Raines and Buchanan and Ors (No.2)
[2010] FMCAfam 1331
•3 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RAINES & BUCHANAN & ORS (No.2) | [2010] FMCAfam 1331 |
| FAMILY LAW – Interim arrangement for care of child aged 8 – child lives with maternal grandparents in Adelaide – mother and partner lived in Melbourne – what time should child spend with mother and what, if any, conditions should attach to that time – allegations of family violence – consideration of section 60CC factors – best interests. |
| Family Law Act 1975, ss.60B; 60CC; 61DA; 65DAA; 68LA |
| Raines & Buchanan [2010] FMCAfam 480 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR RAINES |
| First Respondents: | MR BUCHANAN & MS L BUCHANAN |
| Second Respondent: | MS T BUCHANAN |
| File Number: | MLC6939 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 26 November 2010 |
| Date of Last Submission: | 26 November 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 3 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Solicitors for the Applicant: | No appearance |
| Counsel for the First Respondents: | Ms Lewis |
| Solicitors for the First Respondents: | Ms J |
| Counsel for the Second Respondent: | Ms MacGregor |
| Solicitors for the Second Respondent: | MacGregor Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms DuBarry |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission |
ORDERS
The final hearing of this matter is confirmed for 16 to 20 May 2011.
UNTIL FURTHER OR OTHER ORDER:
The mother spend time with the child [X] born [in] 2001 as follows:
(a)In Adelaide, with her partner Mr W, between 15 and 20 December 2010;
(b)For four (4) consecutive days, the exact days to be agreed between the parties, in Adelaide, each such period of time to include the mother’s partner Mr W and to occur in each of the months of January, February and March of 2011;
(c)For a period of five (5) consecutive days, in Melbourne, the exact days to be as agreed between the parties or failing agreement to be as nominated by the court, in the end of first term South Australian school holidays in 2011 with the mother and maternal grandparents to bear the cost of the child’s travel between Adelaide, Melbourne and return; and
(d)At any other times and on any other conditions as the parties may agree from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Raines & Buchanan & Ors (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
MLC6939 of 2008
| MR RAINES |
Applicant
And
| MR BUCHANAN & MS L BUCHANAN |
First Respondents
| MS T BUCHANAN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to care arrangements for one child, [X], born [in] 2001, particularly what amount of time he should spend time with his mother, Ms T Buchanan and what conditions, if any, should attach to that time.
[X] currently lives with his maternal grandparents, Mr Buchanan and Ms L Buchanan in Adelaide. The mother lives with her partner Mr W, in Melbourne. [X]’s father is Mr Raines. He lives in Queensland.
The relationship between the mother and father ended many years ago. Mr Raines was in prison, when [X] was born and has spent considerable periods of time in prison in the period since. He was released from prison in late 2005. In these circumstances, there is no dispute that [X] has little, if any relationship, with his father.
Mr Raines commenced the current round of proceedings on 23 September 2009 in Melbourne. On a final basis, he wishes orders be made that would see [X] living predominantly with him. At the time of his application, he conceded that he had not seen either [X] or his mother since August of 2003 and did not know where either lived.
The maternal grandparents responded to this application on 28 October 2009. They described the mother as having “a sad history of illicit drugs and domestic violence”. They had a poor view of both
Mr Raines and Mr W, with whom the mother had been involved since late 2004.
The mother became involved in these proceedings in December of 2009. She confirmed the maternal grandparents’ evidence that [X] had been living with them since April of 2007. However, it was her position that this arrangement was only intended to be a temporary one. She now wishes orders to be made, which will enable her relationship with [X] to be extended. Ideally, she would want [X] to live with her in Melbourne.
Since April of 2007, the mother has spent time with [X] in Adelaide. She has stayed with her parents, who have wanted to be available to [X], whom they regard as a vulnerable child, particularly because they believe his previous care, provided by his mother in tandem with
Mr W, has been seriously deficient.
Given the fact that [X] lives in Adelaide, the proceedings were transferred to the court’s registry in Adelaide in October 2009. Following this transfer, on 1 December 2009, I ordered that, until further or other order, [X] should live with his maternal grandparents.
More importantly, I ordered that a family report be prepared, which would address the nature of [X]’s relationship with each of his parents and any wishes he might have about spending time with his mother, and how, if appropriate, [X] should be introduced to his father. The family report writer was also asked to canvas [X]’s views, about these various matters, if appropriate, and assess [X]’s maturity to express any such view.
The report in question was prepared by Dr W in March of 2010. She recommended that [X] should continue to live with his maternal grandparents in Adelaide. She was of the view that it was simply “not feasible” for [X] to live in Queensland with Mr Raines, given the absence of relationship between the two. She was also of the opinion that such an outcome would not be in [X]’s best interests.
