Painter and Morley
[2007] FamCA 283
•29 March 2007
FAMILY COURT OF AUSTRALIA
| PAINTER & MORLEY | [2007] FamCA 283 |
| FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child – equal time and significant and substantial time – View of teenage children – Judicial interview of the Children - Entrenched conflict between parents – Long history of litigation |
| APPLICANT: | Mr Painter |
| RESPONDENT: | Ms Morley |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Fitzgerald |
| FILE NUMBER: | HBF | 2368 | of | 1999 |
| DATE DELIVERED: | 29 March 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 13, 14 February 2007 & 16 February 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Trezise |
| SOLICITOR FOR THE RESPONDENT: | A.T. Legals |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Mr P Fitzgerald |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Aid Commission |
Orders
THAT the parenting orders made 5 February 2001 and subsequent parenting orders made in these proceedings be vacated.
THAT the mother and the father each have parental responsibility for each of the children A born in February 1992 (“A”), S born in October 1993 (“S”), L born in May 1996 (“L”) and C born in September 1997 (“C”).
IT IS NOTED
THAT this is a matter where presumption under s61DA of the Family Law Act 1975 is rebutted pursuant to s61DA(4) of the Act.
IT IS FURTHER ORDERED
THAT as to the mid year school holidays and Easter holiday period the said children;
(a)Live with the mother for the first half of such the mid year school holidays and Easter period in the 2007 year and the second half of such holidays in the 2008 year and then alternating in like form thereafter.
(b)Live the other half of the said mid year school holiday and Easter period with the father.
(c)Such time to commence after school on the last day of school term and end at the commencement of school on the first day of school term or the first day of school if the first day of school term is a pupil or student free day.
(d)If the mid year school holiday period or Easter period is an odd numbered day then the changeover date shall be midday on the middle odd day.
(e)If the number of days is an even number day then the changeover shall be at 9.00am on the first day of the second half of the said school holiday or Easter period.
THAT the said children shall;
(a)Live with the mother from the end of the school year in 2007 until 3.00pm on Christmas Day and shall then live with the father from 3.00pm on Christmas Day until 10.00am on 1 January 2008 and thereafter spend one week with the mother, then one week with the father alternating until school resumes. That arrangement shall continue each alternate year from the 2007.
(b)Live with the father from the end of the school year 2008 to 3.00pm on Christmas Day and shall live with the mother from 3.00pm on Christmas Day until 10.00am on 1 January 2009 and thereafter spend one week with the father, then one week with the mother alternating until school resumes. That arrangement shall continue each alternate year from 2008.
THAT during school term, subject to further provisions of this order, the children shall;
(a)Live with the mother one weekend in two and the father one weekend in two.
(b)Such live with arrangements shall commence after school on the last day of the week and end on the commencement of school on the first day of the school week, which will be a Monday or Tuesday if Monday is a pupil free day or a public holiday.
(c)If the children are living with the mother for the last days of the preceding school holiday period then the time they live with the mother during alternate weekends during school term as set out in this order shall commence on the second weekend after commencement of such school term and if the children were living with the father in the last days of the preceding school holiday then the time the weekend starts with the mother shall commence the first weekend after the commencement of such school term subject to:-
i.The orders in terms of A are that during school term she will live with the mother on the alternate weekends from after school Wednesday until commencement of school the following Monday (or Tuesday if Monday is a pupil free or public holiday) and that A live with the mother after school Wednesday to commencement of school Thursday in the other week during school term.
ii.The orders in terms of S are that, at her option, she can terminate the time she lives with the mother at 4.00pm on Saturday afternoon or 4.00pm on Sunday afternoon and if she does so the mother will drive or arrange for a responsible adult to drive S to the Shopping Centre at D with the father to collect S from the Shopping Centre at D.
THAT the children shall live with the mother from 10.00am on Mother’s Day until the commencement of school the following day and shall live with the father from 10.00am on Father’s Day until the commencement of school the following day.
THAT as to L and C;
(a)They will live each alternate weekend during school term with each parent as set out in the Orders above and will otherwise live with the mother during school term, except on the Monday night after the weekend they live with their mother, on that Monday night they will live with the father.
(b)On such school term alternate Monday nights the mother will drive or arrange for a responsible adult to drive L and C to the Shopping Centre at D with the father to collect L and C from the Shopping Centre at D. Such changeover to take place at D at 5.00pm on each such alternate Monday during school term.
(c)The father will be responsible for arranging for L and C to be delivered to school each following Tuesday morning and to ensure that they arrive at school on time.
THAT except for Mondays and Tuesdays referred to in order 6(c)(ii) and order 8 above it shall be the responsibility of the parent with whom the child is living to ensure that there are arrangements in place for the children to arrive at school during the time that the child is living with them.
THAT in respect of any mid year school holiday changeover if the child or children are living with the mother the mother shall arrange for the child or children to be delivered to the father at the Shopping Centre D and the father shall ensure that he is available or has available some responsible person for collection of the child or children from that place.
THAT in respect of any mid school holiday changeover if the child or children are living with the father the father shall arrange for the child or children to be delivered to the mother at L at a place reasonably nominated by the mother in writing and the mother shall ensure that she is available or has available some responsible person for collection of the child or children from that place
THAT both parties shall keep the other advised, in a timely fashion, of any medical or other issue pertaining to the children including details of any medical, dental, psychological or psychiatric treatment undertaken by the children.
THAT the mother and father shall ensure all school records shall note both the mother and father as persons with whom the school authorities may liaise from time to time regarding the children.
THAT in the case of any medical emergency the parent who is aware of such emergency shall as soon as is reasonably practicable contact and notify the other parent regarding the children or child’s medical circumstances.
THAT neither party shall denigrate nor permit any other person to denigrate the other party, the other party’s partner, sibling or parent nor the circumstances of either or both of the children or of the other party in the presence or hearing of the children.
THAT the parties be restrained from changing the school of A or S from K High School or changing the primary school of L or C from G Primary School without the written consent of both parents and further IT IS ORDERED that both parents do all acts and sign all documents at times reasonably required to enrol L and C at K High School when they are of an age to do so or such other high school as is agreed in writing between the parties.
THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS FURTHER DIRECTED
THAT accept in a case of urgent application the parties are required to attend and attempt to mediate parenting issues through a Family Relationships Centre prior to commencing further proceedings.
THAT this matter be removed from the list of cases requiring determination.
THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
THAT the appointment of the Independent Children’s Lawyer be discharged as and from three months following the date of these orders.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF2368/1999
| Mr Painter |
Applicant
And
| Ms Morley |
Respondent
REASONS FOR JUDGMENT
These are proceedings between by the father and the mother where each party is seeking parenting orders with regard to their children A aged fifteen, S aged thirteen, L aged ten and C aged nine.
The father was unrepresented during the hearing, the mother was legally represented by Ms Trezise and an Independent Children’s Lawyer had been appointed, Mr Fitzgerald appearing for that lawyer.
In terms of parental responsibility the father sought sole parental responsibility in respect of A and S and an order that both he and the mother each have parental responsibility for the children L and C.
