SALDE & SALDE
[2017] FCCA 2458
•30 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALDE & SALDE | [2017] FCCA 2458 |
| Catchwords: FAMILY LAW – Interim property adjustment – orders made by consent. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA(5), 68P |
| Amador & Amador (2009) 43 Fam LR 268 Stevenson v Hughes [1993] FamCA 14 |
| Applicant: | MR SALDE |
| Respondent: | MS SALDE |
| File Number: | WOC 615 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 30 August 2017 |
| Date of Last Submission: | 30 August 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 30 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Farrell of Marriott Oliver Solicitors |
| Solicitors for the Respondent: | Ms Barry of Slater & Gordon Lawyers |
ORDERS
PENDING FURTHER ORDER AND WITHOUT PREJUDICE AND WITHOUT ADMISSIONS TO SUCH FURTHER ORDERS AS EITHER PARTY MAY SEEK IN THESE PROCEEDINGS ON ANY SUBSEQUENT OCCASION, THE COURT ORDERS THAT:
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Respondent to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
The father, Mr Salde, shall spend time with the children, Y born (omitted) 2006 and Z born (omitted) 2010, each Sunday from 10:00am until 6:00pm (extending to 7:00pm during daylight savings) together with a period from the conclusion of school Friday (3:00pm) until 6:00pm the following Monday each alternate weekend during school holidays and a period from 5:00pm Christmas Day until 5:00pm 27 December 2017.
For the purpose of the above time, the father shall collect the children from and return the children to the mother’s home provided however that:
(a)The father shall remain at all times in or about his motor vehicle and shall not seek to communicate with the mother orally or otherwise whilst present at that address;
(b)The children shall transport themselves from the home to the father’s car;
(c)The mother shall at all times remain within the home and shall not endeavour to communicate with the father orally or otherwise and shall do all within her power to ensure that no other person does so.
The father shall be entitled to telephone and speak with Y and Z each Tuesday and Thursday between 4:30pm and 5:00pm and with respect to same:
(a)The mother shall assist the children, to the extent that they require assistance, in answering the telephone;
(b)Each parent shall keep each other advised at all times of a telephone number by which communication can occur;
(c)The children shall be permitted to speak with their father without interruption or distraction and with privacy and the mother shall do all things within her power to ensure that no other person interferes with such privacy;
(d)The father shall not endeavour to communicate with the mother during those times.
Each parent shall be and is hereby entitled to be recorded with any school, extracurricular activity or sporting team in which the children Y and Z are engaged as both a parent and emergency contact person and so as to be able to receive directly from that organisation such information or reports as they may desire.
Each parent shall do all things necessary to ensure that both parents are fully aware of any treating counsellor, psychologist or similar professional engaged with Y and/or Z, that the details of each parent are fully known to such professional and that each parent can engage with that professional, provide information and receive information and to attend such appointments as are made for the children subject to the professionals input as to whether either parent is requested or desired to attend.
Each parent shall be entitled to attend at all and any events or functions at the children’s school to which parents are invited or encouraged to attend.
Each parent shall advise the other by such means as are practicable and available in light of the extant and enforceable Apprehended Domestic Violence Order enforced, being an Order made by the Local Court Nowra on 8 May 2017, of any significant illness, injury or hospitalisation experienced by Y and/or Z and including the provision of sufficient authority, being the treating medical practitioner to speak with each parent and to provide information to them and for each parent to visit the children if hospitalised.
Declare pursuant to section 68P of the Family Law Act 1975, that it is in the best interests of the children, Y born (omitted) 2006 and Z born (omitted) 2010, that parenting Orders above be made, notwithstanding that such Order is or is potentially inconsistent with the Apprehended Domestic Violence Order made by the Local Court Nowra on 8 May 2017 in that the Apprehended Domestic Violence Order prohibits Mr Salde from approaching the children’s school, or place of residence or from approaching or contacting the children, save as ordered by a Court about “contact with children” and noting that the parenting Orders made by this Court permit:
(a)The father to approach and contact the children for the purpose of spending time with them;
(b)Permits the father to approach the children’s school and place of residence for specific purposes and at specific times;
Request that the Registrar cause a copy of this Order be forthwith forwarded to each of:
(a)The Applicant and Respondent in these proceedings; and
(b)The person against whom the family violence Order is directed (if that person is not the Applicant or Respondent); and
(c)The person protected by the family violence Order (if that person is not the Applicant or Respondent); and
(d)The Registrar, Principal Officer or other appropriate Officer of the Court that last made or varied the family violence Order, being Local Court Nowra and
(e)The Commissioner or head (however described) of the Police Force of the State or Territory in which the person protected by the family violence Order resides, being care of the Patrol Commander (omitted) Police; and
(f)The Secretary of the Department of Family and Community Services NSW.
