STRONG & WELCH
[2014] FCCA 1376
•15 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STRONG & WELCH | [2014] FCCA 1376 |
| Catchwords: FAMILY LAW – Children – interim parenting arrangements – unacceptable risk. |
| Legislation: Family Law Act 1975, ss.13C, 60B, 60CA, 60CC, 61DA, 61F, 65DAA(5), 65F, 69ZT Evidence Act 1995 (Cth), ss.135, 136, 140 |
| Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCAFC 101 Cowling & Cowling [1998] FamCA 19 Cilento & Cilento (1980) FLC 90-847 Griffiths & Griffiths (1981) FLC 91-064 Rainer & Rainer (1982) FLC 91-239 Deacon & Castle [2013] FCCA 691 Briginshaw v Briginshaw (1938) 60 CLR 336 Jones & Dunkel (1959) 101 CLR 298 Brandi v Mingot (1976) 12 ALR 551 Amador & Amador (2009) 43 Fam LR 268 MRR & GR [2010] HCA 4 |
| Applicant: | MS STRONG |
| Respondent: | MR WELCH |
| File Number: | PAC 418 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 15 May 2014 |
| Date of Last Submission: | 15 May 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 15 May 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Morley |
| Solicitors for the Applicant: | Blackwell Short Lawyers |
| Solicitors for the Respondent: | Ms Willis of Whiteley Ironside and Shillington |
| Solicitors for the Independent Children's Lawyer: | Ms Friend of Legal Aid NSW Dubbo Family Law |
ORDERS
Grant leave to the legal representatives for the parties and the Independent Children’s Lawyer to inspect material produced on subpoena by (omitted) Public School, NSW Police, the Department of Family and Community Services and the (omitted) Early Learning Centre.
Discharge all prior Parenting Orders with respect to the children X born (omitted) 2006 and Y born (omitted) 2010.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in their respective care.
Pending further Order, X and Y shall live with their mother.
Pending further Order, X and Y shall spend time and communicate with their father as follows:
(a)During school terms each alternate weekend from the conclusion of school or day care Friday until the commencement of school or day care Monday following (extending to a Tuesday if a long weekend), first such period to commence Friday 23 May 2014;
(b)Each Wednesday during school terms from the conclusion of school or day care until 6pm;
(c)For one half of each short New South Wales school holiday period agreed between the parents or failing agreement from 10am on the first Saturday of the school holiday period until 5pm on the middle Saturday of the holiday period;
(d)For a period of time on each of the children’s birthdays as agreed between the parents and failing agreement:
(i)If a school day from 3pm until 6pm;
(ii)If not a school attendance day then from 1pm until 6pm.
For the purpose of the children passing into their father’s care for the above periods, the father shall be responsible for collecting the children from their school or day care centre, or if not a day on which they are attending school, from the mother’s home at the commencement of each period and the father shall return the children to the child’s school or day centre at the conclusion of each period, or if not a school attendance day to the mother’s home.
Each parent shall be entitled to telephone and speak with the children each day on which they are not or have not been in their care and by telephoning the other parent between 6:30pm and 7:30pm on a number to be provided by that parent and with respect to same:
(a)The parent with whom the children are at that time shall make them available to speak with the other parent without interruption, distraction and with privacy; and
(b)They shall ensure their phone is switched on, charged, in credit and in mobile service area.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit:
(a)Each parents’ details to be recorded with the children’s school or day care centre as both a parent and emergency contact person;
(b)Each parent to obtain from the children’s school or day care centre such information, materials, documents, reports, copies of photos or other materials as they may desire.
Each parent shall advise the other immediately of any significant illness or hospitalisation relating to the children or any of them, such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with the children or any of them if hospitalised.
Each parent shall keep the other advised at all times of their current residential address (and thus the address at which the children will live whilst in their care) and a contact telephone number to facilitate telephone communication as above.
Each parent shall be and is hereby restrained from discussing these proceedings or any issue or allegation raised in these proceedings with the children, or allowing, causing or permitting any other person to do so, save:
(a)The Independent Children’s Lawyer;
(b)Any Family Report writer;
(c)Any Child Welfare Officer or Police Officer; or
(d)Any Counsellor upon whom the children are attending whether through their school or otherwise.
By consent the mother shall ensure that her former partner Mr C does not come into contact with the above children at any time or by any means.
For the purpose of the above Orders:
(a)It is noted that X is presently living with the father; and
(b)X will be collected by his mother from school Friday 16 May 2014.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of Interrelate (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer.
Pursuant to section 13C of the Family Law Act 1975 the Independent Children’s Lawyer and the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party (and the Independent Children’s Lawyer) shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution prior to the next Court event (to occur after the release of the Family Report).
Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.
The matter is adjourned for further mention and directions to 18 December 2014 at 9.30am.
Direct the parties attend in person whether legally represented or not on 18 December 2014 and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:
(a)Provide full and proper instructions to their legal representatives;
(b)Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);
(c)Identify the judiciable issues that may require hearing;
(d)Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);
(e)Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and
(f)If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgment.
Liberty is granted to both parties and the Independent Children’s Lawyer to the restore the matter to my list in accordance with usual Federal Circuit Court protocols.
Within seven (7) days, the father shall attend to provide a sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, the father shall cause and ensure that report be provided to the Independent Children’s Lawyer and the other party.
In the event that the testing report discloses a reportable quantity of any of the above substances, that parent shall then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances.
In the event any test is positive as above, the parent who has been subject to a positive testing report shall then forthwith contact such service local to them as the Independent Children’s Lawyer may nominate for the purpose of enrolling in a course or program designed to assist them in addressing their drug use and becoming and remaining drug free.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Exhibit A
Family Report
Pursuant to s.62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.
The Report writer is requested to consider and comment upon the following:
(a)Any views expressed by the children and any opinion the Report Writer can offer as to the weight which might be attached or afforded to such views having regard to the age and apparent maturity of the children, the content of those views and any factors which might otherwise influence or have influenced or impacted upon same;
(b)The nature of the relationship of the children with each of the children's parents; and other persons (including any grandparent, partner of a parent or other relative of the children or other person’s living within either parent’s household;
(c)The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children or member of the parent’s household) to provide for the needs of the children, including physical, emotional and intellectual needs;
(d)If the children is an Aboriginal child or a Torres Strait Islander child:
(i)the factors which can be identified which would enhance or impact upon the children’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, to maintain a connection with that culture, to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the children's age and developmental level and the children's views and to develop a positive appreciation of that culture);
(ii)the likely impact of any proposed parenting order or any aspect of a parent’s personality or parenting capacity upon that right;
(iii)specific information or evidence regarding the children’s cultural background and practices and the Report Writer is requested to specific consult with Elders or other appropriate members of the children’s community and language group to obtain information that would assist the report writer and the Court in understanding and addressing the children’s cultural heritage and right to culture.
(iv)The mother is Aboriginal identified as (omitted).
(e)Any allegations of family violence involving the children, or a member of the children’s family and the impact of those allegations and/or of any exposure of the children to family violence upon the children’s relationship with either parent and upon future parenting arrangements;
(f)The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:
(i)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(ii)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the children;
(g)Such other matters as the Report Writer considers relevant.
The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.
The Family Consultant is requested to complete the report not less than 4 weeks before the adjourned date.
The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Strong & Welch is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 418 of 2014
| MS STRONG |
Applicant
And
| MR WELCH |
Respondent
REASONS FOR JUDGMENT
As Billy Bragg sings “there is no substitute for a ball struck squarely and firmly”. Nor is there a substitute for the presentation of evidence which is probative and prepared in accordance with the rules of evidence.
Great controversy has arisen in recent times and since the passage of division 12A of the Family Law Act 1975 as to the extent to which the Court does or does not proceed on the basis of probative and admissible evidence particularly in light of the provisions of section 69ZT and the mandated non-operation of certain portions of the Evidence Act 1995 (Cth).
The conflict which has apparently arisen between those legislative provisions and the Court’s work, particularly on an interim basis and in busy duty lists, is now firmly entrenched and highly problematic.
There is no more important business before this Court than the care and protection of children.
Children
These proceedings relate to future care arrangements for two young children determined in circumstances of great controversy and conflict.
