Sewin and Cheals
[2018] FCCA 3244
•22 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEWIN & CHEALS | [2018] FCCA 3244 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – the parties’ inability to communicate or arrange any time between the children and their father – where the mother resides in refuge accommodation – consideration of the child’s bonding and attachment to his parents, siblings and to his paternal grandmother. |
| Legislation: Family Law Act 1975, ss.60B, 60C, 60CA, 60CC, 61C, 61DA, 69ZX, 67ZBB Evidence Act 1995 |
| Cases cited: SS & AH [2010] FamCAFC 13 Goode & Goode (2006) FLC 93-286 Other articles: Family Violence Committee, Family Violence Best Practice Principles (December 2015, Edition 3.2) |
| Applicant: | MS SEWIN |
| Respondent: | MR CHEALS |
| File Number: | PAC 4193 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 22 October 2018 |
| Date of Last Submission: | 22 October 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 22 October 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Zhang of Oakwise Lawyers |
| Solicitors for the Respondent: | Ms Bridge of Brighton Lawyers |
ORDERS
Pending further Order, the children, [X] born 2014 and [Y] born 2016, shall live with the mother.
[X] and [Y] shall spend time with their father:
(a)Each Wednesday from 10am until 5pm;
(b)Each weekend from 10am Saturday until 5pm Sunday.
For the purpose of changeover:
(a)The parents shall each forthwith and within 7 days contact the Town A Contact Service, with a view to arranging and attending the first available and offered intake appointment to use that service for supervised changeovers (and if accepted and available, changeovers shall occur at such times as the service can facilitate);
(b)Until such time as the contact centre may be able to provide assistance, the parents shall meet at Town A Library, Town A Civic Centre.
Pending further Order, each parent shall do all things, sign all documents, give all consents, authorities and instructions as are necessary to enable each parent to be recorded as a parent and emergency contact person with any day care centre attended by the children or either of them, and further:
(a)The day care centre is to be provided by each parent with a copy of this Order;
(b)The day care centre requested to ensure that they do not allow inspection of their records or release of information to either parent that would disclose any personal information provided by the other parent, including but not limited to their address;
(c)Neither parent shall attend at nor remove the children from the day care centre, save in accordance with these Orders, or for the purpose of attending events at the day care centre to which parents are invited or encouraged to participate.
Pending further Order, the Applicant, MS SEWIN born 1984 (female), and the Respondent, MR CHEALS born 1989 (male), by themselves, their servants or their agents are restrained from removing or attempting to remove the children, [X] born 2014 (male) and [Y] born 2016 (female), from the Commonwealth of Australia.
Pending further Order, the Marshal of the Federal Circuit Court of Australia and all Officers of the Australian Federal Police and of the Police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
Pending further Order, the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said children’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.
The matter is adjourned for further mention and directions to 1 February 2019 at 9.30am.
THE COURT NOTES THAT the purpose of the adjournment is to enable the parties to engage with the above Orders and discuss and settle a minute as to what is required to advance the matter to finality, including commissioning of evidence (by way of Part 15 Report in parenting proceedings or valuations in the property proceedings) filing trial Affidavits or any other step,
Pursuant to section 13C of the Family Law Act1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Relationships Australia Town A for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
IT IS NOTED that publication of this judgment under the pseudonym Sewin & Cheals is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 4193 of 2018
| MS SEWIN |
Applicant
And
| MR CHEALS |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to interim parenting arrangements for two young children:
[X], born 2014; and,
[Y], born 2016.
As would be apparent, the children are not yet four and recently turned two years of age respectively.
The parties to the proceedings are the children’s parents, their mother who is the Applicant, their father the Respondent.
The parties were engaged in a relationship with each other for a relatively brief period. It is no criticism of them. Simply a reflection that, chronologically, the relationship did not endure for a significant period. The relationship subsisted from mid-2014 until early August 2018.
In addition to the two children the subject of this Application, there are also two relevant children, being children of the mother from a prior relationship:
[C], born 2008 (aged 10 years); and,
[D], born 2012 (nearly 6 years).
