Osram and Osram
[2018] FCCA 164
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OSRAM & OSRAM | [2018] FCCA 164 |
| Catchwords: FAMILY LAW – Interim hearing concerning children aged 12 & 11 – high conflict – independent children’s lawyer appointed – role of ICL – nature of interim hearing – assessment of section 60CC factors – assessment of risk – consideration of parental unilateral action – which school should children attend prior to final hearing. |
| Legislation: Family Law Act 1975, ss.4(1), 4AB(1), 60B, 60CA, 60CC, 61DA, 67ZBB, 68LA, 69ZN |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Deiter & Deiter [2011] FamCAFC 82 Slater & Light [2013] FamCAFC 4 |
| Applicant: | MS OSRAM |
| Respondent: | MR OSRAM |
| File Number: | ADC 4121 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 18 January 2018 |
| Date of Last Submission: | 18 January 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Read |
| Solicitors for the Applicant: | SE Lawyers |
| Counsel for the Respondents: | Mr Laidlaw |
| Solicitors for the Respondents: | Matthew Mitchell |
| Counsel for the Independent Children's Lawyer: | Mr Childs |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission Noarlunga |
ORDERS
Until further or other order:
The children [X] born (omitted) 2005 and [Y] born (omitted) 2006 live with the mother and she be at liberty to re-enrol the children at the (omitted) Primary School for the commencement of the 2018 academic year.
The children spend time with their father as follows:
(a)Each alternate weekend, during the school term, from after school on Friday until 5:00pm the following Sunday (or 5:00pm Monday in the event that day is a public holiday) commencing Friday 9 February 2018;
(b)for the first half of the Easter period in 2018, from after school on Maundy Thursday until 5:00pm on Easter Saturday; and
(c)for the first half of the first term school holiday, from after school on 13 April 2018 until 5:00pm on Saturday, 21 April 2018.
The father is to collect the children from their school, wherever possible, but on occasions when school is not in session, the children are to be exchanged between the parties within the precinct of the (omitted) Police Station.
The parties be restrained and an injunction is hereby granted restraining them from discussing the proceedings or initiate any conversation with the children about what has occurred in court or from permitting any other person to do so.
A copy of these reasons for judgment is to be provided to the Principal of the (omitted) Primary School by the Independent Children’s Lawyer.
Further consideration of this matter is adjourned to 26 April 2018 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Osram & Osram is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4121 of 2017
| MS OSRAM |
Applicant
And
| MR OSRAM |
Respondent
REASONS FOR JUDGMENT
Introduction
These are interim proceedings relating to parenting arrangements for two children – [X] born (omitted) 2005 and [Y] born (omitted) 2006. The parties to the proceedings are their mother – Ms Osram; and their father – Mr Osram.
The mother commenced these proceedings on 4 October 2017. On both an interim and final basis, she seeks orders that the two children live with her and she has sole parental responsibility for them. On both an interim and final basis, the father seeks orders that the two children live with him and he has sole parental responsibility for them.
The mother lives in the (omitted) area. (omitted) is in the (omitted) suburbs of Adelaide. The father lives in (omitted), which is at the end of the (omitted) near (omitted). It is approximately 78 kilometres between the two homes.
The parties met in 2010 and married on (omitted) 2010. They finally separated on 6 May 2014. Since that time, [X] and [Y] have lived predominantly with their mother. As a consequence, they were each enrolled at the (omitted) Primary School, which is close to her home in (omitted).
The mother commenced these proceedings on 4 October 2017. She sought the urgent listing of her application because the father had not returned [X] and [Y] to her following the September school holidays, as scheduled.
Rather, he had enrolled them at the (omitted) Primary School. The mother’s application was originally listed for 15 November 2017. She sought the return of the children to her care so that they could be re-enrolled at (omitted) Primary School.
The father had not responded to the mother’s application by 15 November 2017, although he had consulted a solicitor. He was not willing to return the children to the mother’s care, as he alleged that the mother was psychiatrically unwell, which caused her to behave aggressively and irrationally.
In this context, he asserted that [X] had informed him that his mother had assaulted him, which resulted in the involvement of the police. The underpinning of his case was that the mother represented both a physical and emotional risk to the children and the alleged assault of [X] was under active police investigation.
In her affidavit material, the mother acknowledged that there had been a regrettable incident between her and [X], which had resulted in her slapping him. However, from her perspective, the father had over-reacted to the incident, particularly by making a complaint to police and had made a difficult situation worse through embroiling the children in it.
I was not prepared to deal with the mother’s application on 15 November 2017, in the absence of the father’s answering material. I suspected that there were complicated and controversial issues arising in the case, which required input from both sides to it. On this basis, the case was adjourned until 8 December 2017, for interim hearing.
In the short to medium term, I ordered that the children spend time with their mother during the day, on each Sunday, with handovers to occur inside the (omitted) Police Station. The nomination of a police station was symptomatic of the level of tension and mistrust between the parties and my concern that they should only come into contact with one another at a safe location at which both could have ready recourse to authority if required.
