Simons and Barnes (No.2)
[2010] FMCAfam 1094
•7 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMONS & BARNES (No.2) | [2010] FMCAfam 1094 |
| FAMILY LAW – Children – high conflict – children’s Aboriginality – mother unwilling to support child’s relationship with father – parenting capacity – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 64D, 65DAA, 65DAC Federal Magistrate Court Rules 2001, Rule 15.09 |
| Barnes & Simons [2009] FMCAfam 185 Human Rights and Equal Opportunities Commission, ‘Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families”, Commonwealth of Australia 1997 Scutt, J. A., “Even In the Best Of Homes: Violence In The Family”, McCulloch Publishing Pty Ltd., Melbourne, 1990 |
| Applicant: | MS SIMONS |
| Respondent: | MR BARNES |
| File Number: | ADC 2873 of 2008 |
| Judgment of: | Kelly FM |
| Hearing dates: | 8, 9, 10 & 11 June 2010 |
| Date of Last Submission: | 2 July 2010 |
| Delivered at: | [M] |
| Delivered on: | 7 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Milen |
| Solicitors for the Applicant: | JoAnne Milen & Associates |
| Counsel for the Respondent: | Ms D Weiner |
| Solicitors for the Respondent: | O'Keeffe Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr I Charman |
| Solicitors for the Independent Children’s Lawyer: | Ian Charman & Associates |
ORDERS
The father’s application for parenting orders with respect to the child [X] born [in] 2003 is dismissed.
The mother have sole parental responsibility for long term decisions with respect to the care, welfare and development of the child [Y] born [in] 2007.
Each party retain parental responsibility for [Y]’s day to day care, welfare and development whilst [Y] is in that parent’s care.
[Y] live with the mother.
The mother is permitted to relocate [Y]’s primary place of residence to [W] as and from 15 January 2011.
Pending the relocation to [W], [Y] shall spend time with the father as follows:
(a)from 9.30am Sunday until 4.30pm Monday each week commencing Sunday 10 October 2010; and
(b)from 9.30am Wednesday until 9.30am Thursday of each week commencing Wednesday 13 October 2010.
Upon [Y] relocating to [W] he shall spend time with the father as follows:
(a)commencing on the second weekend thereafter on each alternate weekend from 4.30 pm Friday afternoon until 4.30 pm Sunday (or Monday afternoon in the event of a public holiday) or at such other times as may be nominated through the relevant Children’s Contact Centre;
(b)upon [Y] commencing school, for one half of each short school holiday period from 12.00noon on the first Saturday until 4.00pm on the Saturday one week following;
(c)for one half of the Christmas school holidays to take place on a week about basis until [Y] has attained the age of 8 years and thereafter as follows:
(i)for the first three weeks in the school holidays commencing in December 2015 and each alternate year thereafter; and
(ii)for the last three weeks in the school holidays commencing in December 2016 and each alternate year thereafter;
(d)in the event Father’s Day falls on a weekend when [Y] would otherwise be in the mother’s care then [Y] shall spend that weekend in the father’s care in lieu of the time he would otherwise have spent in the father’s care on the next weekend which visit is otherwise suspended;
(e)in the event Mother’s Day falls on a weekend when [Y] is in the father’s care his time in the father’s care is suspended for that weekend and shall take place between the same times on the weekend immediately following.
In the event the parties are living in the same town after January 2011 then the following orders (9) – (15) will apply.
[Y] shall spend time with the father as follows:
(a)each alternate weekend from 10.00am Friday until 5.30pm Sunday (or Monday in the event of a public holiday) PROVIDED THAT upon [Y] commencing school the alternate weekend visits will commence at the conclusion of school on Friday and conclude at the commencement of school on Monday (or Tuesday in the event of a public holiday);
(b)each intervening week from 9.30am (or the commencement of school) on Thursday until 9.30am (or the commencement of school) on Friday;
(c)upon [Y] commencing school, for one half of each short school holiday period from 12.00pm on the first Saturday until 4.00pm on the Saturday one week following;
(d)for one half of the Christmas school holidays to take place on a week about basis until [Y] has attained the age of 8 years and thereafter as follows:
(i)for the first three weeks in the school holidays commencing in December 2015 and each alternate year thereafter; and
(ii)for the last three weeks in the school holidays commencing in December 2016 and each alternate year thereafter;
(e)the time specified in subparagraph (a) and (b) is otherwise suspended during each school holiday period and shall resume in the same rotation in each school term.
In the event that [Y] is otherwise in the mother’s care on Father’s Day then he shall spend time in the father’s care from 5.00pm on the Saturday until 4.00pm on Father’s Day.
In the event [Y] is otherwise in the father’s care on the Mother’s Day weekend his time with the father will conclude at 10.00am on the Sunday.
For the purposes of [Y]’s birthday each year he shall spend time with the father from 3.30pm until 6.30pm if his birthday falls on a school day and for a period of 4 hours at times to be agreed between the parties if his birthday falls on a weekend day.
In the event [Y]’s birthday falls on a weekend when he is in his father’s care he shall spend time with the mother for a period of 4 hours at times to be agreed between the parties.
That for the purposes of Christmas each year:
(a)[Y] spend time with the mother from 6.00pm Christmas Eve until 12.00noon Christmas Day and with the father from 12.00noon Christmas Day until 10.00am Boxing Day in 2010 and each alternate year thereafter; and
(b)[Y] spend time with the father from 6.00pm Christmas Eve until 12.00noon Christmas Day and with the mother from 12.00noon Christmas Day until 10.00am Boxing Day in 2011 and each alternate year thereafter.
In the event [Y] is in the father’s care on [X]’s birthday [date omitted] then he shall spend time with the mother from 3.30pm until 6.30pm if a school day and a period of 4 hours if a weekend day at times to be agreed between the parties.
While [Y] is living in [M], handovers take place through the [A] Children’s Contact Centre where possible or otherwise inside the [M] Police Station.
Upon [Y] relocating to [W] handovers continue to take place in [M] until April 2011 and thereafter as follows:
(a)the father shall travel to [W] to collect [Y] at the commencement of each occasion, with handovers to take place through a Contact Centre in [W] or if such a Contact Centre is not available, inside the [W] Police Station; and
(b)the mother shall travel to [M] to collect [Y] at the conclusion of each occasion, with handovers to take place at the [A] Children’s Contact Centre or if the Contact Centre is not available, inside the [M] Police Station.
The parties are restrained from:
(a)abusing, criticising or denigrating the other party in the presence of either child and from allowing any other person to do so; and
(b)abusing, criticising, harassing or denigrating the other parent at handover or at any other time;
(c)communicating with the other parent save and except for the purposes of discussing issues with respect to [Y]’s welfare or otherwise in accordance with these orders;
(d)from consuming alcohol to excess whilst either child is in their care; and
(e)from consuming or being under the influence of illegal substances whilst either child is in their care.
The mother is restrained from changing the children’s place of residence from [W] without providing the father with at least 8 weeks written notice.
The parties shall communicate with each other in a polite and respectful tone regarding parenting issues as follows:
(a)by establishing a communication book to exchange relevant information about [Y]’s health, welfare and development with the book to be handed over at each changeover; and
(b)by way of text message or email where appropriate.
Each party provide the other with at least 7 days written notice of any change to their residential address, telephone number or email address.
Each party notify the other in the event of any medical emergency relating to [Y].
The mother notify the father with respect to:
(a)any kindergarten or school at which [Y] is enrolled;
(b)the name of the health service or general practitioner attending to [Y]’s health needs; and
(c)details of any specialist medical practitioners that may provide care for [Y] from time to time.
Both parents are at liberty to communicate with any kindergarten or school at which [Y] may be enrolled and to receive all reports and notices that are generally made available to parents.
Both parents are at liberty to communicate with any health professional providing care for [Y] and to receive copies of all written reports prepared in relation to [Y].
Both parents shall register with the relevant Children’s Contact Centres within 21 days and shall comply with all reasonable directions from staff at the Centre.
Both parties shall undertake personal counselling in an endeavour to develop better interpersonal skills, to reduce the impact of their hostility upon the children and to minimise the risk of the children being exposed to family violence whilst in that parent’s care.
Both parents shall undertake a parenting course directed to improving their parenting skills and their understanding of [Y]’s developmental needs.
The appointment of the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Simons & Barnes (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MOUNT GAMBIER |
ADC 2873 of 2008
| MS SIMONS |
Applicant
And
| MR BARNES |
Respondent
REASONS FOR JUDGMENT
[Y] is just 3 years old. His older brother [X] is 7 years old. [Y] and [X] currently live in the primary care of their mother, Ms Simons, together with their young sister [Z], who was born in 2009.
[Y] and [X] are of Aboriginal descent through their mother, who is a member of the [G] people from south west Victoria, around [W].
Ms Simons’s family heritage and cultural identity has been accepted by the traditional owners of the land, as represented by the [omitted] Traditional Owners Aboriginal Corporation.[1]
[1] Exhibit M3, Mother’s successful application for membership to [omitted] Traditional Owners Aboriginal Corporation.
These proceedings relate to a parenting dispute between [Y]’s father, Mr Barnes, and Ms Simons. Mr Barnes and Ms Simons were in a relationship for a short period across 2006 and 2007. The present dispute relates to the future parenting arrangements for [Y] and his older brother [X]. Mr Barnes argues that his son [Y] and his stepson [X] should remain living in [M], and that he should have primary care of [Y] and spend regular time with [X].
The mother opposes the father’s application. She says that the children should live in her care together with their younger sister [Z]. She argues that the children’s Aboriginal identity will be enhanced if they are able to live on their traditional lands with the opportunity to develop strong links to their culture and their people. Accordingly she seeks an order allowing her and the children to live in [W], some
180 kms east of [M].
Background
The father is 25 years old and the mother is 24 years old. While they disagree about the precise dates of their relationship, they agree that they met in [M] in early/mid 2006 before moving to [W]. Records produced from the [G] Aboriginal Health Service note that the mother consulted with health service staff in May 2006[2], which suggests the parties were living in [W] by that date.
[2] See Exhibit M4
Both parties concede that their relationship was marked by ongoing conflict. Victoria Police records produced under subpoena show that a number of police incident reports were made between December 2006 and September 2007.
The mother became pregnant in December 2006. Ms Simons says that she and the father separated in early 2007; the father says they separated shortly after [Y] was born on [date omitted] 2007. Whether or not the parties had separated formally or were in an “on again/off again” relationship across this time is largely irrelevant to the present proceedings, given the very limited nature of their relationship.
The mother alleges that the father assaulted her in February 2007 and again around the time of [Y]’s birth – on one occasion just days before [Y] was born and a further assault occurring on 30 September 2007. The Victorian Police Department records confirm that the mother obtained an interim Domestic Violence Restraining Order in February 2007 and the latter two incidents were also the subject of police reports.[3]
[3] Annexure M1, Reports produced under subpoena by Victoria Police
The father acknowledged that he and the mother were fighting frequently and concedes that there was a high level of conflict between them. He says the mother would ask him to leave the house which he did on occasion, living elsewhere for short periods before resuming the relationship.[4] Whether the parties separated in February 2007 (as claimed by the mother) or September 2007 (as claimed by the father) it is clear that they did not live together for any significant period of time after [Y]’s birth.
