RUMBOLD and O’CASEY
[2017] FCWA 153
•27 NOVEMBER 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: RUMBOLD and O’CASEY [2017] FCWA 153
CORAM: MONCRIEFF J
HEARD: 22 SEPTEMBER, 10 & 18 OCTOBER 2017
DELIVERED : 27 NOVEMBER 2017
FILE NO/S: PTW 449 of 2014
BETWEEN: MS RUMBOLD
Applicant
AND
MR O’CASEY
Respondent
Catchwords:
CHILD-RELATED PROCEEDINGS – Undefended proceedings – turns on own facts
Legislation:
Family Court Act 1997 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: No appearance
Independent Children's Lawyer : Mr R Bannerman
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Independent Children's Lawyer : Bannerman Solicitors
Case(s) referred to in judgment(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1[Ms Rumbold] (“the mother”) and [Mr O’Casey] (“the father”) shared a relationship, described by the mother as being “on again off again”, from 2000 until their final separation in 2011.
2There are three children of their relationship; [Child A] born [in] 2001, now aged 16 years, [Child B] born [in] 2003, now aged 14 years, and [Child C] born [in] 2004, now nearly 13 years of age (collectively “the children”).
3The proceedings between the parties commenced on 24 January 2014 at which time the mother sought the intervention of the Court for the issue of a recovery order to have Child A returned to her care.
4At the time the proceedings were commenced the mother filed a case information affidavit in which she referred to a history of dysfunction in the relationship between the parties, significant family violence and substance abuse.
5Since the mother’s initial application there have been variations to the arrangements for the care of the children, who had originally resided with the mother after the parties’ separation. There have been no less than 25 separate court events, three Child Dispute Conferences with a family consultant of the Family Court Counselling and Consultancy Service, the appointment of an Independent Children’s Lawyer and the engagement of a single expert witness.
6The matter was listed for trial to commence 22 September 2017.
7The father did not attend the trial. The mother was in attendance and was self-represented, as both parties have been throughout these proceedings.
8At trial some short oral evidence was taken from the mother about her own rehabilitation efforts and ongoing engagement with appropriate support services to overcome her substance abuse issue. Further, she gave evidence as to the current arrangements for the children under which Child A resides with the mother and Child B and Child C reside with the father.
9The proceedings were adjourned to enable the Independent Children’s Lawyer to engage directly with Child B and Child C in particular so as to have the opportunity to present their current views to the Court.
10Since mid 2016, when it was necessary for the Court once again to consider the issue of a recovery order, the father has ceased to engage with the proceedings and has not filed any documentation notwithstanding numerous orders requiring him to do so and the provision of extensions of time to enable compliance.
11The mother seeks orders that all three children reside with her and spend time with the father.
12The mother’s application in this regard is supported by the Independent Children’s Lawyer who filed a minute of orders on 22 September 2017 in the following terms: (Unless otherwise specified, all errors and emphasis in extracts are as in original).
ICL MINUTE OF PROPOSED ORDERS
1.All prior child welfare Orders be discharged.
2.The parties have equal shared parental responsibility in respect of the children [CHILD A] born [in] 2011, [CHILD B] born [in] 2003 and [CHILD C] born [in] 2004 (“the children”).
3.The children live with the Mother.
4.[Child A] spend time with and communicate with the Father in accordance with her wishes.
5.[Child B] and [Child C] spend time with the Father:
a.During school terms each alternate week from 5pm Friday until 5pm Sunday;
b.For the first half of each term school holiday period defined as commencing at 5pm on the last Friday of the school term until 5pm on the middle Saturday of each school holiday or for such other times as agreed between the parties;
c.For one half of the Christmas school holiday period times to be agreed between the parties and failing agreement with the Father in the holidays commencing in odd number years from 5pm on the Saturday immediately following the conclusion of the school term until 5pm on the Saturday three (3) weeks thereafter and in holidays which begin in even numbered years with the Father from 5pm on the first Saturday after Christmas until 5pm on the Saturday three (3) weeks later and the children spend the balance of the Christmas school holidays with the Mother.
6.If Mother’s Day falls on weekend when the children would be with the Father the contact be suspended for that weekend.
7.In the event that the children are due to be with the Mother on the weekend of Father’s Day the children spend time with the Father that weekend from 5pm Friday until 5pm Sunday.
8.The parent who does not have the children in their care on the children’s birthdays be at liberty to have a telephone call with the children on their birthday between 5pm and 6pm.
9.For the purposes of the contact referred to herein the parties meet at the McDonalds carpark [Suburb M] but shall wherever practicable not leave their vehicles whilst the children transition between the parties vehicles and whenever possible the parties avoid having third parties present at the handovers.
