STARKEY & STARKEY
[2011] FMCAfam 738
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STARKEY & STARKEY | [2011] FMCAfam 738 |
| FAMILY LAW – Final parenting orders – previous consent orders entered into – breakdown of communication – supervised contact – apprehended domestic violence proceedings and final order – damage and violence toward property – allegations of mental health issues alleged to be residual symptoms of a brain injury – past diagnosis of depression. |
| Family Law Act 1975, ss.4, 65F, 13C, 69ZT, 60B, 60CA, 61DA, 65DAA(5), 65DAA(2), 65DAA(3), 60CC, 65DAC, 60CG, 60I Federal Magistrates Act 1999, s.42 Evidence Act 1995, s.144 |
| Jones & Dunkel (1959) 101 CLR 298 AMS & AIF (1999) 199 CLR 160 Goode & Goode [2006] FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 MRR & GR [2010] HCA 4 Pitken & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MS STARKEY |
| Respondent: | MR STARKEY |
| File Number: | PAC 2645 of 2009 |
| Judgment of: | Harman FM |
| Hearing dates: | 2, 3 and 4 May 2011 |
| Date of Last Submission: | 4 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moss |
| Solicitors for the Applicant: | Herbert Welller |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
That all prior parenting orders with respect to the children [X], [Y] and [Z] shall be discharged.
[X], [Y] and [Z]’s parents, namely their mother Ms Starkey and father Mr Starkey, shall have equal shared parental responsibility. [X], [Y] and [Z] shall live with their mother. They shall spend time with their father as follows:
(a)
Each of 14 and 28 May and 11 and 25 June from 9 am until
2 pm;
(b)
Each of 9 and 23 July and 6 and 20 August from 9 am until
5 pm;
(c)Each of the weekends of 3 September, 17 September, 1 October and 15 October from 10 am on Saturday until 3 pm on Sunday;
(d)Thereafter for each alternate weekend commencing 28 October and continuing until the conclusion of term 1, 2012 from 6 pm Friday until 3 pm Sunday providing that the weekend on which Christmas Day falls shall end at 3 pm Sunday;
(e)From the conclusion of term 1, 2012 each alternate weekend during school terms from 6 pm Friday till 3 pm Sunday extending to 3 pm Monday for long weekend;
(f)One week in each of the short New South Wales holidays being the first week, for a period in the Christmas holidays in each year being one week in 2012 commencing at 3 pm on Boxing Day, for two weeks in 2013 commencing 3 pm on Christmas Eve, for a period of two weeks in 2014 commencing 3 pm on 26 December.;
(g)For the second half of the school holidays in 2015, 16 and each alternate year thereafter commencing 3 pm on 7 January concluding 3 pm on last Sunday and for the first half in all other Christmas school holidays commencing 3 pm on the day after school breaks up until 3 pm on 7 January;
(h)For the Father’s Day weekend each year from 6 pm Friday until 3 pm Sunday and providing that if Mother’s Day falls on a weekend that would be the father’s, the time will for that weekend be suspended; and
(i)For such further and/or other periods as agreed between the parents.
For the purpose of [X], [Y] and [Z] spending time with their dad for the 9 am until 2 pm periods that changeovers on 14 May and 11 June shall occur at McDonald’s [M] and changeovers on 28 May and 25 June shall occur at the [B] Children's Contact Centre.
For the purpose of the periods 9 am till 5 pm on Saturday’s changeovers will be at [B]. For all other changeovers thereafter changeovers shall occur at McDonald’s [L].
Both parents are entitled to communicate with the children by phone, email or internet-based chat facilities at all reasonable times and with respect to same the parent in whose care they are will provide such assistance as the children require to enable them to participate and will encourage, allow and permit same and subject only to that that the children will be allowed to communicate with the other parent with privacy and without interference or impediment.
Each will keep the other advised at all times of their address, contact telephone number and emergency phone number or person and their email addresses for themselves and if the children have their own email addresses, for the children.
Both parents are fully entitled to attend at and participate in any activity at their schools.
Both parents to provide written authority to the children’s schools to enable both parents to obtain such documents or information as they desire.
Both to keep each other advised of any significant illness, specialist medical treatment for the children and provide authority so that both parents can consult and be advised.
Otherwise dismiss all outstanding applications, remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
Grant leave to the Independent Children's Lawyer to make an application for contribution to costs, decline to make any order.
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).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAC 2645 of 2009
| MS STARKEY |
Applicant
And
| MR STARKEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications with respect to three children:
[X] born [in] 2003;
[Y] born [in] 2005; and
[Z] born [in] 2008.
The parties to the proceedings are [X], [Y] and [Z]’s parents, being their mother Ms Starkey and their father Mr Starkey.
The proceedings, regrettably, have a somewhat lengthy history before the Court, not through any particularly litigious agitation by the parties or either of them but purely due to delays of an historical nature.
The proceedings were first commenced by application filed at the Local Court at [omitted] on 9 June 2009 and have now been heard in May of 2011. During that time a number of interlocutory and interim processes have occurred and at different times orders of some relevance have been made to provide for the children’s time with their father.
The Parties’ Proposals
During the course of the proceedings and, indeed, during the course of the hearing the proposals put by the parties have changed.
The application by Mr Starkey has at not at any time, and to his credit, put in issue the children’s primary residence with their mother. The application has, however, always sought overnight time including periods of block time during school holidays.
Ms Starkey’s application had initially sought that there would be unsupervised time. However, following a number of events and occurrences that position had changed and so that, at one point in the proceedings and in the early part of 2010, specifically on 17 February 2010, an application in a case was filed which sought that orders that the children spend time with their father be set aside or, in the alternative, that pending further order that those orders be suspended.
It is germane to that application that the parties had, prior to the transfer of the proceedings from the local court, entered into consent orders which had provided for the children to live with their mother and to spend time with their father from 9 am until 6 pm Saturday and from 8 am until 3 pm Sunday each alternate weekend. To facilitate those arrangements the children were to be transported by their maternal grandmother.
Some months after those orders were made and as a consequence of what is asserted in the evidence of the maternal grandmother, Ms C, to have been aggressive overtures by Mr Starkey towards her at changeovers and comments of an inappropriate nature, Ms C had declined to further participate in transport. As a consequence, between October 2009 and the making of orders for supervised time in February 2010, a period of some four months in total, the children did not spend any time with their father nor he with them.
In February of 2010 interim orders were made by Henderson FM which provided for time to occur at a supervised contact service. The orders had provided, by their terms, that time occur once per month at the [omitted] supervised contact service. The parties ultimately agreed to a variation, presumably due to availability, so that time occurred instead at the supervised contact service at [B], but on a similar basis.