Whilst the Initiating Application filed by the mother purports to seek relief in relation to these additional children, the Application cannot be dealt with today. A necessary party to any Application in relation to [C] and [D] is the father of those children. The children’s father is not identified, let alone joined, as a party to these proceedings.
The parties’ proposals are vastly disparate.
On an interim basis, the Applicant mother proposes that the two children the subject of the proceedings live with her and spend time with the father as agreed between the parents. The parties do not communicate, so agreement would be unlikely. The mother otherwise proposes that, failing agreement, the children should spend time with their father once a week on days agreed by the parties but with supervision. The mother proposes that each period would be three hours in duration. It would not seem that supervision is pressed. There is nothing on the mother’s behalf that would suggest a proposal beyond three hours, although, in submissions, a concession was made that time might occur on Wednesdays and weekends, including overnight time.
The practical difficulties for the parties are also somewhat abundant. They live some hours drive apart from each other at this point. I have described it in those terms as the mother raises allegations of family violence, if they might be so broadly described from the material filed, and indicates that she is resident in assisted or refuge accommodation, a condition of which is that she not disclose the details of her accommodation. Those details are, however, disclosed to the Court.
I make clear that by accepting those allegations as requiring some caution is not to accept that evidence as fact. Far from it. As the Full Court of the Family Court of Australia is clear in SS v AH [2010] FamCAFC 13, findings cannot and should not be made, (as also discussed in Goode & Goode (2006) FLC 93-286, Marvel & Marvel (No.2) [2010] FamCAFC 101 et al.), unless there is either concession or irresistible corroboration. However, I am also conscious, as the Full Court discussed and repeated in Salah & Salah [2016] FamCAFC 100 and is discussed at length in the Best Practice Principles regarding cases involving Family Violence version 3.2, indicating that some caution should be taken with respect to protection from family violence even when the parties have not provided any significant assistance to the Court by ensuring that their evidence is rigorous. That is an issue to which I will return.
The father, for his part, has proposed in an Amended Response as well as by an Application in a Case, both of which are moved upon, but as regards specific relief sought today, the Application in a Case taking precedence, that the children should live with him, that a recovery Order should issue to ensure that outcome, and that the children would then spend time with the mother each Wednesday for a period of three hours and each Saturday for a period of six hours. Thus, it would seem, neither party has proposed overnight time and has not done so until such time as the proposition is put as to what alternate relief they would seek if they were not successful in their substantive Application. It is curious that each advances a concession to overnight time in such circumstances. Nothing further beyond curiosity need be observed.
The parties have filed numerous documents since the proceedings were commenced. The mother’s material, as relied upon, comprises an Initiating Application, Affidavit and Notice of Risk filed 5 September 2018. In the Respondent’s case, there is a Response, Amended Response, Application in a Case and two Affidavits. What the father actually presses and relies upon is the Amended Response and Affidavit both filed 16 October 2018.
In dealing with the case, the Court is face with difficulties which are far from unusual. The difficulties are made more onerous by a lack of rigour in evidence.
As the Full Court observed in, for example, Goode & Goode (2006) FLC 93-286, the Court, at interim hearing, is faced with incomplete and untested evidence. In this case, all of the “evidence”, if the provisions of the Evidence Act 1995 were applied strictly, would be largely excluded. There is a great deal of opinion, supposition, expression of fear and concern, but very little by way of concrete evidence. That is, perhaps, more so in the mother’s case than the father’s. However, the father makes up for that deficiency through the inclusion of a significant number of irrelevancies and what might be described as throwaway criticisms of the mother. Complaints, for example, with respect to her frivolous spending and the like which do not assist whatsoever in the determination that is to be made.
In the mother’s case, the thrust of her argument is that she has, during the relationship with the husband, which had also included, for periods of time, the paternal grandmother residing within the same home, experienced significant coercion and control.
The parties have very few agreed facts. One of the significant areas of agreement relates to the arrangements for care of the eldest of the two children, [X], not yet four. There have been two significant periods of time, October 2015 to May 2016 and August 2016 to February 2018, when that child has lived in Country A with paternal family members. Principally, the paternal grandmother.