10.The children have liberal telephone contact with both parents.
11.Both parties keep the other party informed at all times of all matters of importance relating to the children’s health, education and general welfare.
12.The Mother do immediately notify the Father in the event that any of the children are hospitalised or suffer any serious illness or accident.
13.Both parties do authorise any health provider or educational establishment that the children attend to release such information to the other party as that other party may reasonably request.
14.Both parties do keep the other party advised at all times as to the residential address and mobile telephone numbers.
15.Both parties be restrained and injunction be granted restraining them from denigrating the other party, their partners or families or discussing any Court proceedings or allegations set out in any Court proceedings to or in the presence of the children or permitting, causing or allowing others to do so.
16.The Independent Children’s Lawyer be discharged.
17.All outstanding applications before the Court hereby are dismissed.
13The joint proposals of the mother and the Independent Children’s Lawyer would see the children united in their place of residence and hopefully see at least Child B and Child C maintaining a relationship with the father, although it is disturbing to note that the father, despite approaches from Child A, has disengaged from her since she commenced to reside with the mother and has not pursued a relationship with her, notwithstanding Child A’s expressed desire to have a relationship with her father.
14Earlier in these reasons, and at the commencement of these proceedings, it was noted that in her case information affidavit the mother alleged that the father had substance abuse issues, however, on her own evidence the mother herself has also struggled with substance abuse issues. Indeed, it was in light of the challenges presented to the mother in the context of her substance abuse issues but also a turbulent subsequent relationship she entered into that there have been movements in the arrangements for the children to the point that they were at trial.
15Notwithstanding the numerous court appearances since 2015, the current arrangements pursuant to which Child B and Child C continue to spend time with the mother are essentially dictated by orders made 12 October 2015.
The evidence before the Court
16
The mother relied on her trial affidavit sworn and filed on 30 May 2017,
her case information affidavit and her minute of orders, which largely reflects that sought by the Independent Children’s Lawyer.
17
The Independent Children’s Lawyer relied upon the report prepared by
[Mr M] dated 3 November 2016 and filed 24 January 2017, prepared in the context of his appointment by order of the Court.
Background and overview
18The mother in her trial affidavit described her relationship with the father thus:
3) we were on again off again due to a number of causes such as both [Mr O’Casey] and myself being under the influence of one substance or another including marijuana amphetamines or alcohol on and off during our entire relationship. There were also other issues not related to substance abuse by [Mr O’Casey] towards myself such as poor communication lack of respect verbal abuse, psychological abuse, and physical abuse on a few occasions and very little or no interaction with the children whilst we were partnered and also whi1e we separated. examples of these behaviours [Mr O’Casey] would call me names and severely put me down in front of our children family friends and strangers in public and behind closed doors and continuously laugh at himself doing these things until I reached a point of breaking down and getting upset about these behaviours and when I would voice how I felt to [Mr O’Casey] he responded with he was only joking or cant u take a joke or it’s not his problem that I can’t take a joke or that he wouldn’t do those things again which only ever lasted a few days and then the behaviours would return. [Mr O’Casey] also kicked me against a wrought iron bed head which was against a wall and broke 3 of my ribs. When seeking medical advice the doctor said he had to report this assault but I begged and pleaded for him not to as I didn’t want [Mr O’Casey] in trouble and [Mr O’Casey] and I were also living with our children at [Mr O’Casey’s] mothers home and I was fearful that I would have nowhere to live if he was reported to the police.
…
7) These issues remained present throughout our entire 11 year on and off relationship and eventually took its toll until our final separation in 2011 where our children and myself moved out of the property [Mr O’Casey] our children and myself were living in at the time and moved away to try and start living a better life without all the issues we were living with prior.
8) Throughout [Mr O’Casey’s] and I 11 year relationship our 3 children remained in my care at all times [Mr O’Casey] had very little interaction with our 3 children whilst we were together and even less while we lived apart. this was [Mr O’Casey’s] decision alone as all attempts made by me to try and get [Mr O’Casey] to be involved in our children’s lives failed every time until I made an agreement with [Mr O’Casey’s] mother to pick the children up and take them to [Mr O’Casey] and then [Mr O’Casey’s] mother would bring the children home back to me. This arrangement only lasted a very short while as [Mr O’Casey] cancelled the agreement when I entered into a new relationship with [P] and in [Mr O’Casey’s] own words that the kids don’t need him ([Mr O’Casey]) anymore as I have a new partner and he ([P]) can be there father.
9) In 2013 I entered into a relationship with another man named [P] in which turned out to be worse than the relationship I had with [Mr O’Casey]. [P] was very violent at times towards myself verbally but more so physically and was not violent towards the children but he was very hard on my children with discipline etc. During this relationship with [P] I relapsed using methamphetamines as I again did not understand why I was living life with an abuser or how I was going to get away from such life.
