Sadler and Roberts
[2016] FCCA 92
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SADLER & ROBERTS | [2016] FCCA 92 |
| Catchwords: FAMILY LAW – Parenting – where there is dispute as to with whom the children of the relationship should live – where there is a lack of communication between the parents – where there is a lack of trust and respect between the parents – where the Family Report raises concerns and makes recommendations – where cultural considerations including Aboriginal culture loom large in the life of the children – where there is a concern that the father does not fully appreciate the significance of culture particularly with regard to the oldest son – where domestic and family violence have been significant during the relationship and after separation – where the cultural and educational needs of the children have not been balanced – where all parties agree that equal shared parental responsibility is rebutted. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 Chappell & Chappell (2008) FLC 93-382 Heath & Hemming (No 2) [2011] FamCA 749 Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010) MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR SADLER |
| Respondent: | MS ROBERTS |
| File Number: | TVC 136 of 2007 |
| Judgment of: | Judge Coker |
| Hearing dates: | 26 and 27 November 2015 |
| Date of Last Submission: | 27 November 2015 |
| Delivered at: | Townsville |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Honchin |
| Solicitors for the Applicant: | Stevenson & McNamara |
| Counsel for the Respondent: | Mr M. Hibble |
| Solicitors for the Respondent: | Aboriginal and Torres Strait Islander Women’s Legal Services NQ |
| Counsel for the Independent Children’s Lawyer: | Mr M. Fellows |
| Solicitors for the Independent Children’s Lawyer: | G A Murray |
ORDERS
That all previous parenting Orders be discharged.
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2004, Y born (omitted) 2005 and Z born (omitted) 2010, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
Notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him.
That the children live with the Mother.
That the Father spend time with the children at all reasonable times as may be agreed between the parents in writing and, failing agreement, as follows:
(a)Each alternate week from after school on Thursday until the commencement of school on the following Monday, or Tuesday should the Monday be a public holiday or pupil free day;
(b)For one half of the gazetted school holidays, being the first half in even numbered years and the second half in odd numbered years.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
Changeovers, if not effected at the children’s school, including changeovers during holidays shall occur at 5.00pm at the McDonald’s Family Restaurant at (omitted).
Special Days
On the children’s birthday and on each of the parents’ birthdays, the children shall spend time with the parent with whom they are not living or spending time at all times as agreed in writing, and failing agreement:
(a)From after school until 8.00pm if it is a school day; and
(b)From 1.00pm until 8.00pm if it is a non-school day.
If Mothers’ Day or Fathers’ Day falls on a day when the children would otherwise be with the other parent, the children shall spend time with the parent whose special day it is from 9.00am until 5.00pm.
On Christmas Day, unless otherwise agreed between the parents, the children shall remain with the parent with whom they are living or spending time and spend time with the other parent on Boxing Day from 9.00am until 5.00pm if they are in the same locality.
Cultural considerations and school and extra-curricular activities
Each parent shall respect and encourage the children’s involvement in their own culture and the culture of the other parent and her or his family. Each parent shall ensure that the other parent is given timely and reasonable notice of cultural events or occasions and wherever reasonably possible shall make practical arrangements that allow the children to participate in such events.
Each parent shall be entitled to attend extra-curricular school sporting and cultural activities involving any of the children, notwithstanding that the children may be in the care of the other parent at that time and shall respect the right of the children to move freely between each parent at such occasions.
Communication
The children shall be at liberty to communicate with each parent by telephone or text message at any reasonable time.
The parent with whom the children are not living or spending time may telephone the children on alternate days between 5.00pm and 6.00pm or at such other times as may be agreed between the parents in writing.
For the purpose of the parents communicating with the children by telephone, the parents shall facilitate the children’s communication with the other parent by:
(a)Ensuring that the children have access to a phone which is charged and has credit;
(b)Providing the children with unmonitored and private phone calls;
(c)Not interrupting or terminating the communication unreasonably.
That the parents shall communicate with each other, except in the case of emergency, by text, email or letter.
Child’s property and clothing
Each parent shall have sufficient items at their respective homes for the children’s day to day needs, including but not exclusively:
(a)School uniforms;
(b)Casual clothing;
(c)Bedding.
When the children spend time at the Father’s home, the Mother shall ensure that the children have all items necessary for school on the days that the children will be at the Father’s home.
The parent with whom the children are living or spending time shall be responsible for ensuring that the children return any items of clothing or personal property that the children bring with them from the other parent’s home when they return to the other parent’s home.
Injunctions
Each parent shall keep the other parent informed of any change of telephone contact number or address within 24 hours of such change occurring.
Each parent shall respect the privacy of the other and not question the children about the other parent’s personal life.
Neither parent shall denigrate the other parent or members of the other parent’s family and shall restrain any other person who attempts to denigrate the other parent or their family in the presence or hearing of the children.
The parents are restrained from drinking to excess while the children are in their care.
Neither parent shall smoke, inhale or otherwise administer or produce illicit drugs in the presence of the children.
Each parent is restrained from exposing the children to domestic violence. For the purpose of this provision “family violence” has the same meaning as defined in section 4AB of the Family Law Act and includes, but is not limited to:
(a)An assault;
(b)Verbal abuse of a family member;
(c)Repeated derogatory taunts;
(d)Intentionally damaging or destroying property;
(e)Preventing a family member from making or keeping connections with this or her culture;
(f)Preventing a family member from making or keeping connections with this or her family, friends or culture;
(g)Intimidation, including shouting in a child’s face in a way that is likely to cause the child to be fearful;
(h)Threats of physical violence or damage to property;
(i)Personal put-downs.
Neither parent is to expose the children to sexually explicit conduct or materials.
Neither parent is to attend the home of the other parent without that parent’s written consent. A text message from the parent giving consent shall be sufficient “written consent”.
Health and Safety/Emergencies
Each parent will notify the other as soon as practicable of any emergency involving the children’s health or welfare, including accidents or illness requiring medical attention and shall provide the other parent with relevant information including:
(a)The nature and circumstances of the accident or illness;
(b)The name and contact details of any person or agency providing medical or other intervention.
These Orders are authority to the children’s school/educational facility and medical practitioner/s or other care providers, to provide any and all information as requested by each parent including:
(a)reports and photographs;
(b)newsletters that are usually available to parents;
(c)information about parent/teacher interviews;
(d)extra-curricular activities available to the children;
(e)any medical condition of any of the children;
(f)information relevant to the care or supervision of the children.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Sadler & Roberts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 136 of 2007
| MR SADLER |
Applicant
And
| MS ROBERTS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
The proceedings before the Court relate to orders sought with regard to the parenting of the children, X, born (omitted) 2004, Y, born (omitted) 2005, and Z, born (omitted) 2010. The children are the children of Mr Sadler, whom I shall refer to as the father, and Ms Roberts, whom I shall refer to as the mother.
The parents have been involved in proceedings before this Court for a period now of eight or more years. As is obvious from the date of birth of the child Z, there have been periods where the relationship of whatever nature it might necessarily be described between the parties has resumed, but it is also clear that there also has been continued litigation with regard to the parenting of the children, since the initial proceedings were instituted in early 2007.
APPLICATIONS:
The latest proceedings were commenced by the father in an application brought by him in May 2012. The father sought orders with regard to equal shared parental responsibility, week-about care arrangements in respect of the children, and provision for issues such as telephone communication and special days to be spent with each parent, as well as an injunction restraining one party or the other from removing the children from the general (omitted) locality.
The mother responded to that application in July of 2012, seeking orders with regard to sole parental responsibility vesting in her and further orders that the children live with her and spend time with the father, as well as there then being arrangements made with regard to special days, telephone communication and the like. The mother also sought more extensive orders than what was envisaged by the father, including that there should be orders with regard to restraints upon the parties denigrating of the other parent, dealing in a respectful and courteous manner with the other parent and for there to be family dispute resolution facilitated.
Thereafter, the matter has meandered toward the determination which is now to follow the hearing conducted on 26 and 27 November 2015. It is indeed a tragic situation, where there have been proceedings between the parties in this Court, for a great proportion of the lives of the two older children, X and Y, and to varying degrees, for the entirety of the life of the child Z. It is also troubling in the extreme that the parties’ relationship has continued to be one of a significantly conflicted nature, with there being a lengthy history of domestic violence, which is acknowledged by both parties as being perpetrated by each of them, as well as continued involvement by the Department of Communities, Child Safety and Disability Services as it now is known, in relation to issues with regard to each parent’s capacity to provide for and to meet the needs of the children.
It is to be hoped that there can be some end to the litigation, not only for the sake of the parties to these proceedings, but, I must say, far more significantly for the benefit of the children, who have become to a significant degree, pawns in the litigation between the parties, particularly when it is clear that the two older children are clearly aware of the litigation between their parents and of the obvious difficulties that they have, in dealing with each other.
The final orders that are sought by each of the parents are detailed in the amended initiating application filed by the father on 20 October 2015 and the amended response filed by the mother on 2 November 2015. The orders are, to some degree, a mirror image of each other, in that the father seeks sole parental responsibility for major long-term decisions to be made in respect of the children, and the mother, similarly, seeks an order that she have sole parental responsibility for decisions to be made in relation to the children, and each parent also seeks orders with regard to the children living with them and then that the children spend time with the other parent, but for a time which is less than the current week-about arrangements, that have previously been in place.