[4] Father’s Affidavit sworn 24 April 2009, paras. 16 and 17
The father acknowledges breaching the Domestic Violence Restraining Order in September 2007 and again in February 2008. He was convicted of those breaches in May 2008.
In March 2008 Ms Simons travelled to [M] with the children. The mother says she wanted to keep them all safe from the father’s violence and could rely upon receiving emotional support from her high school friend, Mr S. By contrast, the father believes the mother moved to [M] to pursue a relationship with Mr S. The mother and Mr S have been in an “on again/off again” relationship and Mr S is the father of her child [Z] but Ms Simons does not consider they have ever been in a settled de facto relationship. She rejects the father’s suggestion that she moved to [M] to pursue a relationship, as opposed to seeking support from
Mr S.
The father moved to [M] in May/June 2008. Mr Barnes says the mother agreed to the boys staying in his overnight care occasionally. The mother agrees that she allowed the father to see the children but disputes that she allowed the boys to stay overnight with Mr Barnes, because of her concerns about his alcohol use and past violence. The parties’ relationship was still highly conflictual, as indicated by the altercation between them at a [M] night club in July 2008.
Court proceedings
The father issued these proceedings on 21 July 2008. The application was first listed before the Court on 30 July 2008. Although there is no Affidavit of Service on file, it appears the mother attended and represented herself on this occasion. Orders were made for [Y] to live with the mother who was then restrained from removing [Y] from the [M] area. Ms Simons was directed to file and serve answering documents by 20 August 2008 and proceedings were adjourned to 27 August 2008.
The next interim hearing took place on 29 August 2008. It seems that the mother swore an Affidavit on 28 August 2008, in preparation for that hearing. On 29 August the order for [Y] to live with the mother was continued, together with an order for the child to spend supervised time with the father through the [A] Care Children’s Contact Centre in [M]. The previous injunction was continued. Further interim argument took place on 30 September 2008 when the previous orders for supervised time were continued, pending receipt of a report from the Contact Centre.
On 11 December 2008 the mother’s solicitors sought leave to withdraw, and the mother was again self represented. On that occasion the following orders were made:
1.This matter be listed for trial before Federal Magistrate Lindsay on 1 May 2009 at 10am in Mount Gambier (NOTING one day allowed).
2.Trial directions and interim issues be adjourned to 26 February 2009 at 9:30am in Mount Gambier.
3.The parties file and serve affidavits of all evidence upon which they intend to rely on the adjourned date by not later than 18 February 2009.
4.Until further order, the child [Y] born [in] 2007 do live with the mother.
5.During the period of the adjournment, the mother do all such things as may be reasonably required to facilitate the said child spending a period of two (2) hours with the father at the Children’s Contact Service at [M], with such time-spent to occur on one (1) occasion per week on a Saturday or a Sunday as directed by the Children’s Contact Service.
6.The mother do all such things as may be reasonably required to facilitate the said child spending unsupervised time with the father on Christmas Day 2008 between 1pm and 4pm, with handover at the commencement and conclusion of such time to occur at the [M] Police Station.
We have the benefit of His Honour Federal Magistrate Lindsay’s Reasons regarding the next hearing on 26 February 2009.[5] It seems that the mother’s affidavit sworn 28 August 2008 had not been formally filed and the mother had failed to engage effectively in the Court process. His Honour was understandably frustrated by her failure to file any sworn affidavit material setting out her concerns about the father.
[5] Barnes & Simons [2009] FMCAfam 185
His Honour ordered that [Y] spend short periods of unsupervised time with the father, no doubt based on the positive interaction observed between [Y] and his father at the Contact Centre, as reported by them. The one day trial listing on 1 May 2009 was maintained and each party was ordered to file their trial affidavits no later than 10 April 2009.
The mother then instructed new solicitors and filed an affidavit on
13 March 2009, annexing the earlier affidavit sworn by her on 28 August 2008. The mother’s March 2009 affidavit sets out the difficulties she had in obtaining legal representation, to the extent that the affidavit and Response prepared by her in August 2008 had not actually been placed on the Court file by her previous solicitors.
Once the mother’s documents were filed it became clear that there were substantial issues in dispute and the final hearing would not be confined to one day. The trial was adjourned for a two day hearing to
5 and 6 November 2009. [Y]’s time with the father was increased and various orders were made regarding the parenting arrangements for [Y]. A family assessment report was also ordered pursuant to s.62G of the Family Law Act 1975.
The first family assessment report was prepared by Ms C and became available on 4 August 2009.
On 17 August 2009 the father filed a contravention application alleging the mother had failed to present [Y] to his care on approximately ten occasions between 24 May 2009 and 12 July 2009. The contravention application was first listed for hearing on 24 August 2009. Ms C’s report was available by this time and recommended that [Y] live in his father’s primary care. The Court was not prepared to change the primary care arrangements on an interim basis, but directed that [Y]’s time with the father resume immediately, with handovers to take place inside the [M] Police Station.
The Court ordered that the mother undertake a psychiatric or psychological assessment, as recommended by Ms C. The Court also ordered an Independent Children’s Lawyer be appointed. It was clear that the psychiatric assessment was unlikely to be completed before November 2009 and once again the trial was relisted to 16 and 17 February 2010.
The father’s contravention application proceeded on 5 November 2009. Following a short hearing, the Court found that Ms Simons had failed to present [Y] on numerous occasions without reasonable excuse. She was placed on a bond to be of good behaviour and directed to comply with all parenting orders relating to [Y].
The matter was called on for trial on 16 February 2010. The mother had instructed new solicitors in late 2009 and had arranged the psychological evaluation, as ordered. That report was completed by
Mr K in December 2009 but the report was not actually released until late January 2010. The trial was ultimately unable to proceed in February 2010 as the Court was otherwise committed. Further orders and directions were made to ensure the matter was properly prepared for trial on the next occasion.
An issue was raised regarding the status of the mother’s relationship with Mr S, the father of her daughter [Z]. In the circumstances an update assessment was ordered to consider the mother’s changed circumstances given that she now had an infant in her care, to include Mr S if appropriate, and to allow Ms C to comment upon the psychological assessment presented by the mother.
The mother also raised concerns that the Independent Children’s Lawyer appointed by the Legal Services Commission had previously represented her in care and protection proceedings through the Youth Court. Ms Simons ultimately filed an application seeking to discharge the Independent Children’s Lawyer. That application was successful and the Legal Services Commission was requested to appoint a new Independent Children’s Lawyer.
Following concerns raised by Ms C about Mr K’s qualifications, the mother arranged a psychiatric evaluation by a psychiatrist, Dr S. Given that the matter had become increasingly complex, the trial was ultimately listed for a four day hearing commencing on 8 June 2010. Dr S’s report was not completed until 21 May 2010.
The hearing commenced before me on 8 June. Both parties were represented. The father relied upon the following documents:
a)His initiating application filed 21 July 2008;
b)His affidavits sworn 21 July 2008, 27 August 2008, 24 April 2009, 11 August 2009, 12 February 2010 and 3 June 2010.
The father did not file any affidavits from supporting witnesses. Ultimately some brief evidence-in-chief was called from Mr H to respond to certain matters raised in the mother’s case.
The mother relied upon the following documents:
a)Her response filed 13 March 2009;
b)Trial affidavit sworn 12 February 2010 and 2 June 2010;
c)Report of Dr S dated 21 May 2010 (annexed to affidavit of [name omitted] filed 25 May 2010);
d)Affidavit of Mr J sworn 9 June 2010;
e)Documents presented under subpoenae to Victoria Police, [G] Aboriginal Co-op, [S] College and [W] Base Hospital.
The mother also relied upon evidence from Ms M. The mother was unable to arrange a sworn affidavit from Ms M. However, the Court gave leave for Ms M to give evidence and be cross-examined by telephone link. Ms M confirmed the contents of her draft affidavit which was received as part of her evidence.
In addition I have taken into account the mother’s earlier affidavit material filed 13 March 2009 (annexing her August 2008 affidavit) together with her affidavit sworn 11 August 2009.
The Independent Children’s Lawyer relied upon Ms C’s two reports dated 4 August 2009 and 17 May 2010. Ms C was available for cross examination by telephone link.
All parties presented written submissions and I thank counsel for their focussed and cogent submissions, all of which were of great assistance to the court.
The parties’ proposals
The father’s position in closing submissions was as follows:
·that [Y] live with him;
·that he spend regular time with his mother on alternate weekends and over night on alternate Wednesdays, provided the Court is satisfied as to the mother’s mental health;
·that [X] spend regular time in his care on the intervening weekends to the effect that the children spend each weekend together;
·In the alternative, that [Y] live with each parent on a week about basis;
·That the mother be restrained from removing [Y]’s place of residence from [M] without the written permission of the father or an order of the Court.
Ms Simons’s proposal did not change substantially. She sought orders that both children remain living in her care and that she have sole parental responsibility for them. She proposed [Y] spend alternate weekends with the father together with half of the school holidays but did not propose any orders for [X] to spent time with Mr Barnes. The mother also sought permission to relocate to [W].
Both parties sought orders regarding special occasions and handover arrangements, together with injunctive orders designed to minimise the children’s exposure to parental hostility and conflict
The parties’ evidence
Neither party was particularly impressive as a witness. The father presented with a confident and relaxed demeanour and was able to respond to questions directly but his evidence was contradictory at times. Mr Barnes was glib and sarcastic on occasion and was twice reminded to take the Court process seriously.
The father tended to minimise the extent of his own problematic behaviour and to dismiss any concerns raised by the mother or the Independent Children’s Lawyer as trivial. I agree with the assessment of the Independent Children’s Lawyer that the father’s evidence should be treated with some caution.
The mother’s presentation in the witness box was even more troubling. At times she was tearful, distressed and seemed overwhelmed by the court process. There were often lengthy silences in response to questions and when Ms Simons did respond, her answers were frequently directed more to her sense of discrimination than to the question at hand.
Ms Simons presented as highly suspicious of the Court and the legal system generally. She has little faith that government institutions such as the police or the Courts would act to protect her children, or provide her with a fair hearing. She was an unco‑operative witness.
Ms Weiner argues that the mother’s evidence has been completely coloured by her paranoia and suspicion and that no weight should be placed upon any of the mother’s evidence in the witness box. The Independent Children’s Lawyer was equally concerned and felt unable to rely upon any of the mother’s contentious evidence given during the hearing.