IT IS NOTED that notwithstanding that the parenting Orders made by this Court are inconsistent with the Apprehended Domestic Violence Order made by the Local Court Nowra 8 May 2017, the Apprehended Domestic Violence Order continues to operate without variation such that Mr Salde remains bound by the Order and shall comply with its terms and conditions, save that he will not be taken to have breached the Order by acting in accordance with these parenting Orders.
Pursuant to s.69ZW(1) I order and direct the NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)Mr Salde born (omitted) 1964;
(ii)Ms Salde born (omitted) 1981;
(iii)X born (omitted) 2001;
(iv)Y born (omitted) 2006;
(v)Z born (omitted) 2010;
or any of them.
(b)Any notification of suspected family violence affecting the above persons or any of them;
(c)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer) and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.
Neither party nor the Independent Children’s Lawyer (if appointed) shall cause any subpoena or further subpoena to be served upon the NSW Police Service without the Court’s leave.
Request that the Registrar forward a request to the Registrar of the Local Court Nowra to provide to this Court a copy of all and any documents held by that Court relating to or involving the parties, Mr Salde born (omitted) 1964 and Ms Salde born (omitted) 1981, and/or Y born (omitted) 2006 and Z born (omitted) 2010, including all bench sheets, Orders, reasons for determination, Judgments, documents and, if available, transcripts of evidence.
Pursuant to s.11F of the Family Law Act1975, the parties are directed to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference at 9:00am on 6 November 2017 and:
(a)The parties shall continue to attend at such times, dates and places as the consultant may advise;
(b)The parties and each of them shall do all things necessary to ensure the attendance of their child/ren the subject of these proceedings to attend at the conference and to be available to meet with the Family Consultant;
(c)The Family Consultant is requested to provide to the Court (and if, in the Consultant’s view it is appropriate to do so, the parties) a memo outlining and reporting on:
(i)Any agreement reached between the parties;
(ii)The issues raised by the parties and which will require determination by the Court;
(iii)Any views or opinions expressed by the child/ren interviewed and any comment regarding the factors perceived to influence or impact upon those views and opinions or otherwise relevant to same;
(iv)Any recommendations by the Consultant including as to Case Management, referral to external (community based or private) services and/or programs and resources to be allocated to the matter including but not limited to expedition, Independent Children’s Lawyer and/or full Family Report or Part 15 experts report.
The matter is adjourned for further mention and directions to 20 March 2018 at 12:00 noon.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
EXHIBIT ‘A’
Parenting
That the children named Y born (omitted) 2006 (“Y”) and Z born (omitted) 2010 (“Z”) shall live with the mother.
That the child named X born (omitted) 2001 shall live with the Father.
That X shall spend time with the Mother in accordance with his wishes.
That within seven (7) days of the date of these Orders, the parties shall do all such acts and things, and sign all necessary documents to enrol the children in and cause them to attend Family Therapy with the parties at Anglicare (omitted) (or as otherwise agreed upon or appointed by the Court) for the purposes of assisting X to re-establish his relationship with the Mother and assisting Y and Z to re-establish their relationship with the Father.
That both parties shall comply with all reasonable requests and recommendations of the Family Therapist, including attending all necessary appointments and ensuring that the children attend all scheduled appointments.
Property
That within 21 days of the date of Orders, each party shall provide to the other party’s solicitors copies of the following:
(a)Income taxation returns and notices of assessment for the past three financial years;
(b)Documents evidencing any current income received including last three payslips;
(c)Statements for all bank accounts including accounts in the party’s name or joint accounts with any person/s or accounts in which he or she has an interest, for the last 12 months;
(d)Current share statement confirming any shares owned and the full name of the company in which such shares are held;
(e)A market appraisal for any item of real estate or property in the party’s name or in which he or she has an interest, including for any motor vehicles;
(f)Current statement for each superannuation fund in which the party has an interest;
(g)For any self-managed superannuation fund, a copy of the Trust Deed and financial statements for the last three financial years;
(h)For any interest in a trust, partnership and/or private company:
(i)Trust Deed, partnership agreement and/or the corporation's constitution where relevant;
(ii)Most recent annual return that lists the directors and shareholders and/or the share register;
(iii)Financial statements for the three most recent financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;
(iv)Business activity statements for the past 12 months;
(i)Where the party has disposed of any property since separation, full details of the sale and/or disposal including a description of the property disposed of, whether sold, transferred or gifted, details of who received the property, the amount of any money received and how that money was applied;
(j)Credit card statements for all credit cards held by the party, for the last 12 months;
(k)Mortgage statements for all loans in the party’s name or for which he or she is liable, for the last 12 months;
(l)For any personal or other loans in the party’s name, statements for such loans for the last 12 months.
