Taggart and Felton
[2011] FMCAfam 395
•28 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAGGART & FELTON | [2011] FMCAfam 395 |
| FAMILY LAW – Child – final arrangements for child aged 10 – welfare – exposure to family violence – separation of siblings – neglect – attendance at school – assessment of risk – parental capacity – best interests – evidence – child related proceedings. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 60I, 61DAl 65DAA, 68ZM, 69ZT |
| Taggart & Felton [2010] FMCAfam 564 Re L (Contact: Domestic Violence) [2000] 2FLR 334 |
| Applicant: | MR TAGGART |
| Respondent: | MS FELTON |
| File Number: | ADC 1025 of 2010 |
| Judgment of: | Brown FM |
| Hearing dates: | 10, 11 & 14 February and 30 March 2011 |
| Date of Last Submission: | 30 March 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 28 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mrs West |
| Solicitors for the Applicant: | Mason Westover Homburg |
| Counsel for the Respondent: | Mrs Read |
| Solicitors for the Respondent: | Hemsley Gilbert Mattner |
ORDERS
The child [X] born [in] 2000 (hereinafter referred to as “the child”) live with the father, who shall have sole parental responsibility for her.
The father be permitted to enrol the child at the [M] Primary School and to arrange counselling for her as he deems appropriate.
The parties do all things necessary to enrol at the [N] Children's Contact Service to assess their suitability to take part in the supervised contact program offered by the service.
An injunction issue and the mother be restrained from either directly or indirectly contacting, harassing or interfering with the father or his partner Ms H.
The mother be restrained and an injunction issue restraining her from contacting or attempting to contact the child at her school or residential address or other place frequented by the child without the written permission of the father.
The parties be restrained and an injunction issue restraining them from denigrating or abusing the other in the presence or hearing of the child.
Each party keep the other informed of their current respective residential addresses and telephone numbers.
The father inform the mother of any serious illness or injury suffered by the child.
The proceedings be adjourned for further consideration to 9:30am on 31 August 2011 and in particular to consider arrangements for the child to spend time with the mother and what conditions should attach to that time.
IT IS NOTED that publication of this judgment under the pseudonym Taggart & Felton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1025 of 2010
| MR TAGGART |
Applicant
And
| MS FELTON |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Taggart “the father” and Ms Felton “the mother” are the parents of [X] born [in] 2000. These proceedings are concerned with final arrangements for [X]’s care.
In a procedural sense, the current case is markedly different to earlier proceedings, which I have conducted in respect of Mr Taggart and
Ms Felton.[1] In the earlier case, which took place at an interim and earlier stage, I did not have all the evidence before me and so was not in a position to make concluded findings of fact about the many criticisms each party has of the other.
[1] Taggart & Felton [2010] FMCAfam 564
There has now been a hearing of some three and a half days. Both the father and mother have been put on their oath and subjected to scrutiny, in respect of their past behaviour, through extensive and professional cross examination. Many documents concerning the parties, but particularly Ms Felton, have been subpoenaed and closely inspected.
Significantly, there has been an independent and expert examination of [X], in terms of her emotional and physical needs and her relationship with each of her parents and others who are important to her overall well being. The expert concerned, Mr M, has also been extensively cross examined.
Accordingly, the court is now in a position to determine contested matters of fact, based on its estimation of the father and mother and its overall assessment of the evidence available to it. There are many disputed factual issues in this case. Some of them were set out in the earlier interim judgment.[2] Much of the current case has been focussed on these controversies.
[2] Ibid at paragraphs 44-45
However, as in June of 2010, the seminal issue in the case remains the same and can be restated in the same terms:
“The current case is concerned about issues, which Mr Taggart has raised, relating to the welfare of [X] in Ms Felton’s home. It is his case that there is something seriously wrong in the mother’s household at present and he is worried that there is a significant risk that [X] may come to some harm unless the court takes some action now to protect her from the mother’s neglect and quite possibly from being exposed to what he believes is a violent relationship between the mother and her current partner.
There is no dispute between the parties that they have been separated since 2005 and during that time [X] has lived with her mother and her older sister [C] and older brother [Z]. In these circumstances the mother contends that [X] does not have a fully developed relationship with her father. As such she argues that it would not be in [X]’s best interests to remove her from the familiar surroundings of her home, as constituted by her mother and brother and sister, and put her in an environment which is strange to her.