The orders provided for a period of four hours on one weekend per month which, due to constraints upon the service delivery of the contact centre, devolved to be periods of two hours on each of a Saturday and Sunday of the same weekend per month.
The parties, to their credit, have followed through with those arrangements.
I express that it is to their credit for two reasons. Firstly, Ms Starkey has, at all relevant times, lived in the [M] area and, accordingly, it has been necessary for her to travel from [M] to the [B] area with the children to facilitate the time. She has had the benefit, if one might call it that, of being able to stay, for those weekends, with her parents who still live in the [omitted] area of Western Sydney, but she has, most assuredly, borne the burden of travel to facilitate time.
The father, to his credit, has continued to persevere for a period well in excess of twelve months. He has endured what one may well accept and which certainly, in the father’s evidence, he has described as a frustrating and, one would imagine at times, potentially humiliating experience. Not humiliating on the basis that the centre treats its clients with any disrespect, but purely that the time which had previously been occurring, both prior to and post separation, had not been subject to such strictures and certainly not subject to such disruptions and gaps.
In any event, when the hearing of these proceedings commenced three separate proposals were before the Court. Mr Starkey’s position remained largely as had been set out by him in the material filed both in his response and application in a case and seeking alternate weekend overnight time, block periods and other periods and forms of communication.
At the commencement of the hearing Ms Starkey, for her part, proposed that time would continue as it had been ordered in March of 2010, being supervised on an ongoing and indefinite basis.
The Independent Children's Lawyer had adopted a somewhat middle ground and had tendered at the outset of the hearing a minute of orders proposed. It provided for an immediate move to unsupervised time but a slow and gradual build up of time from a matter of hours, one weekend every three weeks, to a full day every three weeks and ultimately building, in six months’ time, to overnight time.
By the conclusion of the evidence and submissions the positions had changed somewhat at least as regards Ms Starkey and the Independent Children's Lawyer’s positions. It was proposed on the Independent Children's Lawyer’s part that the acceleration of time increase and reach a period of overnight time more quickly. Ms Starkey’s position has changed so that supervision was no longer sought but a very gradual, building regime was sought so that it would be at least
12 months before overnight time occurred.
Material Considered and Witnesses
Each of the parties and the Independent Children's Lawyer provided a case outline in the proceedings and each of the affidavits filed by the parties and identified in those documents has been read. Also on the second day of hearing leave was granted to file in court an affidavit by Ms M, who is what might be described as the partner of Mr Starkey, although not on a residential basis. They have in the past cohabited but do not do so at present.
In dealing with the affidavit material it is to be noted that each of the parties has filed a volume of affidavit material. Mr Starkey has relied on not less than seven affidavits. Ms Starkey, for her part, relies on a similar number of affidavits sworn by her. Ms Starkey also relies on an affidavit sworn by her mother who was, indeed, a party to the proceedings as these parties had also agitated issues with respect of property adjustment. Those matters were resolved by consensus on the first day of trial and orders made on that occasion in accordance with terms of settlement.
Again, it is to the credit of all parties, their legal advisors that an accommodation of a sensible and commercial nature was reached at an early stage.
In Mr Starkey’s case and, in addition to Ms M, affidavit material was also filed by a men’s health coordinator and counsellor employed by the [omitted] District Health Service, .
All of the witnesses whose affidavits were relied upon were required for cross-examination and their evidence, through cross-examination, was of particular illumination and assistance for a variety of reasons which will become apparent.
There are also a substantial number of exhibits in the proceedings tendered primarily in the father’s case. Most importantly, and chief among those exhibits, are records produced by the [B] Children's Contact Centre.
At this point I pause to congratulate that service for the extensive and excellent notes that are maintained by them. The manner in which the notes are maintained is a reportage of that which is observed and that which occurred largely, if not entirely, free from any subjective comment, conclusion, analysis or otherwise.
It is of great and considerable assistance to parties, their children and, importantly, when matters are litigated, this Court, to have access to such information and material which gives the Court a glimpse into events that have occurred which would otherwise be well away from this Court’s immediate gaze and which would otherwise be the subject of evidence by the parties which one might imagine may well often be at odds.
Indeed, in this case there is some consensus as to the children’s enjoyment of their periods of time with their father through the contact centre. That is where the agreement in relation to those arrangements ends.
The notes produced by the contact service are of a highly detailed nature and have been of substantial assistance to the Court in being able to identify and ascertain the nature of these children’s relationship with their father and to otherwise pass some comment upon issues of particular relevance and significance in these proceedings.
Background and Non-contentious Facts
There a number of issues which have caused difficulty as between the parties in relation to the factual basis of the matter. However, the parties have been in agreement with respect to a number of significant issues.
There is no dispute between these parties, (and it is a matter of central significance), that Mr Starkey was involved in a motor vehicle accident in 1997, as a consequence of which he experienced significant injuries from which he continues to have some physical disability and that those injuries included a traumatic brain injury.
The suggestion in the proceedings, and it does not appear largely contested, is that Mr Starkey underwent a period of some years of rehabilitation through the Commonwealth Rehabilitation Service and that this was particularly focused upon treatment and management of his acquired brain injury. Mr Starkey in his oral testimony made clear that, in his view, he no longer suffers from or experiences any brain injury or any residual deficits as a consequence of same. What is abundantly clear in the proceedings is that there is no evidence to the contrary in relation to that assertion by Mr Starkey. That is an issue in dispute between the parties, however, to which I shall return.
The parties commenced living together in 1998 and were subsequently married [in] 2002. The parties purchased a property, in the sole name of Ms Starkey, at [omitted] near [M] in 2004. As indicated, issues with respect to property adjustment have been resolved and concluded and, accordingly, the circumstances of its acquisition need not be of any importance to this Court at this time, save that the parties had thereafter lived at that property and continued to do so until the time of their separation.
The parties separated during March 2009. At the time of separation
Mr Starkey left the then home in the [M] area with the two youngest of the three children and then spent a period residing with those children with the maternal grandparents, Mr and Ms C, in the [omitted] region. He remained residing there with those two children and the eldest child [X] residing at [M] with her mother for about six weeks. At the end of the six week period all three children were reunited and commenced to reside with their mother in the [M] area.
On 8 May 2009, proceedings were commenced by Ms Starkey in the local court at [omitted]. At the same time apprehended domestic violence proceedings were commenced on the mother’s behalf and on 28 May 2009 a final AVO was made which placed prohibitions and restrictions upon Mr Starkey. Importantly, that included a prohibition which lasted at least until 19 May 2010, that Mr Starkey was not to approach any place of residence or work of Ms Starkey.