In terms of school holidays the father sought orders that the children spend equal time with each parent on a one week on/one week off basis. In so far as Christmas was concerned the children would spend part of Christmas Day with one parent and part with the other. He sought orders that in one year it is from 3.00pm Christmas Day to 3.00pm Boxing Day and presumably in the other year it is 3.00pm Christmas Even to 3.00pm Boxing Day so there is equality. He sought no orders in respect of Father’s Day or Mother’s Day for any of the children.
With regard to A he sought orders that she spend alternate weekends with each parent during school term and during the week Monday night with her father, Tuesday night with the mother, Wednesday night with the father and Thursday night with her mother. He sought an order that the mother deliver the children to his home at M. In so far as S was concerned he sought no orders with respect to Christmas holiday but said that S should be entitled to spend such time with each of her parents as she wished. In terms of school term he sought orders that S spend the same time as with the mother as was the situation with A except the weekends would be from Friday after school to 4.00pm Saturday with the mother to return S to the father that afternoon.
In terms of L and C the father sought orders for school holiday time the same as with A and that the two younger children live with the mother most of the time during school term but live with him each alternate weekend from after school Friday to commencement of school Monday (or Tuesday if Monday is a public holiday or pupil free day). In addition he sought an order that L and C spend alternate Monday nights with him, not being the Monday night immediately following the alternate weekend time that the children live with him.
The mother and the father agreed that this was a case where the facts and circumstances were such that in respect of all of the children there ought not to be an order for equal shared parental responsibility as provided by s61DA of the Family Law Act. I accepted their submissions in that regard.
The mother sought orders that each of the parents of the four children have parental responsibility for each such child. Accordingly there was no issue in this regard between the mother and the father in so far as L and C were concerned.
The mother sought the same Christmas and school holiday periods as was sought by the father with the exception of S, in that regard the mother said it ought to be the same as the other three children. Accordingly the issue to determine with regard to Christmas school holiday period is whether S spend one half of the time with her mother or there were no orders as sought by the father.
The mother was in agreement with the father in relation to A spending each alternate weekend with her from after school Friday to the commencement of school Monday. As to the mid week she sought orders that A live with her most of the time.
The mother said the same orders as applied to A during mid week and weekends should apply to S. The only difference between the mother’s application with regard to L and C was the question of transportation, that is whether the mother returned those children to the father at M.
The father and mother both agreed that there should be an order in place that the children’s schools not be changed without the written consent of both parties or order of this court. There was a significant issue relating to transportation as has been set out above.
Background
The father is aged 52 and the mother is aged 34. The parties commenced co-habitation in February 1989, they married in September 1992. The parties separated in October 1999.
There are five children of the relationship between the parties, namely a son aged 17 (who lives with the father and who is not a subject of these proceedings), A, S, L and C.
The mother has re-partnered and married Mr Morley in January 2004.
The parties have been engaged in continuing litigation since 1999 some of the detail of which is set out in there reasons. The children have lived in the shadow of litigation since 1999 and have spent a goodly part of their lives, so far, embroiled in the constant conflict between their parents.
S and L lived with the mother up until June 2005 when they left her home and commenced living with the father. There is an issue as to the circumstances surrounding their departure from the mother’s home.
The communication between the parents can best be described as “bad” and at worst “poisonous”. The father does not like the mother’s husband and believes that he constitutes a serious risk of abuse to the children.
The parties were involved in a previous parenting hearing before Coleman J in February 2001. In those proceeding the father asserted that the son would not see his mother because of her relationship with her husband, whom the father considered a sexual predator. The Court found that the mother’s husband was “far from being a sexual predator”[1]. Further the court observed that “the evidence before me suggests that the father has far more problems in the mother having a relationship with [her husband] than does [the son]”[2].
[1] Paragraph 20 of the reasons of Coleman J, 5 February 2001.
[2]Paragraph 19 ibid.
As a consequence of those proceedings Orders were made that all 5 children live with the mother and have contact with the father.
It is instructive to reflect upon the chronology of the parties since 1999.
Chronology since 1999
3 October 1999 Date of final separation, shortly thereafter parties made informal agreement that the son live with father and four girls live with mother
23 December 1999 Date of filing by mother of Form 8 Application for urgent Recovery Order and Form 7 Application for Final parenting Orders
24 December 1999 Date of interim Residence Order in favour of mother
7 January 2000 Father files Form 8A Response and affidavit
15 February 1999 Interim Residence and Contact Orders – the son to live with father, four girls to live with mother
17 February 2000 Mother files Form 7 and 8 Amended Application seeking that all five children live with her and that the father have contact as agreed between the parties from time to time.
16 March 2000 Consent Orders for final residence and contact
4 April 2000 State Child Protection authority commenced proceedings regarding the son
5 May 2000The son remained in care of mother until 5 May 2000
5 May 2000Final restraint order filed by mother from Magistrates Court issued against father
5 May 2000Father files Form 7 and 8 Application and Form 16 Affidavit
13 June 2000 Father files Form 8 Application seeking to set aside Orders of 16 March 2000, Interim Residence, appointment of child representative and Form 7 Application for Final Residence Orders relating to the four girls
4 July 2000Father files Form 8 Application seeking Order that mother be restrained from obtaining a recovery order for the child S
13 July 2000 Mother files Form 7A Response and Form 8A Response seeking residence of five children
14 July 2000 Family Court Order for interim Contact, Injunctions, Duty Report and appointment of child representative ordered
3 August 2000 Family Report of Mr C
7 August 2000 Interim Contact Orders and Injunction Orders made by the Court
11 October 2000 Mother files Affidavit and Form 3 Application seeking urgent recovery order and interim residence of five children
11 October 2000 Exparte Order by Mushin J made for the recovery of girls from father and that father bring the son to court.
16 October 2000 Father files affidavit and Form 3A Response
20 October 2000 Consent orders for variation of contact, appointment of Court Expert and Pre-trial directions
2 November 2000 Orders for appointment of Court Expert and terms of Family Report
9 November 2000 Child Representative, Ms P files Application and Affidavit
14 November 2000 Mother files Form 3 Application
16 November 2000 Date of release of Order 30A Family Report of expert Mr S
13 December 2000 Mother files Form 3 Application seeking interim Christmas holiday Contact Orders
18 December 2000 Consent Orders made for interim contact during Christmas period and interim orders made
31 January 2001 Father files Affidavit and Form 3A Response
5 February 2001 Family Court Orders after defended hearing which provide, amongst other things, that the children reside with mother and have contact with father every second weekend and half of school holidays
13 February 2001 Reasons for judgment of Coleman J
19 February 2001 The son resides with mother
19 February 2001 Father files Form 3 Application seeking that Orders of 5 February 2001 be set aside or stayed.
20 February 2001 Mother files Affidavit and Form 49 Contravention of Child Order alleging that father failed to deliver the son to counselling
21 February 2001 Mother files Affidavit and Form 8 Response seeking the issue of a recovery order for the child the son
26 February 2001 Order of the Family Court
1 March 2001 Father files Form 17 Financial Statement
5 March 2001 Father files amended application and affidavit
5 March 2001 Order of Family Court
7 March 2001 Order by Coleman J that the residence Order be stayed and contact orders be made in favour of the mother
7 March 2001 Order that inter alia the father pay the mother’s and the separate representative’s costs of and incidental to these proceedings
15 March 2001 Mother files application for contravention
28 March 2001 Mother files application for contravention
30 March 2001 Order by Hannon J that the father be fined $1,100 for contravening a child order made 7 March 2001
3 April 2001 Mother filed application seeking that Orders 1, 2 and 3 made on 7 March 2001 be set aside
9 April 2001 Mother filed application contravention of child order
10 April 2001 Order that mother’s Application filed 3 April 2001 be dismissed
24 April 2001 Mother filed Affidavit and Form 49 Application alleging father contravened orders for contact made 7 March 2001 in relation to the child the son
16 May 2001 Father files Form 3 Application seeking interim orders that Orders made 30 March 2001 be stayed pending hearing of the appeal in the matter.