Ms Felton denies all of the allegations raised by Mr Taggart against her concerning her previous parenting of [X]. It is her case that Mr Taggart is not in a position to know what has been happening in her life recently and has jumped to adverse conclusions against her because it suits him to do so. In these circumstances, she urges the court to be cautious before changing long standing arrangements relating to [X]’s care.”[3]
[3] Ibid at paragraphs 10-12
During the course of the final hearing, it is Mr Taggart’s submission that the evidence has coalesced to reveal that Ms Felton has serious and irremedial deficits in her ability to parent [X] adequately. These deficits include the following:
·a borderline personality disorder, in respect of which the mother is resistant to treatment and lacking in insight;
·a significant dependency on alcohol and/or a propensity to misuse alcohol;
·a marked level of instability in respect of her accommodation arrangements;
·a history of being involved in violent and abusive relationships;
·a lack of insight into the psychological consequences, of these types of relationships, for [X] and an inability to protect [X] from them; and
·an inability to ensure that [X] attends at school regularly and receives a proper level of education.
These proceedings centre on [X] and what is the best outcome for her. However, [X] is not the only child, who will be effected by them. [X] has an older sister, [C] “[C]” born [in] 1998. There is no doubt that [X] and [C] are close. They have lived in the same household for most of their lives.
In addition, [X] has two older brothers – [Y] born [in] 1991 and [Z] born [in] 1993. Mr Taggart is not the father of [C], [Y] or [Z]. These children are related to each other and [X] through Ms Felton.
It is Ms Felton’s case that, although her life of late has not been an easy one, she has recently been successful in reuniting her four children in her own household, as a safe and stable family. As such, she submit that it would be harmful and unsettling for [X] to be uprooted from this family, particularly in terms of being separated from [C] and placed abruptly in the care of Mr Taggart.
In January of 2008, the father commenced a relationship with Ms H, with whom he lives in [M]. Mr Taggart moved to live in [M] in March of 2007. It is his case that he and Ms H are happy and well settled in [M] and can offer a safe and stable home to [X].
At the time of the earlier hearing, in mid-2010, the mother, [C], [Y] and [X] were living in [G]. [X] and [C] were going to the local primary school. [M] is approximately 35 kilometres from [G]. As a result,
Mr Taggart had been able to spend time with [X] (and indeed [C]) regularly. Although Mr Taggart is not biologically related to [C], she has born the surname “Taggart”.
One of the orders made on 3 June 2010, at the earlier interim stage, was an injunction preventing Ms Felton from changing [X]’s enrolment from the [G] Primary School. There is no dispute that the mother infringed this injunction in August 2010 when she, [X], [C] and [Z] moved away from [G] and went to live in the southern suburbs of Adelaide, following a period in crisis accommodation.
Whilst she lived in [G], the mother was intermittently involved with Mr S. At times she and the children shared a household with Mr S.
Mr Taggart regards Mr S as a violent and anti-social personality, of whom both [X] and [C] are frightened, because of his abusive behaviour towards their mother.
The mother’s position is that she had no viable alternative, in August of 2010, other than to flee an abusive relationship with Mr S, whom she caught injecting himself with amphetamines, in the premises which she and the children shared with him. This incident precipitated a violent reaction from Mr S, who assaulted her. As she herself is a “recovering drug addict”, the mother asserts that she would not tolerate anyone using drugs around her or the children.[4]
[4] See mother’s affidavit of evidence filed 17 September 2010 at paragraphs 5-9
From Mr Taggart perspective, what occurred in August 2010, confirmed his long term concerns about Ms Felton, particularly her propensity to involve herself in violent and unstable relationships, which have the potential to put [X] and the other children concerned at risk. In addition, he has reason to doubt that the mother’s assertion she has finished with Mr S is true.
