STARKEY & STARKEY
[2010] FamCA 1158
•21 December 2010
FAMILY COURT OF AUSTRALIA
| STARKEY & STARKEY | [2010] FamCA 1158 |
| FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – Children estranged from father |
| APPLICANT: | Ms Starkey |
| RESPONDENT: | Mr Starkey |
| INDEPENDENT CHILDREN’S LAWYER: | Rod Madsen |
| FILE NUMBER: | TVC | 769 | of | 2008 |
| DATE DELIVERED: | 21 December 2010 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 1-5, 8-12 & 16 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Moore, then Mr Sara |
| SOLICITOR FOR THE APPLICANT: | Ms Jensen |
| COUNSEL FOR THE RESPONDENT: | Mr Betts |
| SOLICITOR FOR THE RESPONDENT: | Mr Clarke |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Curran |
| INDEPENDENT CHILDREN’S LAWYER | Mr Madsen |
Orders
IT IS ORDERED UNTIL FURTHER ORDER THAT:
The younger children, E, F, G and H, (“the younger children”) live with the Respondent Father.
The older child, D, live with the Applicant Mother.
The Father have sole parental responsibility for the younger children and shall keep the Mother informed about the younger children’s major long term issues including but not restricted to:
(a)Health;
(b)Education;
(c)Religion;
Each party is responsible for the children’s day to day care, welfare and development when the children are in each party’s respective care in accordance with these orders.
The younger children
In relation to the younger children they shall not spend time with or communicate with the Mother until further order.
The child D
In relation to the child D:
(a)The Mother and Father have equal shared parental responsibility with respect to the child D.
(b)D shall spend time with the Father at all times as may be agreed but in any event not less than one occasion (of at least two hours duration) per fortnight.
Pursuant to section 65L of the Family Law Act:
(a)Compliance with these Orders shall, as far as practicable, be supervised by a Family Consultant; and
(b)A Family Consultant shall give to any party such assistance as shall be reasonably requested by that party in relation to compliance with and the carrying out of the parenting order;
(c)Ms M is appointed the Family Consultant under s 65L of the Family Law Act 1975.
The parties shall attend a Parenting After Separation Course and such other courses or mediations as the ICL and/or Family Consultant shall direct, and shall ensure, if directed by the Family Consultant, that the children also attend counselling.
The children and the parties shall attend such further counselling (if any) as the Family Consultant and the ICL direct.
Both parties shall refrain from denigrating the other party in the presence of the children and shall ensure that as far as possible the children are not brought into contact with persons who denigrate the other parent and are removed from the care of the children and both parents shall use their best endeavours not to expose the children to excessive alcohol consumption whilst the children are in their care. Neither parent will themselves consume alcohol in excess of the legal limit (as allowed to drive a motor vehicle) whilst caring for the children, or twelve (12) hours prior to caring for the children.
The Family Consultant shall advise all persons the ICL and the Family Consultant consider appropriate, including Ms R, Ms T, A Starkey, B Starkey, C Starkey and Ms I how they can and should assist in the implementation of these orders.
A copy of these orders and reasons for judgment shall be delivered by the ICL to the Department of Communities, Division of Child Safety, Queensland Police Service and any other person the ICL considers may be able to assist in the implementation of these orders.
Each party shall keep the other informed of their residential and work address and telephone numbers and email addresses.
The Mother shall be restrained and an injunction issue restraining her from seeing the younger children, going to or being where they are or are likely to be or may see her save for the operation of 19 hereof.
For the purposes of immediate implementation of these orders:
(a)The Independent Children’s Lawyer shall make arrangements with the children’s schools for the children to be released from school at or after lunch time today and to be safely escorted to the Family Court of Australia at the Courts Precinct.
(b)Upon the children’s arrival at the Family Court of Australia, the Independent Children’s Lawyer and the Family Consultant shall explain these orders to the children.
(c)Thereafter the younger children shall be delivered to the Father.
(d)The Mother shall provide the younger children’s clothing, toys, school clothes and materials, pets and personal effects for the delivery to the Father outside the Y Contact Centre at 3pm on Wednesday 17 November 2010.
(e)The Mother shall within seven (7) days from the date of these orders, co-operate in making arrangements whereby Ms I shall assist the Father for the collection of any missing children’s pets and missing personal belongings.
Unless otherwise agreed between the parties and the Independent Children Lawyer, this matter shall be listed for a further hearing before Justice Monteith on or about 22 March 2011.
A family report be ordered to be prepared by the family consultant, to be prepared no later than 1 month prior to 22 March 2011 and that the parties shall do all necessary things and perform all necessary acts to ensure that they attend the family consultant for the purposes of the preparation of that report. Such report being directed to the questions of:
(a)Whether the Mother shall spend time with the younger children and if so, on what terms;
(b)The impact of these orders upon the children; and
(c)And such other things that the family consultant considers appropriate
The proceedings before Justice Monteith on 22 March 2011 shall, unless otherwise ordered, be restricted to the assessment by his honour of:
(a)The compliance with these orders by the parties or any other significant person;
(b)Whether the younger children will spend time with their Mother and if so, on what terms as to supervision or other terms as may be appropriate to the trial judge;
(c)The terms upon which the child D shall continue to spend time with the father.
The mother shall not spend time or communicate with the younger children unless in the opinion of the Family Consultant that it is necessary for this to occur for the purposes of any therapy that the Family Consultant thinks the children ought reasonably have in accordance with these orders.
Any Application in a Case and Supporting Affidavit shall be filed and served not later than 21 days prior to 22 March 2011 and any Response and Supporting Affidavit shall be filed and served not later than 14 days prior to that date and the Independent Children’s Lawyer shall arrange for the provision of a report from Ms M to be filed prior to the hearing.
The Independent Children’s Lawyer has liberty to apply on 24 hours’ notice to the other parties.
The Independent Children’s Lawyer shall be retained for a period of 12 months from the date of these orders to ensure the parents comply with these orders.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The costs of and incidental to these proceedings be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Starkey & Starkey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC769/2008
| MS STARKEY |
Applicant
And
| MR STARKEY |
Respondent
REASONS FOR JUDGMENT
Introduction
On the last day of the trial, being 16 November 2010, I made interim orders which appear at the front of this Judgment.
As can be seen from the terms of the interim orders, they provide for the four younger children to live with the respondent father and his partner, and that they not spend any time with, or communicate with the mother until further order.
I also ordered the child, D, who is now 14, to live with the applicant mother, but to spend time with the father, not less than one occasion of at least two hours’ duration per fortnight.
I made an order under s 65L of the Family Law Act providing for supervision by a Family Consultant of compliance with the orders and appointed Ms M the Family Consultant under s 65L.
I ordered that the matter be listed for further hearing before me on or about 22 March 2011 and that a further Family Report be ordered to be prepared by the Family Consultant, no more than one month prior to that day.
That Family Report is ordered to be directed to the questions of:-
(a)Whether the mother should spend time with the younger children and if so, on what terms;
(b)The impact of these orders upon the children; and
(c)Any such other things that the Family Consultant considers appropriate.
I further ordered that the proceedings before me on 22 March 2011 would, unless otherwise ordered, be restricted to the assessment by me of:-
(a)The compliance with these orders by the parties or any other significant persons;
(b)Whether the younger children will spend time with their mother and, if so, on what terms as to supervision or other terms as may be appropriate;
(c)The terms upon which the child D shall continue to spend time with her father.
I gave the Independent Children's Lawyer liberty to apply upon 24 hours’ notice.
It can been seen, therefore, that the orders are interim in nature in that they seek to trial the unification of the younger children with their father with the assistance of the Family Consultant, trial the father spending time with D and that the matter be reconsidered in March 2011.
Just prior to making the orders, I announced to the Court:
This has been a long trial and the matter has gone from the first of this month to now, the 16th. I have been assisted by Counsel throughout. I have decided to make orders today and to give my Reasons for Judgment later. The reason that I have decided to do that is, relying particularly upon the evidence of Ms [M] and my own assessment of the case, I have decided that it is essential that orders be made immediately which put in place the provisions for the children that I think are in their best interests. To wait until I could deliver reasons, which would be possibly a month away, I think would be detrimental to the children and so for those reasons, I have decided to make these orders. I make these orders which I now pronounce.
Background
I was provided with two Chronologies, one in each of the Case Outlines. The applicant mother’s Chronology is less helpful in constructing the background for this case than that provided by the respondent father. That is because it is replete with allegations that at the trial she did not pursue or abandoned or I found to be untrue.