At this early stage, I also directed that the two children concerned should be represented in the proceedings independently of their parents. I reached this significant decision because of the comparatively mature ages of the children and as a consequence of the fact that both the mother and the father alleged that the other had and continued to engage in a number of serious anti-social activities, which potentially posed a risk to the children.
The children’s representative is Karen Tydeman, an experienced family lawyer, employed by the Legal Services Commission of South Australia, in its southern suburbs office. Pursuant to the provisions of section 68LA of the Family Law Act 1975, Ms Tydeman is required to examine all the evidence available and advocate the position, based on her assessment of the evidence, which she thinks will best serve the interests of the children whom she represents.
Ms Tydeman is to be regarded as a party of equal importance to the mother and father in these proceedings. She has briefed a barrister, Mr Childs to appear, on her behalf, in this case. Ms Tydeman has consulted with both children and Mr Childs has provided the court with her account of what she discussed with them and what they said to her at a meeting which occurred recently.
The father filed a response, to the mother’s application on 7 December 2017. On both a final and an interim basis, he seeks orders that the two children concerned live with him and he has sole parental responsibility for them. He proposes that the children spend time with their mother from 5:00pm Friday until 5:00pm the following Sunday. Accordingly, the positions of the parties are almost exactly reversed, although the mother has not formally articulated her proposal for the children to spend time with their father, if her position is preferred.
It is implicit in the father’s position that the two children should be enrolled for the 2018 academic year at the (omitted) Primary School. Given that the school year is shortly due to commence, this pressing issue must be determined by the court at an interim or provisional stage. Accordingly these proceedings are directed primarily to determining with whom of their parents [X] and [Y] should predominantly live and, in this context, which school they should attend.
The mother’s case is based on her historic care of the two children, which she asserts was brought to an end by the father’s unilateral and high-handed actions in late September of last year. She further asserts that the father is a poor role model for children of [X] and [Y]’s age, given his violent disposition and the fact that he constantly undermines the children’s relationship with her to them and is quick to incite them to oppose and complain about her if she attempts to discipline them.
She asserts that the father has given the children tacit permission to play their parents off against each other because it suits him to do so as he wishes to gain the upper hand over her in the parties’ difficult and conflicted parenting relationship through compromising her relationship with the children. Essentially the mother submits that the father is motivated more by his own needs than those of the children.
On the other hand, the father asserts that the mother continues to have unresolved personality and substance abuse issues, which prevent her from exercising proper parental control in respect of [X] and [Y]. It is his position that he is currently the better placed parent to exercise the necessary discipline which the two children desperately require. He does not believe the mother has the sufficient resources to deal with their challenging behaviour exhibited by the children, particularly so far as [X] is concerned.
Given their respective ages and the fact that they are either in or on the cusp of puberty, the father submits that it is inevitable the two children will continue to act out if left in their mother’s care with potentially disastrous emotional consequences for them. He denies that he has ever actively undermined the children’s relationship with their mother or is an inherently violent person. Rather, he would characterise himself as a concerned parent who is acting protectively in respect of his children and one who has been falsely categorised as violent.
Ms Tydeman, through the submissions of Mr Childs, submits that the children’s best interests will be served if they return to the care of their mother and resume their schooling at (omitted) Primary School. She believes that there are many concerning factors pertaining to both parties, but these are not of such moment to warrant a significant change in care arrangements for [X] and [Y], at this interim stage. Her major concern appears to be the dynamic of the parties’ parenting relationship and its consequences for the children.
The hearing of 8 December 2017
The mother’s case can be summarised as follows:
·The father was coercive and controlling towards her during the marriage, frequently referring to her in derogatory terms;
·As a consequence, her mental health was fragile during the marriage and she was diagnosed with major depression and a borderline personality disorder;
·In April 2014, she took an overdose of prescription medication and voluntarily admitted herself to a psychiatric ward;
·In May 2014, the parties had separated and her mental health has subsequently improved and remains in remission;
·After separation, relations between the parties had been particularly difficult, including a violent incident between the father and the mother’s teenage daughter from an earlier relationship, [A].
·This altercation resulted in an intervention order, which prevented the father from engaging with the children for an extended period of time;
·In 2015, there was a violent incident between the parties, at the mother’s rental property in (omitted);
·This second altercation had resulted in a further intervention order against the father, which further prevented him from spending time with the children;
·The father did not spend time with the children for approximately two years from mid-2015 onwards;
·In August 2017, the father resumed spending time with the children after the intervention order was modified, after extensive discussions between the parties involving police;
·A parenting plan was subsequently negotiated between lawyers, which envisaged both children spending substantial and significant time with their father;
·On 1 September 2017, the father began to commence overnight time with the children after some periods of day time with them in mid to late August;
·On 24 September 2017, after spending time with their father, the incident between [X] and the mother occurred.