17 May 2001 Mother files Form 3A response seeking that the father’s application Filed 16 May 2001 be refused and the father pay costs
18 May 2001 Order that father pay mother’s costs
6 June 2001Order that mother’s Form 49 application filed 24 April 2001 be referred for urgent hearing
14 June 2001 Child representative, Ms P files Affidavit and Certificate of Taxation
25 June 2001 Appeal of the father dismissed by Family Court of Appeal
25 June 2001 Restraint Order made against father
2 July 2001Application by mother seeking restraining order against the father
5 September 2001 Order that the mother’s application filed 24 April 2001 is found to be proven and further order that a warrant issue authorising the arrest of the father
5 September 2001 Warrant of arrest issued against father
12 September 2001 Order that the application of the Child Representative filed 25 July 2001 be adjourned to 17 September 2001, that the applicant file and serve any further information and affidavit by 13 September 2001 and the respondents by 17 September 2001
12 September 2001 Second order that the father enter into a good behaviour bond for two years on his own security in the sum of $1,000 on condition that he pay all fines owing by him by 4:00pm on 21 September 2001.
17 September 2001 Child Representative filed Form 3 Application seeking the respondent be restrained from dealing with or acting upon the equitable charge dated 15 May 2001 and from disposing, further encumbering or in any other way dealing with any of the properties referred to in the second schedule of the equitable charge.
20 September 2001 Order that the father be restrained from dealing with or acting upon the equitable charge dated 15 May 2001 and further from disposing, further encumbering or in any way dealing with the properties referred to in the second schedule of the said equitable charge
21 September 2001 Order that the father pay the Child Representative all costs outstanding by 4:00pm 25 September 2001 and be on a good behaviour bond for a period of two years
23 November 2001 Child Representative, Ms P, files Form 48 Application for contravention of order to pay costs
4 February 2002 Order by Consent that Father pay Child Representative’s costs monthly commencing 8 February 2002
4 September 2002 Child representative, Ms P, files Affidavit and Form 48 Application for contravention of order to pay costs
30 January 2003 Child Representative files Form 48 Application for contravention of order dated 12 September 2001
10 February 2003 Child Representative files Form 48 Application for contravention of Order seeking rectification of father’s breach of consent orders dated 10 February 2003.
10 February 2003 Consent Order that father pay Child Representative’s costs fixed in the sum of $9,200 at the rate of $100 per fortnight
24 July 2003 Child representative files Form 48 Application for contravention of order seeking rectification of father’s breach of consent orders dated 10 February 2003
January 2004 Mother remarried, Mr Morley
September 2004 Children, A and S allegedly left school and after police intervention spent a night in the care of the mother’s friend and then returned to mother’s care
17 June 2005 Father files Form 1 Application seeking residence of the 5 children
23 June 2005 Children A and S travel from school to father’s place at O. Parenting arrangements for A and S changed from this time
24 June 2005 Father files Form 2 Application seeking interim residence of A and S.
1 July 2005Father filed Form 4 Notice of Risk of Child Abuse
27 July 2005 Mother files Form 1 and 2A Response seeking orders for the prompt return of A and S to her care
1 August 2005 Family Court Orders for the appointment of Children’s Representative
8 August 2005 Order of the Family Court
12 August 2005 Family Court Interim Parenting Orders and father files affidavit and application of contravention.
26 August 2005 Federal Magistrates Court Interim Parenting Orders
18 October 2005 Family Report by Mr C
21 November 2005 Order Federal Magistrates Court
15 March 2006 Matter proceeds to Joint Conciliation Conference. Federal Magistrates Court Consent Order that all extant parenting Orders in relation to child the son be discharged. The son is currently residing with the father
10 April 2006 Order made by Federal Magistrates Court
17 May 2006 Family Report by Malcolm Cunningham
19 July 2006 Order made by Federal Magistrates Court
15 September 2006 Less Adversarial Procedures first return date. Family Court Orders/Directions made by Benjamin J
7 November 2006 Orders – Benjamin J
11 December 2006 Family Report by Mr C
The Issues
The issues between the parties were at the end of the hearing reduced in scope to relatively narrow areas.
As to parental responsibility there was one issue, that is whether the father should have sole parental responsibility for A and S or whether that ought to be parental responsibility in accordance with s61C of the Act as submitted by the mother and independent children’s lawyer. There was no issue that the parties communication was such that there should not be orders for equal shared parental responsibility as set out in s61DA of the Act.
This was a matter where there is an agreement that the orders ought to be ‘live with/live’ with rather than the hierarchical expression ‘live with/spend time with’. In terms of the children L and C the issues were whether they spent each alternate Monday evening with the father and the method of transportation.
With regard to A the issue was whether she live with her mother as requested by the mother and set out above, to live with the father as sought by him and set out above or as suggested by A in the family report. A’s views in this regard ought to be given significant weight bearing in mind her age.
There was an issue as to the time that S spent with each parent as is set out above. In terms of S there is a question as to whether orders ought to be made or whether it is up to her to determine when she live with the mother.
The issue of transportation in respect of all four children was significant.
The relevant legal principles pursuant to the Family Law Act 1975.
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The Act was the subject of amendment in 2006 with the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”) on 10 May 2006. Parts of the amendments commenced on 1 July 2006.
The objects of those provisions of the Act relating to children are to ensure that the best interests of the children are met by[3];
(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.
[3] s 60B(1) Family Law Act 1975.
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[4]:
[4] s 60B(2) Family Law Act 1975 .
(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).
Each of the parents of a child has complete but several parental responsibility for such child[5]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the amendment and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[6] for the child. The section provides as follows:
Section 60DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
[5] s 61C Family Law Act 1975.
[6] Parental responsibility is defined by s 61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
A court must make a positive order or declaration for equal shared parental responsibility under s 61DA of the Act. If the presumption is in the best interests of the child and reasonably practicable[7], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is an interim matter, because it would not be appropriate in the particular circumstances of that case under s 61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted in accordance with s 61DA(4) of the Act.
[7] s 65DAA(1) Family Law Act 1975 (Cth).
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC. That section provides as follows:
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly
Sections 61DA and 65DAC create a two or three step process for courts making parenting orders.