19As to her own use of illegal substances, the mother acknowledged in her trial affidavit that she had commenced using illegal substances from the age of 13. She met the father when she was aged 15, who was also “using drugs of all kinds”, which they did together until she became pregnant with Child A at age 16.
20The children were born in quick succession and are close in age. Child B was born [with a medical condition] and was registered as [disabled] at six weeks of age. At or around six or seven years of age he was diagnosed with [a further medical condition], but with age his [disability] has apparently improved. Both Child B and Child C have been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”). Child C has since developed anxiety issues. The mother described Child B’s condition in particular as requiring “regular medical care and attention”.
21Following the parties’ separation in 2011 the mother described herself as being happy and settled with the children until she entered a relationship with “[P]”, which she described as being “quite toxic as [P] was also violent at times more so than [Mr O’Casey] but in a more physical way”. It was in this context that she relapsed into substance abuse using methamphetamines.
22The mother called upon the father to assist in 2014 and the parties came to an arrangement whereby the children would reside with the father “until I got back on my feet” and found a suitable place for her and the children to live.
23The mother separated from P in 2015 and made a conscious effort towards drug rehabilitation and detoxification and engaged and continues to engage with rehabilitative services through a clinic run by [Dr N], with [a drug support program] and her psychiatrist, [Dr C].
24In the context of proceedings orders were made in early 2015 for the mother to have supervised time with the children, however the father was not fully compliant with the order and only five of nine scheduled visits occurred.
25In late 2015 the mother received a telephone call from the father advising her “that I must go to [Mr O’Casey’s] residence and pick up our daughter as she wanted to come and live with me and in [Mr O’Casey’s] own words once I pick [Child A] up she was never allowed to return to [Mr O’Casey’s] residence”. Child A has been in the mother’s care since and the father, true to his threat, has not engaged with any of Child A’s overtures to have a relationship with him.
26The mother has since arranged counselling for Child A to primarily address Child A’s emotional distress regarding her estranged relationship with the father.
27The mother sees her application as promoting the welfare of the children in that the three children will be together, she will promote a relationship with the father and their welfare generally. In contrast she sees the children living with their father as negatively impacting upon the children’s welfare, in that the children are separated, Child B and Child C from Child A, and the father remains unwilling to communicate or promote a positive relationship between the children as between the children and their respective parents.
28The mother deposed as to the difficulties in communication with the father thus:
40) As [Mr O’Casey] refuses any and all communication attempts made by myself to him and also for the reason that whenever [Mr O’Casey] wishes to communicate with me he does so through our children making them a middle man, I am seeking an order that all 3 children are NOT to be included in any communication regarding the children that all communication be directly between both parents and NOT through the children at any time.
41) Even though this has been previously ordered that I am allowed to attend the children’s school for events involving our children, [Mr O’Casey] has informed the children’s primary school and high school that I am NOT allowed to attend the children’s school at any stage for any school event involving the children and also that I am not allowed to discuss any part of the children’s schooling or reports etc. with the teachers and principal. Therefore I am seeking an order be made that both myself the applicant mother and [Mr O’Casey] the respondent father, receive any communications from the children’s school, regarding reports, excursions, progress, behaviour, medical treatments, or anything regarding the children,
42) As I have never not even once been informed by [Mr O’Casey] in the last 3 years of any and all medically related incidents with the children I am seeking an order be made that any medical conditions, treatments, injuries, or anything medically related, must be communicated to between both parents, where a non-emergency with in a 24 hour period and in case of an emergency, parent to be notified immediately, or as soon as possible.
29On 21 July 2016, Magistrate Calverley ordered that “Until further order, the parties are restrained by injunction and an injunction is hereby granted restraining them, from causing their mobile telephone number to be blocked to the other party or from doing any other thing that may prevent the other party from being able to contact them”. The mother confirmed at trial that her telephone number had been blocked prior to this order being made. Unfortunately the father has since blocked Child A’s telephone number.
30Despite the mother’s telephone number no longer being blocked, she gave evidence at trial that her attempts to contact Child B and Child C when in the care of their father have been “hit and miss”. She recalled attempting to call “On three nights per week. Tuesday, Thursday and Sunday are our allocated days. At periods of time, none of them get answered. And I will try from the given time, 6.30 to 7, multiple times. Some weeks, none are answered. Some weeks, one day will be answered”.
31As stated, the orders made 12 October 2015 dictate the time Child A and Child B spend with the mother. The mother similarly described the father’s compliance with these orders as “hit and miss”.
32The parties have since re-partnered.