Mr Raines had travelled to Adelaide for the family report assessment process. This process also involved Dr W interviewing [X] himself, the maternal grandparents and mother. When [X] attended on Dr W, he did not know that Mr Raines was also in Adelaide at the time. In regards to this issue, Dr W reported as follows:
“With regards to his father, [X] reported that he doesn’t know why he does not see his father, and he stated that he doesn’t know anything about him. However, he stated that if he (his father) wanted to see him ([X]) then he would be happy to see him, stating “I’d want to see him”. When the writer asked how he’d feel it she told him his father was in the building, [X] said he would be happy, that it would be cool, and that he would want to see him. In fact [X] appeared very excited about the prospect of seeing his father, and he asked the writer to bring him up. It was discussed that he would be able to see his father first through a two way mirror, and then if he then felt comfortable, he could choose to actually go in the room, but that it would be his choice. [X] only watched his father for a few minutes before asking the writer to go in to see him, and he seemed to thoroughly enjoy the contact he had with him thereafter.”[1]
[1] See Dr W’s first family report dated 10 March 2010 at paragraph 40
Dr W also sought [X]’s views about his current living arrangements. He was well aware that Mr & Mrs Buchanan Senior did not approve of Mr W. Dr W described this aspect of her interview with [X] as follows:
“[X] made it clear that whilst he enjoys residing with his grandparents, that he would like to live with his mother in Melbourne, and return to his grandparents’ house for holidays. He stated that he wouldn’t miss his grandparents “because I don’t miss people”; although he also said that when he is with his cousins or relatives he wishes he was with his mother or grandmother, but when he is with his mother, he doesn’t miss his grandmother. He stated “I like living with grandma and grandpa ... they look after me good ... I’ve lived with them for a long time ... but when I live with them I never get to see my mum much.
[X] didn’t know why he was living with his grandparents instead of his mother, but he stated that his grandparents thought it was dangerous for him to visit his mother because of Mr W, as “they think he hurts people ... they think it is too unsafe for me to live with Mr W because they think when mum broke her collarbone that he did it ... but she actually slipped over ... I believe my mum ... I like Mr W ... he has never hurt me ... but I don’t get to go back and visit mum anymore because of Mr W ... but I’d like to visit ... mum gets upset with them because I’m not living with her ... she just says she wants me over there to live ... just when I say I want to go over there ... they say no ... that it’s too dangerous.
[X] reported that he sees his mother every few months, but that sometimes his mother doesn’t turn up, and he gets upset.”[2]
[2] Ibid at paragraphs 37-39
From her observations of them, it was Dr W’s opinion that [X] had a positive bond with both his mother and grandparents, as he acted with each of them comfortably and confidently. In particular, the mother was described as being “very interactive with [X], playing with him at his level.”
Of some significance, in the present case, is the fact that Dr W also had the opportunity to observe [X] interacting with Mr W. She reported as follows:
“…[X] was really happy to see his mother and her partner Mr W, and he quickly showed them the present he had received from his father. Ms T Buchanan initially encouraged [X] to play a video game until the writer discouraged this, but she then talked about various things with him, and then got down on the ground to play with him. She provided him with praise and encouragement, she involved herself completely in his pretend play and encouraged him in this way, there was lots of chatter, laughter and fun, and overall [X] seemed very comfortable in both is mother’s and her partner Mr W’s company.”[3]
[3] Ibid at paragraph 43
Against this background, Dr W was of the view that the best outcome for [X] was if his mother relocated to Adelaide, so that a shared care regime could be inaugurated for him, involving both his mother and grandparents.
She cautioned against any outcome which would result in the removal of stability from [X]’s life. Accordingly, she was not in favour of [X] moving to live in Melbourne to be with his mother. Dr W described the maternal grandparents as “the one stable thing in [X]’s life …”. Accordingly, Dr W recommended as follows:
·[X] remain living with his maternal grandparents in Adelaide;
·If Ms T Buchanan moves to live in Adelaide, [X] spend time with her every second weekend from after school Wednesday until the start of school on Monday, provided she lived in reasonable proximity to the maternal grandparents;
·In the event that Ms T Buchanan continued to remain living in Melbourne, [X] spend time with her for half of each school holidays;
·In this regard, it was recommended that the mother travel to Adelaide for contact during the first school holiday, so that Mr W could be involved in the contact so that “[X] gets used to spending time with him again in a comfortable and familiar environment.”
·After this introductory phase in Adelaide, [X] should travel to Melbourne to spend time with his mother and Mr W, with the costs of travel to be shared equally;
·If [X] was subjected to any violent outburst, involving Mr W, all future time between him and his mother should take place in Adelaide again, with Mr W being excluded from the process;
·[X] begin to spend time with his father, at a contact centre in Adelaide, subject to the supervision of contact centre workers.
The report of Dr W did not assist the parties to reach any resolution of the various complicated issues between them. In these circumstances, I fixed the matter for final hearing in November of 2010. I also directed that [X] be independently represented in these proceedings.
The grandparents opposed Mr Raines spending supervised time with [X]. It was their position that Dr W had acted precipitately in introducing [X] to Mr Raines and [X] had been distressed and worried afterwards. Notwithstanding their strenuous objections, I determined that [X] should spend supervised periods of time with his father.[4]
[4] See Raines & Buchanan [2010] FMCAfam 480
It was however agreed that the mother would spend time [X], in Adelaide, between 10 April and 19 April 2010 and there was to be “no restriction on the mother being able to bring the child into contact with her partner, Mr W.”
