Sachs and Sachs
[2012] FMCAfam 264
•29 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SACHS & SACHS | [2012] FMCAfam 264 |
| FAMILY LAW – Parenting dispute – family violence by both father and mother’s subsequent partner – drug abuse by both parents – children living with mother as primary carer – attempted reconciliation rendering family report futile – consideration of children’s best interests. |
| Family Law Act 1975, ss.60CC, 61C(1), 61DA(1), 61DA(2), 61DA(4) |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR SACHS |
| Respondent: | MS SACHS |
| File Number: | MLC 7272 of 2011 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 16 & 17 February 2012 |
| Date of Last Submission: | 17 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr. M. Testart |
| Solicitors for the Applicant: | Lanham Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr. R. Hoult |
| Solicitors for the Respondent: | Lampe Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr. J. Grigg |
| Solicitors for the Independent Children’s Lawyer: | Perry Weston Solicitors |
ORDERS
That the father and the mother retain joint and equal parental responsibility for the children [Y] born [in] 2004 and [X] born [in] 2000.
That the children live with the mother.
That the father spend time and communicate with the children as follows:
(a)Every alternate weekend from the conclusion of school on Friday, until the commencement of school Monday;
(b)By way of telephone at reasonable times;
(c)For half of all school term holidays by agreement and in default of agreement commencing the first Saturday of the term holidays at 10.00 am;
(d)
For half of the long summer vacation by agreement and in default of agreement on a week-about arrangement commencing at
10.00 am on the first Saturday of the long summer vacation;
(e)From 10:00 am to 5:00 pm on Father’s Day;
(f)On the Father’s and the said children’s birthdays for a period of three hours should that day not fall on a contact day or weekend and complying with school hours at times to be agreed and in default of an agreement contact to commence at 4:00 pm;
(g)Contact to be suspended on Mother’s Day and the Mother’s birthday;
(h)Commencing in 2011 from 12:00 noon on 24 December until 12:00 noon on 25 December and each alternate year thereafter;
(i)Commencing in 2012 from 12:00 noon on 25 December until 12:00 noon on 26 December and each alternate year thereafter;
(j)Such further and other times as agreed between the parties from time-to-time.
That the mother and the father authorise any school that the children may from time-to-time attend to provide the other parent with school reports, photos and notices.
That the mother and father be at liberty to attend all school functions, social and sporting activities to which parents are normally invited and to attend parent teacher interviews.
That the mother and father shall communicate all important information regarding the welfare of the children by way of a communication book.
That the mother and the father keep each other informed of any significant injury or illness suffered by the children when they are in their respective care and as soon as practicable advise the other of:
(a)The nature of the significant injury or illness.
(b)The names of all relevant treating medical and like practitioners.
(c)The treatment given to date and any information in his or her possession about the diagnosis; and
(d)That either party be at liberty to contact treating medical and like practitioners to seek further information and advice as required.
That the mother not relocate outside the State of Victoria.
That the mother not permit the children to come into contact with
Mr D.
That the mother continue her counselling with Ms M until and unless Ms M advises, in writing, that further counselling is not required.
IT IS NOTED that publication of this judgment under the pseudonym Sachs & Sachs is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7272 of 2011
| MR SACHS |
Applicant
And
| MS SACHS |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute in which many matters are far from clear, not the least being the all important one of what the parties’ positions are.
In the ultimate, it is the father’s position that the two children with whom the Court is concerned should live with him, and that the mother’s time should be reserved pending a further psychiatric assessment of her and a family report. In the alternative, he seeks as much time as he can obtain with the children if they are to live with the mother.
The mother seeks that the Court make the orders set out in the father’s Outline of Case, that time be from after school on Friday until the commencement of school Monday. The parties appear to be in agreement about holidays, special days and the like. Additionally, the mother accepts that it is appropriate that she be restrained from permitting the children to be brought into contact with her former partner (Mr D), albeit that the extent to which that relationship has ceased is an issue. The mother further does not oppose the making of orders prohibiting her from relocating interstate and requiring her to continue her treatment from Ms M.