33The father’s current partner lives with him with her two children from a previous relationship; two boys aged 11 and eight. The Court did not have any or much evidence before it as to the circumstances of the father’s household.
34In late 2016 the mother gave birth to a child, [Child D], with her current partner [T]. As at trial Child D was just under 10 months of age. The mother’s household comprises herself, T, Child A and Child D, with Child B and Child C spending time with the mother as ordered on alternate weekends and during holiday periods – when the father elected to facilitate such arrangements.
The expert evidence
35In the preparation of his report Mr M had the opportunity to interview the children and the mother. The father was only prepared to make himself available by telephone. In his report Mr M sets out a similar chronology to that which I have set out from the mother from her trial affidavit, which in the context of the proceedings is unchallenged. However, and significantly, Mr M reported:
26)[Child A] is not spending time with [Mr O’Casey] however, since she elected to return to [Ms Rumbold’s] care on New Year's Eve 2015. According to [Mr O’Casey], and the two children living in his care, being [Child B] and [Child C], the reason [Child A] returned to live with [Ms Rumbold], is because she'd been in trouble at the school she was attending when living with him, and suspended for smoking. Rather than face the disciplinary consequences [Mr O’Casey] appropriately imposes, she sought to relocate to [Ms Rumbold’s] care, whom [Mr O’Casey] claims doesn't discipline the children at all.
27)[Child A] provides a significantly different version of why she relocated from her father’s, to her mother's care. Her explanation refers to [Mr O’Casey] being so punitive in his parenting style, that she was almost always in trouble and locked in her room. Apart from this, she asserts that she missed her mother and wanted to resume spending time with her, accusing her father of failing to have adequately promoted the children’s contact with [Ms Rumbold].
28)The story that [Child C] and [Child B] narrate, is identical to the one their father tells about why [Child A] relocated to [Ms Rumbold’s] care. I find this plausibly symptomatic of [Mr O’Casey] exposing the boys – who live with him - to his interpretations, in so doing inducing them into adopting similar views to those he espouses.
29)While this is not an unusual dynamic in families, it is concerning if the views [Mr O’Casey] is recruiting [Child C] and [Child B] into adopting, are unnecessarily critical of their mother and undermining the boys’ relationships with her.
30)A significant concern in the present arrangements, is that [Child A] appears to be heartbroken that her father refuses to respond to her text messages to him requesting them spending time together. According to [Child A], [Mr O’Casey] doesn't respond at all to her requests for time with him, not even to give her a reason why he appears to be freezing her out of his life. This is something [Child A] referenced causing her to feel sad to a level she rated at 10/10, each episode of grief about this lasting for a few days after she attempts to communicate with her father.
31)I consider [Mr O’Casey’s] failure to respond to his daughter's request for time with him, insensitive to her emotional needs, and therefore neglectful and potentially abusive of her.
36In summary, however, Mr M found that the children “are equally attached to both parents, and enjoy spending time with each of them”; although arguably Mr M did not intend this observation to apply to Child A to the same degree, given her estranged relationship with the father.
37As observed by Mr M each of the parties has re-partnered and happily that does not appear to be an issue in either case.
38Of his engagement with the father, Mr M reported:
38)After a making an appointment for me to interview him, [Mr O’Casey] didn't arrive at the scheduled time, phoning me to excuse himself as he had to work, and claiming he was no longer as committed to persevere in disputing arrangements for the children with [Ms Rumbold], as he was now content for those presently in place to continue. [Mr O’Casey] appeared to assume [Ms Rumbold] would be content to persevere with the present arrangements, which she isn't.
39)[Mr O’Casey] asserted he is adopting what he describes being a more conciliatory attitude towards [Ms Rumbold], because [Child B] and [Child C] had recently told him they wanted to continue with the present arrangements, rather than live with him solely. He asserts the reason they'd been previously telling him they wanted to live only with him, was because they don't like [Ms Rumbold’s] mother's partner, the children's stepgrandfather, on account that this man named [C], verbally abuses [Mr O’Casey] in front of the children, causing them to feel upset.
40)[Mr O’Casey] asserted that if the children were going to change their minds about arrangements, he was not willing to continue promoting their welfare by having orders in place respecting their wishes, hence his willingness now to leave the present arrangements in place.
39Mr M also identified in his report an issue regarding the relationship between the children and the mother’s stepfather who was not shielding the children from his negative views about the father.
40The mother accepted that Mr M’s report raised issues regarding her stepfather. She said in response that “The actions shown to me are very different in what was said to the expert witness” and that Child B and Child C like to and request to spend time with the mother’s stepfather.
41I accept the mother’s concerns as to the reliability of the information provided by the children as to the mother’s stepfather. Despite this, I accept that the mother has taken this issue on board and taken steps to address the issue following receipt of the report from Mr M.