The first step is to determine whether the presumption applies. The section requires a court to apply the presumption set out in s 61DA(1) unless sub-section (2) is applicable. Sub-section 61DA(2) provides that if there are “reasonable grounds to believe” that a parent or person who lives with a parent has engaged in abuse or family violence then the presumption does not apply. If an issue is raised under this sub-section it must be the first determination. In these circumstances, the standard of evidence is the objective test that there are “reasonable grounds to believe” that a parent of a child, or a person who lives with a parent, has engaged in abuse or family violence. This is not an onerous evidentiary hurdle. Abuse is defined narrowly and family violence is defined broadly[8]. The court must regard the presumption as applying unless there is evidence which causes s 61DA(2) issues to arise.
[8] Both “abuse” and “family violence” are defined in s 4 Family Law Act 1975 (Cth).
If the presumption applies, the second step is to consider whether the presumption is rebutted. A court must apply the presumption, unless it is either an application for an interim order and the court considers that it is not appropriate in the circumstances[9], or unless the presumption is rebutted by evidence that it would not be in the best interests of a child for it to apply[10]. For a rebuttal argument, the best interests of the child need to be considered and, as such, regard must be had to the matters set out in s 60CC of the Act.
[9] s 61DA(3) Family Law Act 1975.
[10] s 61DA(4) Family Law Act 1975.
A third step would arise if there is a determination that the presumption does not apply under s 61DA(2). Parliament has made it clear that courts exercising jurisdiction under Part VII of the Act should consider equal shared parental responsibility. Accordingly, the question of parental responsibility must first be settled before determining the living arrangements or the time a child spends with parents. Further, the drafting of the sub-section is such that “the presumption does not apply” almost on suspicion of abuse or family violence. If this is the case, then a court making a parenting order should still consider whether there ought to be an order for equal shared parental responsibility, in order to give effect to legislative intention.
As outlined above, the question of allocation of parental responsibility needs to be determined before the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[11]. Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the Court in relation to that child, a court must, in determining whether it should make orders or in determining what orders should be made, regard the best interests of the child as the paramount consideration. Section 60CA the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
[11] s 64B(2) Family Law Act 1975 sets out the meaning of a parenting order and related terms.
The amendments go on to provide in s 60CB that the best interests of the child is the paramount consideration.
How the court determines what is in the best interests of a child is set out under s 60CC of the Act.
Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
How does a court deal with this new “two tier list of factors” set out under s60CC in determining the best interest of a child?
It is clear that the changes are substantial and will impact on decision making when parenting orders are made by courts from 1 July 2006, whether those orders are final or interim.
The approach to be adopted by a court is structured.
The first step is to determine parental responsibility, as set out above in these reasons. This may require a determination as to abuse or family violence under s 61DA(2) and/or having regard to the primary and additional considerations under ss 60CC(2) and (3). Such determination would be different to a determination of unacceptable risk of abuse.
The next step is to determine the time the child lives and/or spends time with each parent, sibling/s and other persons. This should involve consideration of communication between the child and her/his parents and other important people in the child’s life, including siblings and grandparents. This must be done having regard to all of the relevant primary and additional considerations set out in s 60CC. Part of that process must be to consider equal time or substantial and significant time as required by s 65DA. In circumstances where s 65DA does not apply specifically, by virtue of the section in a general sense, there should be such consideration if there are factual circumstances that would invite orders for equal or substantial time.
To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.
Finally, the Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations were considered by Bennett J in a recent unreported decision[12] where her Honour said;
[12] G and C [2006] FamCA 994.
The primary considerations
65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described 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.66This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[13].
70The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
[13] Pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
71 The arguments supporting the second possible interpretation include;
(a) Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b) The primary considerations are described in the explanatory memorandum (paragraph 4)as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
71My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to Billy into the future.
I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any “benefit to the child” in having or continuing a relationship and whether such relationship is or will be “meaningful”[14]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[14] Ibid paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court make such a determination.
The evidence and discussion.
The father gave evidence in accordance with his affidavit filed 20 October 2006 (“the father’s affidavit”). Objection was taken to an annexure to that affidavit being a report by Dr G which was annexure “A” to that affidavit. This is a matter to which Division 12A of the Act applies and the statement was not rejected on the basis of hearsay. However, I attach no weight to it as the doctor was not available to be cross-examined in respect of his statement, and as I have said in these reasons the report contains nothing of substance.
In cross-examination the father said that his house at M was a renovated home which had two lounge rooms, four bedrooms, two bathrooms and was on a home block of about five acres which had gardens. The son had his own room, A and S shared a room. L and M shared a room although they often fought and one of them uses a fold-out bed in the second lounge room about one half of the time.
In the questionnaire completed by the father said he would rely upon Ms M to assist with the children. He agreed that she now lives in Queensland and is unable to assist him except one or two short visits proposed for one week a year.
The son is working full time and his ability to help is limited and the father’s sister lives in L. The father works mornings and afternoons on Thursday, Friday, Sunday and most Mondays. His hours are from about 6.30am to 9.15am and 3.30pm to 6.00pm. In June or July 2006 he did some additional work when his employer suffered an illness. He works on Tuesdays and Wednesdays about once every four weeks. He occasionally does work for the D family (he says twice in the last twelve months) and the B family (ten to sixteen days in the last twelve months).
The father has lived in his present accommodation since December 2005, prior to that time he lived at G from about June or July 2005 to December 2005. Prior to that time he lived in a house at O
He gave evidence of his criminal history. He was convicted about twenty one years ago in relation a matter which is of no relevance to these proceedings. Similarly there is a conviction in respect of the mother’s husband which is likewise a matter which is of no relevance in these proceedings. The father said he was convicted of an assault in relation to the mother. That conviction is of significance in terms of the mother’s understandable reluctance to travel to the father’s remote property. The father had three convictions in July 2004 in respect to acts causing injury to animals. He was fined $1,000.00. He did however concede that he was wrong when he said there was three of four days between the request to provide a kennel for the dogs and the charge to which he was convicted which was about thirteen or fourteen days. As to the charge, the father conceded that the availability for legal aid was on the basis that there was a real possibility that he would go to jail.
The father gave an explanation to these events and said the children would support him in respect of it and said it was trivial. He entered a plea of not guilty but was convicted. I infer that he minimises and trivialised the animal cruelty matters. This evidence has relevance in regard to credit.
The father has no concerns about the mother’s capacity to parent in so far as cooking and general care of the children is concerned but he believes that she does not protect the children from her husband. By that he explained that the mother does not believe the complaints made by the children in respect of the mother’s husband and/or trivialises those complaints. The father says he does not like the mother’s husband, the father blames him and the mother whom he believes are wholly responsible for the failure of his marriage to the mother, and in that regard he attributes no fault to himself. I find that he lacks insight in regard to the circumstances surrounding the failure of his marriage and that impacts on his parenting of the children at the present time.
As indicated in the background the parenting of the children was the subject of contested proceedings before Coleman J in February 2001. The father was unsuccessful in those proceedings and unsuccessfully appealed that decision. The father said that he has never read the reasons of Coleman J. He prevaricated when he gave this evidence and I do not accept his evidence in that regard. He said he had no recollections of findings made by Coleman J in relation to inappropriate behaviour and when pressed he said his memory was “hazy”.