On 5 May 2010, the maternal grandparents, Ms T Buchanan and Mr W attended a family dispute resolution conference, pursuant to section 11F of the Family Law Act 1975. One of the purposes of such conferences is to enable the court to seek advice from the family consultant convening such a conference [section 11E].[5] As a consequence, confidentiality does not attach to what is said in such conferences [section 11C].
[5] Hereinafter all references in [ ] are to the Family Law Act 1975
The convenor of the conference in question was Ms H. She provided a brief written advice to the court on 5 May 2010. Ms H reported as follows:
“Ms T Buchanan reported, and Mr and Ms L Buchanan confirmed, that the visit from 14th to 16th April between [X], the mother and Mr W went well with [X] spending overnights in a hotel in [suburg omitted] with Ms T Buchanan and Mr W. When Mr W returned to Melbourne on 16th April, the mother stayed for a couple of days at the maternal grandparents’ home with [X]. The maternal grandparents reported that [X] was upset when his mother left and were concerned that [X] had been advised of different plans for him and the mother.”
Mr Raines did not take part in this conference. One of the topics of the conference was how [X] was likely to cope with being introduced to his father and what support the parties should provide to him, whilst he went through this process. In this context, the mother indicated her wish to spend time with [X] in Melbourne. Ms H reported that this was contentious issues, so far as the paternal grandparents were concerned:
“The grandparents were concerned about the amount of change which will be happening in [X]’s life in the next 13 months and did not feel that it would be in [X]’s best interests if he spends time with the mother in Melbourne. They also expressed concerns regarding [X]’s safety in Melbourne. The mother was requesting that [X] spend the first week of the July school holidays in Melbourne and that she returns [X] to Adelaide and spends the second week with him in Adelaide. The grandparents felt that this was not in [X]’s best interests and did not agree.”
In this context, it was agreed that the mother would continue to visit [X] in Adelaide. Since that time, the grandparents have remained strongly opposed to [X] spending any time with his mother in Melbourne, given their longstanding view that Mr W is a violent and unstable person.
[X] has begun a process of spending time with his father at the [omitted] Children’s Contact service. This process has not been without incident, as Mr Raines withdrew from it after two visits, although he has now asked for his visits to be reinstated and the grandparents have agreed. It is the grandparents’ position that [X] has found meeting his father difficult and, as a consequence, they have arranged counselling for him.
It had been hoped that there would be an exhaustive hearing of all the evidence in the case in November of 2010. It was hoped that this hearing would canvas the following issues and enable the court to make appropriate factual findings:
·Does [X] have the potential to have a viable relationship with his father given the two have spent only minimal amounts of time together;
·In the difficult circumstances which prevail in this case, how best can [X] have a meaningful level of relationship with each of his parents;
·How should the grandparents’ protective concerns about [X] be addressed. In particular, is the nature of the mother’s relationship with Mr W such that comprehensive orders need to be made to protect [X] from being exposed to family violence emanating from Mr W in future.
In the lead up to the November hearing, I was not prepared to make orders allowing [X] to spend time with his mother and Mr W in Melbourne, given the grandparents’ trenchant opposition to such an outcome and because it was not possible for me to make factual findings about the nature of the relationship between the mother and Mr W.
Unfortunately, the hearing scheduled for November 2010 could not proceed. This was because Mr Raines had to undergo serious cardiac surgery and was unable to travel to Adelaide. In these circumstances, the trial has been rescheduled for May of 2011.
At an earlier stage, Dr W was asked to revisit her family report, particularly because of [X]’s alleged adverse reaction to spending time with Mr Raines, which seemed at odds with his earlier apparent curiosity about him (Mr Raines) and the apparent success of their first meeting, as reported by Dr W. The update of the family report was released in mid-October of 2010, in anticipation of the aborted November trial.
In her second report, Dr W did not significantly change her opinions about the family, other than that the process of supervised visitations between [X] and Mr Raines caused her to reconsider the benefits [X] was likely to derive from spending time with his father. In particular, Dr W was concerned about Mr Raines’ apparent inability to manage his own emotions, in [X]’s presence.
However, otherwise Dr W reiterated that she thought [X] should continue to reside with his maternal grandparents and spend regular periods of time with his mother and Mr W in Melbourne, if Ms T Buchanan chose not to relocate her home to Adelaide.
This is not to say that Dr W was not critical of the mother. She was, particularly in terms of her view that the mother had, in the past, been unreliable, so far as her parenting of [X] was concerned. However,
Dr W considered that [X] wanted to be with his mother and had a significant level of relationship with her.
In the second report, Dr W opined as follows:
“For instance, from a clinical perspective, the developmental and emotional truth for [X], is that he has already endured multiple moves, and multiple losses in his life every time his mother moved in and out of her role as primary carer; and he is now settled with the maternal grandparents in Adelaide, he is settled into his school and his sporting events, and he has the support of friends; and thus the priority in this case needs to be on minimising any change for [X], whilst still maximising his relationships with his mother, the maternal grandparents, and his father, so that he can continue to receive the stability, security, consistency, discipline, love, support, and sense of trust and safety he gains from being in one primary home with the maternal grandparents, who in my opinion are best able to provide these important requirements.