42
In the course of his interview with Mr M the father “recommended the children's wishes about where they live and how much time they spend with their
non-resident parent should be respected” and, as mentioned, that he had no problem with the children spending time with the mother’s current partner T.
43In response to the question as to whether or not the children are at risk of neglect and/or physical or psychological abuse, Mr M opined:
112)I find the children at risk of emotional neglect by their father. [Mr O’Casey] appears prone to adopt fixed interpretations of family dynamics, and rigid sentiments about the appropriateness of these, which he doesn't waver from, irrespective of the implications on the children's needs. This is evident in his approach of apparently ignoring [Child A’s] requests to spend time with him, with no evident insight into the impact on his daughter of him doing this. [Mr O’Casey] also displays persistent cynicism in regards to [Ms Rumbold], depicting her continuing to use illicit drugs, notwithstanding his inability to reference any convincing evidence to support his views about this.
113)The only child who clearly disclosed being caused emotional harm by her father's neglect, was [Child A]. Notwithstanding that, given the father's arguably rigid ideas about the way things should be, I expect the boys are also at risk of him cutting them out of his life if they fail to tow the line on his expectations for them.
44In supporting his conclusions, Mr M observed:
122)The most concerning disclosure made by any of the children, is [Child A] claiming that her father invariably ignores and fails to respond to her requests to spend time with him. Because I wasn't able to ask [Mr O’Casey] about this, I'm not sure what is perception of this issue is, however according to [Child B] and [Child C] were, the reason [Child A] is not spending time with [Mr O’Casey], is because she doesn't want to.
123)Because of the difference between that view, and the one [Child A] herself espouses, and that [Mr O’Casey] appears to have influenced the opinions of the boys about other matters, including why [Child A] went to live with [Ms Rumbold], I consider it plausible that [Mr O’Casey] resents [Child A] for returning to [Mr Rumbold’s] care and is punishing her for this by refusing to let her spend time with him.
124)My concern about this practice that appears to be happening, is the influence this is having on the boys as well as [Child A], recruiting [Child B] and [Child C] into negative interpretations and perceptions of their sister that aren't correct. It is leaving [Child A] feeling unloved and unwanted by her father, and potentially her brothers who appear prone to be recruited into adopting the same views as he does.
45As to the children’s views, he reported:
136)[Child A] and [Child B] asserted they would like the present arrangements to continue. That is, they would most like to keep living with [Mr O’Casey], and spending time with [Child A] and [Ms Rumbold] each alternative weekend and for half of every school holiday period.
137)The children were unable to give any detailed explanation of why they prefer this arrangement, which appears plausible because it aligns with their father's views with whom they've been living, and being accustomed to this routine.
138)The only dynamic [Child C] and [Child B] referenced occurring in their mother's care that might account for them not wanting to increase the time they spend with her, is exposure to her father [C’s] attitude towards [Mr O’Casey], which they described being intensely negative to the extent it was offensive to both the boys, as well as [Child A].
139)[Child A] appears distraught that [Mr O’Casey] refuses to answer her text messages to him requesting spending time together, and she asserts that she would like this to happen each alternative weekend. Unlike her brothers, [Child A] also said she would like to keep living with her mother, depicting life with [Ms Rumbold] being more pleasant than it was for her at [Mr O’Casey’s], due to her mother having a fairer approach to discipline, depicting her being in trouble constantly at her father's, rendering living in his care being oppressive at times.
…
141)I expect the views the boys expressed have been influenced by [Mr O’Casey]. This is evident in the alignment of their perceptions with those their father expresses, notwithstanding these conflict with evidence these interpretations are incorrect. For example, both [Child B] and [Child C] concur with [Mr O’Casey] that [Child A] commenced living with [Ms Rumbold] because she was anxious about the father's discipline.
142)Although [Child A] acknowledged she spent most of her life in her father's care locked in her room alone, the reason she relocated to her mother's was because of the more nurturing care she describes receiving from [Ms Rumbold], and missing her while living with [Mr O’Casey], depicting him not doing adequately well at promoting her and her brothers' relationships with their mother.
143)I also find the father's influence plausibly manifested in both boys asserting the reason [Child A] isn't spending time with them at [Mr O’Casey’s] home, is because she doesn't want to, which again is incorrect.
144)While this influence may appear inconsequential, I find it significant in that the boys appear content in dismissing the opportunity to spend substantially more time with their mother, and experience the benefits of that more nurturing environment, based on adopting their father's views, and without effectively realising or recognising what they stand to gain by spending more time with [Ms Rumbold].