I infer that the father has encouraged the children to dislike and distrust
the mother’s husband and the father encourages the girls to make complaints against him.
In cross-examination the father said he was very upset about an event where the mother’s husband kicked A and left her with a bruise. The father said he would pursue this for as far as he possibly could. This is not about A it is about the father’s continuing obsession with the mother’s husband.
It was put to the father that in July 2005 he collected A and S from the L area and removed them from the care of the mother. The father denied that and said that they hitch-hiked to his property. He also said when pressed as to whether the children had made that statement he said that the mother was lying. He had earlier said that his children did not lie.
The father then had said that he was working for the D family at that time and that they would provide evidence to support him in his assertion that he could not have collected the children. This must be seen in the circumstances where the father sought leave to file affidavits from these employers to give evidence in support of that contention and leave was given. The father did not file affidavits and prevaricated in terms why the affidavits were not filed. I infer that the evidence of the D Family would not have assisted the father and I find that the father collected A and S in July 2005 and that the father’s denial that he collected the children amounts to a knowingly false statement made by him in these proceedings.
The mother tendered a report[15] from the Department of Health and Human Services which observed that “JR” from Launceston CIB informed the Department:
[15] Exhibit “M1”
“… informed that the disclosures made were of a minor nature”
The disclosures were that:-
“[A] disclosed that [[the mother’s husband]] had pinched her on the bottom and when she turned around he laughed and said he thought it was her mother but she did not know how he could have made that mistake as her mother was standing right next to him. [A] also disclosed that when he tries to cuddle her it feels uncomfortable, his hand goes up and down her back and sometimes touches her bottom. [A] also disclosed that when he used to give her a good night kiss it was sloppy but she could not say whether he used his tongue.
In relation to [S] it was reported that he touched her on the bottom as she was leaving for school one morning.
The police officer reported:-
“She explained to the girls what it meant to make false statements to the police and the consequences of that and the girls appeared to become uncomfortable but signed the statements”.
The police officer went on to report:-
“That the girls said they didn’t like living with their mother and [[mother’s husband]] because they were too strict whereas their father allows them to do what they want”.
On the information before me I find that the children were not abused and that there is no cogent evidence of any sexual misconduct on the part of the mother’s husband with regard to the children.
Also tendered in evidence was a statement from R W H and P H who are the parents of N. In that letter the parents said:-
“[N] and [A] have been friends for some time. They have been spending time together, every alternate weekend on a farm at [E] where [A’s] father works. At school holiday time it was decided they could spend the week together, this is when was what to happen happened. [the father], [A’s] father had said to the girls “that if they wanted to live with him they would not have to attend school and they could work on the farm and earn pocket money and they could drive the car when they felt like it” In this time they were allowed to smoke and drink top shelf alcohol supplied by [the father].
Over the three weeks that followed our daughter’s personality changed drastically from a little girl to a street wise kid when she would scream and shout when she walked out of the house because he [the father] was waiting around the corner for her.
We contacted the police who went out and checked but said their hands were tied to help in any way, child protection said the same thing.”.
The father was aware of this letter which went on to suggest that the child was at risk of sexual abuse by him but he did not call them to have them cross-examined in relation to that evidence. I infer that the father induced N to spend time at his home.
The father was cross-examined as to whether he withheld pocket money from the elder girls when they visited the mother, he said he did not. Very little is determined by this issue except perhaps the question of credit of the father, which is dealt with later in these reasons and his continuing conflict with the mother and her husband, which is not in issue.
School records show both S and A were absent from school for a significant period of time after June 2005. The father concedes that he kept the girls away from school for one month in case they went back to their mother. He denies that the later absences were accurate. He said that he is unable to take the girls to school due to work commitments and due to the excessive costs. He says it costs $40.00 each trip (and I took it this was the cost for to and from school) M to L. The travel arrangements for the children to get to their school are they get up at about 6.30am in the morning, catch a 7.10am bus from M to D. They then catch a bus from D to the highway at L then they walk three of four kilometres to school. They get to school generally late.
To go home they catch a bus from school to the city of L. They then walk two or three blocks and catch the 4.00pm bus to D and then a small bus to M.
A teacher SD in her affidavit sworn 22 December 2006 observes that “[S] does, however, look tired particularly in the afternoon. She said she appeared dishevelled with tired looking eyes”. She went on to say that S is frequently tired on Tuesday afternoons.
The father does not in any way concede that this tiredness could be a factor of the extensive travel which is imposed upon the children.
I was concerned about this travel until the views of the children were provided to the court and both A and S expressed that they enjoyed the travel and the social interaction arising from it.
The elder girls went to live with the father in June 2005 and in December 2005 the son came to visit the father. The son at that time decided to remain with the father. During cross-examination the father made it clear that the son knew that at sixteen he could make up his own mind, (the son was turning sixteen in March 2006). The son finished school at the end of 2005 and did not finish his year 10 studies. He undertook an apprenticeship with the father’s employers.
The father said that the son did not make up his mind about not going back to school until the commencement of 2006. At that time the son was offered an apprenticeship and took the apprenticeship.
When cross-examined about the evidence of HB, the social worker at K High School said that no notice had been given to K High School that the son was not returning to school and that after a letter was written to the father he advised he wanted to enrol the son in “distance education” the father prevaricated. I find that the father encouraged the son to leave school early to the detriment of the son’s education.
I find that the father does not treat education as a significant feature of parenting the children. It is of small moment to him. If the children are to achieve their potential the mother will need to be involved in the children’s care as much as is possible.
In relation to transport, the father accepts the comments made by the family reporter in the third report where it is said:-
“The big issue now is the transport of the children particularly coming to a head now as [the father] currently works for two diary farmers and has increased his hours of between thirty and thirty six hrs/week. He claims he no longer has the time to sustain the transport nor the inclination to cover the cost of the 60km that he estimates to be $80.00/fortnight”.
This must be seen in the context of the impact of the travel upon the children.
The father prevaricated in terms of changing the children’s school from K School in L to D. He now says he has had discussions with the elder children about going to school and they are of the opinion that D is not suitable for them. He did not convey change of attitude to this to the mother prior to trial.
In relation to the treatment of the police in respect of the complaints by the elder girls he said he is going to seek a review and he has not been told that it is not going ahead. I do not accept the truthfulness of this evidence in this regard.
The father objected to the “annexure A” to the affidavit of SG sworn 20 December 2006. That evidence was allowed in. The father had seen the letter some weeks before. During the course of the trial I gave reasons and made an order that the parties not disseminate or discuss even the existence of that letter with any of the children particularly A.
In that letter A says that her parents fighting was making her sad. She made it clear that this had been going on for eight or nine years and that she had had a terrible year.
In her letter she expresses that she and the mother’s husband have become friends and that she has reconciled with her mother.
The father expresses the rhetoric that he is quite happy with this but I infer that he does not accept the views of A in respect of the relationship between he and her mother and particularly in respect of her relationship with her husband.