The children the subject of the proceedings are:
X, born (omitted) 2006, who will shortly turn eight years of age; and
Y born (omitted) 2010, she being four years of age.
Parties
The parties to the proceedings are the children’s parents Ms Strong, who is the Applicant and the children’s mother, and Mr Welch, (also known as Welch), who is the children’s father and the Respondent.
History of proceedings
The proceedings were commenced in a Local Court by an Application filed in that court on or about 10 January 2014. The proceedings came before that court on short notice, in fact one week after the date of filing, 17 July 2014.
The proceedings were commenced by Ms Strong on short notice on the basis that the two children were at that time living in separate households, the eldest child, X, living with his father, the youngest child, Y, living with her. That circumstance has continued to date.
On the first return date of the proceedings both parties had filed their material and the learned state magistrate appropriately, and absent consent of both parties for the proceedings to remain within that court, transferred the proceedings to the Federal Circuit Court of Australia sitting at Parramatta.
The proceedings first came before this Court on 12 March 2014. On that date a number of orders were made by consent to provide for the children’s care arrangements pending the interim hearing of the proceedings which occurs today.
Interim arrangements
The orders made by consent 12 March, 2014 provided that X would continue to live with his father, Y would continue to live with her mother and that each parent would spend time with the child not ordinarily in their care each alternate weekend from Friday through to the following Monday morning, as well as for a period of time on one afternoon each week, in the case of the mother, Thursday, from after school until 7pm, and in the case of the father’s time with Y, each Wednesday from 12 noon until 7pm.
An order of some importance was included, and which will continue with the mother’s consent, that she ensure and undertake to ensure that her former partner, the father of a child to whom the mother will give birth shortly, on or about (omitted), has no contact with either X or Y whilst those children are in her care.
Orders were also made for the parties to attend a Child Dispute Conference and to file and serve any further material. That has most assuredly occurred.
Evidence considered
The volume of material filed in these proceedings is substantial. For the sake of clarity I will enumerate that which has been relied upon in these proceedings and as follows.
In the case of the mother, she today relies upon:
a)Her Amended Initiating Application filed 15 April 2014;
b)Her Application in a Case filed 16 April 2014;
c)Four affidavits by her, being:
i)The Affidavit sworn or affirmed on 10 January 2014 and filed in the Local Court;
ii)An Affidavit sworn or affirmed on 7 March 2014;
iii)An Affidavit sworn or affirmed on 15 April 2014; and
iv)An Affidavit sworn or affirmed on 29 April 2014.
d)The mother also relies upon an Affidavit of Ms S sworn or affirmed 10 March 2014. Ms S is the mother of Mr C, the father of Ms Strong’s unborn child previously referred to:
e)An affidavit of Ms T sworn or affirmed 14 May 2014; and
f)An Affidavit of the mother’s attorney, Ms Dent, sworn or affirmed 7 May 2014.
For his part, the father relies upon each of the following documents:
a)His Amended Response, filed 8 May 2014;
b)His Response to Application in a Case filed 8 May 2014;
c)An Affidavit filed by him in the Local Court sworn or affirmed on 16 January 2014;
d)A further Affidavit sworn or affirmed by him on 7 May 2014;
e)An Affidavit of Ms K, sworn or affirmed 16 January 2014. Ms K is the twin sister of Ms Strong, the Applicant in these proceedings.
In addition to the above affidavit material two exhibits are before the Court comprising:
a)Exhibit A, a Child Dispute Conference Memorandum; and
b)Exhibit B, the entirety of a file produced by the Department of Family and Community Services. The file is substantial, running to well over 150 pages. All of that material has been read and considered.
I do not propose to canvass the evidence in great detail, these proceedings being dealt with as part of a busy list and the Court having other business to attend to. However, all of the material as read and considered, together with the submissions relating thereto, has been taken into account.
The comments that must be made with respect to the evidence are two-fold.
Firstly, there are a myriad of factual disputes between these parties. Those factual disputes are, at times, of little consequence and at times of somewhat fundamental importance, not the least of which is a contested allegation between these parents as to with whom the eldest of the children, X, has lived for the majority of his life.
The mother asserts that at all times up to and including, approximately, December 2013 that X lived with her and spent little time with the father other than time that occurred either in her presence or in the presence of the paternal grandmother, who is not a witness in these proceedings.
The father for his part alleges that X lived with him from November 2006 until May 2012, although his evidence now seeks to assert that the period concluded in late 2011.
Such factual disputes speak loudly to that which has been commented upon by the Full Court in Goode & Goode (2006) FLC 93-286 and Marvel & Marvel [2010] FamCAFC 101 and prior to that Cowling & Cowling [1998] FamCA 19, Cilento & Cilento (1980) FLC 90-847, Griffiths & Griffiths (1981) FLC 91-064 and Rainer & Rainer (1982) FLC 91-239, being the onerous burden upon the Court to consider hundreds of pages of evidence which is untested and to seek to determine a child’s best interests by reference thereto.
The second issue that arises relates to that observed at the commencement of the proceedings. The application or consequence of non-application or non-compliance with rules of evidence. In that regard I commence by repeating the observations made by me in Deacon & Castle [2013] FCCA 691 in paragraph 63 to 88 thereof and which I repeat herein:
Rules of evidence generally
63. These proceedings, dealt with as they are pursuant to Part VII Division 12A of the Family Law Act 1975, are not the subject of strict application of certain portions of the Evidence Act.
64. Division 12A and, in particular, section 69ZT(1) provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
65. Section 69ZT(1) is subject always to sub-sections (2) and (3) which provide:
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
66. I have not taken the step of seeking to declare my satisfaction that the circumstances of the proceedings are “exceptional” such that the rules of evidence would apply strictly to the totality of the proceedings or any specific portion thereof.
67. I did, at the commencement of the trial, make clear to the parties that section 69ZT(2) would have significant impact on these proceedings (for reasons that I will explain in detail shortly) and as a consequence of its application that little, if any (emphasis added), weight would be attached to material which did not comply with the portions of the rules of evidence otherwise expressed not to apply as a consequence of section 69ZT.
68. Similar issues were apprehended as regards evidence relating to statements suggested to have been made by the children or either of them and admissible as a consequence of section 69ZV which provides:
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child-related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
"child" means a person under 18.
"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
69. It is to be noted that section 69ZV includes a similar provision to section 69ZT(2) in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
70. Germanely, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act dealing with discretionary and mandatory exclusions.
71. Sections 135 and 136 of the Evidence Act provide:
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c)cause or result in undue waste of time.
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
72. The general discretion to exclude or limit the use of evidence pursuant to sections 135 and 136 has some real application to these proceedings (and any proceedings subject to Division 12A) and, in particular, the weight attached to evidence which would not, but for the provisions of Division 12A, be admissible and the weight, if any, to attach to that evidence so admitted. That is particularly so as regards substantial portions of the material filed in Mr Castle’s case.
73. It is to be noted that until shortly prior to the hearing of the matter that Mr Castle was self represented (indeed when the matter was initially listed for hearing in February 2013 Mr Castle remained self represented). Thus, Mr Castle has prepared material on his own behalf and without the benefit, assistance and guidance of an attorney.
74. Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.
75. Whilst it is common for parties before this Court to be self represented, the same rules of practice, procedure and, importantly, evidence apply to them as apply to parties who are capably legally represented.
76. One of the purposes for the inclusion of Division 12A may well have been to seek to obviate against difficulties faced by self represented litigants in preparing material to be filed with the Court in support of their application or response. However, the requirement of due process can never obviate against the equal dispensation of justice.
77. The creation of different or unequal requirements as regards the production of evidence, by represented and self represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
78. The rules of evidence have evolved over a significant period and have since 1995 been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process (as far back as Magna Carta) and being the right to properly meet and test a case which one is called upon to answer.
79. It is to be noted that the Federal Circuit Court Rules 2001 provide for the order in which evidence is to be given and submissions made by parties (Regulation 15.02) and orders were made, at the time hearing dates were fixed, for the filing of Affidavit material by each party. Those orders provided and envisaged that each party would file an Affidavit and do so sequentially.