On the other hand, the father’s Chronology although clearly crafted to reflect his case, nevertheless is far more objective and contains referenced source material which is extremely helpful in establishing the matrix of this case.
Consequently, I set out hereunder the Chronology, with footnotes, which are set out in the respondent father’s Amended Case Outline:
[1962] Father born – 48 years old
[1964] Mother born – 46 years old
Oct 1980 Date of cohabitation
[1986] Date of marriage
[1990] Twins born
[A] (20 years old)
[B] (20 years old)
`[1993] 3rd child born
[C] (17 years old)
[1996] 4th child born
[D] (nearly 14 years old)
[…] [Younger children] born
[E] (8½ years old)[…]
[F] (8½ years old)
[G] (8½ years old)
[H] (8½ years old)
July 2007Mother starts some casual work at [J Company]
Nov 2007Father and Mother separate, around this time mother starts relationship with [Ms R]
March 2008Father and partner ([Ms T]) meet
19.03.2008Legal aid parenting conference
Later in 2008 Mother attends [Ms T’s] workplace and threatens her to stay away from the father
[Ms T] fears she is being stalked
[Ms T] eventually quits her job and takes out a DVO against the mother
Early May 2008 Incident where [H] burns his leg, after hitting a bullet with a hammer while in the father’s care
[Late May] 2008 Incident at school. Mother collects children despite it being the father’s weekend; mother suggests father was behaving aggressively.
It seems common ground that the police were contacted and did not intervene
August 2008 This is when mother says she and [Ms R] ceased their relationship, that things became casual between them
03.11.20081st Family Report by [Ms S]:
·Mother had a very negative attitude towards the father;
·Mother could not offer any positives of the father as a parent;
·Report writer concerned about the ability of the mother to hide her feelings from the children;
·Mother had a negative and critical view of the father’s parenting which came across as very judgmental and unrealistic;
·Mother only offered holiday time because her solicitor she said she should; her personal preference would be to continue a fortnightly arrangement all year round;
·The mother’s view relating to the father’s lack of knowledge of an about the children did not coincide with the father’s descriptions of his children, his understanding of each of them as well as their social and intellectual needs;
·Father acknowledged that during the marriage he did not spend a lot of time with the children due to his long work hours but now has a job that is ‘on – off’ roster to enable him to have more time with the children;
·Report writer recommended that the five (5) youngest children live with the mother, that there be equal shared parental responsibility, that the father have the children on alternate weekends from 3 pm Friday to commencement of school on Tuesday, half of the school holidays
22.01.2009Date of divorce
23.01.2009[D] refuses to go with father at handover outside school; [Ms R] takes photographs of father mobile phone
31.01.2009Mother alleges domestic violence by the father, applies for a DVO, father consents without admission (in fact he denies any domestic violence was perpetrates)
10.02.2009Mother takes [D] for counselling with [Ms N], psychologist (5 sessions in total)
Around this time Alleged that [Ms T] abused [D] over the telephone
From this time, mother puts all calls on speaker phone or has them recorded; the children are told that this is happening
[March] 2009 Father’s birthday party – he has a few drinks with party guests – so [B] and the Father’s partner, [Ms T], return the children to the mother. After dropping off the younger children [B] receives a text message from his mother saying that he (the son) had betrayed her (the mother) by speaking to / associating with his Father
[B] is upset after receiving this text message
07.04.2009Consent parenting orders – [D], [E], [F], [G] and [H] live with the mother; equal shared parental responsibility the children spend time with the father from 3pm Friday to the beginning of school Tuesday on alternate weekends, as well as half of the school holidays, and 1 week over the Christmas holidays
Immediately [D] stops visiting her father
Later[Youngest children] allegedly tell [Ms R] that the father threw [F] and [H] out of his car. [H] gets a bruise on his arm, mother takes him to [local] Hospital. Mother also takes photographs.
19.05.09DOCS interview children’s school teachers, feedback they receive is that the mother is leading the children to make allegations against the father; no evidence father has emotionally abused them; “the mother is using the children as pawns”
(Further entry in DOCS records that the staff felt that the mother was fishing for negative information about the father)
May 2009Mother and [Ms R] take [D] to [central Queensland coast] for a [sports] competition
29.05.2009Altercation between the parents at a [sports] game
05.06.2009Department of Communities (Child Safety) writ to father regarding numerous complaints made against him – all were ‘unsubstantiated’ save for one – namely ‘risk of emotional harm’ to [D] due to the ongoing parental conflict
Unknown date (?)
Before 16.06.2009 [Ms R] claims to have seen [H] with grease on his penis when in the bath, when she asked why he was so dirty he would not talk about it
16.06.09[Ms R] claims the [younger children] disclosed to her while being dried in the bath:
The girls said “Daddy always dries [H]”
[H] said “Daddy likes to dry me so he can play with my doodle”. When she asked what [H] meant, he replied “Daddy likes to pull, rub and twist my doodle”.
Later[Ms R] claims she told the mother who did not believe her
24.06.09DOCS interview [the child C]; he said that the children “have a ball of a time” at the father’s house; that the mother makes false allegations and manipulates the children into doing so
Wednesday
01.07.2009[Younger children] are in the bath. Allegedly [Ms R] overhears them talking about “doodle sex”, “fanny sex” and “wet sex”. [H] then refers to bum sex, the girls start laughing so [Ms R] fetches the mother.
Mother and [Ms R] both allege the children told them that the father and [his partner Ms T] talked with them about sexual matters
Mother alleges that [E], [F] and [G] and then [sic] told her that the father liked to dry [H] after his bath, and not the girls. That he liked to play with [H]. Mother asks [H] what was meant by this – and [H] allegedly says that his father pulls his doodle, twists it and hurts it.
Mother claims she was “very shocked” and asked [H] if he told his father he didn’t like this – [H] allegedly replies that he told his father that it hurt and his father “just laughs at him”[1]
[1] Mother’s affidavit filed 21.09.09, paragraph 8
Children also apparently say that [Ms T] walks around naked, that she tells the children they are ugly
Later on, [E], [F] and [G] tell [Ms R] that “Do you remember when you asked [H] about his greasy doodle? Daddy had been playing with grease and then played with [H’s] doodle.”
[Ms R] was “mortified”
02.07.2009Mother takes [H] to Dr [K] about the possible sexual abuse. The doctor takes the following history:
“[H] told his mother on Tuesday when back home from usual fortnightly visit from dad that his father had pulled his penis on two occasions, once in the day and once at night. [H] had asked him to stop but he didn’t …”[2]
[2]Mother’s interim affidavit says it was Wednesday not Tuesday; and the version is somewhat different
The same day, an unknown notifier contacts DOCS over [E’s] dirty foot plaster – outcome was that the situation did not meet ‘the threshold of harm’[3]
[3] A more trivial complaint to a child welfare authority is difficult to imagine
Same day (?)Mother asks [A] if anything ever happened to him and [A] says something happened to him when he was 12
Mother asks [D] if she has ever been sexually abused; she says no but that she saw the father grab [H] by the penis one day in the bathroom when [D] was in the hallway nearby, [D] claims that [H] was screaming and father shut the door so she could not see anything more.[4]
[4] Mother’s affidavit filed 21.09.09, paragraph 9
04.07.2009Mother takes [H] to the police station regarding [H] telling his mother ‘that his father played with his penis and talked about bum sex’
[H] interviewed by police – no disclosures
Police subpoenaed records reveal –
“An ICARE was conducted with the victim child who did not make any voluntary disclosure. The reporting officer has to, as a last resort, ask direct question. When asked if any persons had touched his penis, the victim child stated, “yes”, his father did and that this happened when his father was drying him with a towel after he had a shower. The victim child stated that there were no other occurrences when the suspect had touched him on the penis. In summarising this occurrence, it is the opinion of the reporting officer, from all the information at hand, that there is no evidence to substantiate that an offence has been committed. The actions of the father in drying the child are normal practice for a parent and there is no information to suggest it was inappropriately done. This matter is to be [sic] unfounded.”