·The mother alleges that [X] told her that she was a bad mum and their dad was more fun. The mother acknowledges that she lost her temper and slapped [X];
·As a consequence of this incident, [X] sent a text to his father, who contacted police, who attended at the mother’s home;
·Thereafter, [X] and [Y] went into their father’s care through the agency of the police;
·The father was not prepared to return the children to the mother’s care, pending the outcome of the police investigation.
·As a consequence, he enrolled them at the (omitted) Primary School;
·The father informed the Registrar of the Child Support Agency that the children were in his exclusive care and a fresh child support assessment issued.
The mother is employed as a (occupation omitted) at the (employer omitted). She has held this position for four years. She lives in a rental property in (omitted). [A], who is now 18 years of age, also lives with her. The mother has another child, Ms S, who lives independently, as she is 25 years of age.
[X] and [Y] have attended (omitted) Primary School since the commencement of the 2016 year. The mother concedes that she has moved on at least two occasions since the parties separated and each such move has resulted in her moving further away from the father’s residence. This is an issue, which has precipitated some rancour, so far as the father is concerned. These moves have necessitated two prior changes of primary school for the children before their enrolment at (omitted).
The mother has deposed that the children receive a good education at (omitted) Primary School and each child has made friends there. In the past, she asserts that both children had been bullied at their previous schools – [Y] has dreadlocks, which have the effect of sometimes drawing adverse attention to him, but not at (omitted). In particular, (omitted) Primary offers the children an extensive sports program. [X] is interested in (hobby omitted); whilst [Y] participates in both the (hobbies omitted) program.
The mother has provided a reference from Ms J, who is the principal of the (omitted) Primary School, which is denoted as a specialist physical education & sport school. Ms J notes that the children’s attendance rate at her school has been over 95% and the children have particularly benefitted from the school’s specialist (omitted) program. No scholastic concerns have arisen in respect of the children.
The mother is described as being an active participant in the school community, as she has been a member of the school’s governing council, since February 2016. She is also involved in the OSHC committee. Overall, Ms J describes [X] and [Y] in the following terms:
“Both boys are friendly, likeable and have a great sense of humour. [X] is currently in Year 6 and is achieving a satisfactory standard in all learning areas with good effort and approaches to learning. He is a cooperative, motivated student who shows respect to peers and adults. [Y] is in Year 5 and is also achieving a satisfactory standard in all learning areas with satisfactory to good effort and approaches to learning. [Y] has recently been referred to CAMHS (Child and Adolescent Mental Health Service) by the school, with the consent of his mother, for low self-esteem and resilience, seeking support and strategies for him to deal with his emotions and manage his anger. He has previously accessed a private psychologist.”[1]
[1] See affidavit of Ms Osram filed 4 October 2017 at annexure G
The father is employed as the (occupation omitted) of a (employer omitted). He has re-partnered. His partner is studying (course omitted) and has previously volunteered with the (omitted). It is his case that his home is stable and comfortable. It is his case that he has made great efforts to change his life after the difficulties arising in his previous marriage.
It is the father’s case that he has adjusted his work schedule so that he is available to parent the children after they finish school. His partner is also available to assist, as are their paternal grandparents. The father asserts that he has not drunk any alcohol since September 2014.
The father’s concerns about the mother can be summarised as follows:
·She suffers from dissociative identity disorder, which makes her irrational and aggressive;
·Throughout the parties marriage, the mother would often physically and verbally abuse him and the children;
·The father denies any violence towards the mother;
·During the parties’ relationship, the mother had a serious addiction to prescription opiates, Valium and cannabis, which exacerbated her mental health;
·The mother was hospitalised on three occasions, for psychiatric reasons, during 2014;
·The mother is a binge drinker;
·Since the parties separated, the mother continues to behave erratically and to self-medicate with alcohol and illicit substances;
·The children are not allowed to play outside with friends;
·The mother subjects the children to excessive and inappropriate physical discipline, including striking them with kitchen utensils;
·Both children are frightened of their mother;
·The mother has threatened to drug the children if they fail to go to sleep on time;
·The mother’s adult daughter Ms S is a drug addict;
·The mother associates with a convicted methamphetamines trafficker;
·The children are frequently dirty and their clothing full of holes;
·Since the parties separated, the mother has attempted to remove him as a positive influence in the children’s lives. She has utilised intervention orders as a mechanism to achieve this.
The father does however concede that he was charged with seven counts of breaching the intervention order previously made in the mother’s favour in the aftermath of their separation. He contested the charges against him which were listed for trial on 5 October 2016. On the day of the trial, he pleaded guilty to one count of breaching the intervention order.
Thereafter, there was a protracted process during much of 2017, during which the parties attempted to negotiate a variation of the intervention order. It was against this background that the parties also entered into negotiations in respect of the parenting plan, which subsequently came into operation in August of 2017.
On any view, the emotional and parenting topography between the parties is extremely difficult, with each making very serious criticisms of violence, drug abuse and other aspects of anti-social behaviour against the other.
As is required by the applicable legislation, the Family Law Act 1975, each party filed a Notice of Risk, in respect of the allegations of abuse made. The mother asserted that the father had anger management issues and a past history of recreational methamphetamine use, which represented a risk to each of the children.