Ms Felton would characterise her departure from [G], and the household she shared with Mr S, as an example of responsible and protective parenting on her part. Since leaving [G], Ms Felton has been provided with assistance and counselling by the Southern Domestic Violence Services. The most concrete example of this assistance is that Ms Felton has been provided with a tenancy in community housing in [H], by the Women’s Housing Association Incorporated.[5]
[5] See exhibit C
This housing consists of a three bedroom fully furnished home, which is currently occupied by herself, [Z], [C] and [X]. Ms Felton signed a three month lease, on the property, in November of 2010, which has recently been extended. It is the mother’s case that, after a further probationary period of six months, she is likely to have permanent accommodation for herself and the children at the house, which is situated in [H], a southern suburb of Adelaide approximately
70 kilometres from [M].
[X] and [C] have been enrolled at the [F] Primary School. It is
Ms Felton’s case that [X] has settled well into the school and enjoys attending there. Since she moved to [H], Mr Taggart has been able to spend time with [X] on alternate weekends and school holidays.
During her final submissions, the mother’s counsel, Mrs Read submitted that [Y] had also recently moved into the [H] property although, ostensibly at least, this would appear to be in breach of the mother’s tenancy agreement.[6]
[6] Ibid at page 8
Accordingly, the mother’s case is predicated on the basis that it is central to [X]’s welfare that there be a continuity in arrangements for her care, particularly in terms of maintaining her in the family unit composed of her mother, [C], [Z] and more recently [Y], which is the situation which [X] knows well and provides her with emotional sustenance.
It is also Ms Felton’s case that [X] is now well settled in the household at [H] and at her school, which is nearby. As such, it would be an unwarranted disruption for [X] to have to change households and move schools once again.
Ms Felton asserts that her move to [H], under the aegis and support of Southern Domestic Violence Services and the Women’s Housing Association, heralds a new period of stability and consolidation for herself and her family. She submits that Mr Taggart has deliberately exaggerated and misconstrued difficulties, which she had in 2009 and 2010, particularly with police and Mr S, for his own advantage, so that he can gain control of [X].
The father is sceptical about the durability of any changes in the mother’s lifestyle and parenting capacity. He asserts that to allow [X] to remain in the mother’s full-time care would represent a potential risk to [X]’s welfare, which it would be unacceptable for the court to take.
As such, notwithstanding the disruption it would entail in [X]’s life, particularly in terms of the possibility of her longstanding relationship with [C] being seriously damaged, it is Mr Taggart’s position that the removal of [X] from the mother’s care is the lesser evil currently confronting the court. Mr Taggart submits that he, in tandem with
Ms H, can provide [X] with a safe and stable household in the longer term, which Ms Felton cannot match, given her past history.
A change of living circumstances for [X], of the magnitude proposed by Mr Taggart, would create its own dilemmas. Ms Felton is unlikely to meekly support such a change. To the contrary, she is likely to do whatever she can to reverse the decision. Accordingly, the potential for [X] to be placed under intense emotional pressure is very high.
One mechanism to deal with this possibility is to prevent [X] interacting with her mother in the short to medium term. For obvious reasons, this is likely to be very difficult for both [X] and Ms Felton. It may also cause an irreversible wedge to appear between [X], on the one hand, and [C] and her two older siblings on the other.
On any view, the removal of [X] from Ms Felton’s care would represent an extreme and draconian outcome, with possible unforseen consequences for [X] in particular. In this context, the central issue for the court must be its assessment of Ms Felton’s parenting ability and her ongoing capacity to protect [X] from harm. Are the concerns of the father so great and sufficiently well established to justify such a radical change in [X]’s life, as would be constituted by removal from her mother’s care?
The court appointed expert, Mr M, characterised the case as a complex one. Axiomatically, it is. When Mr M wrote his family assessment report, he did not have access to many sources of information such as police reports, welfare reports and other medical information.[7] Many of these sources of information have now been explored by the parties’ legal representatives and made available to the court.
[7] See family assessment report dated 5 November 2010 at page 20
Given his inability to access this extraneous and possibly objective evidence, Mr M was cautious about making any long term recommendations until such time as Mr Taggart’s serious allegations about Ms Felton, had been properly investigated by the court and appropriate findings made. Pending the outcome of those investigations, he counselled against changing [X]’s current living arrangements.