The father asserts that S is more mature than A. The father is generally only open to views and evidence that accord with his own. If he is challenged then it is the fault or error of the person who challenges him. The issue of the maturity of S vis a vis A was considered by the family reporter who in paragraph 20 of his last report observes:-
“[A’s] presentation as the most forthright and determined of the four/five children (if one includes [the son]) was supported by the parent’s individual assessments of her. She frequently displayed insightful analysis as to why things often ended up in conflict within the family”.
The father does not have that insightfulness with regard to the children.
The father was cross-examined on paragraph 23 of the family report’s final report where S had been clearly immingled in the litigation observing:-
“If her mother contributed more toward transport responsibilities she might be inclined to spend additional time, say one night on the alternate weekend”.
The father said that this was S’s view. I find that it was not her independent view but a view which reflect the views of the father which he has imbued in the child.
The father was cross-examined in relation to paragraph 25 and 26 of that report as to how the children were involved in the litigation and how they developed notions of “fairness”.
In paragraph 30 of the final report the reporter observed:-
“30.For [L] there is a tendency to want to do the right thing by her father in the context of believing that he has been unfairly treated by both the mother and father and the Court”.
I infer that this information and view was provided to L by the father.
The family reporter goes on to say:-
“33.The assessment indicates that both parents have inappropriately involved the children in their grievances about the other parent. It is also highly probable that at neither times either parent is blameless as there are strong indicators that the children have been told by their mother of their father’s past abuse towards her and other women as well as the father having said to some or all of the girls that “if anyone likes [the mother’s husband] I will not have anything to do with them”.
The father disputed that he made those comments to the children. I prefer the evidence of the family reporter.
In the mother’s affidavit filed 27 July 2005 the mother asserted that the father sent the following text messages:-
“22.At 5.32pm that night I received a test message from [V’s]s phone saying [A and S] HAVE TERNED UP HERE I AM IN TOUCH WITH POLICE B IN TOUCH WIF YOU SOON”
In paragraph 24 of that affidavit she said she received a further text message saying:
“24.“OK THE 2 GIRLS R SAFE AND WELL HVE LODGED FAM COURT PAPES AS U REFUSED 2 ATTEND COUNSELLING LAST TIME THEY RAN WILL BE IN TOUCH 2 MORO”
The father disputed those test messages and said, at least in respect of the first message, that he sent a text message saying “the girls are here – they are ok”.
The mother said that she had transcribed the text message into her said affidavit and that she would have otherwise disposed of the message from her telephone. On balance, I prefer the mother’s account of these events.
It is clear from the evidence that the parties rarely talk to each other.
The mother gave evidence in accordance with her affidavit of 20 October 2006. She accepts that the chronology of the child representative is correct but says that she met her husband in September 1999 but did not commence a relationship until 2001. The rejects the fathers assertion that she met him in June 1999. In the circumstances of this case nothing rests upon that determination of fact.
There is an issue as to whether the mother left the township of R in March or April 2000. Again this is a matter of history which does not need a determination in the context of these proceedings. The father asserts in his chronology that on 5 April 2000 he commenced legal action to have the son returned to his care and on 5 May 2000 Child Protection authorities dropped the child protection order. The mother did not know about this and there appears to be no evidence of that before the Court. In any event it is not of relevant in determining the issues between the parties.
The father in his chronology asserts that an altercation occurred on 6 October 2000. That altercation has been the subject of findings by Coleman J in his reasons delivered 5 February 2001 where he says:-
“In October 2000 the only determination I can come to, on the facts, is that the father was convicted of an assault on the mother”.
There is an issue about the events in September 2004 when A and S allegedly, according to the father, ran away.
On the evidence what is clear, even on the father’s case, is that he participated in this. He says he arranged for the children to be picked up by a relative or friend.
I accept the mother’s evidence that this “running away” by A and S was orchestrated by the father.
There is an issue about an event which occurred when it is generally agreed that there was an altercation with the children and that the mother’s husband kicked A. The events asserted by A is that the mother’s husband kicked her. That is not in issue. The mother’s husband’s evidence and that of the mother who was present is that there was an altercation between A and one of her siblings and that A kicked the sibling and that her husband kicked A to show her how wrong it was. The mother’s husband said the kick was harder than he had intended and that he now regretted it and says that that was part of the way he was taught to respond in his childhood. He now knows that that was not an appropriate response. I accept his evidence and that of the mother in that regard.
I find that the father took one of A’s friends N with him to his home contrary to the wishes of that child’s parents. I find that the father has limited insight into his actions with regard to the children.
The mother’s relationship with S has been difficult since S and A left in June 2005. Over 2006 this relationship improved although S has had limited time with the mother over the Christmas/New Year period. From what S has said the times she spends with her mother will increase now that school has returned. I accept the evidence of Mr C that S will live more with the mother than she has with the past eighteen months or so.
The father asserted that S’s wrist had been injured and relied upon the medical report annexed to his affidavit, which I have dealt with earlier. The father asserted that as a consequence of that injury, S, who was a champion netball player, was unable to play netball. That is a gross exaggeration. The mother had no knowledge of any injury to S and it is instructive to note that neither party took the child for treatment in relation to this alleged injury. It is an example of the father, using the words of the family reporter, “ ‘half truths’ are then assumed as whole ‘truths’ ”.
The allegations of inappropriate conduct by the mother’s husband were not accepted by the mother. She said the children have no complaints of touching or kissing nor had she noticed that they were uncomfortable in the presence of her husband. She said S had told her “that things had been taken the wrong way”.
I infer that the father knowingly encouraged the children to make false allegations and endeavours to turn trivial issues into major issues.
Mr C gave evidence in accordance with his reports and in particular in terms of the children expressing their views to the court directly where they confirm the matters set out in his report. The elder children expressed that they enjoyed the travel to and from school and were quite robust in their acceptance of that travel.
The mother is uncomfortable being isolated with the father, she says it was something that she found difficult when she and the father were living together and would not attend his property but would deliver the children to the Shopping Centre at D.
The mother works five days a week Monday and Thursday 9.00am until 4.00pm, Tuesday and Wednesday 9.00am until 2.30pm and on Friday 9.00am until 5.00pm.
The hostility between these parties is quite intense and the ability to create miscommunication is significant. The father cross-examined the mother as to questions about her attending mediation. He sent her a letter before Christmas and a letter after Christmas. He was upset that she had not replied to the first letter. The evidence of the mother was that she did not receive the first letter. It is clear that if there is a miscommunication each party seems to leap to the conclusion that it is done with malice rather than in error.
The father was concerned about an occasion when he took A and her friend N to L received significant complaints from the mother about that including urgent text messages. When the mother was asked she said that N had been assaulted in the city a few weeks before and that was the basis of her concern. If these parties could communicate at a reasonable level much of these difficulties would disappear or at least reduce.
The mother’s husband gave evidence in accordance with his affidavit and he was open and clear in his evidence. I find him to be a witness of truth. His evidence is that the children seem to accept him but there were teething issues. He denied that he has done anything which would constitute concerns for the children. He accepted he could be abrupt and sometimes gruff. On having been informed of that perception he says, and I accept, that he has modified his behaviour.