It should be noted in that regard that the final position taken by the father, in relation to the matter was only finally clarified at the time of hearing, it being the case that in the amended initiating application, the father’s proposal for the children to live with each parent on a week-about basis was then amended to provide for the children to spend time with their mother from after school on Friday until 6 pm Sunday in each alternate weekend. In fact, until that specific clarification was provided there were issues with regard to whether the father contemplated the mother having any time with the children during the gazetted school terms, because of concerns the father said he had with regard to the wellbeing of the children, particularly with regard to their education.
Such issues were raised by the father in interviews that were held with the family report writer. I shall come to those issues a little later in these reasons. The final proposal, therefore, by the father was in these terms:
1.That the Father have sole parental responsibility for all the major long term decisions in respect to the children:
(a) X born (omitted) 2004
(b) Y born (omitted) 2005
(c) Z born (omitted) 2010:
2.That the children live with the Father.
3.That the Father shall inform the Mother of any significant parenting issue decisions proposed to be made by the Father and offer the Mother the opportunity to provide her views within a reasonable time on such decisions before the Father makes any such decision (except in respect of any urgent medical decisions). For the purpose of these orders, a ‘significant parenting issue’ is:
(a) Any medical or health matter concerning the child;
(b)Any medical or health matter concerning either parent which may affect the ability of that parent to care for the child;
(c)Matters relating to the education of the child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, order forms for school photographs, and all communications from the child’s school other than with respect to routine or administrative matters;
(d) Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the child;
(f)Generally any matter regarding the child in respect of which a parent should be informed of or consulted having regard to the provisions of Part VII of the Family Law Act 1975.
4.The parent with whom the children are spending time shall be responsible for any day to day welfare and development decision in respect of the children.
5.That the Mother shall be entitled to spend time with the Children at all times as agreed by the parents, but failing agreement the following sets out the times the Mother shall be entitled to spend with the Children unless specified that the Children shall spend specific time with the Father:
(a)During the Gazetted school term, from Friday after school until Sunday at 6pm, or if the Monday is a pupil free day until 6:00pm on the Monday each alternate week with the Mother.
(b)The first half of gazetted school holidays in April, June/July and September each year with the Mother and the second half with the Father with the school holidays to commence at 9:00am on the first Saturday and finishing on the last Sunday at 12:00 midday on the Sunday before the commencement of the new term.
(c)The first half of gazetted Christmas school holidays with the Father and the second half of the gazetted Christmas school holidays with the Mother in each odd numbered years.
(d)The first half of Gazetted Christmas school holidays with the Mother and the second half of the Gazetted Christmas school holidays with the Father in each even numbered year.
(e)In the event the children’s birthday falls on a day that the children are with the Father the mother be at liberty to spend from 8:00am to 1:00pm with the children.
(f)In the event the children’s birthday falls on a school day the Mother shall be entitled to spend time with the children from after school until 6:00pm.
(g)The children are to spend the Mother’s birthday with the Mother and the father’s birthday with the Father.
(h)In the event the Mother’s birthday falls on a school day the Mother is entitled to spend time with the children from after school until 6:00pm. And if the Mother’s birthday falls on a weekend she shall be entitled to spend time with the children from 8:00am until 6:00pm.
(i)That the children spend time with the Mother on Mother’s Day between the hours of 8.00am and 6.00pm.
(j)That the child spend time with the Father on Father’s day between the hours of 8.00am and 6.00pm.
6.In the event the children spend time with the mother on a school night, the mother is to ensure that the children are delivered to school on time. In the event the children or child is sick the mother is to contact the father immediately and the father will take the children to their doctor to ascertain if the child/children are too sick to attend school.
7.An injunction shall issue and the Mother shall be restrained form collecting the children from school before school has finished on any day she.
8.That each parent will notify the other parent of their residential address, postal address and contact numbers within seven (7) days of any such change.
9.The parent who does not have the children in their care may communicate with the children by telephone at all reasonable times, but specifically:
(a) each Wednesday from 6:00pm – 7:00pm.
(b) On Christmas day from 8:00am until 9:00am.
10.That the parents and their partners shall not criticise or denigrate the other parent or the other parent’s family in the presence of or within hearing of the children or any of the children.
11.The parents are restrained form drinking above the Queensland legal driving limit or taking illicit drugs while the children or any of the children are in their care.
12.Neither party is to remove the child from the (omitted) area, no longer than two (2) weeks with the party intending to travel providing an itinerary in writing of where the child is going to, staying and the means of transport to be utilised including air, bus, or train, and the departure and return times, and telephone contact details during the child’s absence from (omitted) area at least wo weeks before such removal of the child from (omitted) and in the event the travel is proposed to be longer than 2 weeks this clause shall apply with the requirement for written consent of the other parent.
13.In the event there is a funeral to attend on the mother’s side the children are to attend to pay their respects and the father will facilitate this happening.
14.All changeovers are to occur with the collecting parent to collect the children form the school on a school day when they have the children from after school and all other times at the (omitted) police station unless otherwise agreed in writing.
15.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
16.Any other order that this court deems necessary.
The final position taken by the mother in relation to the matter was still in terms of that detailed in the amended response of 2 November 2015, and was in these terms:
1.That the Orders made by this Court on 24 April 2007 be discharged.
2.That the Mother have sole parental responsibility for X born (omitted) 2004, Y born (omitted) 2005 and Z born (omitted) 2010 (“the children”) and shall inform the father with respect to the long-term care, welfare and development of the children including but not exclusively:
1.1 The children’s education (both current and future);
1.2 The children’s religious and cultural upbringing;
1.3 The children’s health and medical matters;
1.4Disciplinary matters other than those of a trivial nature; and
1.5Changes to the children’s living arrangements that make it significantly more difficult for them to spend time with a parent.
3.That the said children live with the Mother and spend time with the Father in accordance with this Order or as otherwise agreed in writing between the parents.
4.Notwithstanding Order 2 herein:-
4.1The Applicant Father be responsible for the day to day care welfare and development of the children whilst they are in his care;
4.2The Respondent Mother be responsible for the day to day care welfare and development of the children whilst they are in her care;
5.That unless otherwise agreed between the parents, during the school term the children shall spend time with the Father on each alternate week from after school on Thursday until the commencement of school on the following Tuesday.
6.That unless otherwise agreed between the parents, during school holidays the children shall spend time with each parent as follows:
6.1The children shall spend time with each parent on a week about basis during the Easter, June and September school holidays;
6.2The children shall spend two weeks with each parent in turn during the December-January school holidays each year;
6.3The school holiday shall start after school on the last day of the school term;
6.4The children shall spend the first week of the school holidays with whichever parent would have had them on the first weekend of the school holidays;
6.5The children’s usual arrangements to live and spend time with each parent, as described in paragraphs 2 and 3 of this Order, shall be suspended during school holidays;
6.6If either parent wishes to vary the times that the children spend with each parent, the parent seeking a variation shall write to the other parent no less than two (2) weeks before the proposed variation and the other parent shall not unreasonably refuse to vary the parenting arrangements;
6.7Changeover during holidays shall occur at 5pm at the McDonald’s family restaurant at (omitted);
7.In the event that the Father is not available for more than twenty four (24) hours during the time that the children are to spend time with him, the children shall remain at or return to their Mother’s home.
Child’s property and clothing
8.Each parent shall have sufficient items at their respective homes for the children’s day to day needs, including but not exclusively:
8.1 School uniforms;
8.2 Casual clothing;
8.3 Bedding.
9.When the children spend time at the Father’s home, the Mother shall ensure that the children have all items necessary for school on the days that the children will be at the Father’s home.
10.The parent with whom the children are living or spending time shall be responsible for ensuring that the children return any items of clothing or personal property that the children bring with them from the other parent’s home when they return to the other parent’s home.
Special Days
11.On the children’s birthday and on each of the parents’ birthdays, the children shall spend time with the parent with whom they are not living or spending time (“the other parent”) at all times as agreed, and failing agreement:
11.1 from 5.00pm until 8.00pm if it is a school day; and
11.2 from 1.00pm until 8.00pm if it is a non-school day.
12.If Mothers’ Day or Fathers’ Day falls on a day when the children would otherwise be with the other parent, the children shall spend time with the parent whose special day it is from 9.00am until 5.00pm.
13.On Christmas Day, unless otherwise agreed between the parents, the children shall remain with the parent with whom they are living or spending time and spend time with the other parent on Boxing Day from 9.00am until 5.00pm.
Child’s communication with each parent
14.The children shall be at liberty to communicate with each parent by telephone or text message at any reasonable time.
15.The parent with whom the children are not living or spend time may telephone the children on alternate days between 5.00pm and 6.00pm or at such other times as may be agreed between the parents.