As already mentioned in the previous report, it seems that Ms T Buchanan has acted in ways that have been detrimental to [X]’s attachments, to his stability, and to his emotional and developmental wellbeing, since she has reportedly moved homes multiple times, she has reportedly asked her parents to take [X] multiple times, culminating in him residing with them for the last three years, she appears to have placed her need to support her partner in his family law matter over her responsibilities as a mother to [X], and she appears to have been somewhat inconsistent with contact at times. Again, whilst I understand her desire to have [X] reside with her, again, my opinion has not change, and based on the information available, it does not seem that she has been able to show that she can provide him with the stability and security he requires, and certainly her history of instability leaves her vulnerable to repeating this same pattern in the future, especially in times of emotional stress and/or life stressors. However, in saying this, Ms T Buchanan seems to have a very positive bond with [X], she was observed to interact with him very positively and appropriately, she seems very committed now to being a good mother to [X]; and certainly [X] seems to rely on her for love, comfort, and support. To this end, it is important that Ms T Buchanan’s relationship with [X] is supported and maintained, with substantial contact.
With respect to Ms T Buchanan having [X] spend time with her in Melbourne, the issues of whether or not Mr W has been abusive and violent towards her in the past still seems unresolved; and even though it seems clear that he has sent abusive text messages in the past, both Mr W and Ms T Buchanan maintain that the maternal grandfather and uncle also sent similar abusive text messages to them.
The reality is that this is a difficult issue, and one whereby a testing of the evidence may reveal more, but from my perspective, I can only go on what was reported to me, and what was observed by me. To this end, it seems that there is nothing put forward to suggest that Mr W has been abusive towards [X], and whilst the maternal grandparents are adamant that Mr W has been abusive towards their daughter in the past, and they are adamant that it is still going on, both Mr W and Ms T Buchanan deny this, and [X] reported that he has not seen this, and their (the grandparents) opinion alone is not enough, without factual evidence.
Moreover, we need to look at this issue through the child’s eyes; whereby this child misses his mother and wants to spend more time with her, and he suggests that he wants to do this in Melbourne as well as in Adelaide. He ([X]) also reports that he is happy to spend time with Mr W, and observations suggests that Mr W interacts with him well, and that [X] appears very comfortable with him. At some point, [X] is going to have to spend more time with his mother and her family in Melbourne, as it is difficult for her and certainly not a long term solution for her to have to keep travelling to Adelaide for contact, because of the financial pressures, the pressures on her own family in Melbourne, and the pressures associated with having this contact monitored and controlled by the maternal grandparents. The reality is that the grandparent’s opinions should not be allowed to interfere with this, even though I acknowledge that they are worried; however, [X]’s safety has to be our primary concern; and thus if there is a testing of evidence that makes the Court think Mr W is indeed too much of a risk, then they will need to make an Order accordingly; but there is certainly nothing in what I have observed to suggest this.”[6]
[6] See Dr W’s second family report dated 18 October 2010 at paragraphs 44-49
In a formal sense, Dr W made the following recommendation about the mother’s time with [X] in future, particularly whether it should or should not occur in Melbourne. She recommended as follows:
“In the event that she [the mother] chooses to remain residing in Melbourne, it is recommended that [X] spends time with her for half of all school holidays, and for any other time as agreed between the parties, such as for weekends on a regular basis. It is also recommended that Ms T Buchanan travels to Adelaide for contact, and Mr W also travels to Adelaide to have contact with [X] for at least three visits; at which time [X] could then travel to Melbourne for contact thereafter. However, if a testing of the evidence revealed that Mr W was and is in fact abusive, and/or if it were to eventuate that there was even one violent outburst by Mr W, either directed at, or in front of [X], then all contact should then take place in Adelaide again, with Mr W being excluded from it thereafter.”[7]
[7] Ibid at paragraph 61
Accordingly, Dr W was clear that, unless compelling evidence arose which demonstrated Mr W was a violent and abusive person, a proper consideration of [X]’s best interests made it inevitable that he would spend time with his mother and Mr W in Melbourne, for extended periods of time, at some stage in the not so distant future.
However, it should be noted that she also recommended that there should be three incident free visits, between the mother, Mr W and [X] in Adelaide, prior to such an outcome being considered.
The current applications
The current applications do not directly concern Mr Raines. Following the release of Dr W’s second report, he has indicated his willingness to resume a process of supervised time with [X]. As at the date of these reasons for judgment, no evidence has been provided as to the success or otherwise of these resumed visits.
The issue for the court currently is whether it is appropriate for [X] to spend time with his mother and Mr W, in Melbourne, during the forthcoming end of year school holidays and prior to the rescheduled hearing in May of 2011.
The mother seeks the following orders:
·She and Mr W spend four days with [X], in Adelaide, commencing on or about 15 December 2010;
·Thereafter [X] spends between 20 and 25 December with the mother and Mr W in Melbourne. It being anticipated that Mr W’s children would also be present during this period, as this would coincide with their contact visit with their father;
·On 25 December, the mother and [X] would travel to [omitted], in southern New South Wales to attend a Buchanan family Christmas gathering. The maternal grandparents would also attend this function;
·If possible, Ms T Buchanan would like to have a week’s holiday with [X], in January 2011, somewhere in rural Victoria. Mr W would be part of this visit;
·Thereafter, the mother would want to spend one weekend per month, with [X], with the visits alternating between Melbourne and Adelaide. Mr W would be a part of each such visit, particularly those in Melbourne.
