, the father’s own circumstances have also caused difficulties of a practical nature. He has chosen to undertake training and a career as a [omitted]. This has required him to attend a [training place omitted] and in recent times he has had to relinquish the mid-week time with the children. Further, the advent of shiftwork for him will cause further difficulties and particularly given [X]’s school commitments. The disinclination
of the mother to cooperate outside of court orders is a further practical hindrance. Frequency and regularity of contact for young children
is prima facie desirable and often advocated by the experts in these courts. It is, however, a desired end that must fit with the practical commitments of the parents.
Section 60CC(3)(f) – the capacity of each of the children’s parents, and any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs
The capacity of the mother generally is not questioned as to her ability to provide for the day-to-day physical needs for the children. She has done so for some considerable time. Indeed, until recently the father was prepared to concede this primary role to the mother and I infer therefore that he was satisfied with her capacity in this regard. To his credit, the paternal grandfather in his evidence was forthright in his praise of Ms Derby’s parenting skills. He described her as “a good mum who keeps a clean house”. It is clear that the change in the father’s application was brought about by his concerns as to the children being subjected to and/or witnessing violence in the mother’s household and her inclination to act unilaterally so as to marginalise
his relationship with the children. Those issues have been addressed
in detail elsewhere in these reasons. In short, he challenges the mother’s capacity to attend to the emotional needs of their children.
The capacity of the father to attend to the day-to-day care and needs
of the children is the difficulty that he confronts. I emphasise that
it was only relatively late in these proceedings that he took such
a quantum leap in respect of his application. Nevertheless, it remains incumbent upon the father to adduce evidence of sufficient probity and weight to support his application and, in particular, to demonstrate
to the Court that he does have the capacity to attend to the children’s needs. The family report is complimentary of the father in many respects. I have no doubt on the evidence that he is a dedicated parent and has and will attend to their emotional and intellectual needs.
The observations of Ms M are unambiguous in this respect. However, there are concerns in relation to his day-to-day capacity. He has chosen to pursue his career in [omitted] and I make no criticism of him for that despite his revelation to the family reporter that he might relinquish that career in favour of dedicating himself to the care of the children. Generally, a parent pursuing stable and remunerative employment is a positive and shows insight, objectivity, and a commitment to the proper support of children. I am of the view that Mr Osgood demonstrates these traits.
The difficulty for the Court though is that when the trial of this matter commenced it rapidly became abundantly clear that the father was not in a position to give or adduce evidence in support of even the most basic proposals for his daily care of the children. During the luncheon adjournment on the first day of the trial he apparently telephoned
a primary school in [A] to enquire as to the possible enrolment
of [X]. Ordinarily, a court could expect such enquiries to have been made previously and evidence in proper form presented to the Court.
The father swore a final affidavit on the first day of the trial being
31 January 2011. Leave was given for him to rely on that document. At paragraph 4 he states:
At present I live with my brother [Mr D] at his home in [B] [in inner-north Melbourne] on weekends and during the week at the [workplace omitted] in [south-east Melbourne].. Once I finish the Cadetship/Recruitment I propose to rent and live in the [B] area where I have previously lived.
In cross-examination it became apparent that Mr Osgood’s immediate proposal was to accommodate the children in his brother’s residence at [B]. The brother did not give evidence. Yet he proposed to have [X] attend a school in [A] and [Y] go to a separate child care facility. Later in his evidence he volunteered that he intended to live in [A]. His evidence in regard to such immediate matters was contrary, lacking in detail, corroboration and consideration.
Similarly, it is obvious that the father currently has commitments during each week from early morning and in the hours after school which would preclude him directly caring for the children. Those problems will be accentuated when he graduates and commences work as a [omitted] when he will be required to undertake shift work including time early in the morning and late at night. When confronted with the question as to how he will address these difficulties the father said that he would enlist the assistance of his girlfriend and his brother, [Mr D]. Significantly, neither gave evidence. As a result, neither was cross-examined. I know only from the father’s evidence that his brother [Mr D] lives in [B] and has a wife and a young child. I know nothing of his other obligations. I know that the father’s girlfriend lives in [inner-south Melbourne and works as a [omitted] on three days each week. Mr Osgood was cross-examined as to the status of his relationship with his girlfriend, Ms G. He responded:
We are taking things slowly. We are remaining autonomous for the foreseeable future but we are exclusive and committed to one another.