That the Husband file a Reply and Financial Statement and Affidavit addressing property matters within 21 days.
IT IS NOTED that publication of this judgment under the pseudonym Salde & Salde is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 615 of 2017
| MR SALDE |
Applicant
And
| MS SALDE |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing pleas with respect to property adjustment and parenting.
The issues with respect to property adjustment are, for today’s purposes, addressed by Orders which have been made by consent and which involve Orders regarding the filing of a Reply, Financial Statement and Affidavit by the husband as well as issues of disclosure. The financial issues have only recently been joined upon the filing of the wife’s Response, that having occurred on 25 August 2017, some two working days ago.
The plea for relief with respect to parenting relates to three children:
X, born (omitted) 2001;
Y, born (omitted) 2006; and,
Z, born (omitted) 2010.
The children are presently aged 16, 11 and 7 years respectively.
The parties to the proceedings are the Applicant Mr Salde, the children’s father – although with respect to the child, X, there is some slight issue alluded to, although not expressly addressed in the evidence as to paternity – and the Respondent mother Ms Salde.
The father seeks to press an Application for an Order to spend time of a specific and defined nature with respect to the girls Y and Z who are living with their mother. X is living with the father.
I will refer to Mr Salde throughout as the father because, whilst the issue of paternity is alluded to and there might be some issue with respect to paternity to be raised in the future, there is no clear or specific evidence addressing the issue. Certainly, there is no evidence suggesting who the child’s father might be if not Mr Salde. It is certainly Mr Salde’s understanding and, it would appear that until the separation of these parties, in or about March of this year, also young X’s understanding, that Mr Salde is X’s father.
In those circumstances, there is no better term to be applied, of generic nature, than father. The only evidence given with respect to paternity is found at paragraph 7 of the mother’s Affidavit and in the Provisional Apprehended Domestic Violence complaint. The Apprehended Domestic Violence complaint refers to the two girls as children of the relationship and refers to “the victim [the mother] has a 15 year old son, X, to a previous relationship”. One might have expected further elaboration upon that issue if it is to be pressed, but at paragraph 7 of the mother’s Affidavit, all that is led is: “I also have a child from a former relationship”. The suggested father of X – biological at least – is not identified therein.
The father of X, if it is not Mr Salde, is a party as of right. Accordingly, his name, address, date of birth and any other information that will assist in ascertaining his identity and effecting service upon him is necessary as he will need to be served as a party to these proceedings before any further Orders can be made with respect to him. Only the mother is likely to be seized of that knowledge. In any event, that is something of a distraction at present, save and except that X is a child of real significance and importance in this case.
The mother also indicates that she has never raised with X any issue with respect to his paternity and that, to her knowledge, information and belief, as at the date of swearing her Affidavit – 25 August – only some few days ago, that X is unaware that Mr Salde is not his biological father. However, that cannot be so. The Apprehended Domestic Violence complaint, brought some months ago, makes clear that it is an issue and, certainly, it has been raised by X himself by reference to the evidence of both parties. Mr Salde suggests that X was advised of that issue by Ms Salde. Whilst Ms Salde clearly states that she has not raised it, X is clearly aware of the issue however. That it was raised in the Domestic Violence complaint makes clear that Ms Salde had raised it with the Police as the complaint and its contents are based on Ms Salde’s statement.
The two younger children continue to live with the mother and maternal family members. That is raised as an issue of some significance by Mr Salde who asserts that, on the limited occasions that X has attended to visit with his mother and sisters – and they have been extremely limited periods – that he has returned with various complaints as to comments made to X by extended maternal family members referring to the father, for example, (paragraph 49 of father’s Affidavit) as a “criminal” and a “murderer” and that things have been said to the children and reported by X which are suggested to have been frightening and confusing for them. The mother denies such events.