Ms Starkey is employed and has at all times during the relationship been employed as a [omitted]. Accordingly, during that period
Mr Starkey was not permitted to contact the children at nor to attend at the children’s school. This is relevant as there is some real controversy between the parties as to Mr Starkey’s attempts at contacting the school and whether they were adequate or sufficient.
The other issue that is not in dispute between the parties, and it is a credit to Mr Starkey that it is not so, is that on or about 1 May 2009
Mr Starkey attended at the property in the [M] area and visited violence upon a number of items at that property including a motor vehicle. There is some dispute as to the number of items that Mr Starkey damaged but he has conceded in his evidence and accordingly by a concession has acknowledged family violence within the definition contained in s.4 of the Family Law Act 1975 by damaging property. That, again, is a matter to which I will return as it is a matter with some real moment as regards the issues that are in dispute between these parents.
There is no issue between the parents that orders were made in the local court by consent and they resulted in non-overnight but unsupervised time happening each alternate weekend between the children and their father. That came to an end in October 2009 and certainly since March 2010; all time that has occurred between
Mr Starkey and these children has been supervised on the basis described.
The other evidence that is before the Court, in addition to the party’s affidavit material and the material produced on subpoena and tendered into evidence as exhibits, is a report by Mr G. Mr G was also required for cross-examination.
Mr G’s report, it would be fair to describe, is not dramatically supportive of Mr Starkey’s cause. That largely arises, it would appear from a reading of the report in its totality and from Mr G’s evidence in cross-examination, from reluctance, if one might describe it in that fashion, of Mr Starkey to engage fully with Mr G or answer questions in a manner which Mr G considered was wholehearted. That particularly related to two areas being the extent of any difficulty of
Mr Starkey’s alleged acquired brain injury and/or mental health issues and, secondly, present and recent past arrangements with respect to his household and lifestyle. This particularly related to an area as to which both Mr Starkey and Mr G were cross-examined at some length being Mr Starkey’s refusal to discuss whether he was or was not in a relationship. Indeed, Mr Starkey denied that he ever had been in a relationship with any other person since separation, notwithstanding that his evidence is quite clear that he had, until September 2010, been residing with Ms M and certainly after a disruption in their relationship, resumed the relationship, although not cohabitation. It is suggested that that is a matter upon which I should place great weight, particularly in relation to findings of credit.
One aspect that I must turn my mind to in that regard is perhaps to acknowledge and accept that the role of the Court is to judge and determine circumstances and cases rather than individual witnesses. There are certainly circumstances where one must, of necessity, make adverse findings of credit and as a consequence be judgemental of litigants. This is not a case in which, in my mind, that is a helpful exercise and, indeed, to the extent that the parties are at odds with regards the majority of issues that are raised between them, findings of fact with respect to them are not substantially necessary.
Issues in Dispute
The first issue of some real significance raised in the proceedings is an allegation that the father has a history of mental health difficulties and, as a consequence, that there are residual symptoms presenting at present or in recent past which would cause the Court concern. The evidence with respect to Mr Starkey’s present or past mental health was deficient. That is not in any way a criticism of counsel for Ms Starkey who has conducted this case in a most diligent and appropriate fashion.
However, the evidence that is available with respect to Mr Starkey’s mental health is that some 22 years ago he had a period of admission, for possibly as long as seven months, to a facility which admission may have been connected with an abuse of prescription medications, an overdose of prescription medications, self harm or some underlying mental health disorder. No records are available with respect to that admission. The only evidence that is available with respect to the admission flows from Ms Starkey indicating that she was told of it by Mr Starkey. Mr Starkey conceded that the admission had occurred, although he was somewhat less clear about its length but ultimately conceded it may have been as long as seven months.
It is also suggested that Mr Starkey suffers from and has, during the relationship, suffered from depression. Whether it is intended to make that assertion in a generalised nature so as to suggest that Mr Starkey is, in lay terms, generally somewhat morbidly predisposed to be depressive or in a more clinical sense is unclear. What is clear, however, is that Mr Starkey concedes that he has, in the past, been diagnosed with depression, has taken medication at various periods of time and he has given a description of the periods of time when he has felt depressed.
What flows from that, however, and I accept Mr Starkey’s evidence in that regard, is that he has been insightful in relation to the symptomology that has developed at different times and it has been he who has sought treatment. He has discontinued treatment at different times but that is not of itself remarkable. There is no evidence by subpoena or otherwise to suggest that such discontinuation was against medical advice, ill-advised or other than reflective of recovery.
Material that is produced on subpoena from the men’s health counsellor, suggests very clearly that at and about and immediately following, at least for some months, the separation of these parents,
Mr Starkey was certainly in a highly distressed state. Mr L, like the Court, is not in a position to offer diagnosis but certainly what is clear from that material, commencing with Mr Starkey’s first contact with the men’s health service on 31 March 2009, very much at the time of separation of these parties, is that Mr Starkey was not coping at all.
The basis for that, on Mr Starkey’s evidence, is that he discloses that at about the time of separation he had become aware through a variety of sources, including reading material on the computer used by
Ms Starkey, that his wife was engaged in an extra-marital relationship. It is not necessary for me to make any finding of fact as to whether that is so or not because I can proceed satisfactorily on the basis that this was the perception that Mr Starkey had, whether it is true or not, and this Court since 1976 is not a court of moral judgment and, accordingly, I need not engage myself in that process.
But what flowed from that belief formed by Mr Starkey, whether for good or bad reason, is that he experienced something of an emotional collapse. It certainly gave rise to his damage and his violent physical acting out in the destruction of property. That behaviour, on the basis as described by Mr Starkey is explicable. That does not make it excusable or appropriate but perhaps explicable.
Mr Starkey indicates clearly to the counsellor with whom he has consulted that he has some suicidal ideation. But what is also clearly absent from both his concessions to Mr L and Ms Starkey’s evidence, which is not largely disputed by Mr Starkey, is that leading up to and at least for some months prior to separation, although Ms Starkey suggests a longer period, he was routinely making comments with respect to feeling hopeless, despondent and at times making references, tangential or direct, to suicide.
What is also clear, however, is that there is not, at any time or from any of the evidence available, any active planning, any risk of self harm of a real or genuine nature (and on 2 April 2009 Mr Starkey was assessed for that very purpose by the community mental health team at [omitted] Hospital), nor any attempt at self harm.
There is a substantial difference between a generalised discussion of suicide and suicidality in its clinical sense. And certainly, in that regard, none of the material before me satisfies me that, at any time, did Mr Starkey actively engage, plan or attempt suicide, notwithstanding the stressors existent in his life at the time.