His evidence is that he now takes a low key approach with the children. He has discussed the issues with the mother.
The father’s concerns about the mother’s husband have been in place for some time. His Honour Justice Coleman observed in his reasons of 5 February 2001:
“19. …to the extent that the husband asserts that [the son] will not go because of problems in his relationship with [the mother’s husband] the evidence before me suggests that the husband has far more problems with the wife having a relationship with [her husband] and does [the son], and such problems as [the son] has with [the mother’s husband] derive far more from things he has picked up from the husband than from anything that has happened in the presence of [the mother’s husband]. Indeed, in cross-examination of the wife and [her husband], nothing was referred to which could rationally explain or provide any foundation for [the son’s] alleged reluctance. The evidence leaves me in little doubt that [the son] perceives his father needs him to remain loyal to his cause and to reject [the mother’s husband] and to date has been doing so.
Justice Coleman observed of the mother’s husband:-
“12.I will refer briefly to some other witnesses whose evidence I heard. [The mother’s husband] impressed as a truthful witness and I find nothing in his evidence which I have difficulty accepting. He was honest, frank and open.”.
I have likewise and independently made a similar assessment of the mother’s husband.
Ms E, a teacher, gave evidence. Her evidence was essentially unchallenged. She confirmed that one of the elder children was tired at school but that may have been simply the fact of the workload that day. In terms of the children arriving a little late for the start of school, this witness was of the view that the school was able to deal with that matter and it was not of great moment.
Mr C gave evidence in accordance with his three reports and noted that he had prepared other reports in respect of this matter. His reports provide a number of snap shots as to the evolution of the conflict which he thought was “intractable”. He confirmed that L observed “I think mum and dad are most affected by the process”. His evidence was that to some extent the concerns of both parents were entrenched in the respective perceptions of other parties.
Mr C was cross-examined by counsel for the mother and he said he had read the letter from A to her teacher. He found it somewhat surprising with the strength of the language that she used.
Mr C was cross-examined by the father. Mr C’s approach did not alter with this cross-examination and his views remained the same. Much of the cross-examination just reinforced his views as to the conflict in which the parties had put the children.
The father provided a document headed “Final submissions”. I have considered those submissions.
At the commencement on the third day of hearing counsel for the Independent Children’s Lawyer, Mr Fitzgerald, disclosed that he had only learnt earlier in the week the father had retained the Legal Aid Commission of Tasmania to represent him in respect of the issues regarding the criminal prosecution of the father by the RSPCA. Mr Fitzgerald had forwarded a letter to the father and counsel for the mother which was, by consent, exhibited in the proceedings. That letter set out the legal conflict issue and the views of the Legal Aid Commission in that respect.
The father expressed some discomfort in relation to the involvement of
Mr Fitzgerald as Counsel for the Independent Children’s Lawyer in the proceedings. This disclosure occurred on the final day of hearing and the court determined that the hearing should proceed to completion with the father was given an opportunity to obtain independent legal advice and make an application in respect of the disclosure. The father indicated he would need a few days to do this and an order was made giving him fourteen days to obtain that advice and if he had concerns about Mr Fitzgerald’s involvement he needed to make an application to the court within that fourteen day period from 16 February 2007.
As at the date of these reasons no such application has been made and the Court is entitled to infer that the father has chosen not to object to Mr Fitzgerald’s involvement.
The Independent Children’s Lawyer made two preliminary submissions with which I agree:-
(i)The children are drowning in a sea of litigation which shows no sign of abating;
(ii)The bitterness of the parents seem to be greater than their love of the children.
The heat that this litigation generated is of concern bearing in mind the narrow issues. The Independent Children’s Lawyer submitted that notwithstanding the views of the parents there ought to be an order for equal shared parental responsibility in the hope that it would force the parties to communicate. Whilst that approach is commendable with the history of this matter and the history of the parties inability to communicate from 1999 to date that submission appears to be an expression of hope over reality. To put in place such an order would likely lead to more litigation between these parties. I accept the submissions of the parties that there ought to be orders that they have several parental responsibility as provided under s61C of the Act and make a consequential finding that it is not in the best interests of the children that there be joint equal shared parental responsibility and that the presumption is therefore rebutted.
As to credit of the respective parties the submissions of the mother were that her evidence should be preferred to that of the father. I accept that submission and I generally prefer the evidence of the mother to that of the father, for the reasons set out herein.
The mother continued with her application that orders be made that the elder children live during the week with her. I have considered those submissions but I do not believe that that result would be in the best interests of the elder children.
It was instructive that in the father’s submissions that he continues to assert that the children are at the risk of sexual abuse at the hands of the mother’s husband. His focus on this is such that he has no insight into its impact upon the children and is indicative of the conflict which surrounds the children. His failure to come to terms with the break-up of his relationship with the mother is clear from the continuing litigation and his continuing obsession with the mother’s husband. These impact negatively on his involvement with the children.
During the course of the trial it was clear that the elder children had views that they had expressed to the family reporter and previously the father had expressed an interest in the children expressing their views direct to the court. After some discussion between the independent children’s lawyer, counsel for the mother and the father, I determined that the children ought to be given that opportunity to express these concerns to the Court. If such an opportunity was given to one of the four children the subject of the proceedings it was appropriate that all four children should be entitled to express views. In discussion with counsel the process was arranged in that the interview with the children would take place in the court so that it could be recorded. The only people present would be the family reporter, Mr C, the counsel for the independent children’s lawyer and myself. Questions would generally be asked by the family reporter and it would be in the form of having the children confirm what they said to the family reporter in the last report and confirming their views.
The children would initially be seen as a group of four and informed that they did not have to be in court if they did not want to, they did not have to express any view and there would be no difficulties if they did not do so, that the decision was that of the Judge and not of the children, it was simply an opportunity to ascertain their views if they wished to give them.
This process was followed with the consent of all parties. The children reiterated what they had said in the last family report and the elder children expressed views in respect of travelling to and from school as set out above.
In terms of taking the children’s views, they were taken individually and not as a group.
At the conclusion of that process the family reporter gave evidence of what had occurred and what was said. A transcript of the interview is available to be ordered by the Court and the parties.
Discussion
In terms of the factors under s60CC I have taken all of the evidence and all of the findings into account in respect of each factor. These often overlap and there seems little point in repeating them.
Section 60CC(2)(a)
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
The children all have a meaningful relationship with their parents. In terms of S the relationship with her mother has diminished since June 2005 although I am satisfied that it is possible for that relationship to be restored. However, I have concerns that the father has little regard for the court processes and little insight into the damage he is causing to the children and will not facilitate this occurring. Each of the parents is able to provide love and affection and support for the children. It is the conflict between them which has been continuing for some eight years which pervades the relationship and essentially damages the relationships.
The orders I put in place will enable the children to continue their relationship with both parents although I have significant doubts that it will reduce the conflict that exists between the parents.
Section 60CC(2)(b)
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Family violence is defined in s4 of the Family Law Act as being:-
“Family Violence – means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the persons family to fear, or to be apprehensive about, his or her personal well-being or safety.