In his Notice of Risk, the father advised that he had made previous allegations of child abuse to both the police and the child welfare authorities. He alleged that the mother had physically abused the children and left them unattended in the past. In addition, he alleged that the mother was dependent on alcohol and drugs.
The relevant Notices of Risk engage the provisions of section 67ZBB of the Act, which require the court to take prompt action in relation to allegations of child abuse and family violence. In particular, the court is directed to deal with the issues raised by the allegations as expeditiously as possible.
In these circumstances, on 8 December 2017, I elected to take oral evidence from both parties. This largely consisted of me asking questions of each of the parties, in turn, and then asking each of their legal representatives and that of the independent children’s lawyer, whether there was any issue, which required clarification, from their respective perspectives.
My aim was to neutralise the obvious tensions between the parties and attempt to re-focus the proceedings onto the best interests of the children concerned, rather than the various conflicts between the parties, bearing in mind the principles contained in section 69ZN of the Act. These principles can be summarised as follows:
·The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child;
·The court is to actively direct, control and manage the conduct of the proceedings;
·The court is to conduct the proceedings in a way that will safeguard any child concerned from being subjected to abuse, neglect or family violence;
·The proceedings are to be conducted in a way that will promote cooperative and child focussed parenting;
·The proceedings are to be conducted without undue delay and with as little formality as possible.
My impression of each of the parties after engaging with them directly in this fashion, was that they are basically decent individuals who love their children deeply and sincerely. It was interesting to note that, during this process, neither took the opportunity to gratuitously attack the character or personality of the other. In my assessment, which I conceded was limited and somewhat artificial, both presented well. There was no evidence of any thought disorder or drug impairment.
It was also noteworthy that both parties readily accepted that the children loved the other parent and therefore both the mother and father had much to offer [X] and [Y]. Both parties acknowledged the emotional pain of not being able to see the children for extended periods of time. In this context, Mr Osram acknowledged the frustration he felt after the parties separated and Ms Osram, in stages, moved further away from where the parties had lived during their marriage together.
In his evidence, Mr Osram said Ms Osram was not a bad mother. In this context, he indicated further that he would “love for us to be able to work together on this”. For obvious reasons, I was desirous of fostering this sentiment and mutualising it.
The mother gave further evidence of what had led to her slapping [X] on 24 September 2017. [X] has a particular interest in (omitted). He had also recently sold his pet snake and had some money to spend as a result. Coming back from the handover, it is the mother’s evidence that [X] was pestering her to go to a shop to buy some (omitted). The transcript reveals the following exchange:
“(omitted)?‑‑‑They’re both into (omitted).
Okay. Yes?‑‑‑And so I said I wouldn’t take him because it was 5 o’clock and the shop was closed, and so all the way from (omitted) to (omitted) he was in the back seat, saying stuff like, “You never do anything for me. You’re no fun. Dad is more fun. Why can’t you take me here? Why can’t you do this? You’re a bad mum”, and then we got home and it continued for another half an hour, and he was getting increasingly erratic, and so I just smacked him across the face. And it wasn’t hard and it didn’t leave a mark, and I took his iPod away, but he went and got that from my room and he phoned his dad and his dad phoned the police. When the police came, [X] was laughing.
All right. So I mean ‑ ‑ ‑?‑‑‑I admit I did it.
‑ ‑ ‑ you shouldn’t have done it ‑ ‑ ‑?‑‑‑No. I know I shouldn’t have done it.
‑ ‑ ‑ but you lost your cool?‑‑‑Yes. I did.
And Mr Osram didn’t ring you and say, what’s going on?‑‑‑No. He didn’t.
He got the police?‑‑‑Yes. He did.
Okay. And I understand that, and ever since it has been ‑ ‑ ‑?‑‑‑And I would never ever do it again.”[2]
[2] See transcript at page 8
In her oral evidence, the mother was enthusiastic about (omitted) Primary School, describing it as a few straight streets away from her home. She selected the school because of its out of hours school care and its sporting programs. Given her financial situation, she, like many separated parents has to work full time. She is dependent on OHSC. In her assessment, both children are athletic, being particularly interested in (omitted). She described the school as being amazing.
The father described [X] as being very intelligent and the children generally as being fun, happy and very energetic. During the course of his evidence, to his credit, Mr Osram moderated some of the written criticisms which he had made against Ms Osram in his affidavit material, particularly in respect of his allegations of psychiatric illness. Rather, it became his position that the mother had a propensity to become stressed by the pressures of having to balance the day to day organisation of the kids with her work requirements. The implication of his evidence being that his personality and the supports available to him gave him greater resilience in respect of such pressures.
On 8 December 2017, Mr Osram conceded that the children were not fearful of their mother, who was capable of being a very good mother. However, from his perspective, she had a propensity to react poorly to stressful situations involving the children, which had been a frequent occurrence throughout their relationship. Mr Osram also conceded that the children were also missing their mother and wanted to spend some overnight time with her.