The father’s proposals for the care of his sons do not sit well with
an “autonomous” relationship. To the contrary, they require a high degree of commitment by third persons already burdened with their own responsibilities. When asked if he had discussed his proposals for the children’s care with his girlfriend, the answer hardly induced confidence. He said simply “to a certain extent”.
The father said that he had approached his future [employer] and was told that some flexibility might be available with a general policy to accommodate members with families. This was the limit of his response. In a situation where a court must focus on the best interests of the children and, in the case of such young children, including their hands-on care, the father’s case is seriously lacking in evidence and detail. The clear impression from his evidence is that he simply had not conducted any enquiries about educating and housing the children if his application was successful. Interestingly, in cross-examination Ms M volunteered that Mr Osgood stated even at the interviews for the second family report that “he was reluctant to have the children live with him”. This was some three months after he had filed his amended application.
A conclusion is left open for the Court that Mr Osgood’s preference remains that the mother assumes the role of primary carer but on the basis that his concerns in respect of her parenting, her attitude towards him, and her relationship with Mr T, are properly addressed. As with the mother failing to adduce evidence from Mr T, the Court could reasonably expect that evidence in proper form would be adduced from those anticipated to assist Mr Osgood in the care of his children and particularly where that obligation would be significantly onerous. Again, no explanation was given to the Court for the failure to adduce that evidence. In a situation where it is proposed that the children be removed from their primary carer and placed at times in the care of people other than one of their parents, it is reasonable for the Court to have evidence in proper form and detail in order to be satisfied that the children’s needs are properly addressed. Much of the father’s evidence as to such details appeared to be simply after-thought and as such his capacity is an unknown in many respects. For example, he was cross-examined in detail as to the mechanics of taking the children to school and day care and then getting himself to work. He conceded that he and the children would need to be left their home at 6.30 am. When asked about [X]’s breakfast, Mr Osgood responded “[X] could have breakfast in the car or at school”. When asked when he had decided on [A] Primary School for [X], Mr Osgood responded “yesterday I spoke with my family and we decided on [A]”. His affidavit sworn on the first day of the trial says at paragraph 4:
At present I live with my brother [Mr D] at his home in [B] on weekends and during the week at the [workplace omitted] in [south-east Melbourne]. Once I finish the Cadetship/Recruitment I propose to rent and live in the [B] area where I have previously lived.
That affidavit is silent as to schooling for the children. The paternal grandfather gave evidence after the father. Even at that stage the grandfather understood that Mr Osgood and the children would be living in [B] and the children going to school in [B].
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant
The relevance of this sub-section remains the young ages of the children and the fact that they have lived primarily with their mother. This is, of course, a factor to be considered against any concerns as to the mother’s attitude and capacity as a parent. The fact remains, however, that they are young and reliant upon adults to attend and support their every need. The family reporter has noted that attachment of children to one or other of their parents is an important consideration at such a young age. At the same time, however, their young
age means that these children could not be expected to self-protect
in any situation of violence. The allegations against Mr T are therefore relevant as are those against the father.
Section 60CC(3)(h) – if the children are Aboriginal children or Torres Strait Islander children
This sub-section is not relevant.
Section 60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The attitude of the father generally has been until recently to delegate the primary parenting role to the mother. He should not be criticised for this attitude and in many ways it is an objective understanding
and acknowledgement of the circumstances of each of the parents.
Mr Osgood has conceded to the family reporter that his attitude towards the mother has at times been improper. He has, however, been forthright in acknowledging some of his failings. At paragraph 11 of the first family report Ms M says:Mr Osgood was open and frank during the interview and admitted that some of his communications, such as the text messages he sent were wrong and inappropriate and he should not have responded in that manner. He said that he had previously tried to be reasonable but lost control.