The grandparents are opposed to these orders. It is their position that the mother is always welcome at their home to spend time with [X]. Mr W is not welcome in their home. They continue to regard him as a violent and anti-social person. As such, they are opposed to him having anything to do with [X].
Since the updated family report was released to the parties, the independent children’s lawyer has issued subpoenae directed to the police forces of Victoria, Queensland and New South Wales designed to illicit information about Mr W’s prior criminal history and whether he is or is not a person with a propensity to be violent. The documents produced, pursuant to these subpoenae, played a significant role in the interim hearing before me.
At the interim hearing, the mother relies on the following documents:
i)An affidavit of herself filed 1 November 2010;
ii)An affidavit of Mr W filed 23 November 2010;
The grandparents relied on the following documents:
i)An affidavit of Mr Buchanan filed 20 August 2010;
ii)An affidavit of Ms J filed 23 November 2010.
Ms J is the grandparents’ solicitor. She has identified and isolated a number of documents from the subpoenaed material which relate to incidents involving Mr W which occurred between March of 2001 and November of 2007.
The independent children’s lawyer is Rebecca Reed, a solicitor employed by the Legal Services Commission of South Australia. She briefed a barrister, Ms DuBarry, to appear on her behalf on the interim hearing scheduled for 26 November 2010.
The law requires Ms Reed and Ms DuBarry to formulate a position, based on the evidence available to them, which they think will be in [X]’s best interests [see section 68LA]. Ms DuBarry is not in favour of the mother’s position. She advocates that the court take a cautious approach to arrangements for [X] to spend time with his mother, pending the final hearing of the matter.
As such, she is not in favour of [X] spending time with his mother and Mr W in Melbourne, until such time as the court has conducted a full inquiry, involving cross examination of the all parties concerned, in respect of the nature of the relationship between the mother and Mr W. Ms Reed and Ms DuBarry are concerned at the nature of some of the documents, which have been subpoenaed.
The nature of an interim hearing
Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. As such, it may not be possible for the court to make findings of fact about issues in dispute between the parties concerned, particularly if those issues depend on findings of credibility.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
The legal principles applicable
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is 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. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[8], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[8] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
In this case, the presumption of equal shared parental responsibility is not applicable. However, I must still consider the various section 60CC factors applicable, particularly in the light of the principles and objects of the Family Law Act set out in section 60B(1). These objectives are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The mother’s position
It is the mother’s case that, if the court accedes to the grandparents’ position, it will mean her relationship with [X] is an artificial one, which is necessarily deprived of a requisite level of meaning. Mr W is part of her life. In the past, Mr W has also been a part of [X]’s life. As such, it is unnatural and artificial that Mr W not be able to interact with [X] in the home she shares with Mr W.
In addition, the mother complains that the grandparents are unduly protective of [X] and condescending to her and dismissive of her role as [X]’s mother. She says she feels like a child herself, when she is compelled to see [X] at her parents’ home. As such, she does not feel that [X] is able to have a fully meaningful relationship with her, if she continues to come and see him in Adelaide on an ad hoc basis.
It is also her position that it is not financially viable for her and Mr W to have to come to Adelaide and rent accommodation, so that she and Mr W may spend time with [X], away from the maternal grandparents’ home. It is her case that it will be much cheaper if [X] comes to stay with her, in her and Mr W’s household, in Melbourne.
This is also the most obvious way, she asserts that she and [X] may have the most normal and so meaningful relationship with one another, in the lead up to the final hearing. Ultimately, it remains her position that [X]’s best interests will be best served if he lives predominantly with her, a parent, rather than with his grandparents, no matter how loving they are.
The mother rejects any suggestion that Mr W has been or is abusive towards her. As such, she refutes any suggestion that he poses any sort of risk to [X]. It is her case that [X] has a good relationship with
Mr W, as is evident from Dr W’s report.
Mr W has submitted a lengthy affidavit. He deposes that he has two children from a previous relationship. They are [Y] aged ten and [Z] aged seven. They live with their mother in Queensland but spend time with him in school holidays. These arrangements came about as a result of proceedings before the Federal Magistrates’ Court in Brisbane.
It is Mr W’s case that there has been an exhaustive inquiry into his involvement with his two children and it has been deemed appropriate for him to have unsupervised time with them. As such, he contends that this finding constitutes objective evidence, which demonstrate that he does not pose any threat to [X]’s well being.
Mr W also deposes that he is currently employed as a [omitted] and has been for three years. It is his case that his stability of employment indicates that he is a responsible person, whose mode of life is settled and predictable. It is his case that, in the past, he has discharged the role of father figure for [X].
Mr W denies having been the perpetrator of violence against the mother, which resulted in her having to seek medical treatment in March of 2006 and June of 2009. It is his position that the mother needed medical treatment because she had been involved in an accident on each such occasion.
Mr W concedes that his relationship with his former wife, Ms G was a problematic one. Materials subpoenaed from the New South Wales Police indicate that there was an incident between Mr W and Ms G at the [omitted] Hotel in [omitted] in March of 2001. The record alleges that Ms G was the subject of a serious assault.