What is agreed, however, is that since the separation of these parties, there has been no time or communication between the father and the girls. None is proposed by the mother. The mother seeks that the proceedings be adjourned together with intervention of Anglicare (omitted), whom the parties have agreed to attend upon for what is described as “family therapy”. I make clear that that term, whilst not used within the Act, is intended as a description of the process in which the parties will engage. That which the parties will engage with through Anglicare falls under the broad umbrella of “family counselling” as defined in Part II of the Act and is, accordingly, confidential and will be inadmissible. It is intended to provide therapeutic assistance and those therapeutic relationships cannot be aided through them occurring in the public glare.
The father’s proposal, in accordance with his Application, is that time would occur between he and the girls for a period of time each Thursday after school, each Saturday and each Sunday at least on an interim basis. The father proposes that time would then develop such that time would occur on an overnight basis Thursday to Friday and Thursday evenings and alternate weekends.
The evidence of the parties makes clear that the relationship between the parties is somewhat lengthy. There have clearly been significant tensions in the relationship between the parties, at the very least, for some months prior to their separation. Each gives remarkably similar versions of events prior to separation, although Ms Salde’s evidence goes substantially further as regards suggested aggressive behaviours by Mr Salde, not only towards her but towards the children.
The father describes that he began to hold concerns that the mother was engaged in some form of relationship with another person whom, from the totality of the evidence, would appear to be somewhat older than either of these parties. The father annexes to his material a text message he has received from this person holding out various threats towards the father and which would suggest that he continues to have some role to play in the mother’s life, although that is not to suggest that it is necessarily an intimate relationship. The Court need not be concerned whether it is or not.
The mother, for her part, describes that certainly her engagement with that named individual was a cause of real tension and concern between the parties. However, the mother paints that relationship and events relating thereto in the context of a deteriorating relationship between the parties. The mother suggests that the relationship between the parties had deteriorated over quite some little time. During this period of deterioration and as a consequence (as the mother opines) of injuries that the father had sustained in a motor vehicle accident and pain he experienced as a consequence thereof and possibly (at least as alluded to by the mother) use or misuse of painkilling medications, the mother suggests that there was increasing aggression on the father’s part.
Certainly, by 7 March 2017, matters had reached a new low in the household. At that point, a significant series of verbal disputes occurred between the parties. The children were present for some or all of those disputes.
The mother’s evidence is that the father directed certain verbal abuse towards the children and particularly the girls. The father denies that it was so, but certainly concedes that the children were present during heated verbal altercations between the parties, whether the father was the sole aggressor or otherwise. The mother left the home the following morning and after X had already left for school. Since that time, the father has not seen the girls, X has had very little time with them, and the mother and girls very little time with X.
An Apprehended Domestic Violence complaint was made by Police on behalf of the mother. The complaint itself together with the Order that has been put into place is disclosed in the proceedings by the father as the Applicant. Whilst it is an obligation to do so, it is an obligation often overlooked. The father, to his great credit, has not overlooked that obligation of disclosure. He has been frank and candid in that disclosed by him.
The Order that has been made includes, as protected persons, the two girls, Y and Z. It is unclear from the complaint how or why that would be so, however, there is complaint with respect to the girls contained within the Provisional Order as issued, although the predominance of complaint is with respect to the father’s alleged behaviour towards the mother rather than the children. There is one paragraph within the complaint that deals with the children which largely repeats complaints that are raised in the mother’s material as filed in these proceedings.
The most prominent complaint raised in both the mother’s Affidavit and within the Domestic Violence complaint relates to a suggestion that Z, at one point in time when she was, according to the Apprehended Domestic Violence complaint, 6 years old – and, accordingly, one would think a year or so ago - attempting to show the father Lego that she had constructed and was told by her father to “fuck off” causing the child to cry. The complaint goes on to indicate that such behaviour is “quite common” and that the children, if they are noisy, will be told by their father to “shut up”.
Both girls are suggested to be quite anxious. Indeed, both parties concede that it is so. They each give clear evidence as to the treatment that the girls have received in relation to a generalised anxiety disorder which they have each suffered with for quite some years.
Curiously and as a differentiating factor of this case, both parties have been predominantly at home throughout the relationship – the father as a consequence of the injuries the mother has referred to, has been at home far more often than many men otherwise engaged in full-time paid employment. It is no criticism of the father, none at all. It is simply a reflection of the evidence that they each lead.