80. Ms Deacon has filed and relied upon an Affidavit in these proceedings. Mr Castle has sought to file and rely upon a considerable number of Affidavits including Affidavits in reply to Ms Deacon and her witnesses. This has made the consideration of material far more complex but ultimately has been an allowance extended to Mr Castle on the basis of his prior self representation.
81. Partially in reliance upon the above leniency, leave was also granted to Ms Deacon to identify and tender a proof of evidence in response to Ms Deacon's Affidavits and particularly his most recent Affidavit sworn and filed only some days prior to the hearing.
82. My concern regarding the voluminous material filed by Mr Castle relates not only to its volume, its difficulty to follow (for example there being numerous Affidavits all dealing with the same incidents) and the inclusion of material that would appear largely, if not completely, irrelevant. I am further concerned, however, that Mr Castle has, with respect to significant elements of his case:
(a) Sought to rely entirely upon hearsay evidence. This has been particularly so as regards as the suggested “dragging” of X at school changeovers in late 2009/early 2010 (one of the more significant issues raised); and
(b) Sought to adduce evidence by third parties by annexing to his material documents or statements produced by them (including, in one case, a document addresses “To The Presiding Magistrate”).
83. I made clear to the parties before reading and considering any of their material and before either party was called for cross examination that no weight would be attached to such material (and which could not appropriately be described as evidence). This was particularly so by reference to sections 135,136 and 140 of the Evidence Act.
84. Section 140 of the Evidence Act provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
the nature of the cause of action or defence; and
the nature of the subject-matter of the proceeding; and
the gravity of the matters alleged.
85. This reflects a codification of what has previously been referred to as the “Briginshaw scale” (Briginshaw v Briginshaw (1938) 60 CLR 336).
86. On the basis that I am asked by each of the parties, and for different reasons, to make a finding of “unacceptable risk”, I am satisfied that the standard of proof which I must apply with respect to such determination is impacted section 140 and thus involves proof on the balance of probabilities but to a level approaching but not reaching the criminal standard. This is particularly so having regard to the subject matter of the proceedings and the gravity of the matters alleged, that is, a physical assault upon the child (as alleged by Mr Castle of Ms Deacon) or psychological or emotional abuse of X (as alleged of Mr Castle by Ms Deacon). On that basis I can do nothing other than apply the civil standard at its highest possible level and exclude or place no weight on material that is unreliable, prejudicial or subject to exclusion but for the provisions of s.69ZT.
87. In connection with those matters, I am concerned that material sought to be introduced in such fashion, particularly by Mr Castle (being hearsay, unsworn testimony by unidentified third parties and the like) is unfairly prejudicial to Ms Deacon who cannot test such evidence nor seek to challenge it in any fashion nor respond to it. Thus, whenever such issues have arisen in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Castle’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing. Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence-it will not be relied upon). Indeed, the probative value of such evidence (being unsworn hearsay) is so little that on either of the above bases it could not be relied upon as its value would be entirely outweighed, particularly by reference to section 140, by its prejudice or potential to cause injustice.
88. No adjournment of proceedings has been sought to remedy the evidential defects of Mr Castle’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.
What is also abundantly clear arises from the application of certain common law rules of evidence which will continue to operate irrespective of the passage of the Evidence Act 1995 codifying rules of evidence and which are not affected by division 12A. In that regard and of particular importance in these proceedings, in light of the contested allegations that arise, are issues relating to non-corroboration and inferences that might be drawn through the absence of production of evidence suggested to be corroborative, what would usually be referred to as a Jones & Dunkel (1959) 101 CLR 298 inference.
As regards such inferences I prefer the statement of that principle as set out in the joint judgment of Gibbs AJ and Mason and Aitken JJ in the High Court’s decision of Brandi v Mingot (1976) 12 ALR 551 in the following terms; if a witness is not called, two different types of results might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
That statement relates to a number of elements of evidence in dispute in these proceedings, not the least of which are contested allegations with respect to family violence, whether perpetrated by Mr C, who has assumed an importance in these proceedings, perhaps beyond his own expectation and self-belief, as well as allegations with respect to the father, Mr Welch, and importantly with respect to allegations of drug use.
The issues
The issues in this case are many. Indeed, it is a matter which has occupied the majority of the morning and caused other matters to be sent away not reached.
The parties agree on precious few things. Indeed, particularly as regards the child X, it is difficult to understand whether the parties have lived in the same dimension let alone the same relationship with each other.
The parties do agree on one important fact and that is that they have never lived together with each other on a full-time domestic basis.
The parties each confirm that their relationship subsisted between an unspecified date in 2005 and an unspecified date in 2010, although Ms Strong indicates that separation was shortly after the birth of the youngest child, Y, she having been born in (omitted) 2010.
The mother asserts thus that the children have, at all times until December 2013, lived in her care. That circumstance, of course, does not bind the Court in its determination of interim issues today. However, that would ordinarily and in most cases present as an agreed fact. However, in this case it does not.
It is suggested on the father’s evidence that the elder child, X, lived with him for the period described, November 2006 until either late 2011 or May 2012 and that during that period he spent significant time living with X in Sydney with an uncle, identified only as “Mr V”, at the home of his mother, Ms F, who figures prominently in the evidence albeit through reference to her, comments made by her and annexure of certain statements made by her as posted on her Facebook page and, at other times lived independently.
The father suggests on his evidence that for the period from November 2006 until Y’s birth in (omitted) 2010 that the mother spent some, but not substantial, time with X and that following Y’s birth and until either late 2011 or May 2012 that the mother continued to spend some time with X whereas he then spent time with Y, (although it is somewhat unclear from his material how much time occurred and how it occurred).
The difficulties that arise from such failure to agree on even basic matters such as past care arrangements are fundamental.
The parties’ proposals would, on one view, dramatically alter a set of arrangements as opposed to restoring a set of arrangements that have, in the past, operated for the benefit of the children.
Thus I turn to the parties’ proposals.
Proposals
By their Application in a Case and Response thereto, respectively, each of the parties seeks, as their primary relief that both children would live together with that person. Thus the mother seeks by her Application in a Case that X and Y would be immediately reunited in her care and would live with her, spending time with their father each alternate weekend and for a period during each week as well as periods during school holidays.
Mr Welch for his part, and by his Response to Application in a Case proposes relief in the alternative. Primarily, he proposes that the children would live with him and would spend similar if not identical time with their mother as she proposes they would spend with him. However, in the alternative, Mr Welch proposes that Y would continue to live with her mother and that X would continue to live with his father. The children would continue to spend each weekend together as each parent would have the child not ordinarily in their care with them each alternate weekend as well as for two afternoons per week, (arrangements dramatically similar to that contained in the present interim orders made with the consent of the parties and without admissions).
As a consequence of the parties’ consent to those orders as well as the balance of allegations raised in the proceedings, an Independent Children’s Lawyer was appointed on the first return date of the proceedings before this Court. The Independent Children’s Lawyer supports the mother’s proposal that the children live together and with their mother.
Issues
The issues that are unbundled from the evidence, such as it is, relate not so much to past history as to a prospective address of risk for the children.
Each party suggests that the children have been and will continue to be exposed to family violence and abusive behaviour. The allegations fall short of physical or sexual abuse, particularly in the case of Mr Welch.
Each parent of the children and, indeed, in the case of the mother, her former partner, Mr C, (although Mr Welch suggests he is her current partner), are suggested to be involved in drug use.
It is instructive to consider the evidence that each has led in relation to those issues.
The mother clearly concedes that Mr C has, in the past, used the drug commonly referred to as “ice” and there may well be some basis for the suggestion by Mr Welch that he continues to do so. What is clear from exhibit B, the Department of Family and Community Services file, is that the mother has made that very concession to Departmental officers as well as having made the concession in these proceedings.
The father alleges also that the mother is using drugs, presumably “ice”, although the allegation is not otherwise particularised. Both the father and Ms K offer the belief that it is so. However, as regards observation or perception, which might be a foundation or basis for the belief as expressed, the evidence is silent. There is simply the bold statement and assertion that it is believed to be so.
The evidence, that contained in the affidavits relied upon by each party, is resplendent with statements of belief. I make clear that belief by and of itself is of no assistance whatsoever to the Court. It is all the more useless as material before the Court when the basis upon which the belief is formed and thus expressed is not stated.