Perhaps naïvely, I found the parties’ oral evidence to be greatly encouraging. In these circumstances, I was hopeful that the parties might be able to resolve some of the interim issues between them consensually. Regrettably, the earliest date available for a child inclusive family dispute resolution conference was 8 March 2018. Clearly given the date on which school is due to resume, this is too late for it to be a useful intervention for determining the children’s preference, as to which school they will attend. That issue must be determined before the start of February.
In these circumstances, I made orders for the children to spend regular periods of time with each of their parents during the forthcoming school holidays and the festive days of Christmas. I also requested that Ms Tydeman interview the children and report back to me about her engagement with the children. The proceedings were then adjourned until 18 January 2018.
Regrettably, my hope that the tensions between the parties would begin to recede proved to be misconceived. Rather, there has been an escalation rather than a diminution of the tensions between the parties. Accordingly, it remains for the court to determine where the children should live, pending final hearing and necessarily which school they should attend. These reasons for judgment are directed towards this issue.
What happened over the summer holiday
On 12 September 2017, Ms Osram attended at the (omitted) Police Station and was advised that the police did not intend to take any action against her in respect of the incident involving [X] on 24 September 2017. She has also enrolled at the Kids R First program, as directed to do so by the court. Ms J has also confirmed that each child has a place, at (omitted) Primary School, for the 2018 year.
The children came into the mother’s care on 10 December 2017. Arrangements were made for them to attend at the (omitted) pool with their mother and half-sister [A], on that day. The maximum temperature forecast was 23 degrees Celsius. It was sunny but, on the mother’s case, not especially hot. The mother deputised [A] to apply sunscreen to the children. She did not do so. Both [X] and [Y] became badly sunburnt as a consequence of this omission.
This incident led to a serious level of recrimination between the parties. The mother describes the father as being scathing towards her for this omission. The mother acknowledges that her conduct in respect of failing to adequately supervise both the children and [A], in respect of the application of sunscreen, was inexcusable. Without doubt, both children would have been aware of the marked deterioration in their parents’ relationship with one another as a consequence of the incident.
It is the father’s evidence that [Y]’s sunburn was so severe that he required hospitalisation, particularly as a consequence of blistering to his eyelids, lips, cheeks and nose. He was prescribed anti-inflammatory, pain killers and an antiseptic burn. Without doubt, this was a very serious incident indeed. As I observed to the parties during submissions on 18 January 2017, it is unforgiveable for any Australian parent to be unaware of the risks of sun exposure for their children during the summer months in particular.
Mr Osram further deposes that he observed indications that the mother was either under the influence of alcohol or some other substance on at least one handover. He also asserts that the children have complained to him about their mother’s behaviour, particularly that she has punched [Y].
Mr Osram deposes as follows:
“[X] has begun acting out and has been quite angry and violent at times. He has not been coping well with not being able to play (hobby omitted) for (omitted). This has been made worse by the mother repeatedly telling him about the (omitted) team, how well they had been playing and the fact that they were playing in the finals.
[X] has been confused and angry but has been able to articulate that he doesn't want to miss out on (hobby omitted) by not going to (omitted) but has continually reiterated to me that he does not want to live at his mum's due to how she treats him and his brother.”[3]
[3] See affidavit of Mr Osram filed 16 January 2018 at paragraphs [15] & [16]
In these circumstances, the father has made arrangements for the children to join the (omitted), an organisation with which both he and the mother have been previously associated. From his perspective, if the children live with him, this will answer their concerns about not being able to play (hobby omitted) if they live predominantly in (omitted) rather than in (omitted).
As I understand the father’s case, it is that the children prefer his home and his mode of parenting to that of their mother, but enjoy the sporting aspects of (omitted) Primary School. It is his case that the children are currently emotionally de-regulated and are actualising their frustrations with their mother through destructive behaviour. It is his case that [Y] has begun self-harming by scoring cuts on his arms with a sharp piece of plastic. [X] has taken photographs of these injuries, which he has sent to his father and which have been provided to me.
The mother concedes that the children have been behaving poorly, whilst in her care. She largely attributes this to the tacit encouragement of the father, who has encouraged the children to agitate to return to his home rather than providing them with reassurance or supporting her decisions.