The mother in her affidavits cites a number of text messages received by her from the father. He admits sending the texts and concedes the content to be generally inappropriate. Mr Osgood says only that he was also the recipient of similar colourfully worded texts from
Ms Derby.Generally speaking, an ability to accept and acknowledge failings will give optimism for them not continuing. The Court understands,
of course, that emotions run high immediately following a breakdown of a relationship and the benefit of there being two reports some nine months apart in this matter give further optimism that Mr Osgood has been able to put such negative attitudes behind him and focus on his children. In his evidence Mr Osgood indicates that he has moved
on from his relationship with Ms Derby. Ms M makes similar observations.Ms Derby’s attitude generally continues to be of concern. I have set out above my observations and findings as to her negative focus and its impact on her ability to encourage and facilitate the children’s relationship with their father. Her evidence in the witness box was characterised by this continuing negativity. Her antipathy towards
Mr Osgood is seemingly entrenched. That attitude permeates her every dealing with him and, in particular, her parenting of the children. She does, of course, allege some domestic violence perpetrated on her at the time of separation and, if factually correct, such violence can not be condoned and is likely to have had an ongoing effect on her attitude towards the children’s father. There is some concession made by
Mr Osgood in this regard although he does not agree with the particulars alleged by Ms Derby. Nevertheless, separation now occurred some considerable time ago and it is incumbent on the mother to differentiate her own feelings towards Mr Osgood from the children’s need to have a relationship with their father. Whilst her negative attitude continues, any sense of communication and cooperation between these two parents is unlikely. In cross-examination the father was able to be positive about future communication with the mother. He said:With regard to the children, I would be cordial but I don’t feel like I need a relationship [with the mother].
There was no indication from the mother whatsoever of any lessening of her strict view as to no communication with the father outside of the communication book.
Ms M in her cross-examination made it clear that both parents bear responsibility for the anxiety caused their older son by their behaviour. The fact that they could degenerate to the level of a public tug-o-war
of [Y] on [X]’s first day of school and at his school and in the presence of other children and adults is deplorable conduct and speaks multitudes as to their lack of parental insight into what should be an obvious effect on [X].
Section 60CC(3)(j) – any family violence involving the children or
a member of the children’s family; and Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family
There have been intervention order proceedings between Mr Osgood and Mr T. The failure of Mr T to give evidence leaves the Court in the dark as to the particulars of the allegations leading to any orders or undertakings between these two men. There are allegations of inappropriate behaviour by Mr T together with Ms Derby at some changeovers for the children and in the presence of the children. These matters were not challenged at the trial in any great detail and hence generally remain of some concern.
The mother alleges domestic violence towards her from Mr Osgood
at separation. The evidence as a whole suggests that there is some merit to this allegation but the mother’s evidence is again equivocal
as to the particulars. On one reading of the evidence it seems that she was pushed and on another reading perhaps more seriously assaulted. As mentioned above, domestic violence in any form and in any circumstance is abhorrent and cannot be justified. The children witnessing such behaviour would inevitably lead to ongoing anxiety and this seems to be the case with [X] with his manifest anxiety
of the prospect of his parents coming into contact. The parents now have little or no direct contact and have often enlisted relatives to assist with changeovers.I have considered in some detail above the allegations of violence stemming from [X] in respect of both parents and Mr T. On the whole, there is a concern that [X]’s statements may be influenced by his understanding and direct observation of the conflict between his parents and their ongoing animosity. The allegations relayed by the mother to the family reporter from [X] are in many senses incredible and certainly inconsistent with the family reporter’s observations of [X]’s relationship with his father. The mother’s bland acceptance of those allegations and equally bland denial of the allegations against
Mr T give concern as to her insight and attitude generally. Of major concern is the impact of whatever has occurred on [X]. He is manifesting physical and emotional symptoms of anxiety and would all likelihood benefit from some dedicated psychological or psychiatric intervention. Such intervention would, however, require the objective and cooperative assistance of the parents and frankly the Court has little confidence that this could occur in the short term. [X] has already been interviewed twice by Ms M and there is evidence that the mother has unilaterally involved a psychologist. [X] is still young and is clearly vulnerable in an emotional sense. Any further therapeutic intervention should only occur after proper and expert referral. It might be, of course, that the child simply seeing an instance of his parents acting in a civil fashion to each other would achieve the same result as professional therapy.I am satisfied on the balance of probabilities that the children have witnessed some altercation between their mother and Mr T.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The future in respect of these two young children is unknown
in respect of the proposals of either of the parents. The father has not presented a case with any particularity to give the Court confidence that he can attend to the day-to-day needs of the children.
The mother’s attitude is negative and unrelenting and not symptomatic of future cooperation and communication. The task for these parents, whatever the configuration of the children’s living arrangements,
is to move forward with a focus on their children’s short and long term physical and emotional needs. The children’s needs must be prioritised over their own residual relationship animosity and antagonism.Pursuant to s.60CC(4) of the Act the Court is also to consider
the extent to which each parent has fulfilled, or failed to fulfil, his
or her responsibilities as a parent. There was a suggestion on behalf
of the mother that the father had not fulfilled his financial obligations in respect of payment of child support. I am not persuaded on the evidence that this is the case. The few documents tendered in evidence suggest some minimal arrears at certain times but I accept the father’s explanation and generally the evidence suggests that he has not seriously been in breach of this obligation.