At other times, whilst living in Australia and with the parties, that child has also had his grandmother with him. Chronologically, there is agreement with respect to those matters. The parties are very much at odds as to how and why those arrangements came into being and how completely consensual they may have been. Those disputes cannot be determined. The criticisms go beyond the periods that the child has lived outside of Australia, however.
The mother, at paragraph 12 of her Affidavit, complains that the grandmother physically separated the child from her by locking the elder child in the grandmother’s bedroom and stopping that child playing with his siblings, the two elder children of the mother from a prior relationship who have lived with the parties throughout their relationship, together with the younger child and the mother. The mother complains, for example, of having video cameras installed throughout the home by the father so that he could “watch the children and me”. There is agreement that the cameras were installed, at least, in the living room of the property.
The mother’s evidence, however, is best described as being a series of broad allegations, rather than specifics. I am loathe to be critical of a litigant who prepares a case hurriedly and places it before the Court seeking urgent relief. However, Courts make decisions based on evidence and, with some application of the rules of evidence, notwithstanding section 69ZX of the Family Law Act 1975, it is difficult, for example, for the Court to proceed appropriately when the allegation is simply made in broad terms such as:
That I cannot stay in our matrimonial home anymore due to abuses I and my children suffered from them [being the father and grandmother]. It is not a good environment for my four children (see Paragraph 16 of the mother’s Affidavit).
There are some specific examples given, some clues as to the evidence that might ultimately flow at a final hearing. It is nothing more than a clue. At paragraph 17, for example, the mother indicates that the day prior to leaving the home, her phone was disconnected by the father. Whether that is so or not cannot be determined, but it is, at least, a specific example of a complaint that would fall within the broad umbrella of coercion and control being that complained of by the mother.
I have identified the above matters as they are a source of continuous frustration for this Court. The Court has a significant obligation to ensure that allegations of family violence are fully and properly addressed and that parents and children are not exposed to violence. So much follows, for example, from section 67ZBB of the Act. The Court has a clear and specific obligation to respond to evidence of family violence. I use the term evidence deliberately. The rules of evidence have an important place to play in ensuring that Courts can make appropriate decisions and afford justice.
Parties cannot respond to broad and unsupported allegations (although, I do not suggest the mother’s allegations are entirely unsupported in light of the few specific examples given). However, to simply assert, “There has been violence” or” there has been abuse”, is unhelpful. It is not consistent with what is required in adducing of evidence to the Court.
Those allegations of family violence are denied by the father. That much is clear. That does not obviate against the need for the Court, per Salah & Salah [2016] FamCAFC 100, to consider those allegations, broad as they may be, as having some importance and to afford some weight to them on the basis that they may ultimately be demonstrated as correct.
The father’s case is that the mother has unilaterally removed the children from their home and from the care arrangements that had applied for them. It could not be otherwise. That is certainly what has occurred. To go beyond that, however, and to suggest that the mother has engaged in some inappropriate behaviour is not as helpful. Certainly, parents separate. When that occurs, it is rare, if not improbable, that parties will, prior to the separation, have sat down with each other and reached a consensual decision as to arrangements. One party invariably inflicts a unilateral decision on the other. Whichever parent has not been involved in that decision, no doubt, feels horribly aggrieved, and understandably so. However, parents do separate.
What is problematic in this case is how the parties have dealt with each other since separation and the correspondence that has passed between their lawyers in relation to arranging even the simplest or briefest of periods of time between the children and their father or the provision of any information.
Again, I am conscious that if the mother is living in refuge accommodation, she should not be compelled to disclose that address. But to provide basic information in relation to the children that would not, in any way, disclose the mother’s accommodation arrangements might have been tactful, respectful and focused upon the children more than that which has transpired between the parties, including exhibit R1, certain further emails tendered beyond those which are already annexed to the father’s Affidavit material. However, both parties have dealt with each other less than ideally. Perhaps more so one than the other, but little is gauged by mathematizing such issues.
That two parents with lawyers cannot organise something as simple as a visit between the children and a parent does not bode well. It does not reflect well on their focus upon the task at hand, ensuring the children’s relationship with each parent and ensuring the children’s safety.