For the reasons that follow, I propose to make the orders sought by the mother and the Independent Children’s Lawyer.
History of the parties
The father was born [in] 1975 into what has been described as a closely knit Maltese Australian family. He is a [omitted] by occupation, although he has not worked since approximately the time of separation of the parties in early 2011.
The mother was born [in] 1986 and gave birth at the age of just 14 to a child, [X], whose father has played no part in [X]’s life since her birth.
The mother met the father in 2001 when he was 26 and she was 15 years old. Their relationship commenced in 2002 and their first and only child, [Y], was born [in] 2004. It should be noted that at the time when the parties first met, the father was suffering from depression as a result of the relatively recent death of his own father, and was consuming substantial amounts of marijuana. Indeed, it was to purchase marijuana that he went to visit the mother’s own mother from whom he bought.
The mother and father married [in] 2005, (according to the mother - he says 2002), and separated in January 2011 when the mother left the father and went to a refuge with both [X] and [Y]. It should be noted that the father has effectively adopted [X] as his own.
At some point, not stated specifically in the materials, the mother and father moved to the father’s family property where they either lived with the mother-in-law and/or were eventually provided with a home of their own.
It is the mother’s perception that, while living there, she was, in effect, heavily controlled by the father and his family, who expected her to lead a traditional Maltese housewife’s life.
In any event, both the mother and the father regularly used marijuana and appeared to, on occasions, consume alcohol to excess.
It should be noted that the mother frankly conceded, under cross-examination, that she had been “stoned all the time” while living at the farm.
In about 2009, it appears that the mother started to assert herself somewhat. She started going out and started a Facebook account. The father continued to work very long hours as a [omitted], working some six or seven days a week to provide for the family.
It is quite clear that the mother has been the primary carer for the two children throughout their lives, and the father conceded readily under cross-examination that she was a good mother. This is so despite her difficulties with drugs and/or alcohol. I note that it is the father’s position that, if the parties were to reconcile, they would be in the primary care of their mother in any event.
Each of the father and mother makes allegations of violence against the other. It seems clear that, in some fashion, the father received third degree burns to his arms and neck following an altercation with the mother. It is also clear from the Department of Human Services’ records tendered by the Independent Children’s Lawyer that there has been some measure, at least, of family violence perpetrated by the father on the mother.
In the ultimate, and from the father’s point of view unexpectedly, the mother left the farm in January 2011. Her life thereafter has been chaotic.
The mother’s relationship with Mr D (also spelt as [omitted] in the materials filed)
The mother says that she met Mr D at some time between August and October of 2010. He was a man more her own age. She says, and I see no reason to doubt, that they did not commence a sexual relationship until after separation, although that relationship must have commenced very, very shortly after separation as she gave birth to Mr D’s daughter in [omitted] 2011, a mere nine or so months later.
The mother’s life since separation in January 2011 has been chaotic. She first went to her family in [omitted], and then went for a trip to [omitted] with her sister in January. Thereafter, she and the children lived with various friends until, as she says and I accept, she moved in with Mr D in about April. She continued to live with Mr D until September 2011 following which she obtained the accommodation she presently occupies in [omitted]. That residence appears to be suitable in terms of size and amenity and the like.
A significant area of dispute was the nature of the mother’s relationship with Mr D. Mr D and the father do not like one another and this is scarcely surprising. There have been lurid threats made by Mr D and his agents against the father. I note that the father is himself the subject of an intervention order, due not to expire until 2013, taken out against him by the mother. The picture that emerges to my mind is one of poorly contained aggression all round.
It is the mother’s case that she finally separated from Mr D approximately two weeks after the birth of their daughter, [Z], (according to the mother’s affidavits) on [date omitted] 2011. Although she separated from him, she admits to having had various sexual encounters with him up until as recently as Christmas 2011, although she denies any subsequent to that.