Significant difficulties arise with portions of the evidence such as that of Ms K who states in her Affidavit, regarding the contentious issue of with whom X resided, “I believe that the child X resided with Mr Welch from about 2006 until 2012” (see paragraph 4 of her Affidavit).
There is no statement by Ms K as to anything that she has seen with her own eyes or heard with her own ears or even anything that she has been told which might, as a consequence of section 69ZT(1) of the Act, be admissible as first-hand hearsay.
Such statements continue with respect to most issues. The inference that one can draw from such statements is that if a basis for the formation of a belief is not given, that the belief must be based upon something other than direct observation or perception. Thus it lacks all probative value and is of no relevance to the proceedings and is not admissible, not even through application of section 69ZT.
It is to be remembered that in these proceedings the Court is dealing with the most significant issue that any court can face – the care, welfare and protection of a child. In those circumstances, and by operation of section 140 of the Evidence Act, the standard to which the court must be satisfied of a concern regarding risk to the child is heightened.
The issues and concerns that are suggested are significant and yet the evidence falls well short of meeting any appropriate standard of establishing that which is alleged.
As regards the allegation of the mother’s drug use, not only are there problems as regards the form of evidence relied upon to generate concern (i.e., nothing more than a statement of belief that the mother is “using drugs”), but the mother has produced significant evidence of her own, not only on her own oath, (and at this point I make clear that there is no need for any basis upon which to doubt the veracity of the mother’s truthfulness on oath), but through commission and production of forensic evidence.
The mother annexes to her earlier material two urinalysis reports obtained by her after undergoing supervised urinalysis. Each of those reports, in February and March 2014 respectively, demonstrate no abnormality. There is no detected or reported quantity of any drug of concern and as tested for, including the drug of choice as alleged by each party with respect to the other, “ice”.
The mother has gone further. It may well be that she is in a position to do so in light of her employment with an (employer omitted) ameliorating the prohibitive costs involved in such testing, but irrespective of that, she has gone further. She has obtained a hair follicle test at some expense and which has been conducted on a supervised chain of custody basis. That test makes clear that there is nothing of concern arising with respect to the testing of that sample. Accordingly, the court can have some confidence that to the extent that the issue is raised, and I make clear it is raised in the most inadmissible of statements, that it is not a concern that this Court need be troubled by.
The mother alleges that the father has a history of use of alcohol and drugs and gives clear, particularised examples of the basis for her concern prefaced upon direct observation. She gives clear evidence as to finding a packet containing a substance which she deposes, through a conversation with the father, he disclosed to her contained the drug “ice”.
Evidence is given by Ms T as to a suggested prior admission to her by the father with respect to drug use and his attempts to cease drug use and withdrawal and symptoms of withdrawal as a consequence. There are some issues with respect to that evidence and its form also, but some attempt is made to place plausible, albeit potentially non-probative evidence, before the Court.
There is also substantial corroboration of the issue contained in the Department of Family and Community Services file, exhibit B, particularly relating to the father being suggested to be significantly affected by alcohol on one occasion in 2009. Albeit that is a somewhat historical event, the record suggests that the father whilst so affected by alcohol, had visited violence upon the mother’s then motor vehicle, inflicting damage with a baseball bat, an allegation denied by the father but contemporaneously reported by the mother to the Department, who would appear to be regularly contacted by the parties, their extended family or others suggested to have an interest and concern in the children’s well-being.
The evidence that relates to those issues is suggested to be profound and significant as regards the need to protect these children from risk. I propose thus to turn to that issue, the very germane and central issue, indeed, the fulcrum upon which this determination balances, as to whether I can be satisfied at this point and on the evidence available that an unacceptable risk is established in either household.
Unacceptable Risk
In turning to this issue I repeat and incorporate herein that which I related regarding that test commencing at paragraph 454 of Deacon & Castle [2013], namely:
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
The risks that are suggested by the mother in relation to the father, as indicated, relate to drug use and family violence. The mother gives clear cogent evidence, as do a number of the corroborative witnesses in her case, as to her having obtained family violence orders against the father, including but not limited to the allegation with respect to his damage to her motor vehicle.
The entries contained within exhibit B, the Department’s file, are of some real significance with respect to these issues. That is particularly so as the entries relating to the suggested damage to the mother’s motor vehicle by the father in 2009 would clearly corroborate that both children were living in her care at that time, which is completely at odds with the father’s evidence.
The mother clearly did obtain at least one domestic violence order which operated for a period of two years. It is unclear whether that order was made by consent and without admissions or following a hearing. However, nothing of substance turns on that. The order was made.
The father’s evidence with respect to the mother’s significant and particularised allegations of family violence, and I make clear consistent with the Full Court’s decision in Amador & Amador (2009) 43 Fam LR 268 that such particularisation need not be before the court for the court to accept evidence relating to family violence, is to deny the mother’s allegations in their totality and to deny that there has been any instance of family violence or any family violence order (see for example paragraph 50 of the Affidavit 7 May 2014). Clearly on the basis of the corroborative evidence available I accept that there has been family violence.
It is often said that the Court does not, on an interim basis, have the capacity to make a finding of fact. That is not so. The Full Court cautions that findings of fact should be approached with significant caution at interim hearing. Indeed, they should. However, the Court is able to make a finding of fact when there is either concession or irresistible, overwhelming evidence such as independent corroboration.
Clearly, on the basis of the Departmental records, there is corroboration.
The Departmental records are admitted as business records. Whilst those records are thus proof of the record rather than their contents, I accept an accurate reflection of events. In that regard I take into account the comments made by the New South Wales Law Reform Commission regarding such records and the likelihood that for an agency such as the Department of Family and Community Services, that which is recorded by them is likely to be accurate. Thus, I accept the records not only as business records but as contemporaneous reportage and record keeping and as corroborative of the mother’s allegations, both as to the violence which occurred in 2009, the existence of a family violence order at that time and of the care arrangements for the children at that time as referred to therein.
The issue of family violence, thus, arises in both households. There is clearly and at the very least a strong suggestion of family violence having been perpetrated by the father. The mother gives evidence that she remains concerned in that regard and gives clear, particularised evidence of events since December 2013 whereby she has been:
a)Followed;
b)Telephoned and verbally abused;
c)Confronted in person; and
d)Has had comments made about her by the father related to her by others.
Those issues also connect to the vexed factual issue as to that which occurred with respect to X’s care between November 2006 and late 2011/May 2012.
The father suggests corroboration of his allegation (that the child lived in his care during that period) through the provision of a document from Centrelink suggesting that for most, if not all of that period, at least up until late 2011, that he was receiving Centrelink payments on the basis that the child was in his care. I accept that document as corroboration of the fact that he was receiving Centrelink payments. The document does not confirm the child’s care arrangements as clearly the document is prepared by a third party with no direct knowledge and based upon that asserted to them by these parties whether one or both.
Ms Strong gives clear and cogent explanation as to how she alleges that circumstance came to be and directly connected with that which she alleges as family violence perpetrated by Mr Welch towards her. The mother also provides clear corroborative evidence from a number of witnesses, not the least of whom being Ms T and Ms S, as to the care arrangements for the children during that very period. They directly observed the children living together in the mother’s care throughout that period of time.
The father, on the other hand, does not produce the very obvious and available corroborative evidence to support his allegation. It is to be remembered that the evidence of Mr Welch is that he spent a significant period of the time that he says X lived in his full-time care, a period of at least five years, living at the home of his Uncle Mr V.
Counsel for the father has sought to assert that that evidence has not been adduced on the basis that the uncle has some concern as to his safety were he to swear an affidavit. However, that assertion is not in evidence. It is suggested and, indeed, it would appear clear, that the uncle is present with the father at Court today. However, he has not given evidence, he is not on oath and his clearly available evidence is thus not present to corroborate Mr Welch’s position. I am satisfied, by reference to the High Court’s discussion of Jones & Dunkel (1959) referred to above, that the failure to call that clearly available evidence lends irresistible inferential support to the mother’s position.
The other clear corroborative evidence available would be from Mr Welch’s mother, Ms F. She has not given evidence in these proceedings, although clearly she is a person of significance. Ms Strong alleges in addition to the care arrangements that she says were in place for these children throughout their lives, and certainly from the conclusion at the relationship she had with Mr Welch in the early to middle part of 2010, that Mr Welch had little time with the children other than by visiting them at her home and in her presence or by spending time with them at the home of Ms F when she was spending time with the children.