In assessing the mother’s presentation and the weight to be attached to her evidence, I take into account the evidence from Dr S. Dr S noted that the mother presented with “marked fear, apprehension and anxiety about the court proceeding, the legal system and her ex-partner in particular. She finds it difficult to cope and feels easily stressed. She can’t deal with it.”
He further noted that the mother presented with “…marked suspicion and distress sometimes amounting to paranoia. She feels she is being followed, watched, listened to (through a recording device) and social network infiltrated. She has to lock herself in and is afraid to venture out. However, this could all be understood from her background, her adverse childhood experiences and current life stresses.”
Dr S noted the mother attributed her fears to the actions of Mr Barnes in trying to take her children away from her, at least as she perceived it. I will refer to Dr S’s evidence further in these Reasons but his evidence is useful in providing some context in which the mother’s poor presentation in the witness box should be assessed.
The mother was uncomfortable exchanging eye contact with Mr Barnes during her time in the witness box. Mr Barnes was initially requested to move to a different seat before a witness screen was put into place to ensure that there was no direct visual contact between them whilst the mother gave evidence. This provided some benefit to Ms Simons and she seemed more settled, at least for a period of time.
The mother’s allegations against Mr Barnes became more extreme during the hearing, which was concerning. Nonetheless she was generally able to identify the basis of her concerns or allegations. For example, Ms Simons referred to an incident where the father “attempted to murder her”, but the basis of the allegation had been set out previously, if in a less histrionic manner. Similarly, the mother was able to explain why she became concerned that the father may have sexually abused [Y], even if her explanation did not lead anyone else in the Courtroom to the same conclusion.
The mother’s evidence was undermined by her tendency to view events through the prism of her extreme hostility towards Mr Barnes, which invariably lead her to a conclusion of abuse or neglect. There is no doubt that her evidence in the witness box must be treated with considerable caution.
If the father was minimising concerns regarding his past behaviour, the mother was exaggerating and overstating his past failings and to some extent, I consider Ms Simons was overstating the extent of her concerns regarding his present parenting capacity.
This does not mean that I disregard either party’s evidence in full, particularly where there may be other corroborative information, for example, contemporaneous police reports. Such police reports do not prove the truth of the matters reported, but they refute any suggestion that the specific allegation is a recent invention prompted by these proceedings.
The evidence from Mr J and Mr H did not carry any weight in my determinations and I do not intend to discuss their evidence further.
Ms C’s evidence
The role of the independent expert is vital in any parenting case. Their obligation is to provide an objective and unbiased assessment of the overall family dynamics in which the children live and to assist the Court in determining what parenting arrangements will be in the children’s best interests.[6] However the expert’s opinion forms only one part of the evidence that is ultimately received by the Court. It is for the Court to determine the weight to be attached to that evidence.[7]
[6] Family Law Rules 2004 Part 15.5, Federal Magistrate Court Rules 2001, Rule 15.09
[7] Hall v Hall (1979) FLC 90-713 Bass & Bass (2008) FLC93-366, para.50
Ms C’s qualifications and expertise is not challenged. She is a clinical psychologist who completed her Masters of Applied Psychology in 1992 and has worked in that capacity on an ongoing basis since that time. As Ms C herself acknowledged, she is not a psychiatrist and is unable to diagnose any psychiatric condition. Having identified concerns regarding the mother’s presentation during the family assessment process, Ms C quite properly recommended that the mother undertake a psychiatric assessment regarding her mental health.
In considering Ms C’s evidence, I have paid particular attention to the contents of Ms C’s two reports. However I conclude that the weight to be placed upon her recommendations is limited. Unfortunately her acknowledged lack of expertise in working with children from Aboriginal families brought with it a lack of insight and an apparent disregard of the children’s right to maintain a connection with their Aboriginal culture.[8] In addition, having recommended the mother participate in a psychiatric assessment, Ms C appeared to place little weight upon Dr S’s opinion or to consider whether her initial assessment of the mother should be re-visited.
[8] Section 60B(3)
Nowhere in her two reports does Ms C refer to [Y]’s and [X]’s Aboriginal identity. The first mention of the mother’s Aboriginality comes four pages into the first report where Ms C reports that
“Ms Simons told me she is an Aboriginal person and is tired of being treated differently.” The next eight paragraphs of the report then set out the mother’s complaints regarding “the system”, the father’s behaviour towards her, corruption and racial discrimination.
Ms C concludes by noting that “Ms Simons was belligerent and antagonistic towards me during her interview. She spoke in an aggressive tone of voice and placed blame on Mr Barnes and various organisations. She believes everybody else has a problem but she has no problems. She told me she was reluctant to talk too much because ‘it will be used against me’. She cried through most of the session.”
Later in her first report, Ms C concluded that the mother presented as having significant mental health issues, displayed signs of paranoid thinking and appeared to be rambling during much of the interview. Ms C expressed concern that if the mother’s allegation of family violence in past relationships is correct, then she “appears to be a poor judge of character and is continuously putting the children into dangerous situations”. Ms C expressed concern that the mother was again pregnant and that the mother appeared to have no understanding of children’s developmental needs and capacities. In the circumstances Ms C recommended that [Y] move to live in his father’s primary care.
To be fair to Ms C, Dr S’s report was completed very late in the proceedings and she was placed in a position where her second report had to be completed without the benefit of considering his psychiatric evaluation of the mother. Accordingly it was only in the course of giving evidence that Ms C was able to comment upon Dr S’s psychiatric report and to express a final opinion regarding parenting arrangements.
After due consideration, Ms C recommended (albeit cautiously) shared care as a parenting option for the children notwithstanding her ongoing concerns regarding the parental hostility. She subsequently acknowledged that she was not sure how a shared parenting arrangement could work between these parents.
Dr S’s evidence is discussed elsewhere in these Reasons, but I particularly note the time and effort he devoted to establish a rapport with the mother. He described how he “took pains to build up her trust”. Dr S noted that “a culturally sensitive, social worker observation and assessment of her behaviour in the community … would provide invaluable collateral information. However, insensitive assessments can upset her further. Her trust would have to be won first.”
Unfortunately, I conclude Ms C has unintentionally provided just such an “insensitive” assessment. The information that Ms C relies upon to cast the mother as mentally unstable is put in a different context by
Dr S who noted that the mother’s “signs of suspicion, irritation and anger” arose when she was discussing matters relating to how she had been treated as a child and the present Court proceedings. He noted her “marked apprehension and anxiety about Court matters and worry that her children were going to be removed” which “triggered memories of what had happened to her”.
Ms Simons was removed from her mother’s care as a child and placed in foster care. While this decision may well have been appropriate in a child protection context, Dr S’s considered that the mother’s childhood experience of being separated from the primary care of her mother, combined with her sense of loss of cultural identity has created an overall demeanour of distrust when dealing with mainstream systems such as the Courts or psychological assessments. He considered the mother’s suspicion and degree of mild paranoia were understandable, given her background. He concluded that her presentation was similar to his observations of other clients who have experienced similar childhood trauma and were facing significant stress and fear.
There may be no direct legal comparison between the current Court proceedings and the mother’s experience of being placed in foster care, nonetheless Dr S noted that these proceedings trigger the mother’s negative memories. In his view, Ms Simons associates the risk of [Y] and [X] being removed from her care with her own devastating experience of being removed from her mother’s care. Dr S considered this may explain some of her resistance to the Court process, including her dealings with Ms C and agencies such as the [A] Children’s Contact Centre.
In light of Dr S’s evidence, many of Ms C’s concerns regarding the mother can be viewed differently. In assessing the mother’s psychiatric status, I place significantly more weight upon the report from Dr S than Ms C’s conclusions in that regard.
Ms C experienced Ms Simons as hostile and unco-operative during their first interview and interpreted this behaviour as indicative of significant mental health problems. In my view this conclusion led
Ms C to form a negative view of the mother, a view which she has since maintained.
Ms C’s lack of insight into the impact of the mother’s past history upon the mother’s present psychological status does not necessarily undermine her assessment in full. Her report was also based upon observed interaction between Ms Simons and the children, compared to their interaction with Mr Barnes. In her first report Ms C concluded that “Ms Simons did not deal very well with the children’s fractious behaviour and sounded somewhat frustrated with them”.[9] By contrast, Mr Barnes played with the children, interacted with them and seemed to manage their behaviour more effectively.
[9] Ms C’s first report, p.12
I note that Ms Simons was five months pregnant at the time of the first assessment. In those circumstances it is perhaps less surprising that she initially sat and watched the children rather than engaging in active play. If she sounded “somewhat frustrated” with the children, this may reflect the reality of a primary caregiver who has a more continuous exposure to the interaction between two boisterous young boys.
Ms Simons’s lack of interaction with the children may also have reflected her distrust in and disengagement from the assessment process, which she clearly experienced as part of a system designed to bring her down and to remove her children from her care.
In my view, it is possible, if not likely, that the interaction between
Ms Simons and Ms C and indeed, between Ms Simons and the children, would have proceeded more easily if Ms C had been able to establish the same degree of rapport that Dr S was able to create during his interviews with the mother.
By the time of the second report Ms C noted that [Y] and [X] were better behaved during the observed interaction. She noted that the mother was more interactive with the children but was still concerned about the mother’s approach to discipline. In particular, Ms C noted that the mother used developmentally inappropriate discipline strategies, such as warning two year old [Y] of a future punishment that may be imposed.
The reports suggest that the mother endeavoured to manage the children’s behaviour during both sessions, even if her efforts were not always successful. She reinforced [X]’s attendance at school despite his oppositional behaviour. She allowed [Y] to hold [Z] under close scrutiny and then allowed [X] to do so as well with appropriate supervision. Whilst Ms C was still concerned that both boys were very loud and the mother did not manage this behaviour in a public setting, she nonetheless noted that the mother interacted appropriately with all three children.[10]
[10] Ms C’s second report, p.11
In her second report Ms C acknowledged the positive aspects of the mother’s presentation but criticises her inability to manage the children’s public behaviour and her ongoing hostility towards
Mr Barnes.
Ms C’s reports are certainly useful in providing an objective assessment of the quality of the children’s interaction with Mr Barnes. I have no hesitation in accepting Ms C’s evidence in this regard and it is clear that [Y] has developed a strong and meaningful relationship with his father, notwithstanding the mother’s concerns about
Mr Barnes. However, considerable caution should be applied in drawing conclusions about the parties’ respective parental capacity, based solely on the children’s interaction with Ms Simons compared to Mr Barnes. In assessing the quality of interaction between the children and each party, it must be remembered that Mr Barnes has not had to deal with any of the realities involved in the day to day parenting of two young boys.
Ms C is highly critical of the mother’s hostility towards [Y]’s relationship with his father. At no time does Ms C allow for the possibility that the mother’s concerns about the father may be based upon Ms Simons’s past experience of his behaviour. This is not to say that all of the mother’s allegations and concerns are justified or reliable, but the overall tenor of Ms C’s first report seems to ignore the possibility that any of the mother’s concerns may be justified.