On 20 December, the mother alleges that [Y] had a meltdown, during which he texted his father, indicating to him that he and [X] wanted to come home. The mother reports the father’s response to the text concerned in the following terms:
“[Y] text the father ‘I want to come home now [X] keeps blaming me for things that he dous’. The father's response was ‘You will have to ask your mum if she is ok with that buddy. Unfortunately it's not up to me.’ The father then sent repeated text messages ‘there is nothing I can do if she is only yelling buddy I'm so sorry’ ‘I love you very much xxxx’. ‘I’m so sorry buddy. I have to do what court said. It's only 4 more nights. Hang in there xxxx’. ‘Instead of calling the help line just go to the website it might help buddy. It's worth a shot. Xxxx’ ‘I’m so sorry buddy’ ‘Https//kidshelpline.com.au’ ‘You can talk to these people.’ The father did text after text without waiting for a response from [Y]. It is my view being that he was trying to inflame the situation.”[4]
[4] See affidavit of Ms Osram filed 16 January 2018 at paragraph [10]
It is the mother’s position that this advice did nothing to de-escalate the issue and it was deliberately provocative for him to suggest the children consult the Kidshelpline. Rather it is her view that the father needs to support her efforts to keep the children in line. In this context, she has deposed that [X] has threatened to hit her on a number of occasions, when she has removed his Nerf gun from him as a consequence of him misusing it dangerously. She has further deposed that the following day [X] threatened to hit [A] with a hammer when she ([A]) asked him to clear up after they had spoken with their father.
It is the mother’s case that the incident of self-harm, relating to [Y], about which the father is concerned, occurred when she removed the children’s mobile phones from them as a disciplinary action. She has deposed that this caused [Y] to become uncontrollable and to refer to her as follows: “you bitch, you bitch, you can’t take my phone”. In this context, she asserts that the child attacked her and spat in her face before attacking his own arms.
Although the mother had confiscated the children’s phones, they still had access to an IPad, which they utilised to contact their father who in turn contacted police. As a consequence, police attended at the mother’s home to carry out a welfare check. For obvious reasons, the police were highly concerned about the reports of the children’s extreme behaviour towards their mother, including their abuse of her.
It is the mother’s case that the children’s extreme behaviour has arisen only since they were unilaterally removed from her care in September of last year. She asserts that their difficult behaviour and anger gradually subsides after they have been with her for a few days. As a consequence, it is her view that the only logical explanation for the children’s behaviour is their interactions with their father.
[Y] has previously attended a psychologist at CAMS. The mother has arranged for him to recommence consulting the psychologist in question. She is also arranging for [X] to be counselled by the same psychologist. Both children are on the waiting list for the (omitted) program.
The mother denies any substance abuse issues on her behalf. In this context, she notes that she has not been requested to undergo any supervised random drug screen test. However, of her own volition, on16 January 2018 she undertook a supervised drug screen test which was negative for any illicit substances. The mother has also provided a report from her GP, which indicates that she does not currently present with any mental health issues.
I was highly concerned about the sunburn incident, which from my perspective represented a very serious lapse in parenting, which exposed the children to significant harm and discomfort. It is the submission of the mother’s lawyer that she has learnt a salutary lesson and will never expose the children to such a risk again. In my view, this submission is more likely than not to be correct. I accept that the incident was a serious lapse of judgement, rather than concerted incident of abuse and neglect.
In addition, the accounts of each of the parties regarding [X] and [Y]’s behaviour over the Christmas holidays are also deeply disturbing. It would seem to be the case that the children are in need of urgent and expert psychological counselling and there is a pressing need to get to the bottom of why they are behaving in this unacceptable fashion. It should be unacceptable to both parties for a child of [Y]’s age (or indeed any child) to refer to his mother as a bitch. The troubling behaviour of the children creates a dilemma.
As previously indicated, a child inclusive conference has been arranged for early March. I am concerned that this intervention is likely to be inadequate, given the very significant issues developing in the case. Rather, the more detailed and thorough intervention of a family assessment report seems warranted. However, such an intervention will be more expensive and take much longer to be prepared.
I also note that the children have already been interviewed by Ms Tydeman and regardless of whether the child inclusive conference takes place or not, it seems inevitable that a detailed psychological investigation of the family will still be required for the court’s purposes. It is not usually desirable for children to be interviewed by multiple professionals, in the context of a parental dispute and related court proceedings.
However, on balance, I have come to the conclusion that the extreme nature of the situation calls for at least some form of triage examination of the children’s relationship with each of their parents and for their current views to be canvassed sooner rather than later. In these circumstances, I propose to confirm the child inclusive family dispute resolution conference, currently fixed for 8 March 2018 at 9:30am.
What the children said to Ms Tydeman
Ms Tydeman met with the children on 12 January 2018, which was after much of the reported turmoil of the Christmas school holidays had occurred. Interestingly, neither child took the opportunity to make any complaints to Ms Tydeman about the standard of care provided to either of them by their parents. They indicated they were happy with both of their parents.
The children also seemed to have presented as being even-handed in respect of their attitude to the relevant school concerned. They indicated that they had no difficulty either remaining at (omitted) Primary or returning to (omitted). However, [X] was marginally more in favour of (omitted), particularly because of its sports program. [Y] confirmed that (omitted) was better for sport.
Both children indicated that they had made some friends at (omitted) Primary School but their main friends remained at (omitted). [Y] indicated his preference for living week about with each of his parents but acknowledged that this was impossible due to the distance between his parents’ respective homes.
Overall, in Ms Tydeman’s assessment, both children presented well and had a positive view of each of their parents. She was however, as am I, greatly concerned at the contents of each of the parties more recently filed affidavit material. In particular, she was concerned at what Mr Childs characterised as the “growing volume of allegations” and the fact that the father felt compelled, once again, to involve the police in parenting arrangements.