Police taking no further action
06.07.2009Notification to DOCS by Ms [R] (mother’s partner) regarding [H] telling his mother ‘that his father played with his penis and talked about bum sex’ – outcome listed as ‘unsubstantiated’ with children considered to be at risk of emotional harm due to ongoing parental conflict
DOCS determine that allegation is ‘vindictive’ and that it seems to have happened during an ordinary bath time. They are not going to investigate the complaint
09.07.2009Further notification to DOCS regarding [H] telling his mother ‘that his father played with his penis and talked about bum sex’ – outcome listed as ‘unsubstantiated’
10.07.2009Mother rings DOCS wanting to know “why the investigation has not been started into my ex husband” (Mother aware police not taking any action)
11.07.2009 to
15.07.2009Emails exchanged between father and mother about upcoming September/October school holiday time, parents not in agreement
11.07.2009[A] contacts police about giving a statement to them
13.07.2009Further notification to DOCS about [F] having an earache, police attend father’s home for a welfare check, child is OK and medication has been administered[5]
([F] had a sore ear from falling asleep with bud-type headphones in, the father’s partner gave the recommended amount of Children’s Panadol)
This same day, [A] attends the police station and gives a statement about [H] disclosing to him about father touching [H’s] penis; also refers to an alleged incident when father tried to put his hand in [A’s] shorts when [A] was about 12 years. In his police statement [A] states he cannot recall the date of the disclosure by [H] to him, he just remembers that it was a “Friday”.
[5] Systems abuse issues arise (again)
17.07.2009Notifier contacts DOCS again about [F’s] earache – notifier was aware that the police had conducted a welfare check
21.07.2009Subpoenaed records from [O] Medical Centre
Letter from Dr [K] to [Ms N] dated 21 July 2009:
“[H] has recently experienced a number of nightmares and trouble going to sleep. I was told by his mother [Ms Starkey] (whom you have met in the past with her daughter [D]) that [H’s] father had pulled on [H’s] penis twice recently during a weekend visit. Since then [H] has become more withdrawn and has commented that nobody loves him anymore.
[H] has confirmed that his dad has touched him inappropriately and that he often yells at him or smacks him and his father’s girlfriend often pulls his hair.
Past History – night terrors and insomnia”
27.07.2009Mother rings DOCS to follow up whether they are investigating [H’s] alleged disclosure of sexual abuse
02.08.2009Mother takes [H] to [Ms N], psychologist re alleged sexual abuse
Part-way through the interview, [H] ‘blurts out’ the reference to the father touching his penis; it was not a spontaneous comment; it was not responsive to what he was being asked about at the time
Ms [N] seems to discount sexual abuse; she feels rather that the child may have experienced some ‘bullied’ [sic]
04.08.09Notification made to DOCS about disclosures [H] made to [Ms N]
25.08.09Police subpoenaed records reveal –
Call from psychologist [Ms N] – noted she is conducting counselling sessions with [H]
[H] disclosed that his dad had pulled his doodle and it hurt, mum wants children to stop seeing their father. [H] stated that he still wants to go to his father’s house.
[Ms N] advised to make a notification to the [local] DOCS
01.09.2009Mother is actively pursuing the sexual abuse allegations through her local MP[6]
[6]See letter from MP to Police Minister which is annexure “E” to her affidavit filed 31.10.09
Sept 2009Father enquires about enrolling the children in ‘Nippers’ at the [local] Surf Lifesaving club
06.09.2009Father and [Ms T] again contact [local] Surf Lifesaving Club in relation to the children joining Nippers – the Club President ([…]) provides [Ms T] with relevant paperwork
10.09.2009[Club President] of [local] Surf Lifesaving Club returns a telephone call from the mother – the mother becomes angry and threatens that she would commence legal proceedings if the Club accepted the children’s registrations
21.09.2009Initiating application filed by Mother, Notice of Abuse also filed.
In her Notice of Abuse the mother adds the following additional information concerning [H’s] sexual abuse disclosure/s:
“I had noticed in the past that there had been bruising to [H’s] penis and was unsure as to the cause when I asked [H] what had happened his sisters jumped in and said that dad has greasy hands and that is how [H’s] doodle got all dirty. I was shocked by what they had said as this was a very serious [sic] that had been said by my […] children.”
05.10.2009Interim hearing before Monteith J – against father’s objection the previous consent orders are suspended and father only allowed supervised time with the children at a contact centre; Magellan orders made
31.10.09[Y] Childrens Contact Centre subpoenaed notes – Father appeared upset when advised the children would not be allowed to speak with his partner [Ms T] as the mother has requested this. [D] attended but did not interact with Father in any activities. Father left the centre abruptly at 2.30pm after saying goodbye to each of the children when advised the contact visit was only available for himself and the children as stipulated in his Orders. Coordinator spoke with mother in regards to third parties having contact with the children. She reinforced that she has issues around anyone else attending the visits as contact has been ordered for father and the children only.
[January] 2010 Date of birth of [Ms R’s] and mother’s child – […] (9 months old)
23.01.2010Mother obtains a 1-year DVO against the father
Feb 2010Father and [Ms T] begin cohabitation
21.02.2010Mother reports a breach of DVO by the father – police investigate and find it to be ‘unsubstantiated’
24.02.10…
April 2010Family Report interviews, mother says that the children “don’t tell lies” and when challenged about obviously impossible allegations (such as children being locked in a room with no locks) she responds “I don’t lie”
16.04.2010Family Report of [Ms M]
21.04.2010[Y] Childrens Contact Centre subpoenaed notes – mother entered the play area with the children, mother told supervisor “I got my report yesterday and I’m not happy with the results but what can I do?”
Mother spoke with [Ms R] and said “Don’t worry sweetheart we can go on a better vacation. We can go to Fiji.”
All children seem to be quite distant initially from father. Entries about the children telling their father that mother and [Ms R] said we are going on a better holiday. Father receives a huge hug from [H] saying, “I love you dad.”
April 2010Comments by [H] – that Mother, [Ms R] and baby […] were in Fiji on holiday
01.05.2010[Y] Childrens Contact Centre subpoenaed notes - Father and the children sat down at the children’s table near the couch and shared treats. Father asked the children, “Did you not see me waving at you when I drove past you?” [G] nodded her head and said, “Mum is rude.” He asked, “Why is that [G]?” She said, “Mum saw you first but we couldn’t wave.” “Is that so?” replied Father.
21.05.2010Psychiatrist Dr [U] interviews mother; mother says she is no longer in a lesbian relationship; Dr [U] asks if mother could produce any evidence to support the allegations of abuse on herself and the children by the father – the mother said she could not
28.05.2010Dr [U’s] report – mother has no psychiatric disorder
26.06.2010[Y] Childrens Contact Centre subpoenaed notes – “I miss [H] not coming” father said. “[H] said he doesn’t have to come ‘cause Mum said she will buy him maccas” replied [G].
“What did you say?” Father asked [G]. She repeated what she said. “Wow” Father said “I can also bring youse maccas.”
[G] replied, He wouldn’t come because you hurt us when we’re here.” Father said, When did I hurt youse?”
[G] said, “You pinched me that time”. Father looked at the supervisor and beckoned her. “[G] I didn’t do it on purpose.”
“Yes you did” she replied firmly.
“No I didn’t [G]. That’s a lie” Father said.
Yes [G] you’re lying, Dad never hurt you” [E] said.
Dad didn’t hurt you on purpose, it was an accident” [F] said to [G]. Yes he pinched me and it hurt me” [G] shouted.
Father looked at supervisor and shrugged his shoulders and asked “Miss [Supervisor] you saw what happened, did I hurt her on purpose?”
Supervisor said to [G], “[G] you remember when you tried to run away with the balls, then Dad tried to grab your arm but you pulled away?...I saw how Dad’s hand slipped and accidently grabbed the flesh of your arm.”
[G], “but it did hurt.”
06.07.2010Domestic Violence Resource Service [Y] subpoenaed notes -
“[The mother] is really looking forward to happier times ……[The mother] stated that she looks at [Ms R] differently now and they are working together with setting time together, placing boundaries in the home and understanding that the children have the ability to learn resilience.”
14.08.2010[Y] Contact Centre subpoenaed notes – [G] tells father “And I don’t have to listen to you.”
Father asked “Why?” [G] said “Because you’re not my Mum.”
19.08.2010Psychiatrist, Dr [Z], prepares a report on the father – “ simply do not accept the claims made against him … a hard-working, well adjusted … man … there is certainly nothing … that should stand in the way of having appropriate normal contact with the children … this man would have a lot to offer his children … on the basis of my belief that he has not behaved inappropriately towards the children, I say that he does not need supervision.”
21.08.10[Y] Childrens Contact Centre subpoenaed notes – While playing, [H] said “I’m made to be violent.”
Father asked who told him that and [H] replied, “Me.”
[G] then says to father “You’re violent too. Mum says!” and father asks “Why am I violent?”
[G] replied, “Because you tried to break Mum’s arm! She told us!”