Mr L’s notes also make clear that over a substantial period, now over two years, Mr Starkey has been engaged in cognitive behavioural therapy with Mr L. Mr L’s evidence I found highly impressive. Mr L did not seek, in any sense, to guild the lily, to be partisan with respect to Mr Starkey in an inappropriate way or to minimise or dismiss the difficulties that clearly Mr Starkey was facing and under at the time of separation and for some months thereafter.
Mr L made clear that he had, on two occasions, sought to have a mental health assessment undertaken of Mr Starkey. They were both in early 2009. On one occasion he met with Ms Starkey and Mr Starkey in an attempt to assist them in reconciling their relationship or, if that was not possible, to resolve arrangements between them. Whether that was or wasn’t of some assistance in the orders that were ultimately agreed by consent in the local court is unclear, but what is clear is that it did not assist in dramatically resolving disputes between these parents.
Mr L, also significantly and by his own concession, potentially in breach of his agency’s protocols, contacted Ms Starkey and the Police on one occasion in April, 2009 when he was concerned after
Mr Starkey had made a tangential reference to suicide and being despondent and seeing no hope for the future and was then, after those comments, unable to be contacted. As a consequence, Mr L acted appropriately and protectively of, firstly, Ms Starkey, secondly, their children and, thirdly and lastly. Mr Starkey. Nothing came of those events but the fact that Mr L was so open and aware of the need for him to act in such a fashion gives me great confidence that I can rely upon his evidence as being objective.
At the conclusion of his evidence Mr L was very clear in stating, “I take my hat-off to Mr Starkey. He has changed dramatically.” Mr L otherwise indicated that the improvements that have been made by
Mr Starkey are such that the person who initially presented to him in March of 2009 does not, in any way, reflect the person who he deals with and continues to deal with today.
The second issue of substance that was raised in the proceedings related to Mr Starkey’s acquired brain injury. That has, indeed, occupied a great deal of attention during the course of the proceedings.
Orders were made earlier in the conduct of the matter and by consent that Mr Starkey would arrange and attend for a formal assessment by a brain injury clinic. That has not occurred and as a consequence of a cost in excess of $5,000 which Mr Starkey was not and is not in a position to meet. One might be invited to draw a Jones & Dunkel (1959) 101 CLR 298 inference but for the fact that there was a very clear explanation as to why that assessment has not proceeded.
Mr G has similarly indicated, both in his report and in his evidence, that as he is not qualified to assess what is alleged by Ms Starkey as to the potential ongoing impact on Mr Starkey’s functioning and parenting capacity of an acquired brain injury, that he would, for abundant caution, like to be able to see a thorough assessment and some medical evidence in that regard. That perhaps would be desirable but clearly the evidence is such and I accept it that Mr Starkey is simply not in position to obtain that evidence.
Perhaps what is more fundamental to the issue, however, is that there is simply no evidence before me of a prohibitive nature that suggests that there has been any symptomology with respect to Mr Starkey’s acquired brain injury if, indeed, such exists at this date, that would cause me concern as to his parenting capacity.
What is abundantly clear are the following:
a)There is no dispute that Mr Starkey was involved in the accident some 14 years ago.
b)
Following the accident the relationship between Mr and
Ms Starkey commenced, continued and they ultimately were married and had three children together.
c)There have been periods of time, particularly immediately before the months of disintegration of the marriage of these parties, where Mr Starkey had substantial daily activities and care of the children without assistance from any other person and including overnight periods with these children which were not the subject of any complaint, criticism nor alleged concern and certainly not suggesting that, immediately following those periods of time, that Mr Starkey’s care had been anything other than entirely appropriate.
d)The brain injury certainly had resolved itself by or during the relationship, it would appear from the evidence, sufficient to enable Mr Starkey to engage in employment, engage in household activities and the like. The injuries that his evidence speak to of an ongoing nature are more descriptive of orthopaedic injuries rather than any lack of cognitive function or mental or mood impairment.
I am concerned that whilst the issue has occupied a great amount of attention during these proceedings that it has been, perhaps, in the general nature, both as regards the acquired brain injury which is an entirely physiological issue and the alleged mental health disorder of a psychiatric or a psychological nature, that the mere raising of the allegation has created concern of itself and inappropriately so.
A mental health issue is exactly that - a health issue. If Mr Starkey, , has, and on his own admission he has, suffered bouts of depression in the past that does not make him unique or extraordinary in the community or in proceedings before this Court.
The Court is all too aware of the information available in the public domain (to which I am entitled to have regard pursuant to s.144 of the Evidence Act 1995) as to the prevalence of depressive illness in the community. One in six men and one in four women will, at some point in their life, be clinically depressed to a point of diagnosis should they present themselves. What is different as regards Mr Starkey is that he has sought to present himself and obtain assistance, demonstrating insight into his condition and an ability to focus upon and recognise the deterioration in his functioning when so depressed.
That gives me some comfort that he is, indeed, a man who is sufficiently aware of himself and is sufficiently aware of his deteriorating psychological health at times when it has occurred to act appropriately.
Similarly in relation to the acquired brain injury it is exactly that - an injury. If it is suggested that it has a substantial impact upon his cognitive functioning then the evidence available to support that allegation is not before me.
There is a generalised assertion that throughout the relationship
Mr Starkey has experienced mood swings and irritability. There are a great many people who do not have any physiological basis for mood swings and irritability but it is simply a condition of their personality. The evidence in that regard, however, is, as I have quoted to counsel during the conduct of these proceedings and in the words of the late Knibbs JR, “long on allegation and short on proof.”
Indeed, the actions of Ms Starkey, not as a criticism of her in any way, in the years prior to separation and, indeed, in the months following separation and until October 2010, count against my finding that there was any serious significant or real concern. That is not to suggest that I am satisfied that Ms Starkey is disingenuous or lacking a genuine belief that her children may have some cause to come to harm in their father’s care. But I must be satisfied, in the context of the legislative framework of the Act that there is some reasonable and realistic basis for a genuine concern, and in this case I am satisfied that there is simply no evidence to support such a finding.
The fact that there is an absence of evidence, in Mr Starkey’s case, to disprove the negative allegation that he has or may suffer from a mental health condition or some cognitive or functional impairment as a consequence of a brain injury is not in my mind a valid criticism of his case. Something is being alleged and he is being asked to disprove it. He says there is nothing to disprove.
The consequences of untreated symptomology of a mental health disorder, for instance, whilst serious does not change the fundamental principle of law that has existed since Magna Carta and the Bill of Rights 1679, “that he who alleges proves.” There is no evidence to sufficiently satisfy me that Mr Starkey should be the subject of a negative finding because he has failed to produce evidence which rejects an allegation or assertion which is not supported by available evidence.