46Mr M also opined that he thought it likely that the mother was substantially better able than the father to foster the children’s relationship with the non-resident parent, noting that the father’s actions tended to contradict his claimed “open attitude”.
47Mr M ultimately recommended:
159)I recommend the children should live with their mother and all spend time together – including [Child A] – with their father each alternative weekend and half of every school holiday period.
160)There are a number of reasons for this recommendation. Firstly, according to the literature and my experience, children generally benefit from residing together, and the mother presents as the only viable candidate between the parties, to provide that arrangement. This is also consistent with [Child A’s] needs who is the only one of the children that doesn't appear to have been influenced in the formation of her views.
161)Given the alignment between [Mr O’Casey], and [Child C] and [Child B] who live with him, about why [Child A] resumed living with [Ms Rumbold], and the different story [Child A] herself tells about this, I am concerned [Mr O’Casey] may be influencing the views of the children in his care, unnecessarily turning them away from their mother. I don't expect any of the children would be subjected to this type of influence, while living with [Ms Rumbold].
162)Another significant informant of my recommendation the children should live together with [Ms Rumbold], is that I consider her better able than the father to recognise and provide for their various needs impartially and with authentic commitment to their welfare.
163)[Mr O’Casey] appears overwhelmed at times by acrimony towards [Ms Rumbold], which seems to obstruct his capacity to accurately perceive the children's needs and properly provide for these. A good example of this obstructive process is [Mr O’Casey’s] practice of persistently ignoring [Child A’s] text messages to him requesting he arranges for them to spend time together; something that appears to be causing [Child A] significant distress.
The approach to be adopted
48The Family Court Act 1997 (WA) (“the Act”) sets out the matters which the Court must take into account in determining what parenting orders should be made in any child-related proceeding.
49In this case, both the Independent Children’s Lawyer and the mother seek orders for equal shared parental responsibility, notwithstanding the fact that the mother has made uncontradicted allegations regarding the father that would negate any presumption in favour of equal shared parental responsibility.
50Further, upon being satisfied that an order for equal shared parental responsibility should be made, by virtue of s 89AA the Court must then consider whether the children should spend equal time with their parents, or if that is not appropriate substantial or significant time or otherwise, provided that such an order is consistent with the children’s best interests.
51The prevailing consideration in any determination is that the order must be directed to the children’s best interests and that is the paramount consideration for the Court.
52How a court determines what is in a child’s best interests is considered in s 66C which provides as follows:
66C. How a court determines what is in a child’s best interests — FLA s. 60CC
(1)Subject to subsection (6), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are —
(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.
(3A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in subsection (2)(b).
(3)Additional considerations are —
(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; and
(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);
and
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity —
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
(da)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child; and
(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;
and
(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; and
(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; and
(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; and
(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;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and
(j)any family violence involving the child or a member of the child’s family; and
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family — any relevant inferences that can be drawn from the order, taking into account the following —
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
and
(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; and
(m)any other fact or circumstance that the court thinks is relevant.
[(4), (5)deleted]
(6)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
(7)For the purposes of subsection (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right —
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary —
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
[Section 66C inserted by No. 35 of 2006 s. 83; amended by No. 13 of 2013 s. 10.]
53The above section prescribes both primary and additional considerations. The primary considerations are relevant to each parenting dispute, whilst not all of the additional considerations are relevant to every dispute.
54I turn then to consider both the primary considerations and those additional considerations relevant to these proceedings.
The primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
55The mother considers it beneficial for the children to maintain a relationship with the father and that such a relationship should be promoted. It is manifestly apparent that the father does not share the same view, given his response to Child A’s attempts to maintain a relationship with him.
56Given the history to which I have referred and particularly having regard to the opinion of Mr M, I consider that it is significantly more likely that the mother will foster a relationship between the children and their father. Sadly I have little confidence that the father will necessarily take the opportunity of a relationship with the children being so fostered.
57It is of significance, and the father should note this significance, that notwithstanding the expressed wishes of the children to which I refer later in these reasons, that in the event that they reside with the mother the children wish to maintain a relationship with their father. I express the sincere hope that the father will take the opportunity to continue to promote his relationship with all the children, and even if he cannot bring himself to maintain a relationship with Child A, that he at least continues to maintain a relationship with Child B and Child C.
58I accept that, unlike the father in the past, the mother will promote a relationship between the father and the children and will facilitate the same.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
59I refer to the observations which I have set out above made by Mr M and the opinion he has expressed. I am satisfied on the unchallenged evidence of the mother and her acceptance of the observations of Mr M that the children are at less of a risk of being exposed to psychological harm in the care of the mother than the father, subject to the resolution of the matters involving the mother’s stepfather, C.