Ms C noted quite properly that she cannot make findings of fact about the allegations and denials of family violence put forward by each party. However, she went on to conclude that if the mother has been engaged in a series of relationships where family violence is a feature then “she appears to be a poor judge of character and is continuously putting the children into dangerous situations”.[11]
[11] Ms C’s first report, p.15
By contrast, Ms C makes no comment about the implications that may follow should the allegations of violence against Mr Barnes be true. She does not discuss the implications of such behaviour in terms of
Mr Barnes’s attitude to parental responsibility nor his capacity to provide a safe parenting environment for the children.
Ms C’s evidence regarding family violence generally was also of concern. During the course of cross-examination Ms C conceded that the mother’s hostility towards the father was affected by Ms Simons’s belief that he had been violent towards her during the relationship.
Ms C went on to focus again about the potential risks associated with the mother’s propensity to choose violent partners however she made no comment about the negative implications that would follow if the Court found the father had been violent during the parties’ relationship.
Ms C was asked to comment on the parties’ competing versions of an alleged assault that occurred in 2007. The father was prepared to concede that in the course of a “scuffle” between the parties he grabbed the mother by the arms (allegedly to stop her slapping him), leaving the mother with bruising on her arm as a result. From Ms C’s perspective such an incident would not meet a definition of family violence. She said that grabbing someone is not necessarily violent and there was a great deal of difference between grabbing someone as described by the father and hitting someone in a more deliberate fashion.
Ms C was then asked to comment on the mother’s account of this incident. The mother says that the father grabbed her violently and denied that the father was trying to prevent her slapping him. Ms C responded by saying again that grabbing is not necessarily domestic violence and it could simply be that the mother may bruise easily.
The precise details of the police incident report as alleged by the mother on 19 October 2007 were then read out to Ms C. It was only then she agreed that the mother’s account of that incident, if accurate, would clearly meet the definition of an assault.
Subsequently Ms C was asked to comment on the father’s concession that he had given physical expression to his frustration with the mother by punching holes in the wall of their home and subsequently at his grandmother’s home. Again, Ms C seemed reluctant to identity this behaviour as violent, responding instead that such behaviour was a very emotionally immature way of dealing with anger and frustration. However she agreed that it would be distressing for the children to witness such behaviour and that it would be very “scary for children”.
Ms C’s oral evidence concluded with brief re-examination by the Independent Children’s Lawyer. He referred to the father’s evidence that he was not prepared to follow the children to [W]. Ms C agreed that this reflected his view expressed to her in the assessment process.
Ms C was then asked to comment upon the mother’s evidence that if [Y] was ordered to remain living in the [M] area that she would still move to [W] even if that meant leaving [Y] behind in the father’s care. Ms C responded that this reaction seemed extraordinary to her.
In my view, each party’s response is in fact equivalent. The father says he is not prepared to move away from [M] if the children live with the mother in [W]. The mother says she is not prepared to stay in [M] if the children or one of them is ordered to remain there. Ms C raised no concerns about the father’s attitude, yet found the mother’s attitude “extraordinary”. This closing evidence reflects the underlying weakness in Ms C’s testimony: the mother’s behaviour is judged as unacceptable and “extraordinary”, whereas the father’s behaviour is simply glossed over.
Mr Charman considered the mother’s attitude was more surprising, given her alleged concerns about the father’s parenting, however I note the father was proposing [Y]’s time with the mother be supervised. Again, I see the parties’ positions as equivalent.
Dr S’s evidence
Dr S’s qualifications were not challenged. He is a Fellow of the Royal College of Psychiatrists in Australia and in the United Kingdom. He presently practices as a consultant psychiatrist at [L] Hospital (a specialist psychiatric facility in [omitted]) and provides an outreach service to clients in the South East area through [P], an Aboriginal Health Service based in [M].
Dr S confirmed that he had been consulting through [P] for approximately two months and that he had previously worked with Aboriginal clients at [L] Hospital and with the [M] Community Health Team. Through his position at [L] Hospital he is involved in a professional group that focuses on providing support to Aboriginal clients within the mental health sphere.
Dr S prepared a psychiatric evaluation on the mother dated 21 May 2010. In the course of performing his evaluation, Dr S met with the mother on two occasions and had a further telephone interview. He considered the contents of the Family Assessment Report prepared by Ms C in August 2009 and the Psychological Report prepared by Mr K in December 2009.[12] Dr S also sought feedback from the [P] staff regarding their observations of the mother’s general behaviour and her interaction with the children.
[12] I note Mr K’s report was not ultimately received into evidence at trial, given the concerns raised by Ms C regarding his qualifications.
After setting out the case history, Dr S concluded that the mother presented with no evidence of severe psychiatric illness. He noted that there is evidence of “minor mental disturbance in the form of anxiety, depression and personality problems”, which he considered could be accounted for by her childhood experiences and the current court proceedings. He noted that the mother experiences marked fear, apprehension and anxiety about the court process, the legal system and her ex‑partner Mr Barnes and went on to say that she finds it difficult to cope with these stressors, is irritable and easily upset and experiences periods of crying, feeling low, hopeless and helpless.
Dr S noted that the mother presented with marked suspicion and distrust sometimes amounting to paranoia as she described feeling that she is being watched, followed and listened to by a recording device placed in her backyard. Dr S concluded that the despite showing evidence of paranoid thoughts he did not consider Ms Simons was not suffering from paranoid psychosis or clinical paranoia.
Dr S agreed that the mother’s behaviour was concerning but nonetheless felt that her presentation could be understood when her background, adverse childhood experiences and current life stressors are taken into account. He noted that a particular stressor is her fear that Mr Barnes is trying to take [Y] and [X] away from her.
Dr S concluded that the mother could be expected to do well if she is provided with a supportive environment or if she could feel safe, protected and supported. He noted she would benefit from counselling, family support and parenting skills training.
Dr S was cross-examined about the apparent inconsistencies between the mother’s portrayal of her childhood and foster placement and the impact upon her, compared to the objective reality of those events.
Dr S did not consider that the two versions were necessarily in conflict. He noted that the mother’s description of her childhood reflected her emotional reality. He acknowledged that her placement in foster care may have been objectively appropriate from a child protection perspective, nonetheless the experience of being removed from her mother’s care was emotionally distressing for Ms Simons, who felt she was denied the chance to live a “normal” childhood within her family of origin.
The mother conceded in evidence that her own mother had mental health issues but did not consider this justified her removal. She had been able to maintain a positive relationship with her mother despite being placed in foster care. As a young teenager she eventually ran away and returned to her mother’s care. Dr S was asked to comment on the inconsistency between the mother’s apparent portrayal of herself as a member of the stolen generation, compared with the reality of her capacity to maintain an ongoing relationship with her mother.
Dr S noted that the mother may have described her experience as being “stolen” from her parents, rather than actually being part of the stolen generation. He did not consider any such inconsistency to be significant, bearing in mind the objective reality was that she was removed, and the emotional impact that clearly had upon Ms Simons.
He was unable to comment on the extent of the mother’s cultural ties to her traditional land in the south west area of Victoria but noted that
Ms Simons felt that her foster placement had effectively denied her the possibility of acquiring that cultural knowledge, as she was unable to leave [M] while the Youth Court orders were in place.In response to the father’s claim that the mother had little connection with her Aboriginality, Dr S said that did not match with his impression of
Ms Simons, who he felt demonstrated a genuine yearning to return to her country where she holds rights and responsibilities as a native title holder.
Dr S was asked to comment about the impact upon Ms Simons if she was not able to return to live in [W]. He felt this would be a double negative for her. She would be denied the opportunity to return to her country and her cultural ties there within the local Aboriginal community. This would have a significant negative impact upon her, which may add to her feelings of depression and isolation.
He was also concerned that she may miss out on the opportunity for a greater level of psychosocial support that she felt would be available to her in the [W] area through her status as a member of the [G] people.
Dr S concluded that the mother’s presentation was genuine. He rejected any suggestion that she was exaggerating her anxiety and distress in an effort to manipulate the court system. On the contrary, he felt her presentation with anxiety etc was entirely congruent with the personal history described by her.
Dr S was asked to comment on the mother’s allegations of domestic violence, particularly within her relationship with Mr Barnes. He noted that the mother had referred to this but did not appear to be creating “a big issue about it” in any attempt to influence his opinion. He noted that the mother presented as afraid and apprehensive when talking about her ex-partner.
I conclude Dr S was an impressive witness. He spoke to his report with clarity and was able to expand upon and explain his findings, when requested to do so. I accept his findings about the mother’s mental health. I place particular weight upon his evidence when considering the mother’s presentation in the family assessment and the court process generally.
Dr S did not specifically explore the mother’s parenting capacity and indeed, it is not his role to do so. However, in response to a question from the Independent Children’s Lawyer, he commented that staff at the [P] Health Centre had observed the mother interacting positively with her children.
Legal principles
Part VII of the Family Law Act deals with children. In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper, subject to certain limitations referred to in that section. When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60B(2)(e) specifically notes that children have a right to enjoy their culture and to do so with other people who share that culture. This is expanded on further in s.60B(3) which focuses particularly upon the importance for Aboriginal and Torres Strait islander children to maintain a connection with that culture and to develop a positive appreciation of their cultural heritage.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In the case of Goode & Goode[13] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[13] Goode & Goode (2006) FamCA 1346
Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account, including factors relating to parental capacity, interpersonal relationships and the children’s right to enjoy their Aboriginal culture. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the children’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the children’s best interests to spend equal time with each parent. If equal time is not in the children’s best interests the Court must consider whether they should spend substantial and significant time with each parent. In either circumstance the Court must separately consider whether an order for equal time, or substantial and significant time, is reasonably practical[14].
[14] MRR & GR [2010] HCA 4
Many of the issues the Court must consider specifically refer to
“parents”. Insofar as Mr Barnes is not the biological father of [X], my discussion of the relevant legislation, particularly the s.60CC considerations will focus on [Y], particularly as [X] is not presently spending time with Mr Barnes. However much of my discussion will be equally relevant to [X]’s future best interests pursuant to s60CC(3)(m) – any other fact or circumstance that the Court considers relevant. Where possible, I will consider both children at the same time, as a matter of convenience.
Relocation cases are always particularly difficult. Whatever the Court may decide, one parent will inevitably feel particularly aggrieved by the outcome. However the Court’s responsibility in such cases is no different to any other parenting dispute. The children’s best interests remain my primary consideration.
The authorities have consistently stated that each party’s parenting proposal, including any proposed relocation, must be assessed against the relevant legislative considerations[15]. The 2006 amendments to the Family Law Act have placed an increased emphasis upon the importance for children being able to maintain a meaningful relationship with each parent however the legislation does not define what is meant by a “meaningful relationship”.