The position that each parent advances cannot be reconciled. The evidence of the parties cannot be reconciled. I will do the best I can in addressing the arrangements that might be put into place by reference to the legislative provisions in Part VII of the Act. In turning there too, I must commence with section 60CA of the Act which reminds the Court when all is done, the child’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 Court must endeavour to ensure that the best interests of children are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
Each of these parties raises complaints with respect to the other, suggestive of a potential finding of unacceptable risk.
The father is not absent complaints. The father suggests that the mother has, throughout the relationship, had a tendency, although referred to in the material as a tenancy (sic), to lose her temper with the children, not only the two youngest but all four within the household, to physically strike them and to be overly harsh in her discipline and chastisement. The father complains that the mother has a propensity to use alcohol to excess and that when she has done so, she is disinhibited and further inflicts abuse upon the children.
It must be remarked that there is no suggestion of any complaint to any agency prior to the separation of these parents by either of them in relation to those matters. That does not, of course, aid the matter a great deal. It is entirely possible that parents would not do so, whether through cultural imperatives or otherwise, not wishing to engage those services within their family business. What it does mean, however, is that there is simply an absence of corroborative material available. As the Full Court was clear in Amador & Amador (2009) 43 Fam LR 268, a person need not produce corroboration so as to have their evidence accepted. It does not mean that if corroboration is available that it should not be produced lest Jones & Dunkel (1959) 101 CLR 298 inferences be drawn, but in this case, neither parent suggests that, prior to separation, there is any material that could corroborate their view, save and except perhaps from the paternal grandmother who has lived within the home. She is not called.
On the basis of the complaints each raises of the other and including, in the mother’s case, a concern that the children will be removed from the Commonwealth, it would seem that they have been unable to reach any accord to permit these children to benefit from spending time with each parent.
In terms of protecting the children from physical and psychological harm, the risk is, as it were, equal. Each suggest that there is a significant risk to the children in the care of the other through the perpetration of violence by them towards the other parent or towards the children.
The Court must make Orders that ensure the children receive adequate and proper parenting. There is nothing to suggest that they would not receive proper parenting in either household if one focusses purely upon the evidence given by parents regarding themselves. The father’s case is that he and his mother have been the primary and predominant carers of these two small children. The father is not quite as forthcoming as regards his suggested engagement and involvement with the two elder children of the mother’s prior relationship, and it would not appear that the relationship between those four children has assumed great significance in the father’s case.
It is certainly true and could not be in dispute that the children have had significant engagement with their paternal grandmother. I am not satisfied, however, that I can go as far as the father purports to observe, although he does not have any specialised training, skill, education or experience that would permit the observation to be admitted as expert evidence, that [X] is “very attached” to his mother. Certainly, I accept that the child has had a significant degree of care provided by his grandmother. He has also had significant care provided by his mother and his father.
On the evidence, it would seem largely non-disputed that the two elder children, although not the subject of these proceedings, have been predominately cared for by their mother. It is, again, difficult to reconcile the evidence or how it is that such different arrangements have come to be in relation to each of the four children. Certainly, the youngest child does not seem to assume the same level of attention in the evidence as [X]. However, I am satisfied, accepting each party’s evidence on its face as more probably correct than not, although each suggests that the other party’s evidence is less than candid, that the children will receive adequate and proper parenting whilst with each parent.
I must make Orders that ensure that parents fulfil their duties and meet their responsibilities. It would not seem that any Order that this Court could make will essentially achieve that outcome.
The principles underlying the objects create rights for these children although they are not absolute rights. They are subject to the caveat that they are neither enlivened nor practiced when to do so would be contrary to the children’s best interests. That aside, children have a right to know and be cared for by both of their parents, to spend time and communicate with both parents and others significant to their care, welfare and development and that parents should share duties and responsibilities. These rights, post-separation, have not been achievable for these children. The proposal of each parent will not achieve those rights for these children into the future.
In this case, the Court is left, as I have already indicated, in the entirely unacceptable position of essentially having two vague proposals put before it with little or no evidence that would assist in choosing one, the other or any other arrangement and the Court asked to do the best it can. It is not how the adversarial system is intended to operate. It can only work as well as its constituent parts, and in this case, those constituent parts have largely failed.