Father chuckled and looked at supervisor and said No I didn’t, but if that’s what you think, then ok.”
Father then tries to change the subject by talking with [E] about the toys she was using. [F] and [E] continued to play amongst themselves during this conversation and did not enter into it until Father spoke to [E]. [G] and [H] both protested, Yes you did! Mum told us! And you hurt us too!”
Supervisor says “Let’s talk about something else.”
[H] again brings up the subject of the father hurting the children. [H] said “You don’t let us have holidays.”
[G] says “We can’t go away because we have to come here and see you. So we can’t go away on a Wednesday or a Saturday or anything. Mum says you won’t allow us to go.”
Father responds “You just did go away! You all went to the Gold Coast! Don’t you remember?”
[H] and [G] both said, “No” shaking their heads from side to side.
[G] then added “We can never go away because we have to come here and we hate it here, we hate seeing you and Mum hates you too.”
[H] said, “Yeah” and again supervisor stopped the conversation. Father looked at supervisor and sighed but did not respond to children.
25.08.10Domestic Violence Resource Service [Y] subpoenaed notes – mother appears to be telling counsellor that she is in a relationship with [Ms R]
Recently (?) [Ms R] alleges that [H] returns from Contact Centre with scratches on the back of his neck. His explanation is “Daddy choked me and grabbed me by my shirt.”
Mother photographs the scratches.
To complete that Chronology with respect to the item “[Ms R] alleges that [H] returns from Contact Centre with scratches on the back of his neck, his explanation is that ‘Daddy choked me and grabbed me by my shirt’”
The mother persisted in pursuing this allegation including with the Y Domestic Violence Centre – see Exhibit ICL 9 – and she passed on to the counsellor H’s version which she knew was not true. She knew it was not true because the supervisor at the Contact Centre told her that the incident was entirely innocent and that the version that the father had tried to choke the child was quite untrue.
It is informative to developing a picture of what has happened between the parties with respect to the children to start at what is Annexure 4 to Exhibit 32 in these proceedings. It is a copy of the first agreement entered into between the parties. It is in writing signed by both parties and dated 19 March 2008. It was an agreement that had been reached at a Legal Aid Family Law Conference conducted on the same date. It provided for a graduated process leading to shared care of the young children.
By a facsimile transmission sent by the father’s solicitors to the mother’s solicitors on 25 March 2008, it reads in part:
… We are instructed that your client did not deliver the children to our client over the Easter period as was agreed at the conference. Our client is very disappointed in that breach of the agreement by your client. We trust, however, that will not be repeated and ask you to confirm with your client the prudence of her adhering to the agreement reached at the conference. We are preparing the Consent Orders on the basis that your client is the applicant. We take it that you will prepare the Form 11 on that basis as well.
By facsimile of 26 March 2008, the mother’s solicitors wrote, making a number of allegations against the father, and concluding:-
In all the circumstances, our client is considering her position and does not consent to the Minutes of Consent Order being engrossed and filed at this stage.
A further Legal Aid Family law Conference was held on 12 May 2008, at the conclusion of which the parties executed an Application for Consent Orders and Minutes of Consent Orders. They are annexure DRS8 to Exhibit 32.
At the conclusion of that conference and the executing of those Consent Orders, it was arranged that the mother would provide the Marriage Certificate that she held so that the Application for Consent Orders could be filed.
The mother failed to provide the Marriage Certificate despite requests to do so, and as a result, the father obtained a copy of the Marriage Certificate from the Court House.
The Application for Consent Orders and Minutes of Consent were filed in the Magistrates Court on 27 May 2008 by the father’s solicitors.
Later that day, the father’s solicitors received an email from the mother’s solicitors, advising that their client instructed them that she no longer consented to the Consent Orders agreed during the conference and that accordingly, the orders could not be filed. Apparently, the respondent’s solicitors thereafter retrieved the Application for Consent Orders and Minutes of Consent Orders from the Magistrates Court Registry Office.
Then on 23 September 2008 in a contested hearing before Federal Magistrate Coates, it was ordered that D and the younger children live with the mother; that the children spend time with the father each alternate weekend from Friday after school until before school Tuesday, and half of the school holidays, as agreed between the parties.
There are some other orders which are not relevant for my purposes other than the learned Magistrate ordered pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 that Ms S be appointed a Court Expert in this matter for the purpose of preparation of a Family Report. Clearly, therefore, the orders must have been interim in their nature rather than final as appears on their face.
A Family Report was prepared by Ms S dated 3 November 2008 and released on 5 November 2008. Her recommendations were as follows:-
9.1I recommend that [D], [E], [F], [G] and [H] reside with their mother, [Ms Starkey].
Equal Shared Parental Responsibility
9.2I recommend that [the mother] and [the father] have equal shared parental responsibility in relation to [D], [E], [F], [G] and [H].
9.3Given the poor communication and current parental relationship issues, I recommend that both parents avail themselves of the Parenting Order Program available through Relationships Australia in [Y] to assist them to focus on the needs of the children in order to share parental responsibility.
9.4I recommend that [the mother] and [the father] utilise a communication book to communicate directly with each other in regards to issues for the children. Such communication should relate to issues regarding the children’s health, schooling, and activities they are to be involved in and any significant events that occur whilst they are with the other parent.
9.5I recommend that both parents be authorised to communicate directly with the children’s school, child care, doctors or any other person involved in the children’s health, welfare and education.
Substantial and Significant time
9.6I recommend that the children spend time with [the father] on alternate weekends from 3 pm Friday to before school on Tuesday.
9.7I recommend that the children spend half of gazetted school holidays with [the father].
9.8In regards to Christmas school holidays I recommend that the children spend one week of these holidays with [the father].
Communication
9.9I recommend that the children are able to communicate with the other parent at all reasonable times and that the parent with whom they are residing should ensure such communication occur.
Counselling for children
9.10I recommend that the children be referred to Relationships Australia for counselling to assist them to deal with issues around their parents’ separation and the changes that have occurred in their lives since that time.
Non Denigration Clause
9.11I recommend that [the mother] and [the father] give undertakings not to criticise or denigrate the other parent or partners of the other parent to or in front of the children.
On 7 April 2009, final Consent Orders were eventually made by Registrar Boyd.
They provided, in essence, that D live with the mother and spend time with the father as agreed but no less than four nights per month; that the younger children live with the mother and spend time with the father as agreed but failing agreement, for each alternate weekend commencing Friday at 3.00 pm until the commencement of school on Tuesday.
They then provided for block holiday contact for the younger children for one two-week block period and for two one-week block holiday periods, provided the parent who wishes to exercise school holiday block contact provide the other parent with no less than one month’s notice in writing.
The others then provided for what I will call special days and for communication by telephone.
Then, on 21 September 2009, the mother filed an Initiating Application in Townsville seeking that the orders made on 7 April 2009 be varied so that D no longer be included in the Consent Orders due to her safety, that the children, E, F, G and H only visit their father under supervision twice per fortnight and that the mother be given sole parental custody/responsibility.
Together with that initiating Application was filed a Notice of Child Abuse or Family Violence. In it, she alleged:
1.[H] aged 7 disclosed to me [the] Mother to [H] [sic] that after a visit to his fathers house that daddy like [sic] to play with him I said that’s nice [H] [sic] said that daddy pulled his doodle very hard and twisted it and squeezed it, it hurt a lot I said did you tell daddy to stop I don’t like that. [H] said he did and then daddy just laughed at him. I was very concerned about what I had heard I took him to the doctors and [H] disclosed to Dr [K] GP and to Child psychologist [Ms N] about his father [Mr Starkey] pulled and squeezed and twisting his penis and hurting him both Dr [K] and [Ms N] have reported this to the Dept of Child Safety and to the Police. I had noticed in the past that there had been bruising to [H’s] penis and was unsure as to the cause when I asked [H] what had happened his sisters jumped in and said that daddy had greasy hands and that is how [H’s] doodle got all dirty I was very shocked by what they had said as this was a very serious thing that had been said by my […] children.
2.After a visit in July the children all four of my [younger children] ([E] [F] [G] and [H]) told me that daddy and [Ms T] (girlfriend) were telling them about having bum sex I was so shocked by this I couldn’t believe that anyone could discuss this sort of sexual act to a […] child. The children told me that [Ms T] told them that she and daddy have bum sex all the time and they like it so much that she and daddy were going to do it all the time. I rang child safety and reported this as I felt that this was very inappropriate for a […] child.