[15] Morgan & Miles (2007) FLC 93-343; Mulvany & Lane (2009) FLC 93-404; McCall & Clark (2009) FLC 93-405; Donnell & Dovey [2010] FamCAFC 15
The concept has been discussed at length in various judgments since the amendments were introduced. The Full Court in McCall & Clark endorsed the comments of Brown J in Mazorski & Albright[16] where she said that “a meaningful relationship or meaningful involvement is one which is important, significant and valuable to a child.” Her Honour went on to note that it is a qualitative adjective, not strictly a quantitative one. The Full Court also agreed with Bennett J who suggested that the enquiry was prospective in nature, insofar as the court must assess whether a child will derive some benefit from maintaining a meaningful relationship with both parents[17]. A meaningful relationship should be measured by the quality of the parent/child relationship, not simply by the number of hours or nights spent together.
[16] Mazorski & Albright (2007) 37 Fam LR 518
[17] G & C [2006] FamCA 994
I will now address the relevant considerations set out in s60CC. With respect to the additional considerations in s60CC(3) I will deal with those factors that are most significant to my determinations first before returning to the remaining relevant considerations.
Section 60CC considerations
Primary considerations
Section 60CC(2)(a) the benefit to the children of having a meaningful relationship with both parents.
Ms C noted that [Y] “appears to have good reciprocal relationships with each parent”[18]. While the level of conflict between the parents is high, I nonetheless conclude that it is in [Y]’s best interests to maintain an ongoing meaningful relationship with each of his parents. I am satisfied this outcome is consistent with the objects and principles outlined in s.60B, provided sufficient safeguards can be put in place to ensure that the impact of the parental conflict does not outweigh the benefit to [Y] of maintaining a relationship with each of them.
[18] August 2009 Report, p.14, May 2010 Report, p.13
[X] does not have an ongoing relationship with his biological parent, Mr W, who has played no part in [X]’s life. Mr Barnes may have been in the role of a paternal figure for [X] during the parties’ short relationship but has played a very limited role in [X]’s life since the parties separated in September 2007. While Mr Barnes’s original application sought an order that both children live in his primary care, his affidavit material has always focussed more heavily upon his prior relationship with [Y].
Ms C observed that [X] played comfortably and interacted reasonably easily with Mr Barnes. However their relationship is obviously not well developed. I do not consider that [X] presently has a meaningful relationship with Mr Barnes. Whether it will be in [X]’s best interests to establish such a relationship is a question I will return to.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are real concerns raised about the behaviour of both parents. Both parents have exposed the children to unacceptable conflict since separation.
The mother has experienced a severe psychological reaction to the stressors in her life which is presenting in the form of anxiety, depression and personality problems. There is no doubt that the mother’s behaviour has the potential to impact negatively upon the children’s welfare. She maintains an attitude of relentless hostility towards the father, which the children have witnessed.
The father has allowed his ongoing hostility towards the mother to descend into racial abuse on occasion. He continues to consume marijuana and his supervision of [Y] seems to be inadequate at times. On balance, I am satisfied the father has behaved violently towards the mother in the past, with little apparent insight or remorse for his actions.
I will discuss all these concerns in more detail when addressing the additional considerations under s.60CC(3). However, despite these concerns, I am satisfied both parents genuinely have the children’s best interests at heart. While there are criticisms that can be made of both parties’ behaviour, I do not consider those criticisms amount to an unacceptable risk of physical or psychological harm, provided that appropriate safeguards are put on place and the parents are able to control their hostile behaviour.
Additional considerations
Section 60CC(3)(f) the capacity of each of the parties to provide for the needs of the children including their emotional and intellectual needs; and
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parties; and
Section 60CC(4) the extent to which each of the parties has fulfilled or failed to fulfil their responsibilities as a parent
I will address these considerations together as they are inter-related. My discussion will focus on the parties’ parenting of [Y], but is also relevant to my determinations regarding [X], pursuant to s.60CC(3)(m).
Both parties raise significant concerns about the quality of day to day care the other party provides and accuse the other parent of compromising [Y]’s emotional welfare. The father was highly critical of the mother’s capacity to care for [Y] and by implication, for [X]. He believes the mother has significant mental health problems and that she fails to provide appropriate nutrition, clothing or emotional support for the children.
The father believes that the mother’s mental health is so significantly compromised that [Y]’s time with the mother should be supervised, unless the Court is satisfied to the contrary.
The mother was equally critical of the father’s parenting capacity and believes that the children are not safe in his care. Her allegations against the father were clearly tainted by her hostility towards
Mr Barnes, however I do not automatically dismiss all of her concerns. The father presented as immature and lacking in insight regarding the demands of parenting two young children. His past violent behaviour is concerning, as is his drink driving record. However I have no hesitation in rejecting the mother’s concerns that the father may have behaved in a sexually inappropriate manner toward [Y].
Ms C was impressed by the father’s interaction with [Y] and [X] during her two assessment interviews. I accept that Mr Barnes has demonstrated his capacity to provide appropriate parenting for [Y], to the extent that this can be assessed through the family report process. However the father has not provided extended care for [Y] beyond a
24 hour period, nor has he cared for the boys together. [X] has spent no time in Mr Barnes’s sole care since separation in 2007, aside from the periods of observed interaction. His capacity to manage the demands of an ongoing primary parenting role remains untested.
The Independent Children’s Lawyer raised concerns about both parties’ parental capacity and their attitude towards their parenting responsibilities generally. Mr Charman noted his ongoing concerns about the father’s consumption of alcohol and marijuana. There must also be some question mark over the father’s attention to the proper supervision of a young child, as evidenced by the recent accident where [Y] fell from a brick wall suffering significant grazing to his face.
Obviously toddlers such as [Y] suffer accidents without this representing a failure of parental responsibility. However, the father did not present a particularly detailed or cogent response to the events of that weekend, nor did he demonstrate a detailed understanding of the longer term parenting requirements for a young child such as [Y]. He did not appear to have turned his mind to the challenges involved in the parenting of two young children on a full time basis.
There is little evidence to suggest that the father’s marijuana use is at a level that would impact his parenting capacity, nonetheless it remains a matter of concern. Mr Barnes’s evidence that he kept his supply in a cupboard underneath his kitchen sink was perhaps more concerning, as an indication of his limited insight into the possibility that a young child could inadvertently access this site.
The Independent Children’s Lawyer was even more concerned about the mother’s apparent inability to focus on the children’s needs, due to her own psychological difficulties. Mr Charman was deeply concerned by the mother’s presentation in the witness box, which he felt added weight to Ms C’s original view that the father was better placed to take on the role of primary caregiver.
However, I consider it is difficult to assess a party’s parental capacity based on their presentation in the witness box. As discussed, the mother was clearly distressed during the course of the hearing and her engagement with the process was limited. Based on the evidence from Dr S, her presentation is not surprising, given her personal history.
Ms Simons is by no means a “perfect parent”. Ms C’s criticisms of her disciplinary style are of concern, as is the mother’s entrenched hostility towards Mr Barnes. However, there is no evidence to support the father’s allegations of neglect. If the mother’s parental capacity and mental health were as compromised as the father alleges, it would be expected that the relevant welfare agencies in Victoria or South Australia would have intervened. No records were presented to the Court in that regard.
On the contrary, we know that the mother had sought appropriate support to assist [X] with his learning difficulties whilst she was living in Victoria and took steps to continue these arrangements in [M]. The reports from [S] College indicate that [X] has proceeded well at the school. His absenteeism is low and generally explained by illness.
[X]’s Semester 2009 Learning Support Report includes a comment “Thank you Ms Simons for the way you have supported [X] in his learning, especially in hearing him regularly read. Please try to keep this happening until [X] becomes an independent reader.” This suggests that the mother is taking on her parenting responsibilities diligently regarding [X]’s education. There was nothing to suggest that the College had any concerns regarding [X]’s day to day presentation at school.
The mother has also participated in numerous learning and developmental assessments for [X], a further demonstration of her attention to his welfare. The mother was criticised for stating on oath that she believes [X] is autistic, despite recent developmental reports to the contrary. However, in my view, the mother’s evidence on this topic should not count against her. She had certainly received specialist reports when [X] was younger indicating that he may meet the criteria for autism. She then sought appropriate educational and developmental support for him, both in Victoria and through [S] College in [M].
I consider the mother’s evidence on this topic reflects a degree of uncertainty and misunderstanding about the precise definition of terms such as “autism”, as opposed to a child diagnosed with learning difficulties. Many parents, having received a potential diagnosis for their child, may not appreciate that a child can still experience learning difficulties without meeting the criteria for a diagnosis of autism.
The mother was also criticised for giving evidence that she would not immunise the children and may not comply with prescribed medication regimes for them, however I consider the mother’s evidence in this regard reflected her increasing hostility to the process of cross examination rather than her attitude to medical treatment generally. There is clear evidence that the mother has sought appropriate medical treatment from time to time, as evidenced by the Hospital and Health Service records. The mother was able to provide a detailed description of [X]’s developmental history when interviewed by the Child Development Unit in [M].
There is no evidence to suggest that either child’s health has been compromised because Ms Simons has refused to seek medical treatment for the child. A significant number of parents in the Australian community hold concerns about the risks of immunisation. I do not consider this reflects inadequate parenting by the mother.
The mother’s hostility and oppositional tone in the witness box does her no credit but it does not provide a basis to find that she would place the children at risk.
Ms C was critical of the mother’s inability to manage the children’s fractious behaviour and commented that the children took little notice of the mother’s attempt to discipline them during the first assessment interviews. She noted that the mother spent little time playing with the children and “was not very verbal with the children during the session”[19].
[19] Family Report dated 4 August 2009, pp.11 and 12
Ms C noted that the children were better behaved during the second observed interaction in March 2010. However she remained critical of the mother’s discipline strategies and was clear in her opinion at trial that she considered the father was likely to have better day to day parenting skills.
Ms C’s criticisms of the mother’s parenting style and discipline may be appropriate. Ms Simons may well benefit from some guidance and support in managing the children’s behaviour. However, I remain concerned that the overall tenor of Ms C’s report is unconsciously biased against Ms Simons because of the hostility Ms Simons demonstrated towards Ms C during the process, as previously discussed.
Parental conflict
Both parties have clearly allowed their hostility to cloud their focus on the children’s best interests. [Y] has been exposed to the conflict between his parents, even when handovers take place inside the police station. Such behaviour reflects poorly upon the parents and they must each take responsibility for the role they have played in these disputes. Neither parent has demonstrated any understanding of the children’s need to witness a respectful relationship between the significant adults in their lives.
Ms C was concerned that the mother’s hostility towards Mr Barnes would spill over into her domestic sphere and that [Y] and [X] would be exposed to her anger. I agree that there is a real risk from both parents in this regard.
The parties must understand that such behaviour is unacceptable. The father tended to suggest that the mother’s hostile behaviour was far more serious than his own but I conclude both parents have placed [Y]’s emotional welfare at risk.