60I accept the evidence of the mother as to her commitment to remaining “clean” of illegal substances and that the relationship she now shares with her partner T appears to be a balanced one and not a relationship that is likely to expose the children to a risk of harm. The mother informed the Court at trial that she plans on attending a second psychiatrist to address other issues aside from her substance abuse issues.
61I record the Independent Children’s Lawyer’s agreement with the above findings.
The additional considerations
(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
62Given that Mr M spoke with Child B and Child C in late 2016 I was concerned to have an updated position as to their wishes. To this end the Independent Children’s Lawyer engaged with Child A, Child C and Child B and reported as summarised below.
63
Child A indicated that she was “very happy” residing with her mother.
She reported a positive relationship with both Child B and Child C and expressed hope that all three siblings might reside together. Child A’s only concern was the relationship or lack thereof between her and her father, who has continued to rebuff her attempts at communication.
64Child C was “keen” to live with the mother and saw many positives in residing with her, in particular he highlighted that under his father’s care he had been unable to enrol in extracurricular sport and would be able to at his mother’s. Understandably Child C was apprehensive as to how the father might react to a change in the children’s primary residence; despite this his preference was to live with the mother.
65
Child B described “little difficulty” for him in living with either the mother or the father and was reluctant to express a preference as to where he would live –
the Independent Children’s Lawyer described Child B’s view as “ambivalent”.
Child B highlighted that at the mother’s house, by virtue of her partner T, he would be able to spend more time “playing around with [motorcycles]”, his particular passion.
66With regards to any detractions as to living with his mother, Child B expressed anxiety about departing from his current school which he “now feels is working quite well for him” and that a change in primary residence “would be difficult at first”. When asked for an explanation on the latter by the Independent Children’s Lawyer, he explained that “For the first few days, just getting used to the new schooling and arrangements, but it would be fine after that”.
67Child B has been identified as having “more challenges in life”, as discussed above. The mother has expressed concerns that he “understands most things in life but also gets very confused and finds it frustrating and difficult to recognise the truth” and that his views may be predicated on that of the father’s. The Independent Children’s Lawyer formed the view that Child B “doesn’t come across as a 14 and a half year old who has got fixed and firm views”.
68The mother predicted that both Child B and Child C would struggle to express their wishes for the outcome in these proceedings to the Independent Children’s Lawyer due to their fear the father would cease a relationship with them were they to reside with the mother. In particular, she suggested that Child B’s view “should not carry much weight” due to his heightened concern in this regard. Mr M similarly reported, as discussed above, concerns of the father “exposing the boys – who live with him – to his interpretations, in so doing inducing them into adopting similar views to those he espouses”.
69The children’s wishes are but one of the matters to be considered, however, and appropriately given the children’s ages, both parties agree that their wishes should be recognised and afforded some weight. Their expression to the Independent Children’s Lawyer suggests a mature degree of consideration.
(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)
70As to the nature of the relationship between the parties and the children and any other relevant persons, the Independent Children’s Lawyer observed:
ii)The boys are close with their sister [Child A] who lives exclusively with the Mother and have a relationship with their half sibling [Child D] who lives with the Mother. They also have a good relationship with the Father’s partner and her children.
71It is the mother’s case that the children share a largely positive relationship with the maternal grandmother.
72I have referred earlier in these reasons to the less positive influence of the mother’s stepfather, however I am satisfied that that issue has been resolved.
73I am also satisfied that there are no issues in the father’s home insofar as his partner is concerned, although the information before me is limited to that provided through Mr M’s report, given the father’s refusal to engage in the proceedings.
74Child A’s relationship with her father is non-existent as I have observed above. Further, the mother reports that the father will not allow Child A to have contact with the extended paternal family.
(da) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
75The father has consistently failed to enable the mother to maintain a relationship with all three children with any stability and has, since the children have been in his care, failed at times to promote the relationship through the children having contact with their mother. The father apparently has no desire to promote a relationship between himself and Child A.
(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
76A move by Child B and Child C into the care of the mother will inevitably involve some disruption and separation from the circumstances in which they have lived effectively for the last three years.
77Child C has expressed enthusiasm about the change and Child B has expressed that in the short-term it may take some adjustment. There is no suggestion, however, that the same would have any long-term negative outcome and indeed, having regard to the opinion of Mr M, the longer term benefits for the children are more likely to outweigh any short-term adjustment period.
78The Independent Children’s Lawyer, who has furnished an updated report from the school to the Court, observed:
[Child B and Child C] are not performing well at school, they are living in an environment where there is denigration of their mother and the separation from the Father will be difficult but can be ameliorated by significant contact.
79The mother is, in my assessment, well aware of the children’s school performance. I am satisfied that she is strongly motivated to ensure that appropriate arrangements are put in place for the children to maximise their educational opportunities.