The father’s case is that Mr D is violent to the mother and that the children were exposed to threats of violence by him. It is the father’s case that the mother rang him up in early 2012 from a motel and asked him to collect her and one of the children. It is his case that he noticed a black eye and a mark around the neck of the mother, which he says was a suicide attempt.
He thinks that the mother has reconciled with Mr D and is very concerned, as he told the family report writer, that the mother and
Mr D will continue to live together. This would expose the children to serious risk of harm in the father’s view.
The mother, whom it should be noted has admitted to earlier suicide attempts when depressed, denies having attempted to hang herself recently, and says that the mark on her neck was from a halter top. She also denies being back in a relationship with Mr D, albeit that he visits her home three times per week to see his little daughter. This takes place in school hours so there is no difficulty with him meeting the other two children.
She admits telephoning the father from the motel. She had gone out for the night with a friend and got a black eye mucking around, according to her.
Having seen both parties give their evidence, it should be noted that the mother was, in the main, an impressive witness who answered questions which must have been difficult for her with composure. While she was clearly wrong as to some of her assertions as to dates, and I found her answers about the timing of some of the Facebook extracts annexed to the father’s affidavit to be extremely unconvincing, and having some of the appearance of being made up on the run, in the main she was an impressive witness.
I accept that she is no longer in a relationship with Mr D, whom she found to be too immature and too keen, in effect, to have his own life to have been a satisfactory partner. Whether she is as unequivocally certain that her relationship with Mr D is at an end and will not be recommenced is, I think, more opaque. I do at least accept that she has not tried to hang herself, albeit that I am not fully able to accept her denials of violence by Mr D who, it appears, has a criminal history of some note. Nonetheless, I accept her formal position that she will ensure that the children of this relationship are not brought into contact with him.
Reconciliation issue and the family report
The parties attended Mr B for the preparation of a family report in January 2012. The mother requested that the report interviews be conducted at the father’s home, and went to stay there with him the night before the interview. It does not appear that the mother and father were sexually intimate on this occasion, but when they saw
Mr B, they both asserted that reconciliation was going to occur. It appears that the father is reasonably readily influenced, and he is very eager to continue and sustain his relationship with the mother, this being the only serious relationship with a woman he apparently has ever had.
It was the position of counsel for the father that this reconciliation was wholly spurious and deliberately effected by the mother with a view to sabotaging the family report process and misleading the Court. It was implicit in the submission that the mother never had any idea of reconciling with the father, rather that she intended to continue her relationship with Mr D, while denying it, to defeat the father’s applications for time with the children.
It is clear that reconciliation would be, if effective, the best outcome for the children, as counsel for the Independent Children’s Lawyer submits. Nonetheless, it is equally clear that reconciliation is by no means likely to occur, particularly after the way in which the mother was cross-examined by the father’s counsel.
I am quite clear in my mind that, while the mother impressed as an intelligent and resourceful woman, despite her somewhat chaotic lifestyle, it would require overly much sophistication to credit her with the approach suggested by counsel for the father. She already had primary custody of the children at the time the family report was ordered, and it is unreasonable to presuppose that she knew sufficient of the Court’s procedures to feel that that situation was likely to be defeated by a family court in circumstances where all agreed that she had been the primary carer of the children for all of their lives.
In evidence before the Court, the mother made it clear that while reconciliation was not wholly impractical, there would need to be changes for it to occur including, most particularly, not living at the family home.
As I find, the future of the mother’s personal life remains wholly unclear. She may reconcile with the father. She may even reconcile with Mr D. If neither of these occurs, it seems highly probable she will partner with someone else. It is simply not possible to say, but I can say that the reconciliation that was posited to the report writer was not the subject of a calculating fraud on the mother’s part.
The legislative pathway
The Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 outlined at [65] the methodology the Court should adopt as a result of the amendments to Part VII of the Family Law Act 1975
(“the Act”).