Conclusions
In determining whether the presumption of equal shared parental responsibility is applicable and/or is rebutted, I must consider the facts in relation to domestic violence and also the best interests of the children. Significantly, at the end of the evidence and in final submissions, counsel for both parties sought an order for equal shared parental responsibility. The mother’s position had not always been thus. In her applications filed and in opening submissions that position had been for sole parental responsibility with her. In final submissions her counsel moved towards a proposal for equal shared parental responsibility but with specific orders in respect of some decision-making.
On the evidence before me, I am not persuaded that this is a matter where the presumption of equal shared parental responsibility automatically applies. There are serious allegations of domestic violence or abuse to the children. I have concerns that the presentation of the evidence was lacking in some material regard and, in particular, in the failure of the mother to adduce evidence from her partner, Mr T, and the inferences open to me. I am able to make findings on the evidence that the children have witnessed episodes of domestic violence between the mother and Mr T and also between the mother and the father.
I must consider whether the best interests of the children are served by an order for equal shared parental responsibility or, more properly, whether the presumption is rebutted as not being in their best interests. Fundamentally, this is a responsibility to be discharged jointly and demands a capacity for communication and cooperation by the parents. The evidence and her demeanour in Court leads me to be satisfied that the mother is seriously lacking in these traits. Nevertheless, I retain
a discretion, in any event, to find ultimately that the long term best interests of the children are served by their parents retaining the responsibility for making long term decisions in respect of their children. I must consider the effect on the children by the removal
of this responsibility from one or other of the parents. I am mindful
of the spectre of mistrust and mutual allegation that has permeated these proceedings. I am conscious of [X]’s reaction to conflict and even the potential for conflict between his parents. I am of the view,
as stated above, that these parents need to adjust their priorities
in favour of the children with lesser emphasis on their own former relationship. However, both parents impress me as being intelligent and articulate individuals. Their children are clearly desirous of both parents being involved in their lives. Overall, and despite my concerns on the evidence, I am of the view that the children’s best interests
are served by there being an order for equal shared parental responsibility with emphasis on the need for the parents to move forward, show greater insight, and learn to work together for the next 15 or so years when called upon to make important decisions in their children’s lives. To put it another way, I cannot see in the circumstances confronting me, that the children will benefit by these responsibilities being removed from one or other of their parents.
To do so will only serve to entrench the current corrosive relationship and mistrust and lead to further suspicion and allegation. I have some optimism that they will both benefit from successfully completing post-separation parenting courses. They must learn to respect each other
as parents. There will be an order for equal shared parental responsibility.
Best interests of the children – living arrangements
Fundamentally there are difficulties with the proposals of each party. Firstly, the mother presents with an attitude that is not conducive
to cooperative parenting. She shows little or no insight into the actual positive relationship that the children enjoy with their father and
as observed and emphasised by Ms M in her two reports. I have found that the mother has previously acted unilaterally and selfishly and hence contrary to the children’s best interests. The suspicion remains that she has been inclined to protect her relationship with Mr T to the possible detriment of the children. Indeed I have found that there was an altercation between she and Mr T witnessed by the children. She denied this event. I am concerned as to her ability to promote the father to the children in the future and to encourage their relationship with him. She shows no inclination to cooperate and communicate with the father. All of these factors weigh against her application to continue as primary parent. She presents as someone believing that she is prime parent as of right. The fact that her possessive attitude of the children and negative and demeaning attitude to the father’s relationship with these children remains unaffected by two assertive and unambiguous family reports does not give cause for optimism of a collaborative parenting relationship.The father’s case has concluded with its own difficulties. There is not evidence of sufficient probity and weight to convince the Court to the requisite standard that he has the current or ongoing capacity to attend to the children’s care and their physical needs. He has met and addressed many of the issues raised by the mother. I am not persuaded that he has been violent to the children as suggested by the mother. He was seen by the family reporter as a dedicated and understanding parent. The children’s responses and reactions to their father is highlighted in both family reports. He was able to acknowledge his own faults, which gives confidence for the future. However the onus on a parent mounting a case to be primary parent is more than simply addressing the negatives raised by the other parent. One must present a positive option for the Court to consider. It is the “best” interests of the children that the Court must ascertain – not simply which of the parents is “least bad”. The orders that I make and the children’s ultimate best interests must take into account their day-to-day care. I must consider their short term needs as well as the long term ones. I must consider their physical needs such as schooling and housing as well as their emotional needs. Despite his concerns in respect of the mother, the father was until recently prepared to delegate primary responsibility to her. For reasons best known to him, he did not present the witnesses and evidence to convince the Court that he has properly thought through the proposals set out in his amended application. The father was asked why his brother [Mr D] and his girlfriend Ms G were not on affidavit. He simply replied “no reason”. There are aspects of his life and career that will cause him to enlist the assistance of others. The responsibility on those other people will be ongoing, regular and onerous. On the evidence before me, he will not be able to confidently call on the mother to either assist or be flexible. His circumstances are such that he will rely heavily on those people. He suggests his brother, [Mr D], and his girlfriend, yet neither gave evidence. These are not circumstances of an occasional assistance. These people would be required regularly and at inconvenient hours. They would be required to give a high degree of commitment to the children and the father for an indeterminate period. As far as I can decipher, each has their own responsibilities. To put it simply, there is no evidence to show on the balance of probabilities that he can attend to those immediate needs of such young children. Further, the presentation of the father’s case in his affidavits does not give confidence that he has even considered the positive obligations of a primary carer.