Mr W points to the fact that he was never charged with any police offence arising from this matter, which was nearly ten years ago. It is his position that he did not assault Ms G in any way whatsoever and she was under the influence of drugs at the time. As such, he asserts it would be imprudent of the court to place any significance on the matter whatsoever.
One of the major factual issues in dispute between the parties concerns text messages, of a threatening nature, allegedly sent by Mr W to
Mr & Mrs Buchanan Senior. Mr W acknowledges that he did send some inappropriate text messages to the grandparents. However, it is his position that most of these were sent around four years ago, when tensions between the mother, him and the grandparents were at there highest.
The paternal grandparents’ position
The grandparents regard Mr W as a violent and anti-social person.
Mr Buchanan Senior has deposed as follows:
“It is because of Mr W’s threats, abuse and violence that we have not permitted the mother to take [X] to Melbourne to spend time with Mr W.”[9]
[9] See grandfather’s affidavit filed 20 August 2010 at paragraph 25
The grandparents are aware that the mother has sought medical attention, from the emergency section of a public hospital, on at least two occasions in respect of injuries sustained by her. They believe
Mr W has caused the injuries concerned. In particular, on 18 March 2006 Mr Buchanan Senior deposes that the mother told him that Mr W had pushed her down some stairs.
The relevant medical report, from the [omitted] Hospital, indicates that the mother sustained a rupture to her left eardrum; bruising to her left eye and cheek; a puncture wound to her right shin; and bruising to her left forearm. The history the mother gave was having fallen some stairs.
The medical resident concerned doubted this history, which did not appear to him to be consistent with the injuries observed. However, the mother denied having been assaulted to the doctor concerned. A position she maintains in these proceedings.
In June of 2009, the mother sustained a fractured collarbone. She required treatment at the [omitted] Hospital. The mother’s position is that she slipped accidentally in her bathroom. The grandfather’s position is that, once again, Ms T Buchanan disclosed to him that the injury had been caused by Mr W. This alleged disclosure of further violence has heightened the grandparents concerns about [X].
The grandparents’ position is that, regrettably over many years, their daughter’s life has been characterised by periods of gross instability. Mr W has been a major precipitating factor in this instability and when it becomes too much for the mother to cope with, she will seek help from her parents and disclose her problems to them. Mr & Mrs Buchanan Senior can see few signs that this pattern has changed from what they assert their daughter has told them in the recent past and from what they have discovered from various documentary sources.
Mr Buchanan Senior has provided transcripts of text messages sent to him in 2007. These are insulting and offensive in nature. They do no credit to the person who sent them. As previously indicated, it was in the early part of 2007 that [X] came into the care of the grandparents. This is likely to have been a particularly tense time. However, in my view, that does not excuse the tone of the messages concerned. Mr W has conceded that he did send unfortunate text messages to the grandparents.
The grandparents also place some weight on New South Wales Police records which indicate that Mr W was a person of interest in respect of a rented motor vehicle, which had not been returned to its owner as scheduled. Police subsequently recovered the vehicle in question and Mr W was apparently charged with some species of offence.
The vehicle in question was found to be damaged and contained a child’s booster seat and a number of empty bourbon and coke cans.
I have not been provided with any information regarding the further conduct of the charge other than Mr W asserts that it was not proceeded with by police.
Mr W has a criminal history. The majority of his convictions relate to motor vehicle offences. He has also been the subject of complaints of family violence in the past involving his first wife. As previously indicated, it is Mr W’s position that his separation from his first wife was particularly difficult and she was a person who fabricated complaints against him.
At this juncture, it is not possible for me to complete a full evaluation of the various allegations made against Mr W and ascertain the truth or otherwise of what he and Ms T Buchanan now say about the nature of their relationship together. Rather, I must make some evaluation of the possible level of risk of [X] being exposed to future episodes of family violence, if orders of the type sought by the mother are made.
Consideration of the applicable section 60CC factors
a) The primary considerations
[X] knows his mother well. She was his primary carer from the date of his birth until 2007. Since this latter date, Ms T Buchanan has regularly visited [X] in Adelaide, albeit she has missed some scheduled visits on occasions.
The grandparents accept that these visits have occurred satisfactorily and [X] looks forward to seeing his mother. In addition, it is Dr W’s opinion that there is a viable relationship between [X] and his mother, which needs to be extended and supported.
The legislation directs the court to consider the benefits a child is likely to derive from having a “meaningful” level of relationship with his or her parents. The emphasis in the legislation is on not only the quantity of time a child spends with a parent but also its quality.
Meaning in child/parent relationships is likely to come from parent and child being able to interact in a variety of circumstances and conditions. Ideally, these circumstances should include fun and recreational activities, but also more mundane settings, which will enable parent and child to have a sense that they have a day to day involvement together. The aim being for the child concerned to have a balanced view of his or her parent, resulting from exposure to the parent in a variety of roles, which will in turn lead to a richer relationship with the parent concerned.
The rationale of section 60CC(2)(a) and the object from which it flows [section 60B(1)(a)] is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings – both relaxed and structured.