16.For the purpose of the parents communicating with the children by telephone, the parents shall facilitate the children’s communication with the other parent by:
16.1.Ensuring that the children have access to a phone which is charged and has credit;
16.2Providing the children with unmonitored and private phone calls;
16.3Not interrupting or terminating the communication unreasonably.
Injunctions
17.Each parent shall keep the other parent informed of any change of telephone contact number or address within 24 hours of such change occurring.
18.Each parent shall respect the privacy of the other and not question the children about the other parent’s personal life.
19.Neither parent shall denigrate the other parent or members of the other parent’s family and shall restrain any other person who attempts to denigrate the other parent or their family in the presence or hearing of the children.
20.The parents are restrained from drinking to excess while the children are in their care.
21.Neither parent shall smoke, inhale or otherwise administer or cook illicit drugs in the presence of the children.
22.Each parent is restrained from exposing the children to domestic violence. For the purpose of this provision “family violence” has the same meaning as defined in section 4AB of the Family Law Act and includes, but is not limited to:
22.1 An assault;
22.2 Verbal abuse of a family member;
22.3 Repeated derogatory taunts;
22.4 Intentionally damaging or destroying property;
22.5 Preventing a family member from making or keeping connections with this or her culture;
22.6 Preventing a family member from making or keeping connections with this or her family, friends or culture;
22.7 Intimidation, including shouting in a child’s face in a way that is likely to cause the child to be fearful;
22.8 Threats of physical violence or damage to property;
22.9 Personal put-downs.
23.Neither parent is to expose the children to sexually explicit conduct or materials.
24.Neither parent is to attend the home of the other parent without that parent’s written consent. A text message from the parent giving consent, shall be sufficient “written consent”.
Health and Safety/Emergencies
25.Each parent will notify the other as soon as practicable of any emergency involving the children’s health or welfare, including accidents or illness requiring medical attention and shall provide the other parent with relevant information including:
25.1 The nature and circumstances of the accident or illness;
25.2The name and contact details of any person or agency providing medical or other intervention.
26.These Orders are authority to the children’s school/educational facility and medical practitioner/s or other care providers, to provide any and all information as requested by each parent including:
26.1 reports and photographs;
26.2 newsletters that are usually available to parents;
26.3 information about parent/teacher interviews;
26.4 extra-curricular activities available to the children;
26.5 any medical condition of any of the children;
26.6information relevant to the care or supervision of the children.
27.Such further or other Order as this Honourable Court deems appropriate.
As I have indicated, the matter has taken some considerable time to move towards a final determination. As a result of that time and of changing attitudes and positions, a number of family reports have been prepared in relation to the matter, though only Ms S, the family report writer who attended to the preparation of the final report was required for cross-examination. Noting the conflicted nature of the parties in relation to these proceedings, it was also the case that an independent children's lawyer was appointed to assist the parties and the Court with issues in relation to the welfare and the best interests of the children.
It was, perhaps, an understandable position taken by the independent children’s lawyer, that at the commencement of the proceedings, the independent children’s lawyer was unable, or certainly unwilling, to express a particular view in relation to what arrangements should be put in place with regard to the parenting of the children. It was clear, however, that the independent children’s lawyer was of the mind to recommend, that no matter with whom the children might primarily live, it being the case that that was acknowledged by the parties as being an appropriate final outcome as well as one that was recommended by the family report writer, one or other of the parents should be the primary carer.
It was also clear that that parent, whomever it might be, should have sole parental responsibility, but, of course, with the requirement for consultation with the other parent being met. It was only after the evidence was heard in relation to this matter that the independent children’s lawyer, through her counsel, handed up a short form of the orders that were proposed by the independent children’s lawyer. That short form of orders, which, of course, will require some modification, provided orders 1 through 13 in these terms:
1.Children live with mother.
2.Children spend time with father each alternative weekend from after school Thursday to before school Monday and if Monday is a public holiday or pupil free day then to before school on Tuesday.
3.Telephone communication shall be:
· The mother shall be entitled to telephone the children on the Saturday evening when the children shall be with the father and shall initiate that call between 6pm and 6.30pm
· The father shall be entitled to telephone the children on the Wednesday and Saturday evening when the children shall be with the mother and shall initiate that call between 6pm and 6.30pm
· During school holiday periods each parent shall be entitled to telephone the children on the Wednesday and Saturday evening when the children shall be with the other parent and shall initiate that call between 6pm and 6.30pm.:
4.School holiday periods to be shared:
·Father to have first half of the term school holidays
· Xmas holidays to be in block periods of 3 weeks for each parent alternating each year on an odds and evens basis.
5.Usual provision for special days:
·Mother’s day and Father’s day
·Children’s birthdays
·Parents birthdays.
6.Additional provision to read something to this effect:
Each parent shall respect and encourage the children’s involvement in their own culture and the culture of the other parent and her or his family. They shall each ensure that the other parent is given timely and reasonable notice of cultural events or occasions and wherever reasonably possible shall make practical arrangements that allow the children to participate in such events.
7.Each parent shall be entitled to attend extra-curricular school sporting and cultural activities involving any of the children notwithstanding that the children may be in the care of the other parent at that time and shall respect the right of the children to move freely between each parent at such occasions.
8.Mother to have sole parental responsibility but except in the case of genuine emergency shall:
·Give the father written notice of any major long-term decision she proposes to make and the reasons for that; and
·Take into account but not be bound by any views expressed in writing by the father; and
·Thereafter inform the father of the decision she has made.
9.Notwithstanding Order 8:
·This Order operates as an authority that authorises any school the children attend to provide all relevant school information to the father including newsletters, attendance records, disciplinary reports and academic reports to the father. The father shall also be entitled to attend parent/teacher interviews;
·The mother shall not relocate the residence of the children beyond the region of (omitted) without the written agreement of the father or Order of a Court.
10.Each parent shall ensure the other is promptly informed (which shall mean within 48 hours) of:
·Their residential address and any change of address;
·Their mobile and landline (if any) telephone numbers and any change of such numbers;
·Their email address and any change of such address.
11.For the purposes of communication between the parents concerning the children they shall do so, save in the case of genuine emergency by way of text message, email or letter.
12.For the purposes of changeover on non-school days that changeover shall occur at such place or places as may be agreed between the parents but failing agreement shall occur at the McDonalds Family Restaurant (omitted).
13.Each parent is restrained and an injunction issued restraining each parent from the use of illicit drugs when the children are in their care and shall promptly remove the children from any circumstance where some other person is using illicit drugs in the presence of the children.
THE CONDUCT OF THE HEARING:
At the commencement of the hearing, it was indicated by counsel for the independent children’s lawyer that whilst there had been discussion in relation to the matter, the parties had, despite their best endeavours, been unable to reach an agreement. It was noted, however, that the trial would be, as described by counsel for the independent children’s lawyer, shorter in compass than might originally have been envisaged.
That was explained by counsel as arising from the fact that it was generally agreed between all parties and their legal representatives, that it was not necessary to explore the issues in relation to domestic violence. It was clear that both parties had engaged to varying degrees and in varying ways in domestically violent behaviours, and counsel indicated that it was agreed that it would be a rather arduous and perhaps unproductive course to follow, to seek to apportion blame in relation to the issues of domestic violence arising from past conduct.
In reality, it was certainly submitted that the historical circumstances of the relationship influences the current behaviours and, I would presume, attitudes of each of the parties in relation to their dealings with each other. In that respect in particular, I would assess that the past history of dealings between the parties means that each is distrustful of the other and, of course, as a result of that, there are difficulties in communication or, in fact, to a significant degree, a failure to properly communicate at all with the other parent.
It was also indicated that following the discussions that had been held in relation to the matter, it was not anticipated that the other witnesses in these proceedings would be required. It was, however, clear that the issue of culture loomed larger than might normally be the case in relation to proceedings, and that that was a factor which needed to be considered, particularly from the perspective of the report prepared by Ms S and the recommendations that followed, in relation to that report.
It was indicated by counsel for the Independent Children’s Lawyer that the parties agreed that Ms S should be called first and that then each of the parties would be called. Counsel for each of the parties indicated that they were agreeable to follow that course, though each reserved their right, dependent upon what might fall, to seek to cross-examine other witnesses if it became necessary in their assessment, for that to occur. It did not arise as a consideration, in relation to the matter, though the evidence of the various other witnesses was before the Court. I shall comment upon that particular aspect of the matter at the conclusion of consideration of the evidence which was primarily called in relation to this matter, being the evidence of the family report writer and of each of the parents.
THE FAMILY REPORTS:
I turn then to the evidence in these proceedings. Called first was the family report writer, Ms S. Ms S had prepared an updated family report dated 29 October 2015. The report made reference to the earlier reports that had been prepared in relation to these proceedings, being two reports by Ms P, being a report of 14 February 2013 and an updated report of 21 May 2014. The report by Ms S, however, was the most recent in time and it was noted that because of the cultural considerations that arose and that, “as Ms Roberts identifies as Aboriginal, Torres Strait Islander and South Sea Islander”, Mr D, was in attendance at all interviews and observations held on 13 October, to support cultural issues.