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s.61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child, (as parental responsibility is defined in the Act).
The making of a parenting order triggers the application of a presumption that it is in the interests of the child for each of the child’s parents to have equal shared parental responsibility. The presumption must be applied unless there are reasonable grounds to believe that a parent, or person who lives with a parent, has engaged in abuse of the child or family violence (ss.61DA(1) and (2)).
The presumption may be rebutted where the Court is satisfied that the application of the presumption of equal shared parental responsibility would conflict with the best interests of the child (s.61DA(4)).
In this instance, there has been family violence by the father, despite his denials, and also by Mr D.
Nonetheless in my view, it is clear that the mother, as primary carer, and the father, as the second parent, have had a continued and meaningful relationship with the children, and I do not think either that the presumption should not apply because of the family violence, or that otherwise it is not in the children’s best interests to make such an order.
The making of an order for the application of the presumption leads the Court next to consider whether it should make an order for equal time. Neither parent seeks equal time in this case. The parents are presently wholly unable to collaborate. The children have lived all their lives in the primary care of their mother. An order for equal time is plainly inappropriate. Even more so is the proposal that the children live with the father, about which it is not necessary to say more than it was hopelessly misconceived. The suggestion that it was necessary because of the mother’s mental health is clearly not made out given the Court’s findings about her.
Equal time being inappropriate, there comes the question of considering the prospect of substantial and significant time as defined in the Act, and whether this is reasonably practicable.
The mother lives in [omitted] and the children go to school in [W]. The father lives at [omitted], just a few kilometres from [W]. There is no practical difficulty in the children spending time with both parents, save for the issue of the father’s work to which I shall return.
At this point, it is appropriate to turn to the father’s proposals in more detail.
The father’s position
In all the documents filed up until the commencement of the proceeding, the father sought that the children live with the mother and spend from Friday to Monday with him. This position changed at the very commencement of the proceeding to one where the children would live with him and the mother’s time would be reserved.
It has to be said, as counsel for the father himself said, that the father’s position was changeable and, at times, hard to understand. He said in evidence that he had changed his position following observing the bruises on the mother (the black eye to which I referred earlier) but this was some weeks beforehand. It is clear that the father desperately wishes to reconcile with the mother and is deeply concerned about her relationship with Mr D. The father is volatile in the sense of highly changeable from moment to moment. His position appeared to me to change from moment to moment even in the witness box. I do not put these remarks as a criticism of the father as such. He is obviously a man of persuadable disposition and relatively disadvantaged intellectually. It is apparent that he is barely literate from his endeavours to read a document put to him in Court.
It was the father’s position that, given his working days start very early, often as early as 4.30 in the morning, his mother would attend to the children’s breakfasts and taking them to school and the like. This position, however, was scarcely thought through. The father’s position was that the children would live with his mother, to begin with, because there are three other persons on the property where he lives who are not moving out for another five months. All in all, the clear impression I got was that the father’s position was labile and open to change almost on a minute by minute basis.
To return to and conclude the question of substantial and significant time, the reality is that if the children are not sent to live wholly with the father, as I make it clear will not be the case, then the argument is really about how much time the father should have. In all documents filed up until the trial, the father sought from Friday to Monday, a position that the mother is prepared to accede to and, indeed, has acceded to of recent times. That of course is not substantial and significant time within the meaning of the Act because it does not involve the children’s daily routine.
Consideration of the primary and secondary considerations
It is plainly to the benefit of these children to have a meaningful relationship with both of their parents, despite such elements of violence as have occurred in the past.
It is necessary to protect the children from the risk of physical or psychological harm represented by Mr D, but the mother is prepared to submit to an order in this regard.
The children have expressed no views because the family report process was rendered abortive. Nonetheless, I note that they have lived with the mother as their primary carer all of their lives (s.60CC(3)(a)).