If this ideal is achieved, the child/parent relationship will become a comfortable and intimate one. The child concerned will have a sense of a deeper connection to the parent concerned. Child psychologists have spoken of the benefits to a child of being able to simply “hang out” with a parent, so that the parent and child are comfortable and relaxed together, just being in each other’s presence, without actual activities taking place.
It is also usually the case that meaning is added to parent/child relationships if an absent parent is able to provide some aspect of basic “nuts and bolts” parenting to the child with whom he does not usually share a household, say preparing meals; oversighting bedtime and aspects of hygiene; and dealing with issues of day to day discipline. This is difficult to do, away from the home of the parent concerned.
In addition, for obvious reasons, meaning will be added to a parent/child relationship, if the child concerned is familiar with where his/her parent usually lives and the day to day routine of that parent. For obvious reasons, the most significant aspect of a parent’s household is the person(s) with whom that household is shared. In this way, both parent and child will get a sense of involvement and inclusion in the other’s life.
This is Ms T Buchanan’s position. She is concerned that her relationship with [X] is currently artificially restrained because she is not able to spend time with him, at her home in Melbourne, where she lives with her longstanding partner, Mr W. In addition, it is her case that, as [X] knows Mr W, it is again artificial that [X] be quarantined from Mr W.
In my view, there is much weight in Ms T Buchanan’s argument, which is essentially supported by the court appointed expert, Dr W. Dr W opines that, if [X] is to have a proper level of relationship with his mother, he needs to interact with her in her home environment, which necessarily must include Mr W.
The question for the court currently is whether it is now appropriate to move to this stage or whether the concerns raised by the grandparents should mandate a more cautious approach be taken, until concluded findings of fact can be made about the nature of the mother’s relationship with Mr W.
The other primary consideration directs the court to protect a child from the consequences of possible physical or psychological harm, which may result from that child being subjected to, or being exposed to, neglect or family violence.
The grandparents’ position is that the relationship between the mother and Mr W has been a manifestly unstable one in the past and accordingly it would represent an unacceptable risk, to [X], involving the possibility of him sustaining some level of psychological harm, if he visits his mother and Mr W’s home, given what they assert is the degree of probability of some violent episode occurring between the mother and Mr W.
Exposure to family violence represents a multi-faceted danger to children. At its most obvious level, it may represent a direct risk of injury to the child concerned. However, more often, it may cause a child to be at risk of living with fear, insecurity and heightened vigilance because of concerns, born of experience, that a person may perpetrate violence against a parent, whom the child concerned loves and is unable to protect.
The court’s duty is to protect a child from the harm resulting from possible exposure to family violence. If there is an unacceptable risk of the child being harmed by coming into contact with a possible perpetrator of such violence, either because of his/her past experience or because of the risk of future exposure to violent behaviour, the court should not countenance such a risk.
The fundamental task for the court is to assess prospective dangers for any child concerned, arising from either the prospect of the child’s fears being refreshed or the possibility of actual exposure to further family violence, rather than to punish either a parent or some other person for his or her past failings. In performing this task, the court must consider responses which are proportionate to the degree or level of risk involved.
In performing this assessment of risk, the court must also bear in mind that there may be risks entailed in unduly curtailing a possibly rich and viable parental relationship, by imposing unduly onerous or restrictive conditions on the time a parent spends with a child.
The only independent (and so objective) evidence regarding the nature of [X]’s relationship with Mr W comes from Dr W. [X] indicated to
Dr W that he liked Mr W and that he (Mr W) had never hurt him. Dr W also had the opportunity to observe [X] interacting with Mr W. He was described as being happy to see both his mother and Mr W. Accordingly, it is difficult to conclude that [X] is frightened of Mr W because of his own past experience of him.
It was Dr W’s impression that [X] was “very comfortable” in his mother and Mr W’s company. In my view, this is a significant factor, as is Dr W’s professional opinion that nothing in her observation of [X] with Mr W indicated that [X] has been abused, in any way, by Mr W. It is also noteworthy that [X] did not report any exposure to family violence to Dr W. In seeming to allude to the 2009 incident, he said that his mother had broken her collarbone because of an accident.
It seems likely to me that [X] has a significant level of relationship with Mr W, with whom he lived, for a significant period of time. In addition, there is no unequivocal evidence, which indicates that [X] has been exposed to any episode of family violence occurring between his mother and Mr W. Certainly, [X] himself has not given any such account and no clinical indications of such an exposure were detected by Dr W.
The fundamental task for the court is to assess the probability that there will be an episode of violence, between the mother and Mr W, whilst [X] is in the mother’s care. This seems to me to be unlikely in Adelaide. The prospect of such an outcome in Melbourne cannot be definitely ruled out. However, if time in Adelaide, involving Mr W, progresses without incident, it will become inevitable, in my view, that the court will have to experiment with time in Melbourne, particularly given [X]’s views of the issue.
b) Additional considerations
To Dr W, [X] has indicated a desire to spend more time with his mother and to visit her home in Melbourne. He has been apparently upset, in the past, when his mother has not been able to fulfil her commitments to come and visit him in Adelaide. In addition, [X] has indicated a desire to spend time with Mr W.