The next issue arising from the above is whether Mr Starkey poses any risk, physical or emotional, to these children either through the consequences of mental health disorders, acquired brain injury or a more generalised suggested malaise or deficit of parenting skills. Again, the evidence in that regard is deficient. There is no evidence to suggest to me that Mr Starkey has now, or at any time prior time to separation, been unable to meet these children’s physical, emotional and intellectual needs.
There is certainly the period of time immediately prior to and following separation when clearly there is and was a question mark regarding that capacity and I am satisfied that at the time when Mr Starkey was so consumed by his explicable and understandable anguish and emotional distress of separation that perhaps he was impaired, but that was in early 2009. The evidence that I have available to me suggests that
Mr Starkey has addressed those concerns.
Mr L, in his evidence, makes very clear, as I have indicated, that in his view Mr Starkey today is not the same Mr Starkey as March 2009 and that the changes are, in fact, highly positive changes suggesting that he has developed great insight, that he has responded to the cognitive behavioural therapy that Mr L has provided and as, a consequence of that, has developed new parenting and coping skills within himself.
I am also comforted by Mr Starkey’s evidence, whilst it may be a very minor issue in the proceedings, regarding his relationship with Ms M. He would appear to have acted appropriately, insightfully and sensibly in that regard. When they were experiencing difficulties, for reasons that are largely contentious on the evidence but relating to attacks upon Ms M on Facebook and the like, they determined to leave each other and establish separate households. Mr Starkey has indicated, however, in his evidence, that he feels better within himself, happier than he ever has and feels very positively and proactively that he can communicate with Ms M in a way that he has never been able to communicate with another woman.
That of itself is a very tiny and perhaps insignificant portion of the evidence, but it is entirely consistent with what Mr L has offered to the Court, that Mr Starkey, (whose evidence would suggest his childhood was less than ideal and perhaps the parenting skills that he might have learnt, particularly emotionally through his own parenting, were somewhat deficient), has made enormous leaps and bounds and he must be commended for the fact that, in the most trying of circumstances - Mr L has described them as frustrating, that he has persevered and he has kept it together.
That is not to say that there haven’t been times, particularly in 2009, when he has acted inappropriately. To his credit, he concedes that. But the inappropriate actions that are complained of are comments that he has made to the children and particularly to [X], and he acknowledges and owns responsibility for the fact that those events have occurred, should not have occurred and would appear to have expressed, and I accept it, does express, significant insight into understanding the importance of it not occurring again.
Similarly, however, and lest it should be perceived that the entire focus of this case is or should be upon Mr Starkey, although in fairness,
Mr Starkey has been (and he has clearly perceived it as so) the focus of attention and the case has largely been presented in a fashion whereby he has been required to prove himself, there has also been criticisms raised of Ms Starkey on a similar basis regarding comments and discussions that she has had with the children and particularly [X], which, again, perhaps have been regrettable and might have been handled differently. But the focus of this judgment is to see the parties moving forward and one would hope positively and progressively.
The other factual matter that assists me greatly in being satisfied that Mr Starkey has had a far more substantial engagement in the children’s lives and care prior to separation is the very nature of the relationship described in the notes produced by the [B] Children's Contact Centre. Those notes commence with the children expressing great excitement and joy at seeing their father for the first time in April of 2010, when at that time, they had not seen him for nearly six months.
For a relationship, particularly with the two younger of these children, to have survived such a gap would suggest that there was a depth of relationship which has persevered, notwithstanding the absence. It would also be suggestive that Ms Starkey has perhaps not been as attacking or non-supporting of that relationship as is suggested of her by Mr Starkey. But clearly for these children, who at April 2010, particularly in the cases of [Z] (who was not even two) and [Y] (only four), to able to respond to their father with such warmth and enthusiasm must speak to the depth of the relationship which existed prior to the six months hiatus.
Similarly, as one reads through the notes of what is, in effect,
13 months of visits with their father, one is struck by the continuous repetition of positive comments. The centre staff observe that
Mr Starkey gets down with the children on their own level, crawling on the floor and the like, notwithstanding that at times that may well, as a consequence of his ongoing injuries, have caused some physical discomfort. It describes, continuously, the children’s joy and delight at seeing their father. Self-assessment forms were completed by [Y] and [X], at least, and which consistently suggest that they have had a very good time with their father and are looking forward to the next visit.
The notes suggest, clearly, that Mr Starkey has behaved in a child-focussed and child-appropriate way. The notes suggest great affection between these children and their father the children are observed at each visit to kiss him, hug him and run to him joyously.
The notes suggest also that, save one occasion in January of 2011 when Mr Starkey is described as being a little aloof and somewhat frustrated by the experience, that the visits have been entirely positive. I am not satisfied that I can or should place any substantial weight upon one visit being suggested to have some difficulties attendant. They are not substantial difficulties and certainly Mr Starkey’s evidence regarding that visit, being his first contact with [X] for some two months, and the difficulty being largely with [X] who presented in what might be described and was described in Mr Starkey’s evidence as a “sulky mood”, does not in my mind suggest any real deficit in either the relationship or Mr Starkey’s parenting capacity.
There are a number of matters of concern raised in the documents as well regarding suggested comments to the children by Ms Starkey. They were denied and I take them no further other than to observe that each of the parents has perhaps, for their own reasons or their own deficits, particularly in the earlier stages of separation, engaged the children in discussions and other activities which, in hindsight, and I am sure both would accept, is regrettable.
The final issue of great and substantial moment between the parties were the incidents of family violence which were conceded by
Mr Starkey at around the time of separation and whether there is then, as a consequence, any ongoing risk, physical or psychological, with respect to a repetition of family violence. In that regard, it is suggested that whilst these parties had been attending at the Federal Magistrates Court in March of 2010, that incidents had occurred and that harsh words were spoken, if I can categorise it in that sense without wishing to euphemise it, by Mr Starkey towards Ms Starkey.
It is suggested that at one stage Ms Starkey had come upon Mr Starkey and he had told her to go away. Ms Starkey’s evidence goes further and she says that he called her a bitch. It is also suggested that after the matter was dealt with by the Court on that day that Mr Starkey had come down the stairs behind them and called them bitches and then later had approached them outside the Court and suggested that the matter needed to be dealt with, but having been asked to move away by Ms Starkey’s lawyer, did so.
There is no agreement between the parties as to whether those events did or did not occur as described, although there is some commonality and certainly it is conceded by Mr Starkey that he did comment to
Ms Starkey to go away, there being at that time an apprehended domestic violence order in force which precluded contact or communication, and, secondly, that he certainly did indicate that he said things should be sorted out.