Mr Childs characterised the current impasse between the parties as creating a parenting vacuum, which the children were utilising, to play their parents off against each other when issues of discipline arose, particularly in their mother’s home. Mr Childs indicated Ms Tydeman’s concern at this. On balance, Ms Tydeman considered that the father’s attitude towards these difficulties was the least constructive of the parties. On this basis, she is more in favour of the reinstatement of the previously longstanding parenting arrangements between the parties than that they continue to live with their father in (omitted), during the school year.
The applicable legal principles
Although I have taken some evidence from each of the parties concerned in this case, I have far from a complete range of evidence in respect of the various difficult issues, which the case throws up. Accordingly, I am unable to resolve many of the significant factual controversies arising at this early stage of proceedings.
These controversies centre on Ms Osram’s allegations of family violence involving the father and Mr Osram claims that Ms Osram has significant psychiatric and substance abuse issues, which lead her to abuse the children.
Integrally involved in these matters are issues relating to the recent troubling behaviour of the children themselves. Who of the parents is more causally responsible for the children’s presentation – or is their acting out due to the combined influence of the parties?
As indicated above, a detailed family assessment report, currently unavailable to me, is likely to throw much light on these issues. In addition, Ms Tydeman is likely to obtain evidence regarding the parties’ various serious allegations from independent sources such as the police and the hospitals attended by the mother. Again, these documents are not as yet to hand.
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[5]
[5] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7]
[6] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[7] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
It is the thrust of the father’s case that the children have been subjected to some form of abuse whilst in their mother’s care. For the mother’s part, she asserts that the children have been exposed to family violence in the past and this has had detrimental consequences for their psychological welfare.
In this context, it would appear to be her case that the father is an inappropriate role model for [X] and [Y] in the sense that there is a significant risk the children will replicate his violent behaviour in future in respect of their own personal relationship with adverse consequences for their future lives.
On any view, the evidence currently available to me indicates that there are troubling indications of this as a consequence of how [X] and [Y] are currently behaving. It is the flavour of both parties’ cases that the children are out of control to some degree or other. Each blames the other for this difficult situation. However, I also acknowledge that these issues have not as yet been thoroughly examined. Interestingly, the children did not appear this way to Ms Tydeman.
For reasons already elaborated, at the interim stage, it is very difficult for the court to characterise whether any particular incident constitutes either family violence or abuse. As such, it is necessary for the court to endeavour to assess the relevant level of risk arising from the various factors elaborated in the case concerned, and put in place responses which are proportionate to the degree of risk so assessed.
In Deiter & Deiter[8], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[8] See Deiter & Deiter [2011] FamCAFC 82
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [9]
[9] Slater & Light [2013] FamCAFC 4 at [37]
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
In this case, I am satisfied that it is not objectively appropriate to apply the presumption of equal shared parental responsibility nor would it be in the children’s best interests to do so. I reach this conclusion because the evidence available to me clearly indicates that the parties communicate poorly, if at all, and therefore have a limited capacity to resolve any parenting problems or issues pertaining to [X] and [Y] which will inevitably arise between them.
In addition, their homes are a significant distance apart. In my assessment, the overall reality of the familial situation confronting the parties, at present, strongly militates against the application of presumption at this stage. It is difficult to see what benefits will actually accrue to the children, if it is applied.
Accordingly, the court’s task, at this stage, is to consider the various section 60CC factors applicable, bearing in mind the truncated and limited nature of the hearing before it and attempt to put in place the arrangement for [X] and [Y]’s care, which it considers will best serve their interests.
Consideration
In my assessment, this is a case full of all manner of risk for [X] and [Y], relating both to their physical and psychological safety. At present, in my view, these risks arise both in their mother’s home and in that of their father. Accordingly, at this stage, it is the responsibility of the court to assess as best it can, the nature of those risks and put in place responses and outcomes, which it considers are proportionate to the risks arising.
Given the structure of section 60CC(2)(2A), priority is to be given to these protective concerns. However, at the same time, the court is not to ignore issues relating to the benefits, which the children are likely to derive from having a meaningful level of relationship with each of their parents.
In this particular case, notwithstanding the interruptions to each of the children’s parental relationships – an interruption, which was far more extenuated in the father’s case – it is clear to me that both children know each of their parents well. As such, it is clearly necessary and beneficial for them to be able to interact regularly with each of their parents. However, for logistical reasons, both an equal time and a substantial and significant time regime must be ruled out.
The allegations made by the father concerning the mother’s mental health and substance abuse problems, which he alleges resulted in the children being assaulted by her are serious in nature. In addition, in my view, the exposure of children to serious sunburn can be characterised as an incident of parental neglect.
The issue arising for the court being whether the risk relating to those incidents and the various related allegations made by the father is of such gravity, although the matters are as yet untested and so unproven, is of such moment to justify a change to what has undoubtedly been a longstanding care arrangement for the two children concerned.