[X] is approaching his ninth birthday. He is aware of the difficult dynamic between his grandparents and mother. In particular, he is apparently aware that his grandparents would prefer it if he did not visit his mother in Melbourne. In all these circumstances, in my view, [X]’s views must be accorded some weight [section 60CC(3)(a)].
[X] has attended Dr W on two occasions. In such circumstances, it would seem highly probable that he has some understanding of what is the rationale of the family report process. One of the purposes of the report is for the court to have some ability to canvas his views. In my view, it is potentially damaging to a child if he or she perceives that his or her opinion has been sought by the court and then apparently disregarded.
At the present time, [X]’s most significant relationship is with his grandparents, who have provided him with a stable home and consistent care arrangements since early 2007 [section 60CC(3)(b)]. I accept that [X] has benefited from this period of stability in his life. At this stage, although the evidence has not been fully canvassed, it is difficult not to reach the conclusion that the mother’s past care of [X] was, from time to time, lacking in such stability.
In these circumstances, it is understandable that Mr & Mrs Buchanan Senior would be highly protective of [X]. Indeed, the grandfather himself acknowledges this state of affairs. As such, I can also appreciate why the grandparents would be so hesitant about [X] travelling to Melbourne, particularly as they see Mr W as being the source of the mother’s unstable and unsatisfactory lifestyle.
However, notwithstanding this difficult state of affairs, [X] continues to have a significant relationship with his mother, who has stayed in touch with him, although the two have lived in different states for a significant period of time. In my view, the tenor of Dr W’s report is clear – [X] needs to spend time with his mother, so that this significant relationship may be maintained and extended.
I can easily understand why the mother and Mr W would want to have a holiday with [X] and Mr W’s children, in Victoria, during the forthcoming long school holiday. However, [X] has not interacted with [Y] and [Z] for some years now and it is therefore doubtful he currently has a significant relationship with either of them.
Although the mother is impliedly critical of her parents for restricting her ability to interact with [X], I do not think it can be said that
Mr & Mrs Buchanan Senior have acted in a manner intended to bring about the termination of [X]’s relationship with his mother [section 60CC(3)(c)]. They have been willing to facilitate [X] spending time with his mother, provided this time has largely occurred in their household, in Adelaide. The mother has been prepared, to date, to go along with this arrangement, which seems to have worked well.
In these circumstances, I accept that Mr & Mrs Buchanan Senior are well motivated carers of [X] and have his best interests to heart. As such, on the evidence currently before me, I am satisfied that [X]’s emotional and intellectual needs are being met, whilst he remains in the care of Mr & Mrs Buchanan Senior [section 60CC(3)(f) & (i)].
Dr W has opined that, as [X] has suffered many moves and changes in care arrangements, whilst he lived with his mother, he is a child who has a particular need for stability and continuity in his care arrangements. I accept [X] is a vulnerable child [section 60CC(3)(a)].
It is Dr W’s opinion that [X] is well settled in his grandparents care and has school and sporting attachments, which are connected to that care. As such, Dr W cautions against any significant change in [X]’s care arrangements at this stage. In my opinion, I would be foolish to disregard this opinion, which seems founded in obvious common sense.
However, [X] also needs to have a relationship with his mother, which is as normal as possible, commensurate with the actual level of risk posed to him by Mr W. There are significant practical and logistical difficulties arising from the mother and Mr W having to visit [X] in Adelaide [section 60CC(3)(e)].
They have to rent accommodation for themselves in Adelaide. This is expensive. They cannot come for long. Travel is also expensive for them. As Dr W puts it, the mother and Mr W spending time with [X] in Adelaide is not a long term solution to the problem of how [X] should have a meaningful level of relationship with his mother.
In keeping with the objects of the Act, contained in section 60B(1)(b), the additional considerations include family violence, involving a child or member of a child’s family and any family violence orders, which have previously been made. However, in respect of family violence orders, it is important to note that only final orders or orders made after a contested hearing are relevant.
In this case, it is impossible for me to conclude definitely that [X] has been exposed to family violence. It does however appear to be the case that Ms T Buchanan and Mr W’s relationship has been volatile from time to time in the past. This volatility culminated, at one stage, in [X] coming into the care of his grandparents, who remain vigilant about his ([X]’s) emotional security.
The final hearing of this matter is around six months away. In the larger scheme of things, it is not a significant period of time. Given this state of affairs and the fraught and at times mistrustful relationship between Mr & Mrs Buchanan Senior on the one hand and Ms T Buchanan and Mr W on the other, I have reached the conclusion that the court should be cautious in respect of interim arrangements for [X] to spend time with his mother.
This is the view of the independent children’s lawyer. It is also the view of Dr W, who recommended that the mother and Mr W have three incident free visits, in Adelaide, prior to [X] himself travelling to Melbourne to spend time in his mother’s household.
At this stage, I do not propose to depart from this recommendation. However, in the period leading up to the final hearing, in my view, it would be useful if, provided all goes well before hand, that [X] spend an extended period of time, during either the Easter or the end of first term school holiday, with his mother and Mr W in Melbourne.
In this way, the court will be in a position to gauge more readily whether Dr W’s long term recommendations, in terms of [X] spending time with his mother in Melbourne, are feasible.
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-one (121) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 3 December 2010
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