As just stated, the children have a firm and attached relationship with their mother, who has been their primary carer all their lives. Their relationship with their father, who clearly loves them very much, is also apparently sound. Less clear is the nature of the relationship with their paternal grandmother. I would infer, however, that the paternal grandmother loves the children dearly and I would see no reason to suppose, given that there is no mention of such in the materials, that the children do not love her and the father’s extended family. The mother’s relationship with her own family seems to be exceptionally volatile and it is not possible to draw any conclusions about relationships with them (s.60CC(3)(b)).
Both of these parents are, in my opinion, at least adequately prepared and able to facilitate and encourage a continuing relationship with the other (s.60CC(3)(c)).
Any endeavour to remove the children from their primary carer would be likely to be damaging to the children. So much follows from common sense. While they will experience some measure of separation from their youngest sibling, because they will be absent one weekend out of two to be with the father (unless of course the mother permits [Z] to travel as well), this is not a matter of enormous significance in the circumstances (s.60CC(3)(d)).
Subject only to the father’s hours of work, there seems to be no practical difficulty or expense, such as to suggest the children should not regularly spend time in care with the father (s.60CC(3)(e)).
Despite certain limitations, each of the parents seems sufficiently capable of looking after the children while they are in their care. The Department of Human Services has not expressed any concerns about the mother’s capacity to care and the father himself says she is a good mother. It is implicit in the mother’s position that the father is at least sufficiently able to look after the children to have the time with them that she contends (s.60CC(3)(f)).
The Court knows little of the maturity, lifestyle and background of the children because of the lack of a more detailed family report. The mother’s personality is undoubtedly, in some respects, both surprisingly mature (see the report of Mr B) and in other respects disturbingly immature (see the Facebook material exhibited by the father – whatever its date, it is still relatively recent and off-putting in its nature). Nonetheless, as already said more than once, the mother is a competent mother (s.60CC(3)(g)).
Both the children are part Aboriginal through their mother but the Court has been given no insight as to whether this is a matter of any significance (s.60CC(3)(h)).
The attitude to the children and to the responsibilities of parenthood is by no means in this case a matter of perfection. The mother’s apparent tendency to go off and get blind drunk with a friend points to an immature approach. Likewise, the father’s malleable personality plainly has its limitations. Nonetheless, both parents love their children and are at least sufficiently good parents (s.60CC(3)(i)).
Although there has been family violence, for the reasons already given, it does not play any great part in the outcome (s.60CC(3)(j)).
Although there is an intervention order, likewise, that is of no great moment at the present time (s.60CC(3)(k)).
The orders I propose to make should succeed in bringing litigation to an end as best as is possible in the uncertain circumstances of this matter (s.60CC(3)(l)).
In the ultimate, it seems clear to me that the orders sought up until the day of trial by the father are those I should make. They are sought by the mother and supported by the Independent Children’s Lawyer. This will have the advantage of the children continuing to live with their mother in what appears to be perfectly satisfactory home and educational circumstances, but to see the father on a regular basis every alternate weekend, half school holidays, and the like. This is not, of course, substantial and significant time within the meaning of the Act. I do not think additional time during the week, or indeed otherwise, is appropriate. It is not what the children have experienced in the past. The father’s capacity to cope with it is unknown. He will, I find, rapidly return to working long hours. His capacity to return children to school, or indeed even to collect them, is wholly unclear. Nor has the father articulated any concrete proposals for time during the week, or indeed even for more time than the mother proposes. All he has done is to ask, generally, for more time. This absence of detail and precision, both in terms of identifying what time was sought and in terms of how it would work, militates very strongly against the father’s alternate position. There will be orders as sought in the father’s outline of case, together with injunctions, as I have earlier indicated, preventing the mother from relocating to Perth (which she says she has no intention now of doing), requiring the mother to continue her counselling with Ms M, and preventing the mother from bringing the children into contact with Mr D. I have drawn up draft orders to give effect to these conclusions, but will give the parties a brief time to study them before making them as final orders.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 29 March 2012
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