I am of the view that the risk is not so extreme and therefore one which is unacceptable for the court to countenance, for reasons which can be summarised as follows:
·The mother has provided contemporary evidence that she does not have current mental health issues.
·She has provided evidence, albeit self-emanating, that she has been drug free;
·On balance, the sunburn incident was an aberration rather than an episode of callous disregard for the children;
·In his oral evidence to the court, provided on 8 December 2017, the father categorised the mother as being a good mother;
·The police have elected not to lay formal charges against the mother nor to caution her in respect of the two incidents where the children have allegedly been assaulted by her;
·The mother has taken steps to arrange for psychological counselling for both children.
It is however clearly the case that these two adolescent male children have presented worrying behaviour. Why this is so, is not clear to me, at this stage. Two hypothesis and possibly more present themselves:
·Firstly, the children are not happy living with their mother and prefer being parented and disciplined in a house which has a strong paternal head.
·Secondly, the children are being either consciously or unconsciously encouraged to behave badly, in their mother’s household in order to secure placement in their father’s household. The reasons for this may be multifaceted but may relate to the acrimonious atmosphere of the parties’ post relationship parenting politics.
I acknowledge that these are complicated issues and the evidence in respect of them is both limited and untested. Accordingly, in my view, the court should take a cautious approach. In particular, I am concerned at the prospect of changing longstanding arrangements for the children’s care [section 60CC(3)(d)].
The parties agree that, following separation, the children lived with their mother for approximately two years without any interaction with their father. In this period of time, Ms Osram enrolled them at the (omitted) Primary School. The children have attended this school for close to two years and seem to have settled in well there. In my view, these are factors which significantly militate against another change occurring at this stage.
This longstanding arrangement was interrupted by the unilateral actions of the father. The mother’s explanation as to why police were called to her home following the slapping incident does not appear to me to be a far-fetched one. The father did not seek out the mother’s explanation. Rather, he withheld the children and enrolled them at the school of his preference.
In these circumstances, in my view, questions arise as to the level of insight of both parties not merely the mother in respect of their attitudes to the responsibilities incumbent on being a parent. In addition, at this stage, I am simply not in a position to determine who of them is better placed to provide for the children’s emotional needs.
However, on balance, given the information provided by Ms Tydeman and in the letter from Ms J, I am satisfied that (omitted) Primary School is the better placed school to provide for the children’s intellectual and scholastic needs at this stage. Given the logistical issues arising, for self-apparent reasons, this is a significant factor which favours the children returning to the mother’s predominant care for the start of the 2018 academic year.
As yet, no definitive effort has been made to canvas the children’s views. In addition, given the complicated issues arising in this case, there are likely to be many competing factors influencing whatever views the children may ultimately choose to proffer. The effect of Ms Tydeman’s intervention is that the children appear to be torn between their parents and do not have any pressing complaints about either of them or any strong preference. Again, this is a factor which favours a return to the pre-proceedings status quo, namely the children live predominantly with their mother.
The distance between (omitted) and (omitted) is a significant one. However, it is not of such magnitude to prevent the children being able to spend regular and extensive time with their father and wider paternal family. As such, the issues of geography are not of such moment to prevent [X] and [Y] having a sufficiently meaningful and so beneficial relationship with their father.
As previously indicated, I have reached the conclusion, on balance, that it is preferable for a court appointed family consultant to interview the children sooner rather than later. In this context, I will adjourn the proceedings for further directions to 26 April 2018 at 9:30am, which I have scheduled on the basis that it is shortly prior to the end of term one school holiday.
In the meantime, for the reasons outlined above, I am of the view that the children should live with the mother and be re-enrolled at the (omitted) Primary School. In addition, I am of the view that the children should spend alternate weekends, during the school term, in their father’s care from after school on Friday until 5:00pm the following Sunday (or 5:00pm Monday) in the event that day is a public holiday.
It is the father’s evidence that he has modified his work hours. In these circumstances, I accept that he will be able to collect the children from their school at the commencement of each period of weekend time. Necessarily, it remains the case that any handover occurring other than at the children’s school needs to happen in a safe and secure environment. Accordingly, I will direct that the children be returned to the mother’s care at the conclusion of any other weekend and/or holiday time within the precinct of the (omitted) Police Station.
I will further order that the father spends time with the children for the first half of the Easter period from after school on Maundy Thursday until 5:00pm on Easter Saturday; as well as for the first half of the first term school holiday from after school on 13 April 2018 until 5:00pm on Saturday, 21 April 2018.
In order to underline to the parties that the complex dispute between them is their dispute rather than [X] and [Y]’s, I will make an order that neither party denigrate or abuse the other in the presence or hearing of the parties or discuss these proceedings with them, particularly in terms of initiating any conversation with the children about what has occurred in court.
I will also direct that the principal of the children’s school be provided with a copy of these reasons for judgment so she is aware of what arrangements have been made for the children to spend time with their father which involve her school’s premises.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 25 January 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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