The mother leads evidence that a number of attempts were made to negotiate through Family Dispute Resolution, including on at least one if not two occasions, Family Dispute Resolution instigated by Mr Welch. It would appear that those conferences did not proceed due to some difficulty on the part of Mr Welch.
What is clear and apparent is that the mother then alleges that a third Family Dispute Resolution session was arranged and occurred at which she and Ms F attended. It would appear that an agreement was reached between them, the children’s mother and paternal grandmother, for Ms F to spend time with the children each alternate weekend. That time was negotiated and it was through that agreement that Mr Welch came to be spending time with the children at all.
As regards that vexed issue, again, there is some corroboration of the mother’s evidence. Annexed to her Affidavit of 7 March is correspondence from solicitors then apparently instructed by and acting on behalf of and in accordance with instruction from Mr Welch dated 24 January 2012. At the time that the mother swore her Affidavit in March 2014, the father’s assertion, in accordance with his Affidavit of 16 January, was that X had been in his care until May 2012 (see paragraph 8 of the Affidavit).
The father has since, in his later Affidavit, rectified or amended that evidence to suggest that it was late 2011 that X left his care. However, that comes following his being presented with and confronted by the correspondence annexed to the mother’s material, annexure G. That material makes clear that certainly at the date of that letter, 24 January 2012, that both children were in the mother’s care. It suggests, “We understand that there have been informal arrangements respecting the time that X and Y spend time with their father and for the most part these arrangements have worked well”.
Whilst it cannot be conclusively determined, that statement by and of itself would sit somewhat uncomfortably with the suggestion that it was only in December of 2011, some weeks prior to the letter, that the change occurred, particularly as it refers to arrangements that have been in place “for some time”, although the length of time of the arrangement is unclear.
The letter goes on to indicate that the father seeks to formalise arrangements and proposes that the children spend time with him each alternate weekend from Friday until Sunday and for other periods of time. The correspondence also refers to a concern that the mother may, at that time, have been contemplating relocation from the (omitted) area and thus it was sought to restrain her from doing so.
As indicated, that correspondence sits uncomfortably with the father’s evidence. Indeed, it directly contradicts his evidence in his Affidavit of January 2014 and is, at best, conflicted with his evidence of May 2014. What is clear is that the parties continued to negotiate and, as suggested by the mother, at least two Family Dispute Resolution conferences were unable to proceed.
As regards the absence of corroborative evidence in the father’s case, again, I am conscious that these are interim proceedings. Parties are generally encouraged to present evidence themselves rather than by corroborative witnesses. However, there is nothing in the Federal Circuit Court Rules 2001 which precludes it.
I do not seek to encourage parties to file more prolix material than they already do. In this case there are several hundreds of pages of evidence before the Court at an interim hearing and the matter is still some significant time from final hearing. However, when corroborative evidence is clearly available it should be filed or tendered. When it has not been filed or tendered and it is clearly available and there is no explanation for why it is not made available to the Court, then one would have some real concern as to why the principles espoused by the High Court and as related above would not apply. I am satisfied that in this case they do.
That is all the more so as particularly in relation to Ms F. She is very much aware of the proceedings and clearly supports her son. That is apparent from exhibit B, the Department of Family and Community Services file whereby Ms F has contacted the Department on numerous occasions, both to make reports of information and to make complaint that the Department is not acting in a particular fashion as she, and it would seem her son, Mr Welch, desire.
The Court is taken by Mr Welch’s counsel to reports that are made to the Department on 23 December 2013. On that occasion the following is recorded:
Reporter’s wife saw Mr C, mother’s de facto partner, chasing the mother with a knife. They were running in and out of the house and around the backyard. At one point mother was carrying the four year old child and all the children were screaming. It all quietened down and then the mother and Mr C left the house in the car and the three kids were on their own.
A home visit then occurred and as a consequence of that and as disclosed by the mother frankly and candidly in her initial affidavit, filed in the Local Court proceedings, a safety plan was entered into between the mother and the Departmental caseworker. The safety plan makes clear that as at 24 December 2013 the mother’s eldest child Z, a child from a previous relationship, and the child X were not in the mother’s care. Whether they had been in her care on 23 December 2013 or not is neither corroborated nor supported by the document. However, clearly at that time they were not in her care as the safety plan commences with the statement, “What is the danger? Z and X do not want to come home.”
The safety plan also states:
Z and X will stay with Ms A and Mr R, a relative of her mother and her partner until a family meeting occurs between the mother and Departmental officers on 30 December.
Thus, clearly, Z and X remained out of the mother’s care and with maternal family members from the 24th, if not earlier, until 30 December. The youngest of the children, Y, remained in the mother’s care, it would seem, without any concern expressed by the Department but provided that the mother undertook to them that she would have no contact with Mr C
It is also apparent, indeed curious, that that which Mr C is suggested to have done as regards the mother is not substantially before the Court. It is conceded by the mother that on one occasion that a shoe was thrown by Mr C at or towards her and which shoe struck the mother’s eldest child Z. There is some controversy as to whether it was a thong or a high-heeled shoe. However, the mother and another witness who were present say it was a thong. Nothing of any real substance turns upon the distinction.
Other than this event the only specific evidence led in relation to Mr C’s behaviour towards Ms Strong is led by Ms Strong. There is the suggested report on 23 December 2013. However, clearly, the reporter did not directly observe anything. He was told something by another person. It is unclear who the reporter is or was and the Court need not ascertain their identity. Indeed, it may be a breach of State law to do so.
As a consequence of that reported 23 December 2013, the Department became involved. Clearly there were concerns regarding Mr C based on that reported. That much is conceded by the mother. She has made reports to the Department herself, again, frankly and candidly regarding Mr C. She had indicated to Departmental officers, at or about the time of the case meeting in late December 2013, that Mr C was using “ice” and had been for some months. She also stated to the Departmental officers that she “does not allow Mr C to use in the home and stated that his use is the cause behind their argument.” It is stated that he no longer lives at the home as at the date of that interview and that she had obtained a two-year domestic violence order against Mr C. That order is annexed to the mother’s material and in evidence and disclosed by her in the first of her affidavits.
Departmental officers in the same record forming part of exhibit B are stated to have attended the home and observed no holes in walls, (as has been reported to them) and no items of concern sighted at the home, (notwithstanding reports that such items were present). The Department officers observed adequate provision and bedding for the children, (notwithstanding allegations that this was not so), and observed that Ms Strong appeared shocked by the myriad of allegations put to her and she indicated that whilst she had heard them, she denied their accuracy.
Departmental concerns regarding Ms Strong would appear to have related to drug use by her and Mr C as well as discipline of the children and an absence of safety.
Exhibit B makes clear with respect to the Department’s involvement, which has been substantial and extensive over many years, initially relating to concerns raised by the mother regarding Mr Welch and then later regarding Mr C, whether raised by the mother or otherwise, that the Department presently has no concerns with respect to the mother’s care of the children.
One can to some extent, take some comfort that Mr Welch would have no concerns as to the mother’s care of children, or certainly not concerns of the nature or extent he alleges, based upon the relief he seeks from this Court.
It is suggested in the father’s case that both children are at risk of serious and immediate harm. This is suggested to primarily arise from the belief that the mother is using drugs and thus, one would presume, rendering herself other than sober and capable.
Importantly, the threat is also suggested to arise from Mr C. It is suggested that the mother has no ability to act protectively and has continued to engage in a relationship with Mr C since the Departmental involvement in late December 2013. The mother’s evidence is to the contrary.
The Departmental file would suggest matters to the contrary to the father’s stated concerns. Indeed, when specific complaint is raised with Departmental officers by each of the father and his mother, they are each told clearly and in unequivocal statements by caseworkers that the caseworkers do not hold any concerns with respect to the mother’s protectiveness. That is suggested in records contained within exhibit B.
The Department’s statements to the father and Ms F are met with a hostile response by Mr Welch and his mother who each become heated and agitated, suggest that the Department is failing the children, not doing their job properly, that they will be subject to complaints on that basis and that the children’s safety will be “upon the head of Departmental officers”. The conversations are suggested to have become loud and accusatory and it is recorded that the caseworkers found it difficult to express themselves as they were spoken over or not allowed to speak at all.