The objects and principles of the Act suggest that parents should resolve issues between themselves wherever possible and Mr Starkey’s comments are consistent with that object at least. Not a great deal turns upon that issue, although the actions of Ms Starkey and Ms C were to immediately attend at the [omitted] police station and make statements with respect to the incidents although, thankfully perhaps, no action was taken. I do not infer that this means the police were not satisfied that events occurred as Ms Starkey and Ms C suggested, but certainly it suggests that they were not sufficiently concerned to take action.
That is really the only suggestion of any ongoing risk of family violence. Clearly, at the expiration of the family violence order an application was made to extend it which was declined by the relevant local court. Again, I do not have any transcript from the local court before me that I could rely upon to make findings as to the basis found by the local court magistrate. I can infer that the learned magistrate was satisfied that there was no genuine fear or apprehension, but in any event there is no order and it would appear clear these parties have had little or nothing to do with each other for at least 12 months. That is, in part, regrettable as it means that there has been no exchange of communication between the parties. Each has indicated in their evidence that they are now prepared to engage in communication through text messages and email. That may prove a path forward.
Ordinarily, I would be conscious to consider the Court’s obligations by reference to s.65F and s.13C to make orders for the parties to attend and receive some therapeutic assistance. However, in this case I am satisfied that the assistance being provided by Mr L to Mr Starkey and the assistance that Ms Starkey has had through a private psychologist will meet their needs should they feel the need to obtain any assistance to further advance their ability to communicate and co-parent together.
Evidential Issues and Approaches to Evidence Generally
As parenting proceedings the conduct of this matter is governed by Division 12A of Part VII of the Act. There are provisions of the Federal Magistrates Act 1999 which are also relevant, particularly section 42 which requires that the proceedings be advanced with informality and as much informality as is possible. That is consistent with the obligations imposed by Division 12A of Part VII.
Division 12A commences with a statement of principles for conducting child relating proceedings being:
(i) To consider the needs of the child concerned and the impact of the conduct of proceedings on the child.
(ii) For the Court to actively direct, control and manage the proceedings.
(iii) For the proceedings to be conducted in a way that will safeguard the child against family violence and any party against family violence.
(iv) As far as possible, to conduct proceedings in a way that will promote co-operative and child-focussed parenting.
(v) The proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible.
It is a credit to counsel in this case that the matter has been conducted in accordance with those principles. They have led by example as to how civilised, cooperative adults behave. The preparation of material in the case, however, has meant that there are, as I have indicated above, real deficits in relation to portions of evidence.
It is oft suggested that s.69ZT of Division 12A provides that the rules of evidence do not apply at all in child-related proceedings. That is not so, nor has it been asserted in this case.
Section 69ZT requires that certain aspects of the rules of evidence do not apply but that they do not apply subject to two caveats:
(1)The Court can place such weight as they consider necessary upon evidence that would otherwise be excluded as a consequence of those portions of the Evidence Act 1995 which are expressed to not operate; and,
(2)The Court is still entitled to require the application of the specified rules of evidence if they consider it appropriate.
In this case, as in every other parenting case, the Court is required to discharge its judicial obligation. That is - and again as dealt with as far back as the 1640’s and following debates regarding republics, monarchy and the rule of law following the first of the two English Civil Wars - to make decisions by reference to admissible evidence of probative value. As Murphy J, prior to his appointment to the Family Court was often remarked to say, “the currency of the lawyer is admissible evidence” and certainly the currency of this Court is admissible evidence.
When decisions are to be made by this Court regarding matters such as whether a relationship between children and a parent will continue or will continue subject to substantial constraints and strictures, there is no place for “evidence” which is not of probative value.
There may be circumstances and decisions such as whether time will commence, for example at 3 pm or 4 pm, when a strict application of the rules of evidence is not at all warranted. However, when such important decisions as to findings of whether a parent suffers from a disability which would then impact upon their parenting capacity and, as a consequence, severely limit the possibility of their relationship or unsupervised time with their children, I am satisfied that in such cases the rules of evidence have an important role to play in protecting the rights, firstly of the children whose right, after all, it is to experience a relationship with both parents (see s.60B) but, secondly, the parents themselves.
As Kirby J observed in AMS & AIF (1999) 199 CLR 160, the paramountcy principle as set out in s.60CA does not mean that the legitimate interests and rights of parents are irrelevant, it simply means that they take second place behind the child’s.
To deny procedural fairness to a parent or to deny to a child a full and proper inquiry into their best interests through allowing evidence to have weight placed upon it when it is ordinarily not admissible or not probative or, as regards the serious allegations in this case, having no evidence of probative value to support the allegations, would be an injustice and a misuse of the Court’s power and a misapplication of the Court’s discretion.
The Legislative Pathway
I am required, as set out by the Full Court in Goode & Goode (2006) FLC 93-286 and Marvel & Marvel [2010] Fam CAFC 101 and by the High Court in MRR & GR [2010] HCA 4, to commence by considering the objects and principles of the legislation as set out in s. 60B.
The objects and principles do not form part of the substantive law but inform the exercise of the operative provisions. The objects and principles provide that:
(a)It is the Court’s role to ensure that the best interests of children are met by:
(b)ensuring they have the benefit of both of their parents having a meaningful involvement in their lives,
(c)protecting them from physical or psychological harm,
(d)ensuring they receive adequate and proper parenting so that they can achieve their full potential, and
(e)ensuring that the parents fulfil their duties and meet their responsibilities.
The principles underlying the objects are that:
(a)Children have a right to know and be cared for by both of their parents,
(b)Children have a right to spend time on a regular basis and communicate on a regular basis with both parents and other people significant to their care
(c)Parents should share duties and responsibilities
(d)Parents should agree about future parenting; and
(e)Children have a right to enjoy their culture.
Culture is not a matter of any great moment in this case.
I am then required to at all times to consider, pursuant to s.60CA, the child’s best interests as the paramount consideration and I do so.
The Court must then to turn s.61DA and determine whether the presumption of equal shared parental responsibility applies and if it does apply whether it is rebutted.
The presumption of equal share parental responsibility does not apply in circumstances where the Court is satisfied on reasonable grounds that a parent has engaged in abuse of the child or in family violence.
Much recent debate has occurred regarding the definitions of abuse and family violence as contained within s. 4 of the Act and with the end consequence of a Bill presently before Parliament to further review the Act.
Family violence, as presently defined, 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.