Mr D, though not a signatory to the report, was clearly involved in the various aspects of interviews and observations. As noted by Ms S in her evidence-in-chief, the report and the recommendations had been seen by Mr D and were supported by him. She was also asked and confirmed that it was the case that the issues with regard to cultural matters had been discussed with Mr D and that she had taken those particular considerations on board, in relation to the report and recommendations.
The report, notwithstanding that it was described as an updated report, was a comprehensive document. It was obviously necessary for that to be the case, because numerous new issues had arisen, not the least of which was the fact that the father had formed a relationship with his partner, Ms M, about a year prior to the preparation of the final report. But that was subsequent to the updated report prepared by Ms P, and this had meant that there was a significant change in the household dynamics of the father because, not only did Ms M move in with him, but her three children, A, born (omitted) 2006, B, born (omitted) 2008 and C, born (omitted) 2010, were also part of the new family dynamic.
The report included the identification of a number of issues that required determination by way of these proceedings. They included the obvious consideration of with whom the children should live, but it also noted that other issues which clearly needed to be considered included:
· the children’s continued exposure to parental conflict;
· previous family violence;
· allegations that the father and Ms M used illicit drugs in front of the children;
· allegations that the father physically disciplined and verbally abused the children to an excessive extent; and
· cultural considerations.
Ms S then went on to provide extensive commentary in relation to the father, the mother, the maternal grandmother, the children’s older half-sibling W, a child of the mother from a previous relationship, as well as interviews and comments in relation to Ms M. The report then went on to comment upon the children and their relationships, noting, of course, that those relationships not only included relationships with the mother and the father, but, of course, also other relationships, including those that were now perhaps of greater significance than might previously have been the case as a result of the fact that the father and Ms M and her children, had commenced to reside together.
In that respect, it was noteworthy that, at paragraph 140, when discussing issues relating to X and what he may have liked or not liked at his father’s home, he noted that he did like certain aspects of his time at his father’s home, but he did not like, “A, B and C”. C and Ms M, the children’s stepmother and A and B, as noted, are Ms M’s two older children. X went on to note that he felt “fear”, when he got into trouble from his father and indicated that his father yelled in his face, apparently so close that he could sense his father’s spit hitting his face and he noted that it was also the same with Y.
Ms S was asked certain questions about those indications by the child, in relation to how he felt at the father’s residence and was only really able to comment upon the fact, that they were the indications that were given by the child. The father, however, was cross-examined about certain of those issues and I will deal with those aspects of the matter when commenting upon the father’s evidence.
Noteworthy also, however, when dealing with issues in relation to X, was the fact that Ms S noted at paragraph 142, when inquiring of X how the ongoing parental conflict had affected him, X stated:
“It’s made me angry and sad. I want them to stop fighting. It makes me sad when they do the punch-ups. Stop fighting.”
X went on, it was noted, to indicate that he thought it was really stupid that they’re fighting and that it was even more stupid when they were fighting over family.
Ms S also commented upon various matters raised by Y, in relation to her opportunities to spend time at both her mother’s and her father’s residence. At paragraphs 153 through 159 the report noted the following:
153.At her mother’s home, Y stated that she liked being with family and going places. She considered her mother’s home to be a place that was “so calm” with “no bad words” and where “I get to see everyone.”
154.At her father’s home she enjoyed going swimming at the (omitted) park. She did not like getting into fights at her father’s home. There she reported there were “bad words.” She stated that Mr Sadler had called X “a prick,” her a “bitch” and sometimes both of them “fuck-heads.” She also reported that A swears, calling them “jackasses, fuck-heads and assholes.”
155.Y was able to identify many worries she has. A big worry for her was getting into fights at her father’s home. A second big worry was “Dad has a bong. He also calls it a cone. He smokes in front of us every day and every night. I don’t want to see that.” This concerned Y as “I thought Dad was a good person.” She added that Mr Sadler called it his medicine. A further big worry for Y was that “C swears at everyone” which makes Y feel angry.
156.Additionally, one of Y’s big worries was her father’s physical discipline. She stated, “Dad back-handed A in the head one night. He makes hand prints on us.” On one occasion, that Y thought in second or third term, she told one of the teachers as she had just arrived at school after Mr Sadler had stopped the car and “smacked me hard.” She reported that the teacher took photos of the mark on her and sent them to the principal. Y stated that X always got in to trouble and that “dad uses all his force.” Y stated, “I don’t like it when Dad starts arguments. He spits in our faces. He yells at us with his full voice.”
157.Y also found it concerning that her father once told them he would keep them one hundred percent of the time.
158.Y identified a medium worry – “When Dad pulls C’s shorts down. He pulls her pants down, smacks her butt.” Y thought this behaviour was “disgusting” and “X and me said ‘stop’ but he didn’t.” [When asked about this later, Mr Sadler admitted that he sometimes playfully smacked Ms M on the bottom, which the children thought was funny, but he did not pull her shorts down.]
159.In regard to the parental relationship, Y recalled a time where, “One time Dad walked into the house. He pushed Mum against the kitchen bench. X tried to push…” At this point, Y began to cry. She covered her face in her hands and put her head down on the table and continued crying. The report writer did not pursue questions of this nature due to Y’s distress.
It was noteworthy that Ms S became aware of the distress that Y expressed in relation to the physical altercations that had occurred in the past between her mother and father. For her to have become so distressed in commenting, as is noted in paragraph 159, that the report writer didn’t pursue questions with the child, is a damning indictment upon the parents and their behaviours as it has affected their children.
It is certainly pleasing, that there had been some insights gained by both parents in relation to such issues, but there is a long way to go, it being clear that even in more recent times, there have been instances where the parents have been at loggerheads, other family members have become involved and the children have continued to be the collateral damage to the conflict, that continues to exist between the parties.
Ms S noted under the heading ‘Evaluation’, a considerable number of issues which gave rise to concerns, as to the current circumstances with regard to the children and no doubt, then gave rise to the recommendations that were made. At paragraph 181 Ms S noted:
In the context of parental separation, children of this age group…
-speaking of X and Y in particular -
are more likely than younger children to become involved in their parents’ conflict. They may start to choose sides, particularly if they think one of their parents needs their support or loyalty.
Additionally, she noted the cultural mix for each of the children, including Aboriginal, Torres Strait Islander, South Sea Islander, (nationality omitted) and Anglo heritage, though particularly noting the strong identification with the indigenous aspects of their heritage, as is abundantly clear from other evidence also that has fallen, in relation to this matter. X, in particular, is heavily involved in indigenous cultural dancing activities, including involving himself in activities with his older brother, W, and is, as was described, a proud young Aboriginal boy.
Ms S went on to comment upon the issue which took some prominence in relation to these proceedings, relating to the difficulties that X, at least, identified as arising from the blended family unit involving the father’s children and the children of Ms M. She then, however, went on, I think quite properly, to note that Ms M had been a positive influence upon the father and it is clear that the father’s more anti-social habits of the past, including obviously issues with regard to domestic violence and drug use have, at least from the father’s perspective, ceased though the mother still expressed doubts, as to whether the father was genuine insofar as ceasing drug use.
Ms S noted, however, at paragraph 194 a matter of particular concern with regard to the parenting of the children. At paragraph 194 she said:
Mr Sadler demonstrated a significant lack of child focus and understanding of his children’s needs with his proposal that the children live with him, spend time with their mother in holiday periods only and stated that there would be times they would see their mother in a casual manner in the course of their weekly living. All the children need to have a relationship with both parents that includes quality interactions and a safe, secure environment. X, Y and Z have a strong, close relationship with their mother. X and Y identified her as one of the people they feel very close to. Mr Sadler’s proposal demonstrated his lack of understanding of the children’s closeness to their mother, and the impact it would have on them to not spend time with her for an entire school term.
A little later in that same paragraph Ms S also identified concerns that arose, she said, as a result of the father’s demonstrated -
… lack of understanding of the importance of the children’s cultural experiences as their mother’s home is where they experience connection to culture, family and community.
Ms S summed up one of the significant issues of concern in relation to this matter when later in that same paragraph she said:
His statement that he would still take the children to their cultural activities misses the point that culture is not just about activities but a lived day-to-day experience. By his proposal, Mr Sadler has also demonstrated a lack of understanding of the importance of extended family to the children. The families are essentially at war and it is highly unlikely that Mr Sadler would facilitate any extended maternal family time if the children resided primarily with him.
The father’s position was obviously to take on board those particular considerations in relation to the matter and to explain his change of heart with regard to what was proposed, during his evidence. It is clear, however, that these families have both been, to varying degrees, involved in the dispute between the parents and there is a real concern that the father may not, despite his assurances to the contrary, fully appreciate the significance of culture to the children, particularly X, and to the need for that to be a lived experience, not simply something that is facilitated on an ad hoc basis.
Ms S noted concerns expressed by the two older children, that their father and Ms M had been smoking cannabis in the house when they were there, though there appears to be little corroborative evidence in that regard, and, of course, it is noted that when called upon to do so, the father provided a clear drug analysis, though the mother did not do so.
Additionally, issues of discipline of an excessive nature were identified by Y and X but they were the subject of complete denials by the father, and, in fact, suggestions were made by him that if anything, the children had been coached.