3.There have been numerous times were [sic] the children have been on a visit to there [sic] fathers house and I have been on the phone with the children and there have [sic] been verbal abuse (I could hear yelling saying your mother is a big fat dog she is a lesbian she is a dyke) and of the sexual nature (I could clearly hear yelling in the background I am naked tell your mother that I am naked) that the children have been witness to these have [sic] been noted to police and the police have reported them to the dept of child safety and the dept of child protection. [The father] has been warned numerous times about his behaviour in front of the children by the police this has made no difference to [the father’s] behaviour in the presence of the children.
The matter came before me on 5 October 2009 and having regard to the serious allegations made, I suspended the orders that had been made on 7 April 2009. I ordered the children live with the mother and that the father spend time with the children at such times as can be arranged with the Y Contact Centre. I designated the matter a Magellan and made the usual Magellan orders.
On 10 August 2010, an amended Initiating Application was filed in which the mother sought sole parental responsibility of the children and, under the heading “Time with the parents” the following:
7.That the children shall live with their Mother and that [E], [F], [G] and [H] spend time and communicate with their Father as follows:
(a)For up to two hours supervised time each week being in Week 1 on a Tuesday afternoon (or whichever week day afternoon is most suitable to the [Y] Children’s Contact Service) and in week 2 on a Saturday afternoon and continuing fortnightly thereafter;
(b)For up to two hours supervised time as close as can be arranged to each of the following special occasions:
(i)The children’s birthdays;
(ii)The Father’s birthday;
(iii)Easter Sunday;
(iv)Christmas Day; and
(v)Father’s Day.
(c)Supervision is to be provided by the [Y] Children’s Contact Service, with the costs of the supervision to be met by the parents equally.
So, at the beginning of the trial, the mother was still seeking that the father only have supervised contact at the Y Contact Centre.
In answer to the first question in cross examination, the mother replied:
I don’t believe that [the father] sexually abused [H].
By the end of her evidence, in my opinion, her credibility had been totally destroyed.
This view must have been shared by her legal advisers because on the morning of 5 November 2010, cross examination by Mr Betts of Counsel on behalf of the father had concluded, and the cross examination by Mr Curran, Counsel on behalf of the Independent Children's Lawyer, had just commenced when Counsel for the applicant mother sought leave to file a further amended Initiating Application. There being no objection, I gave that leave. In that further amended Initiating Application, the mother sought equal shared parental responsibility for the children, that the younger children live with their mother and spend significant and substantial time with their father from after school on Friday until when school finishes on Tuesday each alternate week, and the parents have equal shared school holidays. It also sought that D be permitted to choose the time she spends with her father.
This was a complete abandonment of the case brought by the mother and, as I described it during the course of evidence, a 180 degree turnaround.
If further evidence were needed, on the final day of hearing Counsel for the mother withdrew all the allegations relating to s 61DA(2). They, of course, are abuse of a child or family violence. Therefore, a complete abandonment of the matters set out in the Notice of Child Abuse.
That history demonstrates, according to the submissions of Counsel on behalf of the Independent Children's Lawyer that every agreement and every order previously made has not been carried out by the mother. He submitted, therefore, that any order that I might make of the same type would be doomed to failure.
I accept that submission.
He further submitted that because of that history and because of other matters that I will refer to later in this Judgment a drastic order had to be made. I agreed with that submission, and consequently made the interim orders set out at the front of this Judgment.
The Evidence
Because of the unusual way that this case proceeded before me, it is unnecessary to deal in detail with a lot of the evidence that was given. It has simply become irrelevant for determining this case, save for what developed as a really live issue, that is, whether the mother was causing mental and emotional abuse to the children.
Mr Curran, in his final address, submitted that since November 2007, the mother’s attitude to the father has been unrelenting in a battle she has waged where the dispute has been waged at the highest level and the children have consequently suffered.
Without specifically dealing with each piece of evidence that supports that submission, I think it is probably sufficient for me to rely upon the evidence given by Ms M, the Family Consultant. She prepared the second Family Report dated 16 April 2010 which became Exhibit ICL-8 in these proceedings.
She sat in the court room during the course of all of the evidence in this trial, and gave evidence before me on Friday, 12 November 2010.
Her evidence has been invaluable in deciding this case.
I set out hereunder the parts of her evidence that have been crucial for me in the decision making process.
[MR CURRAN]: What are your fears as to what will happen in the event that his Honour were to reinstate an order similar to the one that operated in April 2009?---Having sat through the cross-examination of the mother and the father, and having had the opportunity to read the subpoenaed notes from the [Y] contact service for the last year and also the counselling notes from the children’s therapy sessions at the Domestic Violence Resource Service, I am now very concerned that [the mother] will simply not be able to revert back to that.
… I am very, very concerned that – for [the mother], that she’s really demonstrated such a profound lack of insight into the impact of her behaviour on the children’s relationship with their father, and, also, she continues to reject [sic project] her own fears of the father, whether those fears are genuine or not, onto the children.
… And it seems as though it’s – it is – it’s been demonstrated – it’s almost – it seems impossible for her to be able to let go of that and simply accept – trust the father and trust that he loves his children and that he will care for them and that he will not harm them.
[MR CURRAN] At paragraph 143 of your report, you spoke of having concerns as to whether the mother had the capacity to support the court’s orders. So if an order such as the ten-four arrangement, as per the order of April, 2009, were made, what do you think the outcome would be?---I would not be optimistic. I believe that [the mother] would simply not be able to comply with that order. I believe that we would have exactly the same problem that we’ve had for the last three years, that [the mother] would become extremely anxious over very small incidents and that she would withhold the children and that she would see harm where there was no harm and that that would have the effect of her withholding the children and, also, increasing the children’s fear of their father, which is what has happened in the past.
…
On the scenario of the ten-four arrangement being reinstated, what would the children’s attitude be to going to see their dad?---I think the children will become increasingly fearful of their father and they would become – and, certainly, they would, I think also become increasing disrespectful, because their relationship is not being promoted, and I believe that, at some point – and, also included in that, of course, is the conflict between the parents. So with those factors, the children are going to become extremely anxious about changeover, anxious about spending time with their father, and, in the end, they just won’t go.
…
And would you propose that, at least for the time being, that the father have sold [sic sole] parental responsibility for the [younger children]?---Yes, I think that if they’re in his sole care for that period of time, that would be most appropriate.
…
All right. Now, moving to [D], you saw her with Mr Madsen, the ICL on Tuesday afternoon from about 4.30 to 6 pm?---Yes, I did.
…
You’ve explained to [D] your role, Mr Madsen’s role, the judge’s role; is that right?---Yes, that’s right.
And what did you say to [D] concerning what the – what the judge wanted to know?---I said to [D] that she – I asked if she understood that her parents were in court and that it was about her and she sort of understood that. And I said that because she is nearly 14 and that it was really important that – the judge wanted to know what – what her ideas were and what her wishes and her views were. I also said that she doesn’t get 100 per cent say in [sic what] happens, but that she does get some say. And I said that it was important – that it was about spending time with her father and that I had spoken to mum and dad and that they had both said that they wanted her to spend time with her father. That her mother had said that as well. And I also said to [D] that both her mother and her father wanted her to know that her father loved her very much and so that was the framework for us to start our conversation with [D].
…
HIS HONOUR: Is she an insightful child?---Yes. She is an insightful child. And despite, you know, the presence of two adults in a strange room a dispute resolution she conducted herself very well and was able to – I believe able to express her views.
MR CURRAN: And did you discuss with her the prospect of spending some short time with the father that day?---Yes. I did.
…
All right. And they spent half an hour together?---Yes.
Tell us how that went?---It went very well. I could see that initially [D] was doing a lot of wriggling and shuffling in her seat and – but at the same time she gave her father a lot of eye contact. And there was a big joke because she wasn’t smiling at first and when she finally did smile her father saw her new braces so that was – that was like a bit of a joke so that was nice; a bit of an ice-breaker there. It – they shared a lot of family information and information – [D’s] – she’s got a job now and she’s doing different activities, karate, so there was a lot of information for them to share and I felt that the conversation had warmth and humour. And – and I felt that during the session [D] actually visibly relaxed and was more comfortable in her chair.
… I said, “Well, how did you feel about today? Can we meet again maybe on Thursday?” and [D] agreed to that.
… Now, at the breakfast meeting on Thursday between 7.15 and 8.30 where did [D] sit in relation to her dad?---We were sitting at The Coffee Club, so we were at a table for four out in the open area and so they were sitting adjacent to each other.