Note: a person reasonable fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in the circumstances would fear for, or be apprehensive about, his or her personal well-being or safety.”
This provision is quite a broad definition. Abuse on the other hand is defined narrowly under s4 of the Act.
The nature of the orders sought by both parties are such that the allegations made by the father with regard to the mother’s husband can be and are given little weight. The children are not at risk from the mother’s husband and have not been at risk by him. Issues arise in families particularly when there has been a remarriage. The father has antipathy for the mother’s husband which colours the father’s thinking and he then seeks to colour the views of the children to accord with his own. The children run the risk of neglect of psychological harm by virtue of the father’s continued persistence in this regard.
The mother fears the father and will not put herself in the situation where she is alone with him. As a consequence, whilst I will be making orders for transportation, it will be transportation to the public areas and will not put the mother in a position where she is isolated with the father.
On the material before me I am able to find that there are reasonable grounds to believe that a parent of a child has engaged in family violence (within that broad definition) such as the presumption under s61DA does not apply.
In any event it would not have applied taking into account all of the considerations under s60cc in terms of the circumstances of these parties and these children.
Section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
A has expressed views in relation to the time she wishes to spend with both parents. Those views are set out in the family report and were confirmed by her when she attended at court. I accept the evidence of the family reporter as to her maturity and insight. I have given significant weight to her views and the orders I have made with regard to the time she spends with her respective parents in accordance with those views.
I give S’s views somewhat less weight. I do not accept the father’s submission that she is more mature than her elder sibling. I refer to the findings I have made in these reasons and my concerns as to whether the views expressed by S are those or those of her father.
However, I cannot be blind or deaf to S’s desire to continue to reside with her father and spend less time with her mother. There needs to be time for S to rebuild her relationship with the mother, (if that is possible) and accordingly I have given some weight to her views but not overwhelming weight.
In terms of the views of L and C I accept that those are as set out by the family reporter in his most recent report.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children, subject to the comments I have made with regard to S, are close to both of their parents. Both parents are able to provide for the physical needs of their children and generally the emotional needs of the children. It is the constant litigation and constant conflict that exists between these parties that impact on the relationship between the children and these parents. The mother has been the primary carer of all four children up to June 2005. The father has been the primary carer of A and S since that time.
A, L and C have a workable to good relationship with the mother’s husband. S’s relationship is problematic but there are no matters of concern in terms of the mother’s husband and the four children, on the evidence before me.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The conflict between the parties is such that neither trust each other, neither wish to communicate with the other. The father is not willing or able to facilitate or encourage a relationship between the children and their mother. He uses rhetoric to say he does but his actions over the last eight years are clearly to the contrary. He does what he can to damage that relationship out of his failure to come to terms with the end of his relationship with the mother. He lacks insight in that regard and these reasons are unlikely to change his views.
The mother has needed to cope with years of conflict and that has reduced her ability to communicate with the father. She has a general fear of him and his emersion of the children in the conflict. Those fears are justified. As a consequence she is little able to encourage the relationship between the children and the father although she is better able to facilitate the relationships than is the father.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders I propose to make will not effect any significant changes in terms of the relationship in terms of the circumstances of the children with regard to their parents. Hopefully it will put in place arrangements which are, at least, workable. With the younger children the mother will continue her primary role but these children will spend significant time with the father. As to S it provides some capacity for her to spend more time with her father but also leaves in place significant time that she spends with the mother. This must be seen in the context that S has not seen much of her mother over recent times and I find that there is little encouragement by the father for her to do so.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live some distance apart, the mother in L and father in M. The difficulties in regard to transport are brought about by the father’s working hours and limited resources. The mother has fears, referred to above, about being put in a position where she is isolated with the father. The mother has remarried and I infer that her financial resources are better than that of the father.
There is no reason why the parties ought not share the travel expenses. Evidence was given that the Shopping Centre at D would be a satisfactory place as a changeover point for the children near the home of the father. I propose to use that point as a place where the mother ought to deliver the children in accordance with the orders although if the father is to return the children he ought to return them to either the mother’s home or another place in Launceston reasonably nominated by the mother.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
As to this provision I reiterate the findings of facts and the comments I have made above.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Not relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I simply reiterate the matters I have set out above.
(j)any family violence involving the child or a member of the child’s family;
As to family violence I refer to “background” and the matters set out in these reasons. The family violence is not such as would preclude orders for live with/live with but impact upon whether there ought to be equal shared parental responsibility notwithstanding that the presumption does not apply.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I refer to the orders made previously and dealt with in the background. These orders are not such as would impact upon the parenting orders for the four children to be made at this present time.
(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 child;
This may be an expression of hope over experience, however, I hope these reasons are such as would encourage the parties from engaging in further litigation with regard to these children. C was born in 1997 and for a period of all but two years has lived with these proceedings and conflict. The orders I will put in place deal with narrow issues and I will make a further order that the parties attend mediation before further proceedings are commenced, accept in a case of great urgency. I hope the parties read these reasons and consider the impact of their behaviour on the children.
(m) any other fact or circumstance that the court thinks is relevant.
In coming to these conclusions I have considered all of the evidence and I have considered how that is applied to each of the factors generally and specifically. I have not set out all of the facts in respect of each factor although I have taken them into account.
I have considered the extent to which the children’s parents have fulfilled and failed to fulfil their responsibility as parents as set out in s60CC(4) and s60CC(4A) in coming to these conclusions.
Taking into account all of the findings of evidence, the background and the considerations I am satisfied that an equal shared parenting order in these proceedings would not be in the bests interests of these children. Notwithstanding that determination I did consider whether the children would spend equal time or significant and substantial time with each parent.
Taking into account all of the factors and the evidence in the light of those factors I determined a different approach with regard to the younger children to that of A and that of S.
The consequence of the orders I propose with A are to give effect to her views. They are not what are sought by the mother or the father but reflects her view that she should spend half the time with each parent and her significant relationship with each parent.
As to S she is still coming to terms with the events that occurred in the change of residence in June 2005. She has been alienated by her father and I find this occurred as a result of the father’s influence. Notwithstanding these findings I accept the evidence of the family reporter that it would be in S’s best interests if she lives with her mother for significant periods of time, but for the time being at least, spend more time with the father.
Accordingly I have made orders in that regard.
In so far as C and L are concerned there is sought an additional one day a week and that is generally agreed between the parties and the independent children’s lawyer. It was the question of transportation which caused problems in that regard. I have made orders which will, hopefully resolve the question of transportation.
The parties all agree that the children should remain at their present school and that C and L should eventually be enrolled in the same school as their older siblings. In an effort to avoid further litigation I have reflected that agreement in the orders but provided that it can be changed by agreement.
I have not acceded to the father’s request that he have sole parental responsibility for the elder children and I have put in place the arrangement that exists under s61C of the Act so that both parents can exercise the responsibility but not be forced to fill the acrimony as between themselves.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as PAINTER & MORLEY
I certify that the preceding 181 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.
Associate:
Date: 29 March 2007
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Consent
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Costs
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Remedies
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Duty of Care
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Negligence
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