In summary, therefore, the mother’s capacity to care for these children is questionable and impeached in the long term aspects. The father’s difficulties are in the short term. Both are of importance and each need to be addressed.
I am satisfied that the children’s primary attachment is to their mother. I am satisfied that the mother’s behaviour, such as her unilateral actions, is a result of her poor relationship with the father. I am convinced that she has overreacted in this regard in the sense that the children’s best interests have become subsidiary to her own bitterness and antipathy. These are matters that can and should be addressed by the mother and to this end I am of the view that her participation
in a post-separation parenting course will assist her insight into the issues and I intend to order accordingly. The father says he has attended some post-separation courses. Ms M recommends that both parents attend a post-separation parenting course. The father agreed that he would attend. The orders therefore will be in respect of both parents.On balance, I am of the view that the children should remain living with the mother and spend regular time with the father. I have considered whether or not this matter should remain at this stage with interim orders given that the mother is firmly on notice that there needs to improvement in her attitude and insight. Similarly, an interim order would allow the father to address the immediate difficulties in his case. Interim orders would, of course, have the further benefit of alleviating the need by the father to cross the hurdle presented by the principle in Rice & Asplund[13] in showing a change in circumstances following the making of final children’s orders should the mother not be willing
to, or not successfully, address her own failings. There are a number
of factors, however, that weigh against the making of interim orders. As I have emphasised throughout these reasons, these parents needsto “draw a line in the sand”. The mother needs to accept that her relationship with the father is at an end except that they remain the parents of two young children and will be so until the youngest reaches 18 years of age. The children themselves will undoubtedly benefit from there being an end to litigation and the mistrust and uncertainty and evidence gathering that accompanies litigation. Consequently, but with some hesitation, I favour the making of final orders.[13] (1979) FLC ¶90-725
Given the issues raised in this matter, I must consider whether any specific orders are necessary to protect the children. I have found that these children have witnessed violence between adults. I have not been able to find on the balance of probabilities that they themselves have been the victims of violence in the particulars alleged. I am satisfied, on the mother’s own admission, that corporal punishment has been administered. I think it likely, within the heat of an argument, that Mr T removed [Y] from the vicinity in a vigorous manner. I accept on the evidence that Mr T is likely to be a member of the mother’s household for the foreseeable future. It seems that the children, or [X], has developed a practice of “reporting” each parent to the other. There is no semblance of trust between these parents. They are each likely to be opportunistic and lacking objectivity with any information about the other. In those circumstances I am of the opinion that an order preventing any corporal punishment will suffice to protect these children and assist the rehabilitation of these two parties as good and understanding parents.