In the evaluation section of the report, Ms S spoke about the arrangements that had been in place for some considerable time leading up to the preparation of her updated report, which constituted equal time arrangements in each home. She noted that the older children had shared the time arrangement for about two years, and for about the last year, Z had also been a part of that shared care. She noted, however, that equal time arrangements are appropriate if certain conditions are met and one of those, in particular, is in regard to parents being relatively closely located geographically, as well as there not being conflicts between parents, so as to ensure that they are able to work together, to provide for the optimal well-being of the children.
There is on-going conflict and distrust between these parents and that is reflected in poor communication, all of which does not augur well for the continued operation of equal time, particularly when it is acknowledged by both parents, that that is not working effectively at the present time.
Ms S commented upon the fact that at least the two older children had been drawn into the parental conflict, and noted that the children were displaying characteristics of what might be described as conflicting loyalties, that placed pressures upon the children. At paragraph 213, Ms S made reference to the incident at a football game in which family members from both sides were present and noted:
X mentioned the incident at the football, which both parents also talked about. X reported his father was shouting and this led to him crying and feeling “shameful.” He also mentioned the incident when the children returned from camping.
X was identified clearly as a child who needed his parents to recognise that it was them who had to take responsibility in relation to these proceedings. It was identified as absolutely essential that the children were protected from the ongoing conflict between the parents.
Ms S also spoke about the children’s expressed wishes in relation to these proceedings and whilst the father certainly has strong concerns that the children have been coached and that they are not, in fact, expressing in any discussions with Ms S a true indication of their wishes, the wishes of both X and Y were clear.
As Ms S noted at paragraph 219 when commenting upon the fact that there were different statements made by X in the updated family report of May 2014, as opposed to his comments when interviewed in October of 2015 where she said:
However, the differing statements indicate X’s conflicted loyalties about 18 months ago, compared to his much more definite stance now.
She also spoke a little later of the developmental process that occurs as children mature and referred to the fact that X may have, at the time of the more recent discussions with her, found it easier to “choose a side”, rather than to continue to be caught in a loyalty bind.
Ms S was, as I indicated, cross-examined at some length in relation to her report and to her recommendations. She indicated, in particular, that she did place significant importance upon indigenous cultural issues, specifically noting that X himself placed considerable importance upon that, but indicated that it was not the only factor that played on her mind, especially with regard to her recommendations.
In that respect, she noted specifically that the older children were certainly indicating some unhappiness in the current blended family arrangement that existed at the father’s residence and noted, though the father said that it was not the case, that the children did not appear to have coped well with the change, which involved the arrangement for Ms M and her children to live permanently at the father’s residence. By the same token, she acknowledged that Ms M had played a positive role in the father’s life and had certainly focused him more directly on issues that were significant, with regard to the children including, as loomed large in these proceedings, issues with regard to the children’s education.
In fact, Ms S was specifically asked about the balance that might appropriately be taken, and how the Court in particular could balance the issue of a focus on education against a focus on cultural considerations. Ms S, perhaps understandably, sought clarification of what might have been meant with regard to balance, but noted that the children were genuinely involved in Indigenous culture and it was both a factual and genuine involvement. She also noted that both culture and education are very important, but as she put it, the two don’t have to be mutually exclusive.
I agree that there is a balance that needs to be met and that there can be very real positives arising from a significant and appropriate understanding of one’s culture and history. And, of course, in that regard, specifically note the statutory requirement for consideration to be given pursuant to the provisions of section 60CC(3)(h), the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture. I shall come to that obviously later in these reasons.
Ms S also promptly acknowledged the need to recognise the children’s right to know and understand their (nationality omitted) heritage, but noted that there were some difficulties in relation to balancing those two cultural considerations, because of the difficulties in communication between the parents.
When asked specifically what might be her concerns if the children were to live with the father and there were difficulties in communication between the father and the mother in relation to Indigenous cultural issues, she noted that whilst the father said that he would support attendance at cultural events, there was a need to recognise, as she put it, that:
Children learn most through exposure to the day-to-day experience of culture.
When asked whether that meant with any culture but, of course, specifically here with regard to Aboriginal culture, whether the children needed to be immersed in culture, she rather interestingly and I thought perceptively noted that it was more an importance to be “immersed in family”.
Ms S was also cross-examined by counsel for the father about the two different cultural considerations and, again, acknowledged that the children recognising and appreciating both their Aboriginal and Torres Strait Islander background and their (nationality omitted) heritage was not a mutually exclusive thing but, in fact, a good thing. She agreed that it was important and advantageous to be exposed to both of their cultures and acknowledged there would be, as put to her, “pluses in both households”.
Interestingly, as Ms S had addressed issues of concern with regard to domestic violence from the perspective of both of the parents, she was asked whether there being domestic violence in the relationship, precluded the parties from teaching their children about dealing with domestic violence appropriately. She indicated that that certainly was the case and that children could learn by both the talk and actions of each of their parents. She also spoke of the importance of modelling.
She was then asked whether it would then be the case that if the parties, but of course in particular from the perspective of the father, the father had learned about dealing with such issues and could pass on positive messages to the children. She said that he certainly could, but then went on to note specifically words to the effect:
But I don’t have a huge amount of confidence that they can change.
It was a telling comment in relation to the matter, because the father certainly says that he has accepted that there were difficulties in relation to his behaviours in the past, but that he had changed, though Ms S seemed to have some concerns that issues of conflict that might arise between the parents would lead to various forms of domestic or family violence. I must say that I held similar concerns in that regard, noting the incident that occurred at the football game, as well as the obvious concerns that were expressed by both of the children, as to what they said were behaviours that continued at the father’s home, though denied by him.
The issue of education and culture were to the fore in relation to these proceedings. Whilst each party had different views as to the responsibilities of one or other of the parents in relation to such matters, particularly with regard to issues of fault or failure that might have arisen, it was necessary to look at all of the various considerations.
Counsel for the father sought to obtain a positive response from Ms S, one way or the other, in relation to which of those two considerations should take priority, if they could not exist hand in hand. He asked Ms S words to the effect, “If education is being compromised and there’s no guarantees in the future, would that change your recommendations?”. When Ms S sought clarification, and it was indicated that the concern was that the children’s education had been compromised to date and there were concerns held by the father that there would be no improvement, certainly in the long term.
Even in this instance, in relation to ensuring the children’s participation in organised education and performance of the obligations that arose in that regard, Ms S indicated that in those circumstances, she would still need to consider the severity of the compromise or, if you like, the extent of the failure of the mother to facilitate the educational needs of the children.
Ms S went on, however, to note that there were other considerations when she said,
One of my main concerns is the children’s happiness in the mother’s home and the apparent unhappiness in the father’s home.
She was asked whether she had therefore focused on the issue of happiness over and above the other issues, including disadvantages that might arise with regard to the children’s education, and Ms S was adamant that she had considered all of the matters that had arisen in relation to the best interests of the children, but in her view, understandably, the happiness of the children was a significant consideration.
When cross-examined by counsel for the mother, an obviously different tack was taken, in relation to the issues to be considered. In particular, Ms S was questioned about the concerns that she had with regard to the father’s proposal in mid-October, when interviews were conducted, for the children to live with him and to not have any school term time with the mother. She indicated that that was an issue of concern, particularly when she indicated that the father could not see an impact upon the children arising from no time with their mother for periods of eight or 10 weeks, and, in fact, as she put it, the father “thought it would be an advantage to them”.
Ms S noted in cross-examination further that the issue of the family dynamics and the expressed concerns, particularly of X and Y in the father’s home, were issues of concern, and unless properly addressed – though, of course, the father says they have been appropriately addressed – then it could cause significant problems for the children.
She also acknowledged the importance of each of the parents focusing on the children and the children’s needs, and concluded her cross-examination by counsel for the mother by noting words to the effect that, in her assessment:
The mother had greater focus upon the children and a clearer appreciation of the means of fostering a relationship with the father than was the case from the father’s perspective.
I was particularly assisted by the evidence of Ms S in relation to this matter, particularly with regard to the difficult and competing considerations that were raised with regard to the future interests and welfare of the children.
THE PARENTS:
As indicated, each of the parents were also required for cross-examination. I should say at the outset, that whilst there have been in the past serious concerns with regard to each parents’ capacity to fully appreciate and understand the best interests of the children, it is clear that whilst their relationship remains conflicted, certainly at this time both are of the view that they wish to give the children every opportunity to achieve all that they are able to. That was particularly the thrust of the father’s position in relation to the matter, noting as he did that the issue of the children’s education was to the fore, particularly with regard to his proposals now, in relation to the children primarily being in his care, and relating to him having sole parental responsibility for decisions with regard to the children.
The father was cross-examined about his apparent lack of any knowledge of the deficiencies in the children’s attendance at school, up until recent time. In particular, he was asked about the fact that for some years, the children’s care had been shared with him, and yet he was not aware of their poor attendance at school. He suggested that he did not think that he would have to follow up in relation to such issues, and it was only when preparing for trial that he became more aware of the circumstances. When asked whether he could explain why the issue had never come up specifically, the best he could indicate was that it was because of the conflict that existed, and, interestingly, when asked whether he had engaged with the teachers and could have gained information that way, he said that he had trust in Ms Roberts.