The objects and principles indicate that both parents should have an involvement in the lives of the children, but as to whether that can be achieved safely is a separate issue. To that end, I propose to refer to the discussion of Tree J in Johns & Jasapas [2016] FamCA 471 as a convenient shorthand to try and determine which risk, if either, might be calculated as the greater.
I incorporate, commencing at paragraph 46 through to paragraph 48, His Honour’s discussion of the unacceptable risk test and particularly concluding with the portion of Murphy Js decision in Harridge & Harridge [2010] FamCA 445 posing five rhetorical questions.
The notion of unacceptable risk
46. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
47. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
48. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:
·What harmful outcome is potentially present in this situation?
·What is the probability of this outcome coming about?
·What risks are probable in this situation in the short, medium and long term?
·What are the factors that could increase or decrease the risk that is probable?
·What measures are available whose deployment could mitigate the risks that are probable?
(1) What harmful outcome is potentially present in this situation?
On the mother’s case, the harmful outcome might be apprehended as being the suppression of the child’s individuality through what could be loosely, and in the vernacular, described as smothering parenting, if not, as the mother seeks to advance, coercive and controlling parenting particularly with respect to [X].
The mother also suggests that she and the children have been exposed to abuse and violence although she is completely lacking in any detail that would permit a proper assessment of that significant and important factor.
From the father’s perspective, the harmful outcome that is present is the mother’s general lack of ability as a parent. He suggests that she cannot parent all four children, that she has little financial support to enable her to do so. They are not matters that cause me great concern. The mother will, no doubt, receive such assistance as she needs to address such financial matters. The father’s complaints in relation to the mother’s alcohol use and violence would be the basis for some concern if there were any real particularisation of those complaints beyond the mere assertion the mother is living, it is suggested, in some form of supportive accommodation which, whilst I do not suggest it amounts to supervision, at least amounts to a safeguard in some respects. Those risks, as each party advances them, might be suggested to be balanced.
(2) What is the probability of the outcome coming about?
Each is equally probable.
(3) What risks are probable in the short, medium and long term?
The major risk for these children is that they will be:
a)Separated from each other;
b)Separated from persons, whether parents or otherwise, with whom they may have well formed a close attachment of bonding;
c)The children’s removal from social capital, (i.e., arrangements have already changed in relation to the elder children as regards schools and, for the younger children their day care centre).
The latter are the least risks for these children.
The greater risks are the potential to be exposed to the conflict between these parents, the family violence that each alleges, violence and conflict being entirely separate propositions, and the termination or lack of practice of important relationships.
(4) What factors that would increase or decrease risk is probable?
The best means by which to reduce those risks is to ensure that there is an arrangement for time occurring. However, part of the difficulty in this regard is that the parties have simply been so frugal in the evidence that they have chosen to place before the Court.
Much of the father’s Affidavit relates to justifiable frustrations and criticisms of the mother for not facilitating his time with the children post-separation, let alone her having removing them in the first place. Neither party has sought to place any substantial amount of evidence before the Court, if any, relating to the positives of their own parenting.
Beyond the implementation of an arrangement which is, to some extent, arbitrary, there is little that can be done, save and except that there is the concern raised on the evidence that the children might be exposed to violence between the parents. That is made all the more problematic in light of the distance between the parents’ homes, making it necessary for changeover to occur in a public place, at least in the short-term.
I propose to make an Order for both parties to engage with the Town A Contact Service, and until such time as that service may be available to assist the parties – and there is no guarantee that this will be any time in the foreseeable future, due to their paucity of funding – changeovers will need to occur somewhere else. Both parties, thankfully, drive and Town A is well served by public rail transport. Accordingly, there would be no difficulty with the parties, as the mother proposes, meeting, for example, at the Town A Library in the Town A Civic Centre, within short walk of the station or easy enough to reach by car.
(5) What measures are available whose deployment could mitigate the risks that are probable?
I can think of none other than the above.
On the basis of that which each alleges as unacceptable risk, I am not satisfied that unacceptable risk could be found, provided that the above actions are taken to ensure a relationship is occurring with each parent, steps taken to keep the parties apart as much as possible and to ensure that the children are not exposed to unpleasantness – possibly escalating as high as violence, although no finding is made that it is so – at changeovers.