[X] is also at risk of being drawn into the mother’s bitterness towards Mr Barnes. [X] may indeed have been traumatised by exposure to
Mr Barnes’s past aggressive behaviour towards his mother. However, it is likely that this experience may have been compounded by the mother’s ongoing hostility towards Mr Barnes.
The father acknowledged that he has resorted to racial abuse and denigration of the mother, as occurred during a recent handover at the police station. The father endeavoured to justify his behaviour but his evidence was not convincing. He explained that the mother had accused the police officers and him of racism and prejudice. He alleged the mother called them all “white cunts” and it was in that context that he responded in kind, saying words to the effect “to think that I wanted to marry that black bitch”, or possibly using the word “coon”.
The mother conceded that she felt the police officers were prejudiced against her but denied using the expletives alleged by the father. It may be the case that the mother is extremely sensitive to perceiving prejudice or discrimination, given her background. Whether the mother’s evidence reflects her actual experience, or a sensitised reaction to the stress associated with meeting Mr Barnes for handover inside a police station is not a matter I can determine. However, I accept the mother’s evidence that she did not call the father a “white cunt”. Her evidence on this topic was clear and her demeanour in the witness box was consistent on this occasion.
The acrimony between the parties has compromised their capacity to communicate effectively regarding [Y]’s welfare, which represents a fundamental failure to exercise their parental responsibilities appropriately. The mother did not consult with Mr Barnes before moving to live in the [M] area in 2007. More recently, Mr Barnes failed to notify Ms Simons regarding [Y]’s fall in June this year. While [Y]’s injuries were not serious his face was badly grazed. It would have been very distressing for the mother to arrive at handover and see [Y] in that state.
Unfortunately I have little confidence in the parties’ capacity to improve their parenting communication.
Section 60CC(3)(h) the child’s right to enjoy his Aboriginal culture (including the right to enjoy that culture with other people who share that culture and the likely impact any proposed parenting order may have upon that right)
[Y] and [X] share their mother’s [G] heritage. The Family Law Act makes it clear that Aboriginal children have the right to:
i)enjoy their Aboriginal culture;
ii)to maintain a connection with that culture;
iii)to have the support, opportunity and encouragement necessary to explore the full extent of the culture; and
iv)to develop a positive appreciation of the culture.[20]
[20] Section 60B(3)
The legislation recognises that Aboriginal children occupy a unique position in Australian society. The Aboriginal experience of dispossession from land and disconnection from culture is well documented and well understood. It has included over a century of institutionalised racism and discrimination. In the child welfare context the governmental policy of forced removal of children from their Aboriginal parents was identified and discussed at length in the “Bringing them Home” report published by the Human Rights and Equal Opportunities Commission in 1997[21].
[21]Human Rights and Equal Opportunities Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families Commonwealth of Australia 1997
The report identified in stark detail the social and emotional dislocation that Aboriginal Australians have experienced. This experience occurs at a personal level for the children and parents who were separated but also at a community level where the opportunity for the transmission of cultural law and responsibility was lost to Aboriginal communities.
Various courts have quoted with approval from a 1998 article prepared by Stephen Ralph where he says[22]:
“For children who uneasily straddle the divide between Aboriginal and non-Aboriginal society the fostering of their connection to Aboriginal culture in a careful and sensitive manner may promote the development and experience of a “special” individual identity. … With support and sensitive guidance from others, children may come to take pride in their heritage and re-shape their own identity in accordance with a new perspective upon themselves, their ancestry and their place within contemporary Aboriginal society.
The significance of this connection to culture in such cases rests in the child's potential need for support from an Aboriginal parent or carer and other Aboriginal people in dealing with the complex issue of what it is to be an Aboriginal child growing up in white society. Although this might not be an immediate and vital concern in considering the needs of an infant child, in the long term it is very likely to be a crucial factor influencing the child's passage through adolescence and later adjustment as an adult.”
[22] Ralph, S, The Best Interests of the Aboriginal Child (1998) 12 AJFL 140 at p.148
Not only will an Aboriginal child benefit from developing a sense of pride in their Aboriginal culture and heritage, facilitating this opportunity may provide some degree of protection for the child from the risk factors so clearly identified for Aboriginal children – loss of self esteem, loss of identity and an increasing risk of socially dysfunctional behaviour, as reflected in the overall representation of Aboriginal children in the juvenile justice system and juvenile detection centres.[23]
[23] Chapter 24, Bringing Them Home Report
It is important to remember that the children’s Aboriginality and their right to develop a connection to their culture is but one of the many factors the Court must take into account in determining their best interests. It cannot and should not be seen as overriding the other considerations that the Court must take into account pursuant to s.60CC, nor the other objects and principles set out in s.60B. However, the Court has specific obligations in this regard. As the Full Court said recently in Donnell & Dovey[24] :
“… we consider that an Australian court exercising family law jurisdiction in the twenty first century must take judicial notice of the fact that there are marked differences between indigenous and non-indigenous people relating to the concept of family. …
In our view, judicial officers dealing with cases involving an indigenous child should be expected to have a basic level of understanding of indigenous culture, at least to the extent that this can be found in what the Full Court in B and R (supra) called “readily accessible public information”. It should not be expected that parties must approach the court on the basis that the presiding judicial officer comes to the case with a “blank canvas”.
It is also to be expected, in our view, that judicial officers will be familiar with the reported decisions of the Full Court dealing with indigenous children, as well as the policy considerations that have informed the significant changes made to the legislation pertaining to indigenous children.”
[24] Donnell & Dovey [2010] FamCAFC 15 at para.321-323
The Full Court then went on to note that judicial officers should be aware of, or remind themselves of, matters discussed in articles by Professor John Dewar[25] and Stephen Ralph, mentioned above.
[25] Professor John Dewar, “Indigenous Children and Family Law” published in (1997) 19(2) Adelaide Law Review 217
A number of themes have been identified as relevant to the welfare of Aboriginal children and therefore relevant to courts dealing with the welfare of Aboriginal children. The Full Court discussed these themes in the 1995 case, B & R[26]. Brown FM usefully summarised the Full Court’s earlier discussion as follows[27]:
·A child whose ancestry is either wholly or partially Indigenous will be regarded as “black” by the cultural mainstream in Australia regardless of the child’s own personal identification or particular upbringing.
·Australia remains a country where racism, particularly against Aboriginal people remains prevalent. As such, Aboriginal children are likely to be exposed to racism from an early age.
·The removal of an Aboriginal child, from his or her family of origin, into a Euro-centric environment is very often devastating to the child concerned, particularly if it is coupled with a separation from the child’s family of origin and culture.
·The greatest protection, for an Aboriginal child, from the corrosive effects of racism or prejudice is to be part of a community which has to deal with such discrimination regularly.
·If an Aboriginal child has access to strong role models, who share his or her racial makeup, this is likely to provide the greatest protection from exposure to racism, either institutionalised or otherwise.
·Aboriginal children, who are removed from their family of origin, often suffer an acute identity crisis in adolescence, particularly if they are brought up in ignorance of their culture or in circumstances which deny their Aboriginality.
·A denial of cultural identity may result in a significant loss of self esteem, which can last well into adult life with possibly highly debilitating circumstances.
[26] B & R and the Separate Representative (1995) FLC 92-636 at 82,398
[27] Verran & Hort and Verran [2009] FMCAfam 1 at para.258
The father noted that the mother herself had been convicted of giving a false statement to the police when she withdrew one of the allegations that had led to charges being laid against the father. However, this episode must be seen in the context of the complex dynamics that can operate within a violent relationship. The “cycle of violence” is a well identified phenomenon where a victim may separate and subsequently be convinced to reconcile with an abuser, even to the point of withdrawing allegations.[31] A court should be cautious indeed about dismissing all evidence about family violence purely because of such an incident.
29 Scutt, J. A., Even In the Best Of Homes: Violence In The Family, McCulloch Publishing Pty Ltd., Melbourne, 1990
In assessing the impact of my findings about past family violence from Mr Barnes toward Ms Simons, I consider the risk of an escalation of conflict between the parties is high and to that extent maintaining suitable handover arrangements with the security of a police station or handover centre is clearly appropriate. The father has continued to denigrate the mother at handovers, despite having completed an anger management course. I consider the risk of Mr Barnes lashing out and behaving in a violent or aggressive manner towards [Y] or [X] is relatively low, however the father has not had to deal with any of [X]’s more challenging behaviours, as described in the various educational and developmental reports.
The risk to the children lies less in the father behaving in a violent manner towards them than in the children being exposed to violence as a method of resolving conflict between adults, particularly within the context of domestic relationships.
Ms C was particularly concerned about the mother’s propensity to enter into relationships with violent partners. While Ms C’s comments seem to ignore the fact that the father was one of those violent partners, it is equally concerning that the children may be exposed to interpersonal violence within the mother’s household.
The mother would benefit from participating in ongoing counselling to develop her own capacity to avoid such relationships in the future in order to protect herself and her children from the devastating impact of interpersonal violence.
The existing orders endeavour to minimise the risk of exposure to violent behaviour between the parties by ensuring handovers take place inside the police station. As became clear, this has not been sufficient to protect [Y] from aggressive and angry exchanges between his parents.
Section 60CC(3)(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The hostility between the parties is intense. Ms C was highly critical of the mother’s negative attitude towards the father, an attitude she believes the mother conveys to the children, both directly and indirectly.
The mother’s evidence was clear and unambiguous. She believes the father has been violent towards her and that [X] has witnessed these assaults in the past. She believes the father has inadequate parenting skills and is unable to provide safe or appropriate parenting for either child. She believes the father continues to harass and undermine her role in the children’s lives. She is unable to say anything positive about the father’s role in [Y]’s life and therefore struggles to support any ongoing relationship between the children and Mr Barnes.
Ms Simons made no effort to gloss over or recast her hostility in a more positive light during the hearing.
The mother’s past hostility has led to contravention proceedings and Ms Simons was found guilty of contravening the previous parenting orders. She was placed on a good behaviour bond for six months and has substantially complied with the present parenting orders both during the life of the bond and subsequently.
I am reasonably satisfied that the earlier contravention proceedings have made it clear to the mother that Court orders must be complied with and that she must co-operate with any future order for [Y] or [X] to live with or spend time with Mr Barnes. On that basis, I am reasonably confident that the mother will comply with any parenting orders made by me at this time.
Section 60CC(3)(c) goes beyond simple compliance with Court orders, however. The mother will struggle to support either child’s relationship with the father, because of her ongoing hostility towards Mr Barnes. While a large part of her hostility is based upon her own past experience and her lack of faith in Mr Barnes’s parenting skills, she also feels that Mr Barnes is using his relationship with [Y] to control her, by virtue of his application to keep [Y] in [M].
From the mother’s perspective, she feels she has been “trapped” in [M] for the past two years, awaiting finalisation of these proceedings. Some of the delays have been due to the mother’s own circumstances, particularly her difficulties in obtaining legal representation and presenting her case properly before the Court. It is obviously unreasonable that she blame Mr Barnes in this regard. Nonetheless, the dynamic between the parties is such that she does blame Mr Barnes for her situation.