I was a little surprised in that regard, when it appears clear that there was little trust, respect or civility in the exchanges between the parents, and one would have thought that the father, if properly engaged in the appropriate parenting of the children, would have been far more attuned to a need to ensure that the children’s educational requirements were met.
When it was put to him that he was as responsible as the mother, at least to some degree, for his failures to be aware of such issues, he said that he did not agree that that was the case, as the main issue for him was just to see the children, and as there was lots of conflict, that is what he focused on.
The father seemed very keen to lay the blame entirely at the feet of the mother, and whilst there is certainly blame to be laid at the feet of the mother, there is just as clearly a concern that the father, at least, until Ms M has taken far greater prominence in his life, was happy or willing to allow the situation, whatever it might have been, to simply coast along. The father cannot simply say that he did not know and all is the fault of the mother, when he had a responsibility just as great as hers, to consider such issues, in relation to the parenting.
The father was also keen to suggest that anything said by the children, particularly in their communications with Ms S, were not a reflection of anything that might be thought by the children if it was adverse to what he sought in relation to parenting. Rather, his position as he repeatedly indicated was that the children had been coached. The father, for example, would not accept that statements by X with regard to his difficulties in liking A, B and C were his true feelings. He suggested that any such statements were not from his heart and were rather that he had been coached to make such statements and, in fact, went so far as to suggest that X had been told by his mother to not listen to A and not to be nice to B and C.
Similarly, when the children, particularly X and Y, apparently spoke of cannabis use by the father and Ms M, it was suggested by the father that the mother had coached them in making such statements, indicating that he gave up using such substances at Christmas time. Of course, that very statement indicates that at least until Christmas time 2014, marijuana was being used, and the statements by each of the children were not indicative of time, but only of the actual incidents occurring.
Perhaps most troubling of all in relation to the father’s evidence, were his issues in relation to the role and capacity of each parent, to provide for the children. The father, on the one hand, made very positive statements about the mother and her role in the parenting of the children, perhaps understandable in light of the significant involvement that she has had since separation many years ago, but then went on to note that his proposal that the children should spend the majority of their time with him arose not only because of educational concerns, but also, as he put it, because they could with him experience, good and clean living.
He went on to note that they would not be wearing mouldy clothes and would have the right to a hot shower when they wanted it. When asked whether those matters should override indications of the children’s wishes the father suggested that they were not the children’s wishes and were in fact influenced by the mother and said that he did not accept that there was any preference expressed by the children.
Finally, in cross-examination by counsel for the mother he was asked whether he had any deficiencies as a parent and indicated that he did not and went on to say, “I’m a good parent”. Such a statement is, of course, always troubling because no parent, no matter who they are, cannot improve and cannot be better. But in this instance there are clear indicators that the father has had significant deficiencies in his parenting and whilst it is positive that he is seeking to deal with such issues to simply forget the horrendous domestic violence or the lack of any real involvement in the children’s educational process, such that only leading up to trial does he become aware of significant deficiencies in the children’s attendance at school, but blames that entirely upon the mother, fails to appreciate that he has also been as responsible as the mother for hurt and difficulties that are experienced by the children.
The father was cross-examined by counsel for the independent children’s lawyer about the changes in his life since his relationship commenced with Ms M. He acknowledge that there had been changes but refused to acknowledge that he had difficulties with alcohol suggesting that he had drunk no more than a six pack of beer a night. Though he then went on to acknowledge that because of other medications and issues he was, as he termed it, “incapacitated” after six beers.
When asked how that affected his parenting, particularly noting that he had had his health concerns for many years, he indicated that his recent decision had arisen because he had matured. When it was pointed out to him, perhaps understandably, that he was 44 years of age he responded, “some of us grow up later”.
I accept that there are various levels of maturity and, of course, differing times when people mature but the fact here is that the father and the mother had three children. They had an obligation to be the best they could be. And for the father to suggest that he’s now become a better parent at a time when he has attained the age of 44 years fails entirely to appreciate the obligations and responsibilities that fell upon him from a very early stage. The fact that he has changed now is beneficial but as I commented before, to suggest that he had no deficiencies as a parent but to then, a very short time later suggest that he had only recently matured, shows the lack of insight that the father actually has, in respect of his parenting and his failures as a parent.
The issue of cultural considerations, like education, loomed large. The father was understandably therefore, asked about the assessment by Ms S, to the effect that X identified himself as a proud Aboriginal boy close to both parties. He acknowledged that he didn’t doubt the level of pride that X takes in his indigenous heritage and similarly acknowledge that the same existed with Y. He then went on, however, to note that whilst the children could make sure mature statements in relation to matters of that nature it was not correct that their criticisms of him could also be a genuine statement of the children’s concerns.
The father was asked whether, when there were positive considerations with regard to statements by X he accepted them, and he indicated that he “definitely did”. In that regard he acknowledged that there were close attachments and that X presented as warm and friendly and being close to him. But immediately if there was any suggestion that X might also have made statements which were critical of him or his behaviours or critical of the father’s household and the interaction with others there, then it was immediately denied by the father and suggested that it was the effect of influence or coaching.
When asked whether it might be the case that the child was simply telling him what he wanted to hear and that he did not open up to his father about what concerns might be held by the child, the father responded that that couldn’t be the case because he and Ms M encouraged and expected all in the family to be open in all that they do and that he constantly asked X, but also Y, if all was okay and they indicated that it was.
The father seemed to lack any appreciation of the fact that the children might have some concerns in opening up to their father. He was particularly asked, for example, whether the older children in particular might have some broad memories of his behaviours in the past, yelling, being angry and being domestically violent towards their mother and his response was to say that he is now trying to show it doesn’t have to be like that. And when asked whether they might still remember what the past might be, his response was telling. He said he disputed that as, “we now have a good relationship”. It was a clear example of the fact that the father was, unfortunately, I think, attempting to rewrite history.
He was trying to be a better man and that is to his enormous credit, but he also failed to appreciate that he had not been the father or the man that he could have and should have been for a very significant period of the children’s lives and they would be mindful of that in their dealings with him.
When asked whether it might be the case that the children might not take the risk of telling him everything that they actually felt, because of their memories of his behaviours in the past, his response, again, was telling. He said words to the effect, “I have no doubt they are coached by their mother”.
The father had a rose-coloured view of his relationship with the children. Criticisms by the children of aspects of his household, or, for example, X’s concern that Ms M’s son, A, has disrespected his culture was untrue. It didn’t happen, and he and Ms M monitored the children’s interactions with each other. To simply suggest that every word exchanged between these two boys, in every possible circumstance, was monitored by them, and, therefore, such a statement or suggestion had not occurred was naïve in the extreme, and it is noteworthy, of course, that whilst the father gave evidence there that it had not happened, it was also the case that the boys had been counselled in relation to difficulties in their relationship.
The father would not accept the statements by X, that his behaviours at the football field were embarrassing, or caused X shame. It was the case that the mother and her family were responsible for any difficulties, and the father denied, notwithstanding the clear indications by the child that the father had been yelling, that he had done so. Quite simply, the father’s view of the children and the children’s needs, was one that was entirely considered from the perspective of what the father thought the children would need, and, more particularly, what the father expected the children to view, as a consequence of changes that had recently occurred.
I was troubled by the father’s attitude to the children, and his failure to appreciate that what has happened in the past are factors that could and would play upon the minds of the children.
The father, understandably, was questioned about the issue of the children’s Aboriginal culture. He was asked whether he considered that the children and again, particularly X, were more attached to the Aboriginal culture. He answered that that was not the case, and that all cultures were equal. When asked whether, in fact, the Aboriginal culture, however, was more prominent in the children’s lives for the entirety of their lives, than any attachment to the (nationality omitted) culture, he failed to appreciate that his issues in relation to his (nationality omitted) heritage, important as they might be, were only of recent significance, and he responded that, “I’m teaching the children about my world.”
It was noteworthy in that regard, however, that the father indicated that he had never met his father, who was the person who brought into his life the (nationality omitted) heritage. He did not know of any (nationality omitted) relatives at all in (omitted). He had not sought his father or other (nationality omitted) relatives out. He was not a member of the (religion omitted) faith, and had only tried to learn things by going to (nationality omitted) activities.
The father simply could not, or would not appreciate that the children’s attachments and understanding of their Aboriginal heritage, particularly when he indicated earlier in his evidence that the mother is “more cultural”, referring to Aboriginal culture, than anyone he had met, reflected clearly upon such issues. Frankly, I was troubled by the father’s evidence in relation to this matter, because, in my assessment, it lacked an insight into the real motivations of the children, including, particularly, cultural considerations, and however it may have come about, the more significant attachments to the Aboriginal culture.