I must then turn to section 61DA of the Act, the presumption of equal shared parental responsibility.
The parties do not specifically address an allocation of parental responsibility. I am satisfied that what should apply, in this case, is for the parents to have joint and several parental responsibility. Absent any Order by the Court, that is what would apply under section 61C of the Act.
With respect to the presumption, I am satisfied that it would not apply, by reference to subsection (3). These are interim proceedings. The parties cannot agree on very many things at all. Each raises suggested risks to the children from the other parent, and the parents would appear largely unable to effectively communicate. Thus, I am satisfied that it would be inappropriate, in the circumstances, for the presumption to apply, and section 61C of the Act can apply.
I must then have regard to section 60CC of the Act, commencing with the primary considerations in subsection (2), being the benefit to the children of a meaningful relationship with both parents (as the Full Court has discussed in Burton & Churchin & Anor [2013] FamCAFC 180, confined solely to the parents and not others), together with the need to protect the children from physical or psychological harm, the latter prioritised over the former by subsection (2A), (and notwithstanding that neither party seeks to lead any substantial, admissible evidence relating to those issues or that would assist in assessment).
The benefit to the children of a meaningful relationship with both parents is a somewhat misleading phrase. Children of this age do not, in reality, form relationships. They are dependent for their support and nurture upon others. They form bonding and attachments. There is no evidence that would permit any assessment of the bonding and attachment of these children with either parent or, for that matter, their grandmother (as would be dealt with as an additional consideration). All that is known is the chronology of time and provision for the children. The benefit to the children of a meaningful relationship with both parents would best be achieved by both having an active involvement in the children’s lives. I propose to make Orders that will provide, as best as possible, for that to be so.
I am satisfied that on the proposals that are available, and having regard to the children’s ages and the risks that each apprehends, that of the various proposals, generated and put largely during submissions, would fall in favour of the mother’s proposal for time each Wednesday and each weekend overnight. It is far from ideal. And I readily concede that it cannot be accurately assessed as meeting or failing to meet the children’s interests. The parents, simply through their absence of evidence that assists, have created such a circumstance. It is the best that can be done.
In relation to protection, I am conscious that these children are well familiar with exposure to conflict. The best step that could be taken would be expedition of a hearing. The parties will need to discuss what is required in that regard, particularly as there are property proceedings also and it is suggested, on at least the husband’s case, that the property pool is in the negative. Accordingly, it may be something of a distraction rather than something which necessitates the Court’s intervention.
I must also address the additional considerations.
Views of the children
There is no real evidence of the children’s views, and at their ages and level of maturity, it would not assist a great deal.
Nature of the children’s relationship with each parent and other persons
There are three people of significance: the children’s two elder siblings and the paternal grandmother. Certainly, I accept that [X] is, in all probability, bonded and attached with his grandmother. That does not mean, however, that he is not bonded and attached with others. It is possible for children to form more than one attachment.
I also accept that, in all probability, both children would have a degree of bonding and attachment with their two elder siblings. Indeed, the sibling group would be important, each to the other. All of those relationships can and should be facilitated and continued.
Again, although the evidence is far from satisfactory, I am satisfied that the best that can be achieved is the mother’s alternate proposal. It will see a substantial and significant time arrangement that will facilitate all relationships and will provide some safeguards if there is anything to the father’s complaints, through vigilance and a degree of informal supervision.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time and communicate with the child
Neither has. The issue here is, as was provided prior to the June 2012 amendments and was contained in subsection (4), the interference by a parent with the other’s participation.
I do not criticise the mother for leaving the home with the children in circumstances whereby she suggests, albeit with imperfect evidence, that she was experiencing violence. However, what has passed since, (and without wishing to either engage with or disagree with Benjamin J’s criticism of the manner of legal practice in Simic and Norton [2017] FamCA 1007), has been unhelpful. Correspondence between the lawyers has not achieved any purpose or even moved towards one, nor has it demonstrated a focus upon purpose. It is a criticism of the mother but perhaps also the Attorneys for the parties. It does not assist in disposing of the controversy.