As a consequence, the father gives evidence that he has had significant involvement in the care and upbringing of both girls, indeed, all of the children. The mother does not necessarily agree with that proposition but agrees that the father was home on a substantial basis.
The father goes so far as to indicate his engagement and involvement with the children’s anxiety to the point of taking the elder child to school on occasions at her request and as her preference when she was unable to do so herself and unaccompanied.
The mother’s case is, to a large extent, prefaced upon the assertion that the children do not wish to see their father, have some fear of their father, (in the context of their generalised anxiety disorders as described), that it would be disadvantageous to force them against their will to take those steps at this point in time and in light of the suggested lived experience which is a foundation for their rejection of that relationship at this point in time. That, of course, is less than ideal as regards the objects and principles of the Act to which I will turn shortly. However, it is the basis upon which the Application is advanced.
I do not propose to consider the evidence in any greater detail. Time does not permit it. It is now after 3:00pm. There are still several hours of interim hearings to address in the list.
I will deal with aspects of the evidence by reference to the legislative provisions which I must consider and to which I now turn.
Section 60CA of the Family Law Act 1975 provides that in all that is done, the children’s best interests are the paramount consideration.
I must then have regard to the objects and principles in section 60B of the Act and which I incorporate herein:
Objects of Part and principles underlying it
(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.
(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).
The objects do not form part of the substantive law, but indicate the outcome which the Court should endeavour to achieve through such Orders as are made as well as assisting in the interpretation and application of the substantive provisions.
The Court is required to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their life to the maximum extent consistent with the children’s best interests as well as ensuring that the children are protected from physical or psychological harm as a consequence of exposure or subjection to abuse, neglect or family violence. The mother’s evidence suggests that the children have been exposed to family violence in its broader context by reference to the section 4AB definition of the Act.
There is no allegation by either party of physical assault either upon the parties or upon the children. That, of course, is not the end of the issue. The definition of family violence does not require physical assault. What it requires is behaviour which causes coercion and control or a generation of fear.
The mother’s evidence does not go so far as to suggest that there is an overwhelming and underlying fear in these children of their father. The mother’s evidence is that the children are reluctant to see their father, that they have been reluctant to attend school for fear that their father will be present or may, whilst they are absent at school, cause some harm to their mother.
In this case it is subjectivity that is important, not objectivity. The views that the children are suggested to express are out of all proportion to even the evidence that the mother gives to the extent that there is suggested concern regarding the events on or about 7 March. Distressing as those events would have been for all concerned (and in that regard the reaction of the PINOPs are those of particular interest) those events are not suggested to be a daily course of conduct in the household, although the father is certainly suggested to be irritable and aggressive towards the mother and the children.
The mother indicates she felt controlled at times. She may well have been so. However, the evidence with respect to the children’s interaction with their father is such as to demonstrate that he was actively involved in their daily activities, including their health treatment, investigation of and treatment for anxiety and their schooling. It is unclear how or why the children would be expressing views of the strength or nature which the mother suggests, although perhaps some clue or at least one alternate proposal might be available through the father’s evidence if it is balanced against the mother’s – that the children hear a great many negative things about their father and that matters to which they have been exposed may well have been escalated.
It is impossible to determine which, if any, of those bases are the reason for the children’s suggested expressed views. However, it must also be remembered that these are children of 11 and 7 years of age. They have lived all of their life with both of their parents, had their father actively involved in their daily lives and there is no complaint or suggestion, prior to 7 March, with respect to any of the matters complained of.
I am conscious of that which fell from the Full Court in Amador & Amador (2009) 43 Fam LR 268. There need not be prior reportage or corroboration for an allegation to be accepted. However, at this interim stage, it would be unsafe to make any concluded finding of fact. Indeed, that is acknowledged by the Full Court in both Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101. Goode & Goode makes clear that at interim hearing the Court can only do its best based on what is agreed fact and balancing and assessing the probability and the probable consequences of that which each party alleges when findings cannot be made.
If the children have an unrealistic phobia, fear or anxiety of their father at this point which is not based upon lived experience, a continued separation from him could do no more than to accentuate those fears and cause them to be further entrenched, unrealistically and unreasonably so, and with a potential serious consequence for these children, such that their lived experience and reality would be entirely different things.
If what is complained of with respect to the father’s behaviour, being irritable, angry and verbally chastising the children, if not being abusive to them, at times suggested to call them names and to swear at them, is correct, then certainly that is less than ideal. But it is the lesser of two evils perhaps in light of the two conflicting propositions which arise.