… She just looked a little – perhaps – yes, probably subdued would be the best word to describe it.
Part VII of the Family law Act 1975 (Cth)
The High Court recently considered this part of the Act which was substantially amended in 2006. The decision reported as MRR v GR 80ALJR 220.
In a consideration of this case, it will help if I set out in some detail what the High Court had to say.
[6] Part VII of the Act (ss60A – 70Q) concerns children. It was substantially amended in 2006 by the Family law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
[7] Section 65D(1) provides that the Court may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
In the present case, the mother in her amended Initiating Application filed by leave on 5 November 2010 seeks that the parents have equal shared parental responsibility for the children and in the amended Response filed 1 November 2010, the father seeks sole parental responsibility for the children.
Consequently, the first question that I have to consider under the legislative scheme is whether the presumption of equal shared parental responsibility when making parenting orders under s 61DA applies. Section 61DA is headed “Presumption of equal shared parental responsibility when making parenting orders” and provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parenting responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
This section raises a presumption of equal shared parental responsibility being in the best interests of the child, but provides that that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence and further provides that the presumption may be rebutted by evidence that satisfies the Court it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
“Abuse” is defined under s 4 under the heading “Interpretation of the Act”. It provides as follows:-
Abuse, in relation to a child means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
Family violence is also defined in the same section as follows:-
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Consequently, it would seem that issues of abuse and family violence must be considered by the Court as individual matters as defined under the definition section, and in the event that the Court finds reasonable grounds to believe that such abuse or family violence has taken place by a parent, the presumption does not apply.
However, under ss 4 which deals with the presumption being rebutted, that requires the Court to consider whether the presumption has been rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. As the best interests of the child are to be determined by reference to the matters enumerated in s 60CC, a consideration of whether the presumption has been rebutted under s 61DA(4) requires a consideration of that evidence in light of s 60CC.
As the High Court said in MRR v GR (supra):
Section 65D(1) provides that the Court may make such a parenting order as it thinks proper subject to the provisions of ss 61DA and 65DAB.
Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.
Consequently, if s 61DA does not apply, then the Court may make such parenting order as it thinks proper.
This case raises issue of sexual abuse of a child by the father which sits within the definition of abuse that I have previously referred to. It also raises issue of family violence by the father which fits within the definition of family violence that I have previously referred to.
However, there is also an issue about whether the mother has engaged in emotional abuse of the children. It neither fits within the definition of abuse or the definition of family violence. Consequently, evidence with respect to emotional abuse of the children by the mother, for the purposes of s 61DA must be dealt with under ss(4).
Consequently, I propose to deal sequentially with the following issues:-
(1)whether there are reasonable grounds to believe that the father has engaged in sexual abuse of the child, H;
(2)whether there are reasonable grounds to believe that the father has engaged in family violence;
(3)whether the presumption of equal shared parental responsibility has been rebutted by evidence that satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility and in particular, in answering that question, whether the mother has engaged in emotional abuse of one or more of the children.
Sexual Abuse Allegations
The first matter that I want to deal with is precisely what ss 2 of s 61DA requires. To paraphrase, the presumption does not apply if there are “reasonable grounds to believe” that a parent of the child has engaged in abuse of the child which means, inter alia, “an assault, including a sexual assault”. This seems to require a positive finding.
Family Violence
Section 61DA(2)(b) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence.
On the evidence in this case, I am persuaded that there are no reasonable grounds to believe that the father engaged in abuse of the child, H, or engaged in family violence. Not only does the evidence overwhelmingly support that finding but the conduct of the mother by filing a further amended Initiating Application on 5 November 2010, the effect of which was to abandon the allegations contained in her Notice of Child Abuse or Family Violence filed on 21 September 2009 and the conduct of her Counsel by standing up at the beginning of addresses and, on behalf of the mother, withdrawing all allegations made under s 61DA(2) makes it impossible for me to make any other finding.
Whether the Presumption of Equal Shared Parental Responsibility has been Rebutted
Section 61DA(4) reads:-
The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Although an exploration of ‘best interests of the child’ is required for deciding whether the presumption of equal shared parental responsibility is in the child’s best interest, the concept of ‘best interests of the child’ permeates into all of the provisions of Part VII of the Family Law Act 1975 (Cth)(ss 60A – 70Q).
Section 60AC requires that a Court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child.
Then, s 65D(1) provides:-
In proceedings for a parenting order the Court may, subject to s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAB (parenting plans) and this Division make such parenting order as it thinks proper.
Section 65DAA applies if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child.
Without dealing with all of its provision for the moment, it in substance has two operative provisions. The first is that the Court must consider whether the child spending equal time with each of the parents would be in the best interest of the child and the second is that the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
Consequently, I need to consider the best interests of the child firstly with respect to whether the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility has been rebutted under s 61DA(4). Secondly, whatever parenting orders I might make, I am bound by s 60CA to regard the best interests of the child as the paramount consideration. Lastly, if I am to make an order for equal shared parental responsibility for any child, I must consider whether the child spending equal time with each of the parents would be in the best interests of the child and/or to consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child.
This case is complicated by the fact that there are the four younger children, and D, who has turned 14.
The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.
This section is set out below:-
SECTION 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are:
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the 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;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)
Right to enjoy Aboriginal or Torres Strait Islander culture
(6) For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
It will be seen that by ss (1), that in determining what is in a child’s best interests, the Court must consider the matters set out in s (2) and s (3).
Sub-section (2) provides the primary considerations that a Court is required to consider.
The first primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to or exposed to “abuse, neglect or family violence”.
I have already referred to the fact that abuse is defined in paragraph 4 of the Act. I have set out the definition. I have already found that there has been no sexual assault or other conduct on the part of the father that would fit within the definition of “abuse”.
I have also found that there has been no conduct on the part of the father that would fit within the definition of “family violence”.
What is puzzling is that although ss (2)(b) of s 60CC requires a Court to consider the need to protect a child from psychological harm, it seems that for that sub-section to apply, the psychological harm has to be from being subjected to, or exposed to “abuse, neglect or family violence”.
Therefore, psychological harm of itself is insufficient to fall within the sub-section.
The reason that I raise this legal issue at this time is that on the evidence I am persuaded that the mother has subjected these children to immense psychological harm but I am unable to find that this is as a result of exposing the children to abuse, neglect or family violence.
So, although it appears that I am not entitled to take into account psychological harm per se, I am nevertheless entitled to take it into account under ss (2)(a), namely “the benefit to the child of having a meaningful relationship with both of the child’s parents”.
I accept the evidence of the Family Consultant at page 11 of the transcript where she said:
MR CURRAN: Ms [M], if his Honour forms the view that the children should have a real – that is a quality parental relationship with their dad, what would you reckon then?---Given the ongoing problems that have occurred with the mother’s fears for the children’s safety and their behaviour – the consequent behaviour, and certainly considering the very concerning notes we have here from Domestic Violence Resource Service and the [Y] Contact Centre, I am not of the view that in order for [the father] – the children to be able to redevelop their relationship with their father and strengthen their attachment with him, that they would need to have a block of time with him in order to allow that to happen, and I believe that that – even that the evidence we’ve seen from the mother is that she seems to be – she struggles to – she’s been struggling for the last three years to allow that to happy (sic) and I’m not confident that she can do it now to promote that relationship, so I’m thinking we may need something a little more structured to allow the children to bond with their father again.
Although on its face it does not show it, Ms M was talking about the younger children.
With respect to the meaningful relationship between D and the father, Ms M gave evidence, at page 16 of the transcript, as follows:
[MR CURRAN]: What is your assessment as to the rebonding process between dad and [D] and the healing process that needs to take place?---Well, I’m very confident after those two assessment periods that [D] does not have extreme negative views about her father and she doesn’t have extreme fear because that would have been – become evident. So I am very, very pleased that we don’t have to deal with that – that – that level of – I guess alienation is no good, but that’s probably – that’s an extreme word, but what I saw was a child who perhaps had a level of estrangement from her father, but was receptive to his queries and his – his conversation and there was – I could see the warmth there between the two of them. So I am really – that gives me confidence then, that we can move forward and that [D] will look forward to visits with her and that we can – I’m also confident that we can set perhaps a schedule of visits that will lead to [D] spending – well, spending time with her dad at his home.