I am satisfied that the concessions made by Mr Starkey regarding what occurred in relation to the damage and destruction of property in March 2009 would certainly create a reasonable fear or apprehension on the part of Ms Starkey at that point in time and, accordingly, there must, by definition, be a finding of family violence engaged in by Mr Starkey post separation. However, that simply means that the presumption does not apply. It does not better this Court’s discretion in determining what is in the child’s best interests and whether equal shared parental responsibility should be ordered is at an end or otherwise fettered.
In this case both parents and the independent children's lawyer propose that there should be an order for equal shared parental responsibility and I am satisfied, particularly by reference to the comments of Murphy J in Pitken & Hendry [2008] FamCA 186, that the extreme step of precluding a parent from participation in shared parental responsibility should not be taken, save in the most of grave of circumstances, and I am satisfied, perhaps as is consistent with statement made by Mr Starkey during his evidence, that he should not be judged based on how he behaved in March 2009 and that I should judge present circumstances wherein, whilst I would have some reservations as to the practicality of the discharge of equal shared parental responsibility having regard to the recent past history of poor communication, that there is sufficient optimism that, indeed, an exercise of equal shared parental responsibility as envisaged and as defined by the legislation can occur and should accordingly be ordered.
Lest I am in doubt regarding the non-application of the presumption, I note, in any event, that if the presumption were to apply I would be required to consider s.65DAA and thus to consider equal and substantial and significant time before ordering any other time arrangement. For the sake of completeness and in the event that the presumption were to apply and be unrebutted, I would indicate that I am satisfied that on the basis of reasonable practicality as defined in sub.s(5), and particularly subparagraph (a) thereof being how far apart the parents live from each other, that such time arrangements could not be in the children’s best interests. These parents live some four hours drive apart from each other. Two of the children are of school age and it would simply be a practical impossibility, let alone being not reasonably practical, for an equal or substantial and significant time arrangement as defined in subss.(2) and (3) at s.65DAA to occur in those circumstances.
I am required to then consider, in addition to reasonable practicality, s.60CC and the matters set out regarding a determination of what is in a child’s best interests.
Section 60CC commences with a statement of two primary considerations being:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and,
The need to protect the child from physical or psychological harm, particularly by being exposed to or subjected to abuse, neglect or family violence.
There is no evidence before me which suggests that the family violence, which Mr Starkey concedes at and around the time of separation, was something that the children were directly exposed to. I am conscious that the social science literature makes very clear the negative impacts upon children of family violence, whether they have experienced it directly, indirectly or simply as a consequence of the detritus of those actions through the distress of a parent or otherwise.
However, I am sufficiently satisfied in this case, and for the reasons given above and the absence of evidence to the contrary, that there is no need in this case for me to protect these children from physical or psychological harm perpetrated by either of their parents.
I am then left to consider the benefit to the children of having a meaningful relationship with both parents.
I turn then to the additional considerations which both inform the primary considerations but also stand as important considerations of their own as remarked Carmody J in Dylan & Dylan [2007] FamCA 842 and, that portion of the judgement at least, reaffirmed by the Full Court.
I commence with consideration of the children’s views. There is an absolute paucity of evidence regarding the children’s views. The only reference to same arises in Mr G’s report and which is consistent with Ms Starkey’s evidence whereby it is suggested that [X], in particular, being the only one of the three children directly interviewed by Mr G, has an interest in spending time with her father away from the contact centre.
In paragraph 43 the following is reported:
[X] spoke happily about seeing her father, telling me she had lots of fun, describing the games they played at the centre. She didn’t know why the sessions were supervised and stated it would be okay if she and her sisters went out with him. But then added she would feel a bit scared to stay overnight. [X] was unable to elaborate.
I am not satisfied, having regard to [X]’s age and the fact that she is unable to elaborate or give any detail regarding the statement that she is “a bit scared to stay overnight”, that I would place any weight upon that in a negative sense as would vitiate against overnight time occurring at some point in the future.
The only other evidence I have with respect to the children’s views is that which flows from the material produced by the [B] contact centre and being an exhibit in the proceedings. That makes quite clear that these children enjoy their relationship with their father and crave it.
It is suggested in Ms Starkey and Ms C’s evidence that, whilst they enjoy time at the centre that is because, I am invited to infer, of the limited and supervised nature of that time. However, the concerns I have in that regard arise largely from the fact that neither Ms Starkey nor Ms C, possibly for good reason but in all probability largely because of negative experiences since separation, have any positive comment to express in relation to Mr Starkey as a parent.
Ms Starkey’s evidence was that when they were together that
Mr Starkey could, at times, be a good parent but had little involvement with the children. That is inconsistent with what is observed of the children’s relationship in the contact centre notes.
Ms C went further and was unable to concede anything positive about
Mr Starkey as a parent other than the fact that he loved his children. Such an exercise in damning a parent with faint praise does not give me any great confidence that I would be satisfied that these children have other than a desire to explore a relationship with their father and, absent any evidence to satisfy me as to risk to the contrary and which would count against such an extension of their relationship, it should occur.I next consider the nature of the relationship of the child with each parent and any other person.
The children clearly have an excellent relationship with their mother. There is no suggestion that they will do other than live primarily with their mother and, as I have indicated, that concession is a credit to
Mr Starkey. Far too many litigants place that issue in dispute for mischievous purposes best known to them but which could not possibly achieve anything other than to further undermine and erode trust and cooperation. Mr Starkey has not chosen to take that path.
The children presently enjoy a very good relationship with their father within the limited confines of the time that they have spent with him since March 2010. I am satisfied, however, that it is a deep, profound and loving relationship but, based upon the limited involvement that has occurred for 12 months, that relationship could not be described presently as meaningful within the discussion undertaken by Brown J in Mazorski & Albright [2007] FamCA 520. However, that is not to suggest that there is not sufficient basis for that relationship to quickly develop and mature into a meaningful relationship and I am satisfied that this would be so and that, indeed, an escalation of that relationship through greater periods of time and involvement, the quantum of time being separate and distinct from the nature of the relationship, would end in that result.
I must consider the willingness and ability of each parent to facilitate, and encourage a close relationship.
I cannot question Mr Starkey’s capacity in that regard as, clearly, he does not seek to change the children’s primary residence. Ms Starkey is criticised, particularly having regard to the fact the time has been supervised since March, 2010 and, further, for a period of four months prior to that no time occurred at all and nothing was facilitated. Similarly, Ms Starkey is criticised for not providing information or access to information from the children’s schools or regarding their medical or extracurricular activities.
However, set against these criticisms, Ms Starkey has assuredly, albeit I am satisfied with some degree of reluctance, followed through with the time arrangements. There is no real suggestion, other than one period when [X] did not attend because of a conflicting dance recital, that these children have not been presented. Whether they have been presented as has been discussed by the Full Court following a strident discharge of the implied obligations created by orders to actively promote and encourage a relationship could be questioned, but for present purposes I note that these children have been transported from [M] to [B] one weekend a month by their mother without fail.