I am satisfied that, at this point in time, there is a need for some intervention not only for the children, but also the parents, that is, the very intervention the parents have agreed to – family counselling interventions. It may be that those services are designed by one or both of the parents to therapeutically address deficits in the present relationship between the children and their father, and for that matter, X and his mother. However, it may also be that it will provide some assistance to these parents in understanding the importance of their support and encouragement of the children’s relationship and so as to ensure that all others who come into contact with them do so as well. There was some inkling of that concern as regards the mother’s evidence. The mother suggests that she has, since separation, asked the children (until being told by the children, or at least one of them, to stop raising the issue as they “will not change their mind”), whether they wish to see their father (and brother) rather than seeking to address and compel the children to engage in any relationship. They were asked whether they wished to.
That is to be borne in mind, particularly with respect to Z at 7 years of age. As Fogarty and Nygh JJ discussed in Stevenson v Hughes [1993] FamCA 14, the obligation of a parent goes well beyond asking a child what they want. It is a parent’s obligation, to conflate the noun and the verb, to parent – to make decisions for the children as to what is best for them and to take active steps to address it. The suggestion that the children are simply asked if they wish to engage with their father and, perhaps going further, to tell them that there is no difficulty should they wish to do so or not do so, is far from being a sufficient support of those relationships.
As regards the potential harm to these children of being required to spend time with their father during predominantly day-only time, I am not satisfied that it is or could be extended to be an unacceptable risk. That is all the more so as regards the suggestion, or at least inference, that some supervision might be desirable as raised by the mother. This is simply not a case in which there is any need for supervision of either parent. Both are experienced and committed to the role of parenting. The parents may have different styles. Indeed, the mother’s evidence, if found established, largely suggests that the father may have been risqué, terse or even aggressive in his verbal attitude towards the children, but that does not, on the present evidence, accepted at its highest, warrant supervision.
These children are certainly predisposed to anxiety. However that is a longstanding issue unconnected with the children’s relationships with the parents. There is no suggestion that the years of intervention that have occurred to date have been focused upon such difficulties. They are simply children with an underlying anxiety. The focus of treatment, indeed, the focus of investigation has had nothing to do with the parents. It could well be suggested that is because it was an intact family unit and the mother was reluctant to raise her concerns at that time, but it remains that they have not been raised.
To the extent that it is suggested that things have improved for the children since separation, that they are doing better at school and that they are generally less anxious and to the point where appointments might be reduced, there is nothing which would necessarily imply or infer that there is any connection to the father. There is certainly a connection to separation. Both parents are clear in their evidence that their marriage was unhappy for quite some little time before separation and that there were frequent and continual disputes, arguments and the like.
I am not satisfied that there is a need for supervision nor a need to defer any consideration of when, or if, these children will resume spending time with their father. It is the only realistic means by which these girls will maintain a relationship with their father and their brother, as they do not meet each other at school, the girls being in primary school, X in high school.
X is not presently spending any significant time with the mother. The objects thus would support some intervention at this point, although falling short of that which the father seeks, but well beyond that which the mother proposes.
The need for protection is not a matter of concern to a large extent. There is an Apprehended Domestic Violence Order in force and any complaint as to breach can be dealt with under it. In any event, the evidence would not suggest that the father has or would engage in any behaviour that would cause such difficulties.
The principles underlying the objects create certain rights for these children. They are not absolute. They are subject to the caveat that they are not enlivened or practiced when to do so is found to be contrary to their best interests. However, children have a right to know and be cared for by both of their parents and to spend time and communicate with both on a regular basis, as well as with others significant to their care.
Communication and time between the father and the girls, and indeed between the girls and their entire paternal family, has been terminated for six months. That is a relationship which has been practised on a daily basis until separation and without any significant suggestion of harm.
The anxiety of the girls is relevant as it predisposes them to upset in the event that behaviours occur which are distressing to them. But, again, that is an anxiety which has been present and investigated for some years and is not suggested to be connected with or solely connected with the father or his relationship with the girls (any more than the comments to which the children are suggested to be exposed to from the maternal family).
In those circumstances, the children’s right to a relationship has been frustrated for some months and, I am satisfied, should no longer be.