I turn, then, to the evidence of the mother, and, as I indicated before, have no doubt that the mother seeks to put in place what she considers to be the best arrangements for the children. But whilst there have been criticisms of the father, it would be obvious that there are also significant issues of concern with regard to the mother. She has simply failed to get a balance, as was discussed repeatedly in relation to proceedings before the Court, with regard to culture and education. The evidence was clearly to the effect that the children, whilst primarily in the mother’s care, had missed significant amounts of school time and that there were very significant periods when the children were not attending school.
Clearly, the mother had failed to meet, even fundamentally, the obligations that arose in that regard, though she now indicated that she had reconsidered her position and appreciated that the children’s school attendance must take priority, in almost all instances, over other activities and obligations, including those of a cultural nature. In submissions that were made, at the conclusion of the proceedings, counsel for the father submitted that the “light bulb moment” that the mother says she experienced in or about April of 2015, recognising the importance of the children’s attendance at school, was not something that the Court could have any confidence in and that if the past was an indicator of the future, then there could be little confidence that the mother would have the children attending school appropriately.
The mother’s position in relation to the matter was, in my assessment, a difficult one for her to recognise. The father, describing her as the most cultural person that he knew, reflected upon the woman that sat in the witness box before me. She was a person who placed culture and her Aboriginal and the children’s Aboriginal heritage to the fore. But I also gained the impression that she was not averse to seeing that change needed to occur. She had taken steps with regard to obtaining tutoring for the children, and whilst it may not have been as extensive as might have been contemplated, she had at least taken steps in that regard.
It was also clear that she had contemplated what should be the arrangements in the future with regarding to meeting the needs of the children, including their educational needs, and had spoken of arranging tutoring for both X and Y at school. She also indicated that she had sought counselling for the children and that she had put strategies in place to deal with issues, particularly with regard to, on occasions, the children’s reluctance to participate or to get ready for school and that she was more determined in that regard.
I accept that the mother would do so. To fail to do so would fundamentally fail to meet the obligations that arise, with regard to the parenting of the children. The mother recognised that she had fallen short. She acknowledged, when cross-examined about the point, that it was the educational issue that gave rise to the father’s view, that the children would be best placed with him. She indicated, however, that it was also her view that it would not be best for the children, not only because of their wishes but also because of their attachments to her and to their Aboriginal heritage.
The mother was asked about how she would deal with the issue of absenteeism and the real concerns that were obviously expressed, in that regard. She said that, in light of the counselling, she has now spoken with the children about the need to attend and to stay at school. She was asked whether this stance had only dawned on her as the trial progressed, and she acknowledged that it had. But she also went on to explain that she now recognised that it was for the benefit of the children. She said she realised now that they had fallen behind in their education.
But she went on to note that there were numerous reasons for this, including the impact of domestic violence. She said that she had concentrated on dealing with counselling and their anger issues, as well as in respect of their attachments to her, and that she was now taking steps to deal with those matters, as well as education because she had not fully appreciated, until she attended with Act for Kids, the effects of domestic violence upon children.
DISCUSSION
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). I have already outlined at some particular length the various matters that have arisen as a result of the evidence that has fallen in relation to this matter and obviously now need to apply those findings to the considerations to be looked at in relation to this matter.
There is therefore a number of steps to be followed in order to assist in the ultimate determination of what might be the most appropriate arrangements in respect of the parenting of these children.
Firstly, there is the need to identify the competing proposals of each of the parties and they are clearly delineated at the commencement of these reasons. The parties’ positions are diametrically opposed, even to the extent now of both seeking orders for them to have sole parental responsibility in relation to decisions to be made, as well as to have the children live primarily with each of them. No other alternatives were suggested during the proceedings and it is clear that whilst there may be some clarification in relation to orders as proposed, only one of the parties’ proposed orders will be able to be acted upon.
The second step then is to consider the objects and principles as detailed in section 60B(1) and (2) and to undertake the consideration of those “best interests” as detailed in section 60CC. Section 60B(1) and (2) are in these terms:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2), (2A) and (3) are in these terms:
Primary considerations
60CC(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.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(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;
(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);
(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;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
A number of considerations obviously loom large in relation to making findings with regard to the best interests of these children. Section 60CC is headed “How a court determines what is in a child’s best interests.” Thereafter, a checklist broken down into Primary Considerations and Additional Considerations are detailed in subsections (2) and (3). Whilst there is a distinction drawn between the considerations in subsections (2) and (3), there is certainly no suggestion that the primary considerations outweigh or trump the considerations that are detailed in section 60CC(3).
Rather, section 60CC(2) explains that there are two significant but, to some extent, opposed considerations and that they need to be looked at together rather than individually, as is the case with regard to the additional considerations. Obviously, there is a benefit to these children of having a meaningful relationship with both of their parents. The children have such a relationship, though the evidence is clear that there is a greater attachment, if you like, comfort in the relationship that the children have with their mother. But they benefit from and enjoy the relationship that they also have with their father.
There are some other considerations in respect of how to weigh the benefits of that relationship with their father including, though the father does not accept it to be the case, the less than optimal relationship that the children have with Ms M and her two older sons, A and B. The relationship is a positive one between the children and their father and there is no doubt that the relationship can and will be fostered and developed, notwithstanding whatever arrangements may be put in place.
However, there is the need as I have indicated to also balance the benefits of a meaningful relationship against the need to protect the children from physical or psychological harm, from being exposed to abuse, neglect or family violence. Section 60CC(2A) specifically requires that in applying the primary considerations, greater weight is to be given to the consideration of the need for the children to be protected from harm.
The issue of domestic violence and family violence in all respects, therefore, needs to be considered. That is notwithstanding the fact that the conduct of the hearing glossed over, to a significant degree, issues in relation to domestic violence. As I noted earlier in these reasons, both parties had engaged to varying degrees and in varying ways in domestically violent behaviours. Also significant, particularly from the perspective of the older children, is the fact that in the father’s household, at least, there are still concerns held about family violence and its effect upon the children.
Ms S detailed comments in relation to X feeling “fear” when he got into trouble from his father, as well as Y’s comments about her mother’s residence being “so calm” as opposed to the reports of “bad words” at her father’s, cannot be ignored. The father’s suggestions that the children had been coached or in some way are making statements which are not true fly in the face of the comprehensive examination by Ms S of the children’s statements and the genuine nature of those statements.
The children were troubled by incidents that occurred within the father’s household, including actions, not only by the father but others within the household. The children found distressing those behaviours and there was absolutely no suggestion that they were anything other than an accurate and genuine recitation of matters that concerned the children and which also were of concern to the court. Ms S’s comments about the children’s “happiness in the mother’s home and apparent unhappiness in the father’s home” must not be overlooked.
There are certainly issues with regard to the interaction between the mother and the father which cause distress for the children, and the most recent example of the exchange between the mother, father and other family at the football game that was referred to by X and also by the parents, reflect poorly upon the parents’ future capacity to work together, as well as to show the non-existent appreciation of the parents of the effects of their interaction upon the children and particularly X.
All of these issues have existed for some time and I would find that they continue as a significant factor in the dealings between the parents, but far more significant, of concern for the children. X’s and Y’s statements are clearly to the effect that both parents’ behaviour when interacting with each other, but additionally the father’s behaviours in his household, at least as perceived by them, constitute a situation where the children need to be protected from the possibility of physical harm, as well as the existing psychological harm.
It is a factor of some significance and one that simply cannot be ignored in determining what might be the appropriate arrangements with regard to the parenting of these children.
It is also necessary to consider a number of those matters that arise in respect of the additional considerations detailed in section 60CC(3) of the Family Law Act. The views expressed by the children, including the maturity of the child and the level of understanding that the child has with regard to the consequences of those views, is important.
There is, very clearly, evidence of the clear views of both X and Y, as well as clear evidence of the mature understanding of what they want and why they would consider it to be in their best interests. Ms S identification of X as a proud Aboriginal boy and of the considered nature of Y’s comments with regard to the distinctions to be drawn between the mother’s and the father’s households cannot be ignored. These children have experienced the full gamut of parental conflict and of the consequences of that conflict upon them. They have properly considered their desire to extricate themselves from that conflict, seeing in Y’s words, her mother’s place as one that was “so calm”.
Both of the older children have clear views, maturely considered and expressed, and in the circumstances of this case, they should not be disregarded, particularly when so much other evidence reflects upon the appropriateness of what the children seek.
Flowing from those comments in relation to the children’s views are the obvious findings that can be made in respect of the nature of the relationship of the children with each of their parents, and with other persons. There is, in all respects, positives to be drawn but it is also clear that, from the perspective of all the children, but particularly from the perspective of X and Y, there are closer and more significant attachments to the mother and her extended family than exist with the father or others within his household. X specifically identifying the fact that he did not like Ms M or her two older boys, may have been less than articulately put, but clearly identified the different nature of the relationships that X had in his mother’s household as compared to his father’s home.
Again significant in relation to this matter is the clear and mature views expressed by the children.
Difficulties arise from the perspective of both parents in relation to a consideration of those matters that arise pursuant to the provisions of section 60CC(3)(c). There are concerns that must be addressed with regard to the mother’s decisions made in relation to the education of the children, but just as clearly, the father’s failure to engage at all in those decisions reflects poorly upon him. Suffice it to say, both parents could have and should have made better decisions and participated more fully in the decision-making process, and there have been serious consequences for the children and, most specifically, for X.