The Departmental record makes clear that the Department believed that there was no concrete evidence that Mr C was either residing in the home, visiting it or coming into contact with the children.
The father leads evidence regarding his concerns regarding Mr C. The majority of it is clearly inadmissible. It is based upon hearsay or, perhaps, more correctly, innuendo and rumour. That extends to and includes statements to the effect that the father contacted the mother after he had had a conversation with somebody else (who is not on oath) who had told him something that someone else had said to them. Not even section 69ZT makes such third hand hearsay admissible.
The mother suggests that conversations occurred between she and the father and that the father was verbally abusive. The father denies that.
I am troubled however, that the father denies in its totality any allegation that he has perpetrated family violence against the mother in any form, both within the context of the corroboration clearly available through the Departmental record as well as the existence of the family violence order, (although the latter is of less importance as it may well have been made without admissions). Similarly, there is the absence of any detail as to what Mr C is suggested to have done beyond the two matters referred to above, both of which are conceded by the mother.
The Departmental record discloses that complaints have been made to the Department that Mr C and, indeed, the mother and the mother’s eldest child swear and hit people, hit each other and engage in poor behaviour. The Department found nothing.
The absence of evidence in Mr Welch’s case is potentially explicable. He is not part of the mother’s household.
What is clear is that Mr C has at some point behaved in an inappropriate fashion. He is not before the Court, but his mother Ms S, has sworn an affidavit. Within that Affidavit she readily concedes that her son has behaved poorly toward the mother. Indeed, if any of the allegations raised have substance to them, he has behaved atrociously.
The comfort that the Court receives from the evidence of Ms S, however, is that Ms Strong has the support of Mr C’s mother in terminating the relationship and in remaining away from the relationship, notwithstanding, that Ms Strong is pregnant and will shortly give birth to a child as a consequence of her relationship with Mr C which will be Ms S’s grandchild.
To the extent that it is suggested that the Court would have a real concern that Ms Strong has not and will not in the future act protectively, I make clear and find that I have no such concern.
Ms Strong has acted protectively and promptly. She has terminated her relationship with Mr C. She has sought Police and Departmental assistance and cooperated with both. The mother’s cooperation with the Department must also be seen within the context of her Aboriginality. The state welfare agency is not a department which Aboriginal-identified persons would ordinarily consider contacting for assistance or consider might produce a good outcome on the basis of complaints raised against them in relation to their parenting. However, those issues aside, the mother has clearly cooperated.
The Department has, on the basis not only of the mother’s assurances and cooperation, but their own observations, including observations entirely contrary and inconsistent with that reported to them by unknown persons, no fears or concerns either for the children’s safety in the mother’s care or the mother’s capacity to act protectively.
The mother has contacted the Police in relation to breaches of domestic violence orders imposing prohibitions on Mr C and with the consequence, consistent with Ms S’s evidence, that at one point in time Mr C was arrested and refused bail in relation to a suggested breach. Those actions were instigated by Ms Strong, although clearly on the evidence of Ms S, some assistance was provided by Mr Welch to the Police to assist them to locate Mr C and execute a warrant for his arrest. That assistance, if provided, is entirely appropriate although probably less philanthropic in its motive than a desire to obtain advantage in these proceedings.
The relationship, it would seem, between not only Ms Strong and Mr C, but Mr C and his mother, is now somewhat strained if not broken down. That also applies to the relationship between Ms Strong and her sister, a deponent in the father’s case. Thus there are several households divided, particularly as Ms S, as she has deposed, is not a stranger to Ms Strong and her family. She has known the family for approximately 22 years and her sister is married to a direct relative of Ms Strong. It is thus on that basis that Ms S is able to provide the corroboration that she does as regards Ms Strong’s living arrangements and those of the children prior to 2012.
What is also of corroborative value from the evidence of Ms S is her presence at the mother’s home on 23 December 2013, the date upon which the report is made by an unknown reporter that his wife had observed certain things at the mother’s home, including the mother being threatened with a knife. Her version of events is somewhat at odds therewith, as is the mother’s. On the basis of direct observation and evidence on oath, the evidence of each of those witnesses is preferred over the clearly hearsay, indeed, second if not third-hand hearsay statement contained within the Departmental file.
As regards contact with the Department, what is also concerning as regards the absence of corroborative evidence, and thus the Jones & Dunkel (1959) inference that follows is the absence of Ms F as a deponent in these proceedings. Ms F features prominently in the proceedings. It is to be remembered Ms Strong suggests that she had in or about 2012 negotiated an arrangement with Ms F whereby she would spend alternate weekend time with the children and thus through her Mr Welch spent time with the children also.
Clearly Ms F provides partisan support to her son in these proceedings. Her Facebook posting following the court appearance in the Local Court in Orange on 17 January 2014 reads, “So proud of my son Mr Welch for wot (sic) you did today. You have made me very proud. Love you. One more to go.” Clearly some enjoyment was derived by Ms F from the outcome of those proceedings. One would expect that a parent would be supportive of their child and thus on that level there might be no criticism.
What is more concerning are the balance of posts placed by Ms F on her Facebook page, both directly and in response to comments by others.
Ms Strong suggests that the risk to the child, particularly X presently in the father’s care, of ongoing exposure to Ms F is what can only be described as her foul mouth. Her Facebook posts are littered with two words, “fuck” and “cunt”. It seems to be her preferred method of referring to persons or communicating with the outside world. Why one would feel the need to post such offensive filth for public viewing on their Facebook page is unknown. However, the fact that it occurs with such gay abandon is concerning as to the children’s exposure to that behaviour. Thus that also is a further element of risk raised in these proceedings.
As is clear from the above, I am satisfied and make findings based upon the corroborated evidence, not only corroborated by deponents relied upon in the mother’s case, but the Departmental record subpoenaed and exhibited in the proceedings, that the mother has and in all probability will act protectively.
The clear disdain that Ms F holds for the Department and their failure to form a contrary view of the mother, the Department’s view being consistent with my own, is expressed in a further Facebook posting by Ms F and which is, again, contained upon the Departmental file. In this posting Ms F refers to the Department by saying, “What a joke (omitted) DoCS are. We had a family meeting about my little grandkid. The so-called boyfriend be (sic) hitting them around and DoCS couldn’t see anything wrong with that.”
There is nothing in the evidence to suggest that these events ever occurred. Further comments are posted on the same page by various friends or associates of Ms F regarding the Department suggesting that they are simply part of “...some front, the government”, whatever that may be intended to mean, and expressing even more condemnation and disdain. Such matters are contained on the file as they were reported to the Department by persons as matters of concern in relation to the children’s exposure to those behaviours, again protective and appropriate behaviour.
Thus I propose to leave a discussion of the evidence and turn to the legislative pathway.
Legislative Pathway
The Court must commence with the objects and principles in section 60B of the Act and which I will incorporate herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or 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.
(4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989
By the objects and principles the Court is mandated to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and to ensure the children are protected from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I make clear the children have clearly been exposed to family violence in the mother’s household. However, it is not family violence perpetrated by her. It is family violence of which she has been the victim at the hands of firstly Mr Welch and then Mr C.
During the course of submissions I had quipped that the allegations and concerns raised by Mr Welch fall somewhat into the category of “the pot calling the kettle black”. Whilst a quip, it was intended with all seriousness. Clearly, the children have been and were exposed to family violence by Mr Welch based upon the evidence and including corroborative records of the Department. Indeed, at the time that it is suggested that the mother’s car was attacked by Mr Welch, the children were present.
Sadly, the same allegation is raised with respect to Mr C, that he has attacked the mother’s car whilst the children have been present. In any event, those behaviours have been perpetrated towards the mother and children. One would hope that she will, with the good, sage and honest support and assistance of the Department, let alone others such as Mr C’s mother, Ms S, remain away from that and similar relationships. I certainly propose to accede to the mother’s consent to an order to continue that she ensure that it is so.