I am required to then consider section 61DA of the Act and the presumption of equal shared parental responsibility. These being interim proceedings and the parties being so apart in their factual assertions, I am satisfied that subsection (3) should apply, it being inappropriate to apply the presumption in this case and without the need to seek to prosecute any finding of fact. Accordingly, the parents will have joint and several parental responsibility and each shall be responsible for making decisions, subject to the requirements that will be contained within Orders, that both parents are entitled to obtain information from the children’s school, being included with the school as a parent and emergency contact person, and to participate fully in any counselling or medical appointments in which the children are engaged. They have been in the past. It has not been disadvantageous to the children and it would probably be helpful in the future.
I must then turn to section 60CC of the Act and commence with the primary considerations, being the benefit to the children of a meaningful relationship with both parents and a need to protect the children from physical and psychological harm, the latter prioritised over the former by subsection (2A) of the Act.
I am not satisfied that the latter is in play in this case in such a manner as would obviate against Orders in relation to the children’s relationship with each parent.
The children’s present relationship with each parent cannot be fully assessed as these are interim proceedings with limited evidence.
However, it would seem clear from the past care arrangements of the children that the children enjoy a relationship of some meaning with each parent. The mother’s evidence does not go so far as to suggest that the children reject any relationship with their father, simply that they have not, when asked, expressed a desire to pursue the relationship, have expressed the concerns previously raised that some harm may befall their mother and that they are generally anxious, although that well predates any difficulty in this family.
Accordingly, I am satisfied that there is benefit to these children of resuming their relationship with their father in a fashion that both the children and the mother can no doubt cope with, and that will provide benefit to the children through their practice of relationship with their father and, as an additional consideration, broader extended family, including their brother.
Views expressed by the children
The evidence does not go so far, as already indicated, as to suggest a clear rejection by the children of any relationship with their father.
It is suggested by the mother that Y has indicated:
I’m scared of coming anywhere near him. He’s going to be angry that we left…[at paragraph 40]…He’s going to ask me about what you’ve been doing, Mummy. He’s going to get really mad at me. He’s not a good person. Daddy said he was going to hurt you.
That is as high as any negative view is suggested to go. The child is suggested at paragraph 41 of the mother’s Affidavit to have also said, “No, I don’t want to see him”.
However, that is in the context of the suggested proposition, “I don’t want to keep you from your Dad. If you want to see him, you can.” One would think that any rational adult would understand that a phrase of such a nature sends a very clear and likely veiled message, “I’m not particularly fussed if you see your father. In fact, I would prefer that you didn’t. But if you wish to, of course you can.” It is unrealistic to expect that the child would give any other answer, and when she is ultimately suggested to say, “Just stop asking”, it may well be that she is simply sick of the repetition of the proposition knowing there would be no resolution. Either proposition is possible and equally possible.
To the extent that the children are suggested to be concerned that if they are absent from their mother, that the mother will be hurt, there is some positive for them of seeing a demonstration that this will not occur. Whilst the children are with their father, the mother will no doubt be completely unharmed by the father and, on that basis, they will have some reassurance. I am not satisfied the children’s views are so oppositional as to obviate against any time occurring at present.
To the extent that those views are suggested to be expressed, they would not appear to be rational or based in their lived experience. To a large extent, they would appear to be hyperbolised from that which, even accepting the mother’s evidence on its face as more probably correct than not, is the lived experience of these children, and, in any event, is out of all proportion to the disadvantage to these children of terminating the relationship altogether, that which has happened for six months to date.
Nature of the relationship of the children with each parent and other persons
These girls have a relationship with their brother, a strong relationship, a relationship that also is largely terminated. It is quite clear on the evidence that X is not likely to pursue any significant time or relationship with his mother at this point for whatever reason and whoever has brought to his knowledge the issue or suggested issue regarding his paternity.
Indeed, on the basis that the issue is raised but no other person who might be a party of right is identified (and they must first be served or service dispensed with before the matter can progress), there is no Order that could be made to secure the relationship between the girls and their brother and the only means by which the Court can ensure a relationship between the three siblings is by an Order in the father’s favour. The nature of that sibling relationship, if nothing else, is sufficiently positive to warrant some form of Order.
The alternative of adjourning the proceedings till March of next year, when there is next an available date, will see these girls go for one year without any practice of relationship with their father and brother and the corresponding damage that would do to any existing relationship, together with the potential to cement in these children’s minds, with some basis perhaps on the mother’s evidence and with none on the father’s, the reality that there is a real problem in their spending time with their father and their relationship with him. That is a worse risk to these children than predominantly day-only visits commencing immediately.