The father has indicated that his lack of real involvement in those issues arose from the fact that he was struggling simply to have the opportunity to spend time with or communicate with the children, but it fails to properly appreciate the obligations that fell upon both parents in relation to making the decisions with regard to the children’s major long-term issues.
From the mother’s perspective, she was left to do it all, but as I have previously noted in these reasons, she has at least until now, gotten the balance wrong and has failed to give the priority to the children’s education that should have occurred.
Each parent in different ways has failed in their obligations with regard to these children and meeting the needs of the children.
Insofar as concerns might arise with regard to the likely effects of any changes in the children’s circumstances, there is no enormous change from what currently exists as an equal time arrangement to a reduction in time, from the mother’s perspective, of a substantial and significant nature, and from the father’s perspective, to more limited time on alternate weekends. The mother’s proposal more appropriately reflects an appreciation and understanding of the fact that the children have had significant time with their father and that a change, particularly of a weighty nature would cause them distress. The change proposed by the mother, whilst reducing the time to be spent with their father, would still allow considerable opportunities for time to be spent with the father.
The father’s proposal of time from after school Friday until 6.00pm Sunday in each alternate weekend, particularly noting the children’s close attachment to the mother, and the wishes that they express, is a change of a far more significant nature in the children’s circumstances, and would, in my assessment, have a far greater effect upon the children, particularly with respect to their relationship with their mother.
It is clear from what each parent proposes, as well as what is recommended by the Independent Children’s Lawyer that there will be change for the children, but the far more significant consequences would arise if the changes proposed by the father were ordered, and they would be consequences of a detrimental nature to the children.
No matter what orders might be made, there would be little if any practical difficulty and expense that would arise as a result of any of the orders proposed in this matter being implemented.
Of particular significance in relation to the determination of this matter are issues with regard to the capacity of each of the children’s parents to provide for the needs of the children, including their emotional and intellectual needs, as well as to consider the attitudes and approach of each of the parents to the responsibilities of parenthood. There is, in fact, a real conflict that arises in that regard. The children’s emotional needs, if you like, an appreciation of what the children want and why, favours the mother. However, emphasised strongly on the part of the father and taken up by the Independent Children’s Lawyer were real concerns with respect to the children’s future educational needs.
It is a difficult assessment to be made because there are real distinctions to be drawn between the capacity of each parent to fully appreciate and to then properly deal with those competing interests. I am mindful, however, of the need to address Aboriginal and Torres Strait Islander cultural considerations and they are a significant part of both the emotional and intellectual needs of the children.
Ms S indication of X identifying himself as a proud young Aboriginal boy and her concerns that the father did not understand the importance of the children’s cultural experiences in their mother’s home, it being the place where they experience “connection to culture, family and community” is significant. Ms S’s comments also about children learning through exposure to the “day-to-day experience of culture” and being immersed in family, are of great significance.
I would not suggest at all that one culture or background is of greater weight or worth than another, but it is important here to recognise that whilst there are (nationality omitted) and other cultural histories in the mix, the overwhelming cultural influence, particularly upon X, is that of the Aboriginal culture. The father’s suggestion that he would take the children to their cultural activities lacked any real appreciation of the fact that culture, particularly from an Aboriginal perspective, is as identified by Ms S, “not just about activities but a lived day-to-day experience”.
The importance of culture to these children stems from the mother’s attitude to the importance of her Aboriginality in all aspects of her life. It was noteworthy that the father acknowledged that the mother was “the most cultural person he knew”. It becomes even more significant, however, when it is recognised, as it must be, that the cultural issues are of extreme importance to X and are fundamental to his emotional needs.
It is in my assessment an almost overwhelming consideration in the determination of these proceedings in the sense that the mother has placed the children’s emotional needs, stemming from their cultural background, ahead of their intellectual and educational needs, but has at least recognised the need to re-set the balance between those various considerations. From the father’s perspective, he has however until recent times taken no real involvement in those considerations and has failed to properly engage in any real respect until recently, with the many responsibilities that arose in relation to the parenting of these children.
Those considerations, therefore, arising pursuant to the provisions of section 60CC(3)(f), (h) and (i) need in this matter to be considered together and from that perspective weigh heavily in favour of the mother’s proposals in relation to the parenting arrangements to be put in place.
The issue of family violence, whilst not pressed in the matter, still remains significant. As I indicated earlier in these reasons, even if it is the case as suggested by the father that he has matured and moved on from the circumstances that previously existed, the children clearly remember the violence that continued between the mother and the father and are still alert to concerns that they have with regard to family violence and whilst the father may be of the view that he has moved on, the children, and certainly the mother, still see concerns arising with regard to family violence.
Finally, it is necessary to consider making orders which would be least likely to lead to the institution of further proceedings. It is of course impossible to predict what the future might or might not hold, but it is clear that all including the Independent Children’s Lawyer, emphasise the need for there to be sole parental responsibility vesting in one parent, and for the children to primarily be in the care of one or other of the parents. Being mindful of the children’s expressed wishes and the prospect therefore that if those wishes were not significantly considered, the children may simply choose to leave their father’s care, there is significance and, obviously, a preference in having the children live with the mother as proposed in her orders.
Having made the findings and weighed the evidence that has been adduced in relation to this matter against those various considerations, and particularly recognising the significance of the children’s wishes, the mother’s capacity to meet the children’s emotional needs, the importance of Aboriginal culture and the ongoing concerns with regard to domestic or family violence, at least as perceived by the children, I have come to the view that the mother’s proposals, generally supported by the Independent Children’s Lawyer, on balance, best meet the needs of the children.
It is then necessary to consider whether the presumption of equal shared parental responsibility is applicable or whether, in the circumstances, the presumption is rebutted. It is noteworthy, though not determinative, that both of the parties propose orders for them to have sole parental responsibility. The Independent Children’s Lawyer also, having heard and considered the evidence in this matter, recommended that sole parental responsibility should vest in the mother.
The presumption of equal shared parental responsibility rests upon the understandable hope that parents, even when no longer living together, would still be able to communicate with each other and have the trust in and respect for the other parent that would mean that they would be able to work together to reach decisions in the best interests of their children. The presumption, understandably, is rebuttable in circumstances where there are reasonable grounds to believe that a parent of the child has engaged in family violence in its many forms, section 61DA(2) or in circumstances where the court is satisfied that the presumption would not be in the best interests of the children, section 61DA(4).
As has been commented upon in these reasons already, the parties engagement with each other over many years has been frequently characterised by family violence and the older children certainly still perceive there to be concerns with regard to the parents interaction with each other, as well as there being ongoing concerns in the father’s household that family violence is a part of what constitutes that residence.
The mother seeks to disengage from the father and, whilst the father suggests that communication between he and the mother has improved, still expresses real concerns with regard to the mother’s capacity to meet the children’s needs. There is little respect and virtually no meaningful communication between the parents. It is clear that the parents’ acceptance that one or other should have sole parental responsibility is an indication of the real concerns that continue in respect of the decision-making process. The Independent Children’s Lawyer’s recommendation for sole parental responsibility to vest in the mother is also a reflection of the need to recognise that equal shared parental responsibility would simply not be in the best interests of the children.
Perhaps most telling of all, are the comments made by X in relation to the incident at the football game. Both parents blamed the other but X’s perception of the situation left him crying and feeling “shameful”. He specifically addressed that in his discussions with Ms S, noting that the ongoing parental conflict and he suggested it was occurring now and not in the past, made him angry and sad. His desire for them to stop fighting was heartfelt and his hurt that they were unable or unwilling to do so is clearly the best indicator of equal shared parental responsibility being unworkable and not in the best interests of these children. Requiring the parties to liaise with each other, when it almost invariably leads to arguments and, on occasion, physical exchanges, is not appropriate for these children.
I am satisfied that sole parental responsibility must vest in the parent who has the children living predominantly with them. To order otherwise would be a recipe for further dispute and, more particularly, hurt and shame for the children.
In the circumstances, the requirement to consider equal time or substantial and significant time pursuant to the provisions of section 65DAA is not triggered and as Kent J indicated in Heath & Hemming (No 2) (supra), the court should then make parenting orders consistent with the findings made in relation to section 60CC, having regard to sections 60CA and 60B.
As is clear from the findings that I have made when considering the various section 60CC factors, the overwhelming assessment of what reflects the best interests of the children are orders which provide for the children to live with the mother and for the mother to have sole parental responsibility in relation to decisions to be made with regard to the children’s long-term care, welfare and development. The father should obviously also have the opportunity to spend time with the children, but it is essential that there be a clear delineation between the time spent with each parent and the responsibilities of each parent in relation to day-to-day care and long-term care.
I am mindful of the recommendations also made by an experienced Independent Children’s Lawyer and am of the view that those recommendations clearly reflect arrangements which are in the best interests of the children now and into the future.
Accordingly, the best interests of these children are reflected in the orders detailed at the commencement of these reasons.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 11 March 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Procedural Fairness
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Natural Justice
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