In my view, it is possible that the mother’s hostility may ease in the event she is allowed to return to [W] where she feels she will be able to access appropriate support and develop her sense of cultural identity and Aboriginality “on country”. If the mother is able to establish a more settled and supportive emotional environment this may well increase her ability to facilitate [Y]’s relationship with Mr Barnes.
Mr Barnes also demonstrates a hostile and disrespectful attitude towards Ms Simons. He is highly critical of the standard of care she has provided for the children in the past and was unable to identify any positive aspect of her parenting. While he did not present as relentlessly oppositional as did the mother, I have no great confidence that he would encourage [Y]’s relationship with his mother, in the event [Y] is placed in his primary care.
Section 60CC(3) (d) the likely effect of any change in the child’s circumstances including the likely effect of any separation from either his or her parents or any other person with whom the child has been living
If [Y] and [X] remain in Ms Simons’s care and move to [W], their capacity to spend regular time with Mr Barnes is more limited, assuming Mr Barnes remains living in [M]. This would be particularly significant for [Y] who is presently spending overnight time with his father on two occasions each week.
Similar concerns would apply in the event [Y] moves to his father’s primary care in [M]. [Y]’s attachment to his primary caregiver would be disrupted. Ms Simons may choose to move to [W] where she feels she will be able to access greater support and re-connect with her Aboriginal heritage. In that event an order for [Y] to remain in his father’s primary care would see an even more dramatic reduction in the amount of time [Y] is able to spend in his mother’s care.
The father is no longer pursuing primary care of [X] and to that extent, an outcome that sees [Y] living with his father in [M] would also bring a significant disruption to [Y]’s relationship with his siblings, [X] and [Z], a situation that would be exacerbated if the mother relocated to [W].
The issues for [X] are less significant. He does not have an established relationship with Mr Barnes and to that extent, any orders for [X] to spend time with Mr Barnes represent a change in his present living arrangements. A move to [W] would require a change of school, which would be somewhat disruptive, given his learning difficulties. However he is still young and Ms Simons has demonstrated her capacity to seek appropriate support for [X] in this regard.
Section 60CC(3)(a) views of either child
[Y] is too young to be interviewed. Ms C observed the interaction between the parties and the children in her August 2009 and May 2010 family assessments. In the latter report she also interviewed [X]. On that occasion [X] said that “he does not want to live with Mr Barnes because he nearly killed Ms Simons”. [X] indicated that he had seen Mr Barnes punch his mother, adding that “he tried to stop Mr Barnes but he wasn’t able to because he wasn’t as strong as him”.
Ms C was clearly surprised at the vehemence of [X]’s views, given that he had been “very happy to see Mr Barnes last year” during the earlier assessment in August 2009. She asked [X] what had happened to change his views to which the child replied he did not know.
Ms C was concerned that [X]’s attitude may have been influenced by Ms Simons. When asked by Ms C whether Ms Simons had told him that Mr Barnes had punched here [X] replied “yes” and then said “no, that he just knew it himself”. It may be that both are correct – [X] does remember Mr Barnes behaving violently and has had those memories reinforced by his mother during the intervening years.
I note that even in the August 2009 interaction, [X] himself asked
Mr Barnes “why did you hurt my mum today”. Clearly Mr Barnes had not seen Ms Simons “to hurt her today” and to that extent the child’s comments could be dismissed as irrelevant. Alternatively, as I have said, it may be that [X] holds traumatic memories of Mr Barnes hurting his mother while they lived together in [W].
In assessing the weight to place upon [X]’s views, I note that he is only seven years old. Nonetheless, I conclude that [X] has considerable ambivalence about Mr Barnes. However, as with many children, [X] is able to subsume that ambivalence at times and engage in apparently easy and comfortable play with him.
Section 60CC(3)(b) the nature of the child’s relationship with each parent and other significant persons
As noted above, Ms C commented that [Y] appears to have a good reciprocal relationship with each parent. She was particularly impressed with the quality of Mr Barnes’s interaction with both children. The father has successfully established his relationship with [Y] as reflected in the Children’s Contact Centre report and confirmed by Ms C’s assessment.
Given the quality of the observed interaction between [X] and Mr Barnes was reasonably comfortable, this relationship may benefit [X] in the long term, given that he presently has no father figure in his life.
Ms C was critical of the mother’s more detached parenting style during the observed interactions but I conclude these comments reflect Ms C’s unconscious pre-judgment of the mother, as discussed elsewhere in these reasons.
An indication of [Y]’s emotional bond with the mother can be seen on page 12 of Ms C’s May 2010 report. It would appear that [Y] had been in the father’s care prior to the observed interactions to take place on that day. The mother arrived to deliver [X] and as she went to leave, [Y] ran after her, crying. This was hardly surprising for a 2½ year old child who has been away from his primary caregiver for some time and then sees his mother briefly, only to have her “disappear” again. However, Ms C made no comment about this beyond noting that “[Y] settled on being brought into the session room and interacting with
Mr Barnes.”It is obviously reassuring that [Y] settled upon seeing his other parent. There is no doubt that he enjoys a comfortable relationship with
Mr Barnes, a relationship that has developed through their regular time together. However it is equally clear that [Y] has an established attachment with his mother, a factor which Ms C seemed reluctant to acknowledge.
[Y] obviously has a significant relationship with his older brother [X]. Their interaction during the family assessment processes indicate the usual degree of sibling tension that would be expected between any seven year old and two year old child, with toy cars being snatched and occasional outbursts when a play item was not immediately returned. The children are also developing a relationship with their infant sister [Z] who is now eight months old.
In her first report Ms C recommended that [Y] move into Mr Barnes’s primary care, but made no comment about the attachment implications for such a young child, nor about the impact such a move would have upon his sibling relationships.
In her oral evidence, Ms C acknowledged that if [Y] was placed in the father’s care he would lose his important sibling relationships with [X] and now with [Z]. However, this was the first occasion Ms C had commented upon this issue.
No doubt the children also enjoy meaningful relationships with their extended family in the [M] region, such as their maternal grandmother and from [Y]’s perspective, his extended paternal family. These relationships were not addressed in any detail by either party during the hearing but it seems likely that both parties would continue to facilitate these family relationships in the future.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In the event the parties live some distance apart there will be significant travel required. However, the distance between [M] and [W] is less than 200kms and the travel, while significant, is not prohibitive to [Y] maintaining a meaningful relationship with his other parent, albeit they may necessarily spend time together less frequently than presently occurs between [Y] and his father.
The parties’ capacity to undertake the necessary travel between [M] and [W] is uncertain. As I understand it, the mother has her licence and a motor vehicle and would be able to participate in the necessary travel. Presently the father has neither a motor vehicle nor a licence. His licence was suspended some time ago and he is unable to have his licence reinstated until he pays out various fines. The father gave no evidence to suggest he is taking any positive steps to discharge those fines and he seemed content to manage his transport requirements by walking, riding his bicycle or relying upon family and friends for assistance when required.
The father is not currently employed and I appreciate it would be difficult for him to pay off the necessary fines. In the event the parties live some distance apart, the father may need an opportunity to address this situation and endeavour to regain his licence.
The mother is reliant upon supporting parents benefit and her financial capacity to meet the travel costs involved will also be a factor to take into account.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant
[Y] is just three years old. He has lived the whole of his life to date in the primary care of his mother, together with his older brother [X] and now his younger sister [Z]. While [Y] has clearly developed a meaningful relationship with his father, there is no doubt that a change in primary care is significant for a child of his age.
[X] has experienced considerable learning difficulties and a developmental assessment conducted in Victoria raised the possibility that he may meet the diagnostic criteria for autism. Appropriate programmes and educational support were put in place in Victoria and subsequently through [S] College in [M]. A more recent developmental assessment indicates that [X] is progressing well and the possible diagnosis of autism was rejected, in light of his improvements.
I am satisfied Ms Simons is attending to [X]’s developmental needs, with appropriate support through [S] College.
Section 60CC(3)(l) whether it would be preferable to make an order that would least likely to lead to the institution of further proceedings
The mother was clear that if the orders did not support her relocation, she would move to [W] and file a fresh application. Counsel for the father was highly critical of the mother in this regard. At one level, it could be seen that the mother is simply flouting the authority of the Court to hear and properly determine the parenting arrangements for [Y] and [X], but I did not interpret the mother’s evidence in this way.
I am satisfied the mother does not appreciate that the orders of this Court apply in Victoria as they do in South Australia. It is hardly surprising that she does not understand this distinction. She has had the experience of having to register her Victorian Domestic Violence Restraining Order in South Australia and may well have assumed that a different jurisdiction or set of laws may be available to her in Victoria.
That is not the case. It is not open to the mother to simply file a fresh application in Victoria and expect a different outcome, simply because she is filing in a different State. However, the mother’s evidence in that regard arose from her misunderstanding of the legal situation, as her solicitor has no doubt now advised her. I place no weight upon the mother’s evidence in this regard.
It is well understood that ongoing court proceedings have a negative emotional impact on children. They are subjected to continuing and escalating conflict between their parents, which is rarely contained to the Court arena. Their living arrangements remain uncertain and their lives remain unsettled. They may be required to participate in further assessment processes which can be confusing and intrusive.
While the Court should always endeavour to minimise the risk of further proceedings for these reasons, this is not the determinative consideration in this matter. My findings with respect to the children’s general welfare outweigh this factor.
Conclusion
Parental responsibility
The presumption in favour of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in family violence. The presumption is also rebuttable if the Court is satisfied that such an order would not be in the children’s best interests.
I am satisfied that the father has caused Ms Simons to reasonably fear for her personal safety and wellbeing and that his behaviour falls within the definition of “family violence” in s.4(1). Accordingly I conclude that the presumption does not apply in this matter.
Even if I am wrong in that regard, I conclude that the present co-parenting relationship between the parties is such that equal shared responsibility is not in [Y]’s best interests and the presumption is rebutted. An order for equal shared parental responsibility brings with it particular obligations. Section 65DAC specifies that if two or more persons are to share parental responsibility they have an obligation to consult in relation to major long term issues regarding the children. At present I cannot be satisfied that the parties would be able to engage in that degree of co-operative communication.
The mother already has an order for sole parental responsibility for [X]. The father does not seek to alter this situation and I am satisfied that the existing order should continue.
Turning to [Y], I conclude that it will be in his best interests for the parent with whom he primarily resides to have sole parental responsibility for decisions regarding his long term care, welfare and development. However, both parties will continue to play a meaningful role in [Y]’s life and it is appropriate that they each retain parental responsibility for day to day issues that may arise.
Parenting time
In the absence of an order for equal shared parental responsibility, s.65DAA does not apply. Neither parent is promoting an outcome for an equal time parenting arrangement but it is an option put forward by the Independent Children’s Lawyer, in accordance with the recommendations put forward by Ms C during the trial. It is also a secondary proposal put forward my Mr Barnes, in the event [Y] is not placed in his primary care.