The other major issue for my consideration in respect of the mother’s parenting is her entrenched negative attitude to the children’s relationship with their father and related to this is her sense
of empowerment to act unilaterally. Ms M in cross-examination was consistent and clear in her opinion that the children’s primary residence remain with the mother. She was equally assertive in her view that any order for residence in the mother’s favour be accompanied by an order that the mother receive some specific psychological counselling. Whilst already obligating the mother to complete a post-separation parenting course, I share Ms M’s opinion. The mother must address her attitude and priorities. This is the stuff of psychology and particular expertise and I doubt these issues can be properly dealt with in a parenting course. I propose to order that the mother at her own cost attend on Ms M for a referral to an appropriate psychologist and attend for counselling for so long as is necessary. Quite simply, the mother’s history, demeanour and responses in the witness box do not give the Court confidence that the mother can improve in these important aspects of her parenting without such expert assistance.The evidence as a whole suggests that these children will benefit from regular and frequent contact with their father. They are young children. The experts in the field and the authorities consistently emphasise that frequency and quality of time between children and parents is in the best interests of children as young as [X] and [Y] rather than simply quantity of time. The father’s situation is, of course, compromised by his pending career in [omitted]. There is also the difficulty of distance between the households. In general terms, however, and acknowledging that the father will be employed on shift work, I propose that the children spend time with the father each second weekend and for time during their other week. I will not pronounce final orders in this regard until the parties and their legal representatives have had the opportunity to consider these reasons and to make submissions to me, if necessary, in respect of the configuration of time for the children with the father in relation to his work commitments. If the father’s employment involves him working weekends but having consecutive days off work during the week then
it would be intended that the children spend time with him during those days off.I propose that these parenting orders be phrased as the children “living with” the father during particular times and “living with” the mother
at all other times. Given the lack of current communication between the parties I am anxious that the mother not feel illegitimately empowered or thinks that she achieves any special status that might
be suggested by a more traditional “live with” and “time with” order. The implication is, of course, that each parent will be responsible
for the day-to-day care of the children when they are in that parent’s care and that any difference in their status is confined simply to the configuration of time.
Change of name
The mother seeks an order that the children’s surnames be amended
so as to include her surname of “Derby” with a hyphen to “Osgood”. The children’s names are registered on their birth certificates as “Osgood” and the evidence is that they have historically been known by that name. The father opposes the application.The mother gave evidence that [X] has shown some sense of embarrassment or lack of understanding that he carries a surname different to that of his mother. She also argues for the inclusion of the name so that the children can identify with their maternal extended family.
The issue of a child’s surname involves the making of a parenting order and consequently I am to have the children’s best interests as the paramount consideration. An examination of the authorities suggests that there have been occasions where courts have ordered that children’s surnames be altered on official documents and for general use. On other occasions courts have been inclined to use the surnames of each parent with the addition of a hyphen. Essentially, each such application turns on its own facts with the ultimate consideration as to the best interests of the children.
In the matter now before me I have expressed my concerns in respect of the substantive issue in relation to the mother acting unilaterally
in decision-making for the children. There is a suggestion by the father, which may be corroborated to an extent by documents from [X]’s school, that the mother has attempted to use the name “Derby” in respect of [X]. She completed an enrolment form and expressed surname of her preference as being “Derby”. In my view this is yet another example of the mother’s capacity to act out of self interest. She was asked in cross-examination as to what gave her the right to inform the school of “preferred name as Derby”. Her response was “I am his mother. It is my name. I want it to be”.[X] is still very young. I am not satisfied that he is of an age where he could rationally consider the ramifications of a change of surname. Similarly, I give little weight, particularly in the circumstances of the conflict this child has endured, of any expressions of preference to his mother. In the twenty-first century it is not uncommon for children
to bear a different surname to that of a primary parent. I am not persuaded that [X]’s sense of identity with his grandparents would suffer simply because he bears a different surname. The simple fact
is that it is usual for children to have a different surname than one set of grandparents and to do so without suffering any identity crisis. Further, it seems that the mother proposes that the children live in a household where one of the adults bears the surname [T]. Ms Derby does not seem to anticipate any confusion here – unless she intends to assume her partner’s surname – which would then of course, on her logic, necessitate yet another change of surname for the children.I am not persuaded that the order as sought by the mother is in the children’s best interests. In the circumstances and given the material
in the documents subpoenaed from the school and my findings generally as to the mother’s attitude in respect of the children’s father,
I think it in the children’s best interests that there be an injunctive order to prevent the use of any name other than the children’s given names
in official documents and in general usage.
Passports
The mother in her application also seeks an order in broad terms for the issue of passports for the children. There is no evidence of immediate intention to travel overseas with the children. The father says that the mother has a “United Kingdom background”. In a situation of mutual mistrust between the parents and without particulars of intended travel and proposed arrangements for the children, I am not persuaded that an order for the issue of passports without the consent of one of the parents is appropriate or in the best interests of the children.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 28 April 2011
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