… I said to her that I thought the court would be wanting her to spend time with her father and what would she think would be a reasonable amount of time? And she said, “I don’t want to see him every week, but I would see him every fortnight”. So I – I said, “Well, that sounds reasonable. How would you like that? What sort of visits would you like?” So we discussed going shopping to [the local shopping centre] and I get – and, then, [D] said, “Well, I would really like Nana to come”, so … So I put some scenarios such as, “Well, what if Nana takes you to [the shopping centre] and she does a bit of shopping and you spend some time with dad. How would that be?” and she felt that was – that was good. And, then, I said to [D] – she spontaneously said, “I don’t want to go to dad’s house.” And I said, “Well, that’s okay, but no one is asking you to go and stay overnight, but what if there was something on at dad’s house, like, say, dad’s birthday and – or the [younger children’s] birthday or something special was happening. Would you go then, say, if [B] drove you?” knowing that [B] has a good relationship with his father. And she – [D] said, “Yes. If [B] goes and he stays there, then I would go.”
And stay as well?---Yes, and stay. But she didn’t want [B] to drop her off and leave. She wanted – if she was going for like a lunch she wants [B] to be there as well. And I said, “Well, that-s that sounds good.”
…
And what did she say about dad coming to her place of work?---Okay. And so we actually asked whether she would mind dad popping in if she was working just to say hello and she thought that would be good.
And was she proficient at texting with her own phone?---Yes. Yes. Very proficient and she was very happy for her dad to ring or text her and I think with a bit of encouragement I think she would probably – if she’s got credit on her phone, which seems to be an ongoing problem for young people – that she would be happy to ring him or text him.
I now turn to consider what I describe as the additional considerations under s 60CC(3).
It appears by operation of ss 1 that I must consider each of the matters enumerated in this sub-section.
(a) The children’s views
The younger children were interviewed by Ms S for the first Family Report. At that time, they were six and a half years old.
H said that he liked the house where his father lived, that his father had a new girlfriend who lives on a farm and he was able to name all the animals on the farm. He said his father was a good dad. He also said his mother was a good mother. He was sad about his mum and dad not being married but that he was happy to visit his father and is happy living with his mum.
E said that her dad was a good dad and that she likes going to see her dad on her holidays and that they go to Ms T’s house, who is dad’s friend, and they sleep there.
F said that she didn’t know how often she goes to see her dad but that she likes going to see him and that she also likes Ms T because she has animals.
G said that she was happy that mum and dad weren’t married and that Ms T is dad’s girlfriend. She said that her father was happy because he’s not married to mum anymore. She talked about the pets at Ms T’s house and she said that they go to her house but only on the holidays. She talked about visiting her father and said they get to stay overnight with dad and that’s good.
The younger children were not interviewed individually for the second Family Report. Instead, the Report Writer observed the children in three settings: after school for an hour at their home with their mother; at the Y Children’s Contact Centre with their father for two hours; and at the farm with the father and Ms T for three hours, including changeovers at their school in Y.
For present purposes for inferring children’s views, I will only refer to the third setting, being at the farm.
It is set out in paragraphs 119 to 129 of the Family Report which is Exhibit ICL-8 in these proceedings. I set out hereunder those paragraphs from the report:
119. Observation at the father’s residence, […]: The report writer met [the father] at the children’s school and travelled with [the father] and the children in his vehicle to and from [Ms T’s] farm. [The father] and the report writer were waiting outside the school gate when the children came out of school.
120.[H] was the first of the [younger children] to arrive. [H] ran to his father, smiling, and hugged him hard around the waist. He held his father’s hand as we walked along the path to find the other children. [G] then ran to her father and hugged him.
121.The other children were ahead of us in a very crowded waiting area. [The father] indicated to the children to walk ahead towards his car. On arrival at the car, the children were happily talking to their father about the pending visit, asking about the animals. They appeared familiar with the routine with their father, such as putting their bags in the back of the vehicle, then climbing in, their father determining the seating arrangement.
122.The journey to the farm took about 30 minutes. During this time the children talked and sang and frequently asked their father how much longer the journey would take. [The father] responded by pointing out land marks and reminding them how much time from which landmark.
123.On arrival at the farm, [the father] reminded the children of the routine, including changing into play clothes and keeping all their belongings together. He prepared afternoon tea, asking each child what they would like to eat and drink. All the children appeared to know the routine and appeared comfortable.
124.[The father] then took the children outside to meet the new baby goat that had been born some weeks prior. [The father] also invited the children to feed the ducks and hens and collect the eggs. All the children participated in these activities. The children also played with the dog and went searching for the cats.
125.Ms [T] arrived home around this time. All the children hugged Ms [T] who made a fuss of them and commented about how much they had grown. The report writer noted that during the afternoon both [F] and [E] spent significant time with Ms [T], frequently hugging her and snuggling up to her. In contrast, both [G] and [H] tended to seek out their father for physical contact and affection.
126.[The father] retrieved the children’s bicycles and cautioned the children to ride carefully around the driveway to the house. [E] was initially reluctant to ride her bike. Both [the father] and Ms [T] gently encouraged [E] to have a ride and within ten to fifteen minutes [E] permitted Ms [T] to gently push her along the driveway on her bike. [The father] has made a special bike for [E] with extra large training wheels.
127.Prior to [the father] returning the children to [Y], he organised them to change back into their school clothes and gave them drinks and snacks. All the children hugged Ms [T] prior to departure.
128.On the return journey the children talked and played and were quite boisterous. Changeover was uneventful, with the children collecting their bags from the back of their car, hugging their father, and walking along the path to their mother’s car.
129.The report writer accompanied the children to their mother’s car. [The mother] hugged each child as they entered the car. The children were fairly quiet and subdued at this point.
With respect to D, I set out a section of evidence of the Report Writer at paragraph 17 of the transcript which relates to her views about parental responsibility:
… Mr Madsen did raise the issue about the – did she understand about mum and dad making decisions about her, what we would call parental responsibility and that – would she like mum and dad to be making those decisions for her or one parent only. And she – we went through various examples of that and about – like school or when you have to go to hospital or getting a job or a passport, and [D] – [D] expressed the view that she wanted mum and dad to have a say in those important decision.
(b)The nature of the relationship of the child with each of the child’s parents and other persons, including grandparents etc.
The younger children and D have become aligned with the mother as a result of her deliberate and calculated alienating conduct. She has projected her quite unjustifiable fears onto the children and her untenable position that the father poses a danger to them. As a result of her conduct, she has caused this Court to impose, for 12 months, an order that the father only see the children at a Contact Centre for 2 hours once a fortnight. The allegations on which the Court made those orders turned out to be completely false. Halfway through the trial, the mother filed a further amended Initiating Application abandoning her proposal that the father only have supervised time with the children, and at the end of the trial, she completely withdrew all allegations made against the father under s 61DA(2). She has come close to destroying the relationship between the father and these children.
(c)The willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent
In addition to the matters that I have referred to under (a) and (b), I also want to highlight what the Report Writer said in her evidence which is referred to at paragraph 88.
In addition, she said:-
So that’s why I propose that there be a block of time where the father is the primary carer for the children and that in that way, the children for – previously did have a good attachment to him from what I have assessed, and I believe that if they have a block of time with him, then that attachment will strengthen again. He’s their primary carer, he’s nurturing them and caring for them on a day-to-day basis, and that in that way, that – the way I – from my assessment, that would be the only way those children would be able to lose their fear of him and to see him again as an authoritative father who they are attached to and close to.
All right, and during this block of time, what would be the mother’s position in relation to the [younger children]?---During the initial time, I believe it’s important that the mother has no contact with the children, and that is not in any way as a punishment of [the mother]. We’re talking about the best interests of the children and what is necessary for them to have the opportunity to strengthen their attachment to their father.
(d)The likely effect of any change to the child’s circumstances including the likely effect of any separation from either of his or her parents or other children
The Report Writer dealt with this at page 12 of the transcript and I set out hereunder what she had to say. This was, of course, in relation to the younger children.
During this bulk of time?---Well, if – say we had a block of three or four months where they were living with their father, I think that would be a good block of time without seeing their mother. If she – they did see their mother, say, within the next – within the first four to six weeks, say, of that block of time, or even for the eight to 12 weeks, the concern would be that the children would become very distressed at seeing their mother. They’d be angry because their mother has been their primary attachment figure and they will – well, of course wanting to be with their mother and seeking her out, the emotional turmoil that they will experience in having a short visit and then being taken away would be quite detrimental to them, and at the same time, despite even if the mother had the best intentions and said she would make it a relaxed, happy visit, [the mother] is going to be very, very sad. She’s going to be wanting to – she’s going to bring her trouble, not [sic] being sad and crying and showing that she’s missing them too, which is perfectly understandable.