Taking into account all of the evidence I have heard, I do not consider an order for [Y] to live equally with each parent is appropriate or likely to be in his best interests. I have already discussed the parties’ limited capacity to implement a co-operative parenting relationship. I have no confidence that they would be able to develop the degree of communication necessary to implement a week about shared parenting regime. On the contrary, I consider their hostility and antagonism would likely make such an arrangement a traumatic experience for [Y] as he negotiates a childhood torn between two warring parents.
In considering which parent is better placed to provide primary care for [Y], the Independent Children’s Lawyer paid particular attention to the mother’s unco-operative and hostile attitude towards [Y]’s relationship with his father. He also highlighted the concerns identified by Ms C regarding the impact of the mother’s mental health upon her parenting capacity.
While Mr Charman properly identified the importance of the children’s Aboriginality, he quite rightly did not consider this consideration outweighed the importance of [Y] retaining a meaningful relationship with his father. Mr Charman was concerned that the mother’s reliance upon this factor was somewhat opportunistic. In any event he did not consider that the children’s capacity to maintain their cultural traditions would be unduly compromised in the event the children remain living in [M].
Mr Charman was concerned that any move to [W] would be particularly disruptive for the children. [Y] would potentially lose the capacity to spent regular time in his father’s care. [X] would have to change schools, which could be detrimental to his educational progress, given his past learning difficulties.
Mr Charman concluded that it would be in the children’s best interests that they remain living in [M] and on that basis, he supports an outcome that [Y] live with each parent on a week about basis with the father to have sole parental responsibility for the child. He concluded that a week about parenting arrangement minimised the risks associated both with the mother’s compromised parenting capacity and her hostility towards Mr Barnes. At the same time, [Y] would be well placed to preserve his important sibling relationships and would be able to maintain a connection to his Aboriginal culture, with his mother’s support.
Mr Charman’s submissions were well drafted and appropriately focused on the legislative pathway that the Court must follow in determining the children’s best interests. However, having weighed the evidence carefully, I have reached a different conclusion.
I do not hold the same concerns regarding the mother’s mental health status and parenting capacity. Based on the evidence from Dr S, I am reasonably optimistic that the mother’s “mild paranoia” and distrust of authority may ease once these proceedings are finalised and she no longer feels her status as a parent is under threat. Further, I conclude the evidence indicates that the mother has attended to her parenting responsibilities for [X] appropriately and I see no reason to assume that will not continue in the future.
While Ms C was critical of the mother’s parenting capacity as demonstrated during the family assessment process, I remain concerned that Ms C adopted an unduly critical attitude towards
Ms Simons. I am not satisfied that the mother’s parenting capacity is so lacking that the children’s welfare is compromised. If this was truly the situation, Ms C’s tentative recommendation for week about parenting becomes even more puzzling.
The mother’s hostility to [Y]’s relationship with his father remains a matter of significant concern. However I refer to my earlier discussion on this topic. The mother has had the experience of contravention proceedings and is well aware that the Court will enforce its orders.
Ms Simons resumed compliance with the parenting orders upon being directed to do so in September 2009, prior to the contravention hearing taking place. She has continued to comply with the orders since that time, by and large, albeit with the force of a good behaviour bond in place until May 2010.
While the mother struggles to see any benefit for [Y] in maintaining a relationship with Mr Barnes, I am reasonably confident that she will continue to comply with Court orders in the future. The reality is that [Y] has established and maintained a meaningful relationship with his father despite his mother’s attitude. Provided the mother (indeed, both parents) refrain from criticising and denigrating the other parent, [Y] will be able to maintain a meaningful relationship with both of his parents in the future.
I place significant weight upon [Y]’s primary attachment to his mother and the importance of [Y]’s sibling relationships with [X] and his infant sister [Z]. I also place particular weight upon [Y]’s right to enjoy his Aboriginal culture. I consider that the benefit to [Y] in being able to develop a positive appreciation of his Aboriginality will be better enhanced if he resides in the primary care of his mother, who is better placed to facilitate his access to this cultural heritage and where [Y] will participate in these activities together with his siblings.
While I accept that [Y] would not be at significant risk of harm or neglect if he was placed in the father’s primary care, Mr Barnes’s capacity in this regard is untested. I am not satisfied that the disruption associated with removing [Y] from the primary care of his mother and from his established sibling relationships with [X] and [Z] is outweighed by the possible benefits that Mr Barnes may offer as a primary care giver. Mr Barnes’s racial vilification of the mother is a matter of considerable concern, as are my findings about his past violent behaviour.
I conclude that [Y] should remain living with his mother. However, [Y]’s right to maintain a meaningful relationship with his father is fundamental. I make it very clear to Ms Simons that her ongoing position as [Y]’s primary caregiver will depend upon her ongoing compliance with the orders for [Y] to spend regular time with
Mr Barnes. Should Ms Simons fail to comply with those orders without reasonable cause, the Court would have to give very serious consideration to placing [Y] in the full time care of his father.
[X]’s situation is very different from that of his younger brother.
Mr Barnes may have been in the role of a father figure to [X], but this occurred for 12 to 18 months, at best. Any relationship that was established has diminished in the intervening three years.
While he was able to interact reasonably comfortably with Mr Barnes, I have concluded that [X]’s relationship with him is ambivalent at best. There was no evidence to suggest that [X] was seeking the resumption of this relationship, or felt that he was “missing out”, compared to his brother [Y]. There is no doubt the mother would struggle to support the arrangement, which could place [X] in a position of emotional conflict. The Independent Children’s Lawyer did not support [X] spending time with Mr Barnes. I conclude that it is not in [X]’s best interests to spend regular time with Mr Barnes.
Should the children live in [M] or [W]?
The Independent Children’s Lawyer submitted that ideally, he would like to see the parents demonstrate their willingness to live in the same town so as to ensure that [Y] can spend regular time with them both. I agree with Mr Charman that whether that town was [W] or [M] would make little difference to [Y], at this stage of his life.
Mr Charman correctly identified that the children are settled in [M] and any such move may be disruptive. He expressed particular concern about the impact on [X]’s schooling. In addition, if Mr Barnes decided to remain in [M], there would be a significant disruption to [Y]’s relationship with his father. On balance, the Independent Children’s Lawyer did not consider relocating to [W] would be in the children’s best interests.
I respectfully disagree with Mr Charman in this regard. I conclude that there are clear benefits for the children in being allowed to live with their mother in [W]. Such a move will certainly enhance the children’s capacity to engage with [G] culture and develop an appreciation of their Aboriginal heritage.
I am confident that Ms Simons will be able to make appropriate arrangements to ensure [X] continues to receive the learning support offered to him through [S] College. The mother’s initial enquiries regarding [X]’s difficulties occurred in [W] and no doubt she will be able to access the relevant agencies again. I do not consider that [X]’s good progress will necessarily be compromised by a change in school, particularly as he is still in junior primary school.
A significant factor in favour of allowing [Y] and [X] to relocate relates to the impact upon Ms Simons herself. She clearly identifies a greater level of community support will be available to her in [W].
Ms Simons has previously sought support from the [G] Co-op Health Service and may be more open to accessing appropriate counselling and parenting support through that agency. Hopefully the services on offer would be provided in a culturally sensitive manner, which may facilitate the mother’s engagement.
Ms Simons will enjoy the benefits of returning to her traditional lands and establishing a closer link with her [G] culture. Ms M’s personal account of the benefits she experiences living “on country” mirror the general conclusions reached in the “Bringing Them Home” report and Ms Simons’s emotional resilience may be similarly strengthened, to the ultimate advantage of her children.
Significantly, her resentment towards Mr Barnes in keeping her “trapped” in [M] will ease, which may possibly improve her attitude towards his ongoing role in [Y]’s life.
I conclude that the benefits that may flow to the children if they are allowed to relocate to [W] outweigh the advantages of remaining in [M].
Obviously there may be a significant disruption to [Y]’s relationship with his father, should Mr Barnes decide to remain living in [M]. However there is no significant impediment to Mr Barnes relocating to [W] himself.
The father has lived in [W] before. While he considers his work opportunities there are limited, he does not seem to have been particularly successful in obtaining employment in [M]. [W] is a larger regional town than [M]. While Mr Barnes may have burnt his bridges with one employer, I have no doubt he will be able to obtain other employment in [W], should he choose.
Even if Mr Barnes decides to remain in [M], the distance between the two towns is not so great that [Y] will be denied the opportunity to spend regular time with his father. It is not unusual for children living in regional Australia to travel two hours between their parents’ households.
Weekly visits may be impractical, but [Y] could spend time with his father on alternate weekends, as proposed by the mother. Such a regime would still enable [Y] to maintain a meaningful relationship with
Mr Barnes to the maximum extent consistent with his best interests, bearing in mind the travel involved.
If the parties are living in the same town then a more frequent regime would be appropriate, similar to the existing parenting regime. Arrangements for [Y] will need to change as he becomes older and commences at kindergarten and school and I take this into account in my determinations.
Should the parties live in separate towns there are obviously logistical issues relating to handover arrangements. Presently the father does not have his licence or a motor vehicle. I conclude that handovers should remain in [M] for a period of time with the mother to undertake the necessary travel. This will allow the father time to regain his license.
I appreciate this is a significant imposition on the mother, but she may choose to delay her re-location to [W], to minimise that impact. She also has the option of visiting extended family or friends in [M] across the contact weekends, which would reduce the impact of the travel involved.
I am satisfied that the parties should share equally in the travel arrangements, in the long term. Where possible, handovers should take place at a Children’s Contact Service in [M] and [W] respectively, as proposed by the mother.
[X]’s school commitments would suggest that the children should remain living in [M] until the end of the current school term. The mother will be permitted to relocate the children’s place of residence to [W] in January 2011, to allow sufficient time to enrol [X] at his new school.
The existing parenting arrangements should continue pending that relocation, with some increase in the length of time that [Y] spends with his father, to prepare [Y] for the longer alternate weekend visits that will take effect once he is living in [W] in the new year. I will specify [Y]’s time with each parent on special occasions, taking into account the distance. Obviously short visits on special occasions are impractical if the parties live in separate towns.
I agree that various injunctive orders are appropriate to ensure the parents behave appropriately and to minimise the children’s exposure to abusive or racist behaviour by either parent. Injunctions in relation to the use of alcohol and illegal substances are also appropriate in my view.
I also agree with the recommendation from Dr S that the mother would benefit from counselling to assist her in dealing with her traumatic childhood. Counselling may also assist her to develop better insight into her interpersonal relationships. Indeed, I consider both parties will benefit from counselling support and from participating in further parenting skills training, as recommended by Ms C.
I now make orders as set out at the commencement of this judgment.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the reasons for judgment of Kelly FM
Date: 7 October 2010
0
6
3