The mother will clearly have to maintain some form of relationship with Mr C. She is carrying a child of whom he is the father. However, there are arrangements that can, and one would hope would be put in place for Ms S to facilitate that relationship, in very similar terms to the arrangements that were put into place through Ms F for Mr Welch’s relationship with Y.
The Court must also ensure the children receive adequate and proper parenting. There is no criticism raised as to the mother’s parenting beyond the belief that she is or has used drugs and the concern raised with respect to the children’s potential future exposure to family violence in the same fashion as they have been exposed in the past.
The children have rights as established by section 60B(2) of the Act, including a right to know and to be cared for by both of their parents and to spend time and communicate on a regular basis with both of their parents.
Children also have a right to enjoy their culture. That is a matter of some significance, although far from dispositive in these proceedings. The Court is mandated by section 60B(2)(3) and 60B(3) to specifically consider the benefit to children of engagement with culture, to maintaining a connection with culture and to having the support and opportunity necessary to explore their culture to its full extent and develop a positive appreciation of it. That is repeated in section 60CC(3)(g), (h) and section 60CC(6).
The right to culture is balanced with all other considerations in the legislation. Thus I have referred to it as being far from dispositive. It is important, it is fundamentally important to a child’s sense of self-esteem, the child’s ability to deal with certain circumstances in life and to understand themselves and become a fully formed adult taking their part in civil society. But if that right is at odds with the primary considerations, as set out in and section 60CC(2) of the Act, then it must yield.
As regards the primary considerations and whilst clearly these children have been exposed to violence through the mother’s partners, I am satisfied, as was the Department, as is the Independent Children’s Lawyer, that the mother is acting protectively and has been protective in terminating the relationship and taking the actions referred to above.
In any event, each of the parents agree that the children would benefit from having an ongoing meaningful involvement and relationship with each parent.
A conundrum arises in that it is suggested by Mr Welch that the children are exposed to a significant level of risk in the mother’s care if living with her. That risk is apparently not suggested to be present if they are spending each alternate weekend Friday to Monday with her, together with a period during each week on a Wednesday or Thursday night. How that could be so is simply inexplicable.
Having considered the objects and principles, the Court must use them to then inform the balance of the decision-making process.
The Court is reminded by section 60CA that the child’s best interests are the paramount consideration in all that is done.
The Court must turn to section 61DA and determine whether the presumption of equal-shared parental responsibility applies, and if it does apply, determine whether it is rebutted.
By reference to section 61DA(2) the presumption does not apply if there are reasonable grounds to believe that a parent of a child or a person who lives with that parent has engaged in abuse or family violence. Clearly, on the basis of the evidence available, I am satisfied that there are reasonable ground to believe and so find that family violence has been perpetrated by Mr Welch upon the mother. Thus the presumption would not apply.
If I am wrong in that regard, I note that the presumption can be rebutted by operation of subsection (4) and in the event that the Court is satisfied that it would not be in the child’s best interests.
What is clear and apparent in this case is that the parties do not presently communicate. There are means by which they might communicate, although they would appear to be largely unhealthy, i.e., through Facebook and the like, but there is some hope that it might improve in the future. However, at present communication and resolution of difficulties is at best hampered, if not non-existent.
In those circumstances, reasonable practicality being incorporated as part of the determination of a child’s best interests, I am satisfied the presumption would be rebutted.
All controversy with respect thereto can be avoided by the application of subsection (3). Irrespective of whether a finding can safely be made or not, the Court need not apply the presumption in interim proceedings when it is considered inappropriate. In light of the issues and allegations that are raised, I am satisfied that it would be inappropriate, if the Court were not in a position to make findings and hence if it were considered that it were unsafe for the findings which I have indicated I am content to make to occur, to cause the presumption to not apply.
On that basis I am not mandated to consider equal or substantial and significant time before any other time arrangement. I propose, in any event, to consider all time arrangements at large as has been approved by the Full Court in Goode (2006) and Marvel [2010].
Thus I turn to section 60CC and incorporating therein section 65DAA(5) dealing with reasonable practicality which must be separately and specifically considered (see MRR & GR [2010] HCA 4).
In turning to the primary considerations, I must have regard to the benefit to the child of having a meaningful relationship with both parents. I must also consider and balance against that consideration the need to protect the children from physical or psychological harm through exposure to abuse, neglect or family violence. By section 60CC(2A) the need for protection, is prioritised over all else.
As regards the benefit to the children of having a meaningful relationship with each parent, each asserts and agrees that there is such benefit.
The children’s level of relationship with each parent at present is unclear. An assessment is made all the more difficult by the confused issue of as to whether X lived with his father or his mother for a significant period between 2006 and 2011.
On the basis of the evidence that is available, although I need make no finding with respect to it today, it would appear irresistible that the mother’s version would be preferred. However, I must engage in a prospective exercise and thus I can, I am satisfied, focus upon the arrangements that clearly have applied for the children since at least late 2011, if not considerably earlier. Since that time the children have lived with their mother and have spent time with their father, it would seem, largely through the vehicle of Ms F.
However, as made clear by the Full Court in Goode (2006) and Marvel [2010], status quo is not the starting point for a determination, it is a prospective consideration of that which is in children’s best interests by reference to the evidence and application thereto of the legislative pathway.
The identification of status quo is relevant in identifying that which has applied in the past and thus being able to gauge the parties’ attitudes by reference to their behaviours in relation to those arrangements and such considerations. It is on that basis only that I refer to those care arrangements.
Clearly, during that time these children have developed a relationship with each parent but, importantly, with each other. These children, at least from December 2011 to December 2013, lived together with their mother. There was thus a substantial change in the children’s arrangements and relationships in December 2013, which has continued now for some six months as a consequence initially of Departmental intervention and then during the course of these proceedings.
I am satisfied that there is a benefit to both children of continuing a relationship and developing, if they do not already have it, a meaningful relationship with each parent. That is subject to a consideration of risk.
As indicated, I do not accept that there is an unacceptable risk to the children or either of them of being in the mother’s full-time care. There are equal, if not more excessive concerns, regarding the children’s care in the father’s household particularly due to his failure to adduce evidence which would corroborate his allegations of fact or rebut the mother’s allegations especially of violence.
The mother has taken extraordinary steps based on nothing more than a statement of belief that she is or may be using drugs to forensically disprove those allegations. The father has taken no such action.
The concerns in relation to family violence also apply in the father’s household. It is to be noted that the father has re-partnered. His Affidavit of 7 May makes clear that he and his new partner have a child of that relationship and that the child lives with them together with two children of Mr Welch’s present partner, Ms I. Clearly one other child of Ms I’s prior relationship or relationships lives elsewhere, although nothing is inferred as to why that is so nor any negative inference drawn therefrom.
The father also deposes that he has a child of a previous relationship who lives with his maternal grandparents. Somewhat curiously the father does not depose to any relationship that he enjoys with that child, including whether he is spending time with the child or not.
The mother has her elder child who lives in her household and she is due to give birth to a child on or about (omitted). The benefit of those relationships will be addressed as an additional consideration shortly.
To the extent that there is risk to be balanced against meaningful relationships, I am satisfied that the risk is not of such magnitude in Mr Welch’s household as would preclude time occurring as proposed either by him or Ms Strong, the proposals being remarkably similar.
Additional considerations
Views
Mr Welch suggests that X desires to continue living in his care. Ms Strong suggests that Y desires to continue living in her care.
What is clear from the evidence filed in the mother’s case, not only her own evidence but corroborative witnesses, is that the children have expressed clearly a desire to live with each other. Thus it is to the credit of both parents that what is sought by them, either as their sole or primary relief, is that live together they should. The children are important social capital to each other. They are important relationships for them to explore and develop.
It is not to be forgotten that the children’s eldest sister has lived with them, certainly in the case of Y, all of her life, and in the case of X, for most if not all of his life. That is a relationship of some significance as well. The father seeks to assert that the elder child does not live full time with the mother but lives with other persons.
The mother, again, addresses that and suggests that she certainly spends time with extended family members and enjoys close relationships with extended family members. The mother’s evidence makes clear that her extended family is somewhat complex. She and/or her sister, Ms K, with whom she is presently estranged, were adopted by an aunt from the care of their biological mother at a very early age, thus at paragraphs 10 and 11 of her Affidavit of 7 March the mother sets out significant detail as to at least eight siblings, whether in the old language of probate or the full blood or otherwise, with whom she connects.