Accordingly, I am satisfied that Ms Starkey will continue to support the children’s relationship within the context of her emotional capacity at present which one would hope will more greatly improve in the future.
In considering the likely effect of change I am satisfied that there would be an entirely positive effect upon these children of their relationship with their father now being progressed and progressed in a far more rapid manner than is proposed by either Ms Starkey or the Independent Children's Lawyer.
The Independent Children's Lawyer proposed that there would need to be some stricture on time to protect these children from the quantity of travel that would be involved. However, these are children who live in a remote country area and, accordingly, would have some familiarity with and will continue throughout their lives to have familiarity with more extensive travel than perhaps suburban children would.
More importantly, however, I can limit the amount of discomfort and inconvenience to the children by sharing travel with a midway point so that at least the children’s travel is broken.
That is also to acknowledge the time that these children would then spend with their father in a car, being transported from a changeover point back to his home, is not completely lost time. He is not a public transport provider or taxi driver. He is these children’s parent and he can engage and interact with his children whilst in the car.
Practical difficulty and expenses is manifest in this case. The parties live some four hours apart and there is no proposal by either parent that that is going to change.
Indeed, the one thing that will change in the foreseeable future is that
Ms Starkey’s parents are proposing to relocate from Sydney within the next 12 months or so to also live in the [M] area. However, the rate at which I propose that time arrangements would escalate will mean that this accommodation will most assuredly be available for the limited times that Ms Starkey will need to come to Sydney to facilitate time.
Capacity of Each Parent
I am satisfied both parents are entirely capable of meeting the children’s emotional, intellectual and physical needs. There are certainly times, at and immediately following separation, where both of the parents, and the focus of the evidence has been primarily upon
Mr Starkey, have engaged in behaviours, due to distress or otherwise, which were less than ideal. However, this Court must be conscious of the fact that we deal with real life people, real life emotions and real life relationships. It is explicable that parents may not be at their best in presenting themselves to the Court, let alone their children, at a time when a 13 year relationship with or without trauma falls apart.
A great deal of social science, commencing with an article “The Etymology of Divorce and Separation”, makes very clear that it is, indeed, a cycle of grief and that parents need some support and sensitivity. It is somewhat unrealistic for it to be expressed that within days if not weeks of parents separating that they need to have moved forward and put their children’s best interests first. To a large extent, especially at such times, parent’s and children’s needs are enmeshed.
I am satisfied that both of these parents have, in their own way and subject to whatever impediments from their own emotional distress as was occurring at and around separation, have put their children’s best interests first.
To ignore the fact that parents are entitled to become angry, to become distressed and to have some difficulty coping with the adjustment that follows separation, is unrealistic.
I am satisfied that certainly at the date of hearing both parents have more than adequate capacity to meet these children’s needs.
Maturity, sex, lifestyle and background of the children are relevant to the extent that these are very young children. Accordingly, they are, whilst having passed their attachment and bonding phase, very much in the stage where they need regular and frequent time with both of their parents to be able to establish the building blocks that will enable them to develop a meaningful relationship with both parents. And indeed, it is important, whilst I have commented on several occasions that the focus of these proceedings has largely, from Mr Starkey’s perception of and with some validity and justification, been upon him, the focus of the law and its application, is upon the relationship of these children with both parents. That is what the law states and that is how this decision has been arrived at.
There is no suggestion that these children or either parent are from an Aboriginal or Torres Strait Islander background.
The attitude to the child and the responsibility of parenthood of each parent is criticised by each of the other. Mr Starkey clearly has not paid child support and should have. It may be that such provision would or could not have been substantial in light of the fact that he has not been working great hours. But some provision would have gone some way towards suggesting to his children, if not Ms Starkey, that he was genuine and committed to their care and upkeep.
Similarly, criticisms are raised of Ms Starkey regarding her attitude towards Mr Starkey, particularly regarding the provision of information and the absence of attempts by Ms Starkey to engage and involve
Mr Starkey in the children’s lives.
Rather than judging and criticising each of the parents for the above deficits I raise them purely so that each can hopefully address them for the future and so as to ensure, as I am sure both of these parents want, that these children receive what is best for them and receive it from both of their parents.
Family Violence involving a Child or a Member of a Child’s Family
I am satisfied, as indicated, that family violence as defined in section 4 has occurred but that it is an historical event. In the terminology of the more current literature, the family violence that has occurred is episodic and situational. It has arisen as a consequence of the separation and the events and the trauma surrounding same. That is not to excuse Mr Starkey’s behaviour. It is reprehensible. But he has certainly been clear and cogent in his evidence and provided an explicable version of events backed up by a level of contrition demonstrated through his evidence and also by having acted in a fashion, for the last two years, that suggests that it is not something that will be repeated, and I am confident that that is so.
There are no family violence in orders presently in force.
As to whether it is preferable to make orders that will least likely lead to the institution of future proceedings, I am satisfied that the orders that I propose to make today can, should and hopefully will be reviewed by these parties through family dispute resolution at about the time that the youngest of these children, [Z], commences school.
I haven’t included within the orders that I am about to pronounce any provision in that regard as s.60I already provides for it.
The parents, should they encounter difficulties or should either of them wish to review or increase arrangements, should approach the other in whatever manner they consider appropriate and obtain such assistance as they want, need or consider desirable through Family Dispute Resolution or family counselling before coming to this Court. That will, of course, be subject to circumstances at the time which are not yet known.
The other legislative provisions that I am required to turn my mind to are s.60CG which requires that I consider the risk of family violence. I have done so and, as indicated, I am satisfied that there is no present or future risk of family violence such as would warrant the making of orders of an injunctive nature or different to the orders I propose to pronounce.
Section 65DAC also requires that I turn my mind to and consider the effect of parenting orders, particularly orders for equal shared parental responsibility, upon both the children and their parents. That section also goes on to define that-
An order for equal shared parental responsibility requires that parents consult with each other about major issues, decisions as defined in s. 4 and make a genuine effort to come to a joint decision about those issues.
I am satisfied that the absence of same in the past, notwithstanding orders made on an interim basis for equal shared parental responsibility, should not act against me now making an order that will provide for these parents to have equal shared parental responsibility and to hopefully move forward with a renewed and redoubled effort to make those arrangements work.
With respect to the parenting orders that I am asked to make, I note, again, that there is no issue at all between these parents that these children will continue to live primarily with their mother and, accordingly, and on that basis such an order will be made.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 29 July 2011
0
6
3