And what impact would this have upon the re-bonding between the children and their dad when it happened during this initial block period?---There’s a risk that it would just make that bonding period – make it more difficult and perhaps take longer.
(e)The practical difficulty and expense of a child spending time and communicating with a parent
There is really no practical difficulty or expense involved in this case.
(f)The capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
I am satisfied on the evidence that the father and Ms T are perfectly capable of providing for the children’s needs including emotional and intellectual. Although I am satisfied that the mother can provide for the basic needs of the children, I have severe reservations about her capacity to provide for the emotional and perhaps intellectual needs of these children. She is engaged in what can only be described as destructive behaviour and she will, as the Report Writer opined, need to engage in significant counselling with a view to improving her capacity to deal with these needs in the future.
(g) The maturity, sex, lifestyle and background etc
Save that it is necessary, obviously, to distinguish between the 14-yr-old and the younger children, the other matter of concern is the medical needs of three of the four younger children. I am satisfied, on the evidence, that the father will have no difficulty in providing appropriate medical attention for their needs.
(h) If the child is an Aboriginal or Torres Strait Islander child
None of the children is of Aboriginal or Torres Strait Islander origin
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has sought to maintain a relationship with all of his children since the marital breakdown, but as I have already indicated, the mother embarked upon an unrelenting battle which she has waged against the father where the dispute has been waged at the highest level and the children have been the sufferers.
(j)Any family violence involving the child or a member of the child’s family
.I have already found that there is no evidence of family violence.
(k)Any family violence order that applies to the child or a member of the child’s family
There was a domestic violence order made by consent without admission. In fact, the father denied any domestic violence was perpetrated on 31 January 2009.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I have decided, as is apparent from these Reasons, to make interim orders. The reason I am doing so is that it enables the orders that I have made to be trialled so that the matter can be reassessed and the orders adjusted in the light of further evidence. This order, therefore, is least likely to lead to the institution of further proceedings as these proceedings will still be on foot.
(m) Any other fact or circumstance that the Court thinks is relevant
In relation to parental responsibility, the Report Writer at page 13, in response to a question by Mr Curran, as follows:
Then would you propose that, at least for the time being, that the father has sole parental responsibility for the [younger children]?---Yes, I think that if they are in his sole care for that period of time, that would be most appropriate.
Section 60CC(4) and (4A) read as follows:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(d) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(e) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(f) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
It is really unnecessary for me to add anything to what I have said under ss 3. The father has tried to participate in decision-making, spending time and communicating with the children and the mother has failed to facilitate all of those matters. This has taken place since separation. As I have already indicated, she has waged an unrelenting battle against the father at the highest level, with the children being the sufferers.
Neither ss (5) or (6) have any relevance.
To return to s 61DA(4), namely whether the presumption of equal shared parental responsibility has been rebutted by evidence that satisfies the Court that it would not be in the best interests of the children to have equal shared parental responsibility, it is necessary to distinguish between the younger children and D.
Having regard to the matters that I have set out in my consideration of s 60CC, I am satisfied that it would not be in the best interests of the younger children for their parents to have equal shared parental responsibility. There is an abundance of evidence that supports that, and in particular, there is the opinion of the Family Consultant.
With respect to D, I am not satisfied that the presumption has been rebutted. Although many of the matters that I have referred to in my consideration of s 60CC apply to D, nevertheless the over-riding consideration, in my view, is her wishes and the opinion of the Report Writer. Clearly, she wants both parents to be involved with these matters. She is 14 years of age and I believe that I should give full weight to her wishes coupled with the recommendations of the Family Report writer.
Those findings drive me down different pathways. Having found that the presumption has been rebutted, I propose to order, in accordance with the recommendations of the Family Consultant, that the father have sole parental responsibility of the younger children until further order.
On the other hand, I propose to make an order that the parents have equal shared parental responsibility for D.
Consequently, s 65DAA applies to any orders that I may make with respect to D but does not apply to any orders that I may make with respect to the younger children.
Therefore, I need to consider the provisions of s 65DAA with respect to the orders I make relating to D but with respect to the orders that I make relating to the younger children, any order I may make is made under s 65D(1) which provides:-
In proceedings for a parenting order, the Court may, subject to ss 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.
That Section, of course, needs to be read in conjunction with s 60CA which provides:-
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
To deal with the orders relating to the younger children, I have set out in my consideration of the matters under s 60CC those that relate to the younger children. On all the evidence, it is clear that I should make an order that they live with the father until further order, and that he should have sole parental responsibility.
Further, to make those orders work so that there can be a re-establishment of the relationship between the younger children and their father, it is essential that I make an order that the mother not spend time with or communicate with the younger children, until further order.
As I have previously said, the High Court recently considered Part VII of the Family Law Act in MRR v GR 80 ALJR 220.
At page 222, the Court said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(Emphasis added.) Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(g) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(h) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(i) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Subsection (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant” “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
As I am making a parenting order that provides that the parents have equal shared parental responsibility for D pursuant to s 65DAA(1), I must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child.
In my opinion, the evidence clearly establishes that it would not be in the best interests of the child for her spending equal time with each of her parents.
She has been estranged from her father for much of the period following separation, largely as a consequence of the mother’s actions which I have examined at length earlier in this Judgment.
It has only been with the intervention of the Family Consultant, Ms M, that a breakthrough has been achieved so that the child is prepared to spend a couple of hours every fortnight with her father. This is a tentative move towards a re-establishment of a relationship with her father and there is, in my opinion, a real fragility in this early breakthrough.
For a Court to seek to increase the amount of time that the child has agreed to would in my view be likely to be catastrophic in relation to this fledgling relationship.
Pursuant to s 65DAA, I next must consider pursuant to ss 1(b), whether the child spending equal time with each of the parents is reasonably practicable.
Reasonably practicable is defined under ss 5:-
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The parents live relatively close to each other – approximately a half hour drive – so that doesn’t create any difficulty.
The parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent certainly does raise difficulties. In the current circumstances, the parents have no current or, for that matter, future capacity to implement an arrangement for the child spending equal or substantial and significant time with each parent.
The parents are currently and, insofar as I can predict for the future, not capable of communicating with each other to resolve difficulties that might arise in implementing an arrangement of equal or substantial and significant time.
The impact that such an arrangement would have on the child is significant. In the present circumstances, to implement an order for equal or substantial and significant time on D would be completely against her wishes and would have a serious impact upon the prospects of establishing a relationship between her and her father.
If it is neither in the child’s best interests or reasonably practical for the child spending equal time with each of the parents, I do not have to consider making an order in those terms.
Nevertheless, I have to consider substantial and significant time because if an order is to provide for a child’s parents to have equal shared parental responsibility for the child, and I do not make an order for the child to spend equal time with each of the parents, then I must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Sub-section 3 of s 65DAA defines “substantial and significant time”. It is set out hereunder:-
(3)For purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
As can be seen from ss 3, substantial and significant time involves an order quite different from the one that I propose to make.
For the reasons that I have already explained, it is not in this child’s best interest to spend more time with the father than is her wish because to do so is likely to fracture the fragile nature of the reconciliation between D and the father. This, of course, is supported by the Family Consultant’s evidence. It is therefore, in my opinion, not in the child’s best interests for her to spend substantial and significant time with each of her parents.
I also need to consider whether the child spending substantial and significant time with each of the parents is reasonably practicable. With respect to that question, I simply repeat what I said relating to whether it was reasonably practicable for the child to spend equal time with each of the parents. It is unnecessary to repeat that.
Consequently, as I do not consider that it is in the child’s best interest to spend substantial and significant time with each of the parents and do not consider that it is reasonably practicable for the child to spend substantial and significant time with each of the parents, I do not have to make an order under s 60DAA(2).
Therefore, I am entitled to make an order under s 65D(1) which provides that in proceedings for a parenting order, the Court may, subject to s 61DA (presumption of equal shared parental responsibility when making parenting orders) and s 65DAB (parenting plans) and this Division make such parenting order as it thinks proper. That, of course, is qualified by s 60CA which provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
I have considered at length D’s best interests under s 60CC earlier in my Judgment.
I am persuaded, therefore, that an order that D spend time with the father at all times as may be agreed, but in any event not less than one occasion (of at least two hours duration) per fortnight is an order that is in the best interests of the child.
It is for these reasons that I have made the orders which are set out at the beginning of this Judgment.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith delivered on 21 December 2010.
Associate:
Date: 21/12/2010
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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Procedural Fairness
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Jurisdiction
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Appeal
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