(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
80There is no practical difficulty or expense in the children spending time and communicating with each of the parents. Whilst little is known about the father’s circumstances, in the absence of any evidence to the contrary it appears likely that there will be no impediment to facilitating contact with the father in the event that the children reside with the mother, as what is proposed is a “mirror image” of the previous care arrangement.
(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;
and
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
81I deal with these two considerations together as essentially they overlap.
82Clearly the father does not appreciate or understand the importance of the children having a positive relationship with each of their parents and the three siblings having a relationship with each other. I agree with the submission made by the Independent Children’s Lawyer in his papers for the judge that:
The Father’s presentation and refusal to engage for the last year and a half in the Court process has demonstrated a lack of insight as to the importance for these boys of their other family relationships.
Discussion
83Given the school reports provided by the Independent Children’s Lawyer, there is some concern about the boys’ intellectual needs being met in the care of their father.
84The father’s refusal to entertain any contact from Child A since 2015 causes the Court to question not only his insight but his capacity as a parent to provide appropriately for the children’s emotional needs and to act in a responsible and mature manner.
85As seen, the Independent Children’s Lawyer promotes a change of residence for Child B and Child C. I am satisfied having regard to the matters I have set out above that such an order is in their best interests.
86I raised with the Independent Children’s Lawyer the issue of the desirability of making an order for equal shared parental responsibility in the event that all three children reside with the mother, given the father’s lack of motivation to support the relationship between the children and their mother and to communicate with the mother about matters relevant to the children.
87The mother supported my concerns and, further, expressed concerns that the proposed time the father will spend with the children is not supervised. She said she had “concerns that whilst they are in his care, the psychological abuse will continuing. Therefore – and the undermining of my relationship with my children from him will continue. Therefore, they are still at risk of more harm” and further that “once they’re in my care, if they’re enrolled in counselling and getting help for issues, that once they are in his care, those things will be undone”.
88The Independent Children’s Lawyer expressed concern that if I made an order for sole parental responsibility that the father would disengage entirely from the children’s lives, a concern admittedly well-founded given the lack of relationship between the father and Child A. It is disturbing to consider that the father’s relationship with the children would be dependent upon the use or otherwise of terminology rather than a commitment as a parent to an appropriate relationship with all three children.
89
Notwithstanding the concerns raised by the Independent Children’s Lawyer,
I have significant reservations about the father’s willingness or capacity to engage with the mother about significant long-term issues regarding the children and the potential difficulties that may cause for the children in terms of schooling and appropriate arrangements therefor.
90On balance, I am not satisfied that an order for equal shared parental responsibility would be functional or practical. In this regard I note that notwithstanding the mother’s position as to equal shared parental responsibility, the father has totally abrogated any responsibility insofar as Child A is concerned.
91If the father were to adopt the same view insofar as Child B and Child C are concerned that would be disappointing to say the least and be demonstrable of a lack of appreciation of matters of importance to the children and the father’s responsibilities as a parent. The maintenance of that relationship can be promoted irrespective of whether the parties equally share parental responsibility.
92On balance, I am not satisfied that making an order for equal shared parental responsibility would promote the children’s interests and accordingly I propose to make an order that the mother have sole parental responsibility for the children.
93As discussed, the mother also expressed concerns at trial that the father’s time with the children would not be supervised. The Independent Children’s Lawyer did not support the mother’s proposal for his time with the children to be supervised and predicted that the father would cease contact with the children if this was ordered, causing Child B and Child C great distress, an outcome that I accept would not be one serving their best interests. Accordingly I decline to order that the father’s contact with the children be supervised.
94As to the terms of the orders, the father has been on notice as to what has been proposed by the Independent Children’s Lawyer in terms of the time that the children should spend with him. It is, as I have observed, a mirror image of the arrangements which have been extant for some time and represents a common position between the mother and the Independent Children’s Lawyer.
95The father has had the opportunity to have input into the terms of the orders and has elected not to do so.
96Accordingly I propose to order in accordance with the minute of proposed orders filed by the Independent Children’s Lawyer save and except that I propose to order, as foreshadowed, that the mother have sole parental responsibility for the children, however, I do so on the basis that she notify the father of long-term decisions that she proposes to make for the children, the definition of which I set out below for convenient reference by the mother and father.
97Long-term decisions are defined in the Act as:
7A. Meaning of “major long‑term issues” — FLA s. 4(1)
(1)For the purposes of this Act —
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about —
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
(2)To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child, however, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
98There will be an obligation accordingly upon the mother to advise the father of proposed educational and residential arrangements for the children.
I certify that the preceding [98] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
27 November 2017
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