The extent to which each party has taken, or failed to take, the opportunity to participate in spending time or communicating with the children is not raised as an issue
The father has done all that he can to pursue the issue. He has sought to engage in Family Dispute Resolution (FDR). He has brought an Application promptly, having been unable to secure attendance at FDR, it being noted from the certificate issued by the (omitted) Family Relationship Centre, 27 April 2017, that the mother failed or refused to participate in FDR. The father clearly sought to engage in that process immediately after separation, as his attendance for intake was 23 March 2017, and one would imagine there might have been some brief delay before an appointment could be made. Thus, the father could not be criticised for failing to participate.
The extent to which each has fulfilled their obligation to maintain the child
This is not the subject of any significant evidence nor could it be dispositive.
The likely effect of change, including separation from either parent or any other child or person
The children will certainly be separated from their mother for brief periods of time to spend time with their father. That is potentially positive. It will allow them to continue their relationship with their father and their brother. It is also positive in that it will reassure the children that the fears that they are suggested to have developed (that some harm may come to their mother at the hands of their father while they were away from their mother) are simply not well-founded.
Practical difficulty and expense
I incorporate herein section 65DAA subsection (5) of the Act.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The parents live remarkably close together. There is no geographical difficulty. The parents’ capacity to implement an arrangement for equal time or substantial and significant time is untested, (although I am not satisfied could be pursued at present, although that is not to suggest that it might not provide benefit to these children in the future). The parents’ capacity to communicate and resolve difficulties is poor and impeded by the existence of the Apprehended Domestic Violence Order which I am loathe to interfere with further than is necessary. The impact on the child is already addressed as, on balance, positive.
The capacity of each parent to meet the children’s needs, including emotionally and intellectually
There is criticism raised by the mother of the father and his capacity to meet the children’s emotional needs, suggesting that he yells and swears at them and is generally irritable and disinterested. The father denies those allegations. Taking each allegation or denial at its highest, they are not matters, however, that suggest such a manifest inadequacy that would obviate against any practice of relationship for limited periods of practice.
Maturity, sex, lifestyle and background of the children
The most important factor in that regard is the children’s underlying anxiety. It is an anxiety they have had for some time and, importantly, one which both parents have been actively involved in not only addressing, but recognising the importance of. They have both participated and have some insight. Accordingly, I am satisfied it should not preclude time commencing.
Aboriginality is not raised as a factor by either parent
Neither identifies as an Aboriginal or Torres Strait Islander person nor do the children.
The attitude to the child and responsibilities of parenthood
This is already addressed above.
Family violence and family violence orders
There is a Family Violence Order in force. It includes as protected persons the children the very subject of this determination. The Order, as it is presently expressed, precludes the father contacting the children, save pursuant to an Order made under the Family Law Act 1975, but sadly not a parenting Order. The exception that is included is that the father may contact the children through a lawyer, through Court-approved counselling, mediation or conciliation, (although counselling and mediation are not terms used within the Act and conciliation relates only to financial proceedings in which the children would not participate).
Otherwise, it has been possible, prior to today, for the father to come into contact with the children as it is permitted if the parents agree in writing. It is simply that they have not agreed. The Local Court also envisages that it is not inconsistent with the Apprehended Domestic Violence Order if the father approaches the children or contacts them in accordance with any Order made by the Court about contact with the children, (although the Act refers to spending time with rather than contacting). I will err on the side of caution and make a declaration pursuant to section 68P of the Act to ensure that there is no issue as to any inconsistency which might lead to complaint that the father has breached the Order merely by coming into contact with the children.
However, for those reasons, and with the supports of the Orders already agreed between the parties, I am satisfied that it is appropriate that time between the girls and their father and brother commence immediately and not that the determination be delayed for a further seven months until the matter can be looked at again. That would be a greater disadvantage to these children than a decision made at the moment, which I accept is made without all available information.
The proceedings have been on foot for some little time, having been commenced by an Application filed 7 June 2017. It is unclear when the Application was served, but, in any event, there has been an abundant opportunity for material to have been produced to address the matters of which the mother complains and to the extent that evidence has not be adduced from, for example, the children’s counsellors and the school, then the Court will deal with the matter today in its absence, as it is preferable than inflicting a further seven months of non-communication between these children and their father. Whilst corroboration is not required to accept evidence, that is a different matter to accepting an allegation unsupported by identified evidence.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 12 October 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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Remedies
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Jurisdiction
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Procedural Fairness
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