The extent to which each parent has fulfilled their obligation to maintain the child
There is no evidence.
Likely effect of change in the children’s circumstances, including separation from either parent or any other child or person
Certainly the Orders that the mother proposes, and which I propose to accede to, will mean that the children change their primary accommodation. However, as the Full Court discussed in Archbold & Archbold (1984) FLC 91-532, a place of residence is not the test. It is the relationship and connection between children and adults.
These children need to maintain a connection with each other, all four of them, as well as with each parent and with the paternal grandmother – a particularly important relationship for [X], much more so than the other three children, only two of whom are the subject of this determination.
The effect of change for these children, if there is anything to the allegations of the mother, is positive. It will remove them from a circumstance in which it is suggested both mother and children have experienced disadvantage. That is not to accept that it is so but merely that it is one of the many possibilities that are open on the imperfect evidence.
A likely effect of change, if, indeed, both of the two children the subject of the proceedings are completely removed from the care provided by the paternal grandmother and father, is not positive. The best that can be done, however, is to balance two imperfect positions with imperfect evidence assisting in their determination. On balance, I am satisfied that the disadvantages of removal from that care predominantly relate to [X]. However, he would suffer the disadvantages of being separated from his siblings if a different arrangement were put into place for him. Accordingly, that finds some slight favour as regards the mother’s proposal.
Practical difficulty and expense
This is a significant issue, as the parents live about two hours drive away from each other. That can be overcome through both parties participating in travel and meeting at a midway point, which I accept is likely in or about Town A.
The parents’ capacity to implement an arrangement for time is untested. They have never really tried. Their capacity to communicate and resolve difficulties is poor.
I propose to make Orders for both parties to engage with Relationships Australia Town A for assessment of appropriate and suitable family counselling services and, subject to assessment of appropriate services, to then engage with those services until completion. That is the best that can be done. Although the Court can mandate a therapeutic intervention, it cannot mandate a therapeutic outcome. That will be for these parties.
The impact on the children will, on any proposal, be less than ideal. However, their parents have determined to separate, and, on the basis of the evidence led by one or both, that potentially brings advantages as well though amelioration of conflict and exposure to conflict and/or violence.
Capacity of the parents
Each is highly critical of the other’s capacity, and the mother is also highly critical of the paternal grandmother’s capacity. However, I am satisfied, accepting the evidence of each party on its face, as best as that can be done, that each parent is capable of meeting the children’s needs. Certainly the father, as regards any deficiency in his parenting, is assisted by his mother. The mother has the supervision and vigilance of those who now assist her.
Maturity, sex, lifestyle and background of the children and either parent
The parents are both from a Country A background. There is no evidence before the Court as to cultural practice or how the various arrangements that have been in place in the past might have been culturally appropriate or otherwise. No doubt that can be addressed prior to final hearing.
Aboriginality
In light of the above, clearly is not relevant.
The attitude of each parent to their responsibilities as a parent
Each parent is highly criticised by the other. Each, by their own evidence, suggests that some criticism of each is warranted.
Family violence and family violence Orders
There are no family violence Orders. However, all the absence of a family violence Order proves is the absence of a family violence Order. Whether violence has occurred or not is not proven or disproven by the existence or nonexistence of a family violence order.
The family violence that the mother alleges is suggested to be coercive and controlling, albeit her evidence is so far from complete and so imperfect that she will need, in a very short space of time, to properly prepare her case.
The father suggests that family violence has been perpetrated by the mother towards the children. However, his evidence, whilst slightly better, is not dramatically better than the mother’s.
As to whether it is preferable to make an order that will least likely lead to the institution of future proceedings
I am satisfied that the best that can be done is to make Orders that are readily understood, readily implemented, able to be complied with, and to provide the parents with support and assistance through family counselling. Beyond that, if the parents wish to bring further Applications for variation or contravention, they no doubt will. However, these proceedings must now continue to finality, and, regrettably, a short adjournment will be required, for the parties to negotiate with each other as to what is required, how it will be funded and who will be requested to commission evidence.
For those reasons, Orders are made as follows.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 9 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Injunction
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Procedural Fairness
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Costs
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Remedies
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Appeal
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