Evidence of Aboriginal culture and practice
There is potentially an issue of some significance relating to the absence of evidence as required by section 61F of the Act in relation to those care arrangements. If one were to consider the arrangements for the mother’s elder child, spending significant time at the home of various relatives, that might be seen from an Anglo-normative perspective as problematic. However, the mother is not from an Anglo-Saxon background.
Section 61F is a provision of significance. It mandates that the Court have evidence before it when making determinations with respect to Aboriginal and Torres Strait Islander children as to kinship obligations and child-rearing practices. That, no doubt, will be evidence that will be placed before the Court prior to final hearing.
At this time it is to be noted that whilst arrangements for the mother’s eldest child are raised by Mr Welch as a criticism of the mother, it need not be taken in that light. For the child to be spending time with extended family members, the mother identifying as an Aboriginal person, may be entirely consistent with and is suggested by the mother to be entirely consistent with her cultural practice. Those arrangements, from an Anglo-normative perspective potentially seen as chaotic or neglectful, may, in fact, be of some real importance to achieving the very objects of the Act, as previously stated, allowing the child to engage in culture with persons of that culture and develop an appreciation of it through appropriate kinship care and connections.
Sibling relationships
The relationships to be considered with respect to these children go well beyond the parents. There are a vast array of relationships of importance, not the least of which are with Z and with step and half siblings. Whilst that language is somewhat antiquated, it is the only means by which one can properly or appropriately differentiate the various relationships at this time.
Clearly, the importance of those relationships should be viewed and judged from the perspective and perception of these two young children. If they consider these various half and step siblings as their siblings, then there is no basis for the Court to cavil with that view. In any event, they are all relationships of importance. They can best be met through the children being reunited with each other and under the mother’s roof.
Participation in decision-making
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time and communicate with the child is a significant issue raised by Ms Strong as a criticism of Mr Welch. However, it is not a matter upon which I need place significant weight today for the purpose of determination and thus do not. However, it will be explored at final hearing.
Support and maintenance
Ms Strong makes substantial criticisms of Mr Welch in that regard, exerting duress upon her to have her sign over Centrelink benefits to the father, fraudulently it would seem on her evidence, for the care a child who did not live with him. As a consequence Ms Strong alleged that Mr Welch then received that income and provided no financial assistance or no substantial financial assistance to her and thus precluding her from seeking or obtaining it.
The father, if his evidence is ultimately accepted, would suggest that each parent has engaged in supporting the child or children whilst they have been living with them or the other parent.
At present there is clearly a modest level of financial assistance flowing between these parties. That is, perhaps, not surprising as it would not appear that either party is in substantial or significant employment nor would they thus have the capacity to provide substantial or significant benefits.
The mother is employed and makes arrangements appropriately for the care of the children whilst she is so employed, but her income is far from great. The father deposes that he is unemployed.
The likely effect of change, including separation from either parent or any other child or person, including grandparents and other relatives
The separation of X from the father’s care will lead to his separation from the father’s partner, her children of a prior relationship and his younger half sibling. The length of the relationship between the father and his partner, Ms M, is unclear. He simply states that they are in a relationship. It may be of some great duration or not, but clearly X would have developed some fondness and attachment for her and the other children in the household.
Set against that is X’s fondness and attachment for his mother, his sister and his elder sister as well as various other maternal family members.
I am satisfied that it would be detrimental and positively detrimental for the children to remain living separately and apart from each other. Further, I am satisfied that there would be greater detriment to them through the termination of the significant maternal family relationships than through the maintenance of paternal family relationships through regular and substantial time.
Practical difficulty and expense
I incorporate herein section 65DAA(5).
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: 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 in the same township of (omitted).
Their current and future capacity to implement an arrangement for the children’s time with the other is abundantly demonstrated through past practice.
The parents’ current and future capacity to communicate and resolve difficulties is poor. That thus triggers the Court’s obligation pursuant to section 65F and utilising section 13C to compel the parties to engage in family counselling programs that might better assist them in communicating and resolving difficulties in the future.
The impact of the arrangement on the children I have already addressed. It would be detrimental for these children to remain separated from each other. The added complexity to that issue is the mother’s evidence that X has not, prior to December 2013, ever been separated from her or his sisters, although that is a contentious issue on the evidence.
Capacity of each of the parents and other persons to meet the children’s needs
Both parents have a substantial support network to provide them with assistance. Both suggest that they are able to meet the children’s physical, practical, emotional and intellectual needs.
Clearly the mother has met the children’s needs in the past and it is not suggested in the father’s case that she has not.
The father clearly has been meeting the children’s needs for such periods as they have been in his care.
Maturity, sex, lifestyle and background of the children
These are fairly young children. They are getting older. They are becoming more cognizant of circumstances surrounding them. That is not to suggest that incredibly young children of days, weeks or months of age cannot be cognizant of family violence. Indeed, an abundant wealth of neuroscience would suggest to the contrary. However, these children are now of an age whereby they will not only be able to observe and perceive the behaviours around them, but contextualise them and judge them, including judging their parent who does not protect them from behaviours.
Each parent must begin to change their behaviours, whether that is drug use, as each alleges of the other, although clearly on the mother’s evidence I am satisfied it is not a valid allegation to raise against her, as well as protecting them from the various behaviours to which they have already been exposed, particularly family violence, derogatory comment and harsh and abusive language, not only by the parent but various others.
I am not satisfied that one proposal more than the other achieves that end at this point. Nor am I satisfied that there is any unacceptable risk to the children of being in the mother’s care which, again, the father’s proposals, at least in the alternative, must infer and accept as well.
If the children are Aboriginal, the children’s right to culture and the impact of the proposed parenting order upon that right
That is a matter of significance, but it is not dispositive or determinative of this issue. The children’s right is clearly better met through placement with the mother.
The attitude to the children and responsibilities of parenthood
Each parent is highly critical of the other in that regard.
To the extent that the mother is criticised as having exposed the children to family violence, and clearly she has, it has been in the context of her being a victim of violence and having on each occasion taken steps, whether immediately or after some delay, to address those concerns and to protect herself and the children and remove the children from it.
On the vexed occasion of 23 December 2013 the mother suggested she had put arrangements in place for the children’s care by others, even though at least a child was at the home whilst Mr C attended to collect items and to endeavour to ensure that the children were not exposed to further unpleasantness.
The father’s attitude, similarly, is a cause of concern. There are real concerns raised regarding his past violence perpetrated upon the mother and towards her, as well as the suggestions with respect to drug use and lack of commitment.
Family violence
I am satisfied that is addressed above.
Family violence orders
There have been family violence orders in the past for the mother’s protection and placing prohibitions upon the father. There are none at present.
There is presently a family violence order which imposes prohibitions upon Mr C and precludes him from contacting or residing with the mother. The family violence order is extensive. I am satisfied that Mr C has been dealt with when an allegation has been raised by the mother of breach and that gives me some real confidence that it will be so in the future.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I have no doubt that if the father continues to perceive that the mother is pursuing or has renewed a relationship with Mr C, that he will commence fresh proceedings seeking further interim and interlocutory orders. However, that cannot be avoided and to some extent is desirable. It provides a safeguard whilst the matter remains on foot.
To avoid further proceedings otherwise, I am satisfied the matter should progress as soon as can be accommodated. That will involve a Family Report being ordered and the matter brought back on its completion, regrettably late in the year, and then if the matter is still not resolved, the matter being referred either to Family Dispute Resolution, hearing or both.
I propose to make an order for Family Dispute Resolution to occur upon completion of the Family Report and if at all possible to occur prior to the next Court date, but in any event, so the arrangement is already in place and the parties are aware of their obligation.
I also propose to make an order for Family Counselling as alluded to above and as recommended by the Child Dispute Conference Memorandum. Clearly some assistance to these parties in breaking years of entrenched behaviours as regards their communication or lack thereof is required and will benefit these children as well as being mandated by the legislation.
For those reasons, I am satisfied that the orders are appropriate and are thus made.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 11 March 2015
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Civil Procedure
Legal Concepts
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Procedural Fairness
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Appeal
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Costs
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Jurisdiction
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Natural Justice
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