Mr M described [X]’s life, of late, as being an unsettled one. He was concerned that it had been reported that [X] had been suffering serious stomach aches, which he queried might be symptomatic of the anxiety and confusion which she was likely to be feeling. Certainly, Mr M was aware of the moment, which was likely to attach to the court’s decision, at this stage, so far as [X] was concerned.
Mr M posited four possible scenarios in the case, depending on how the evidence turned out. Each such outcome is not without its drawbacks:
·Firstly, if Ms Felton was found not to be a fit and proper parent, then, on welfare grounds, the court would have justification in removing [X] from her care and placing her with her father.
·However, such an outcome would raise serious issues as to the terms and conditions which should apply to [X] spending time with her mother, sisters and two brothers.
·If Ms Felton was found to be an unfit and unsafe parent, [X]’s time with her mother would need to be supervised, until such time as the court was satisfied, it would be safe for [X] to spend time with her. This finding of itself might be a prelude to further litigation, which would prolong the disruption and instability in [X]’s life.
·Secondly, even if Mr Taggart’s concerns were found to be established, there were likely to be significant issues as to whether or not [X] would be able to emotionally tolerate a change in her living arrangements, as proposed by Mr Taggart.
·This would open up a situation where [X] was either left in an unsafe situation or one where she felt cut off from her main sources of emotional support.
·Thirdly, if Mr Taggart’s allegations were shown not to be established or were not of the significance which he asserted, [X] should remain living with her mother and other siblings.
·Fourthly, even if the court found that there were serious deficits in Ms Felton’s parenting, it remained a possible outcome that [X] remain in her mother’s care, whilst Ms Felton attempted to overcome her past parental failings.
·Such an outcome would require the mother receiving close supervision and support.
·As Mr M characterised this as a “child welfare matter” this close supervision and support would have to be provided through Families SA, which has the resources to follow through on the matter.
·There were doubts whether the relevant authorities would supply the required support and monitoring.
During the course of the evidence, when issues pertaining to
Ms Felton, particularly matters relating to her past psychiatric diagnoses, were put to him, Mr M changed his formal and cautious recommendation, in the matter and became more in favour of [X] living with her father. He was particularly concerned about the potential emotional burden, for [X], of feeling that she ([X]) was responsible for her mother’s safety.
Mr Taggart, through his counsel Mrs West, submits that the court should accept Mr M’s revised recommendation and find that Ms Felton herself was an unreliable and unimpressive witness, particularly in terms of her account of her relationship with Mr S and her past parenting of the children.
It is Mr Taggart’s case that the catalyst for the instigation of the proceedings was the mother’s arrest and subsequent charging by police, following an incident at the [M] Hotel on 19 November 2009, during which [X] was present. He submits the evidence now clearly establishes that the mother’s behaviour on this occasion represented a severe threat to [X]’s wellbeing and there can be no acceptable guarantee that such behaviour will not be replicated by Ms Felton in future.
In this regard, Mrs West makes the following submission:
“History tends to repeat itself. The mother has now been involved in at least six relationships where physical violence was involved. The mother suffers from borderline personality disorder on her own admission. She is not medicated nor does she have the insight nor desire to embrace cognitive behavioural therapy in an attempt to resolve or assist her with this mental illness.
The mother’s life has been characterised by domestic violence, breakdowns in relationships with family members including her mother and siblings, residential changes and criminal behaviour including violence towards people other than family members it can be assumed that these characteristics will appear in the mother’s future life.”[8]
[8] See father’s written submissions at page 3
On the other hand, Mrs Read, counsel for the mother, argues in favour of Mr M’s fourth possible outcome – leaving [X] in her mother’s care, on the proviso that Ms Felton continues to receive the support and counselling currently available to her through Southern Domestic Violence and in the secure and safe housing provided by the Women’s Housing Association.
It is Ms Felton’s case that [X] no longer needs to be protected from the physical or psychological consequences of being exposed to family violence, given her current safe and secure circumstances. To the contrary, Ms Felton submits that to move [X] from such a situation will, of itself, constitute a serious source of psychological harm for [X].
Underpinning her case is the assumption that it is just too risky and potentially disruptive to change [X]’s care arrangements to the radical extent proposed by Mr Taggart and she herself will never accept such an outcome.
These proceedings are directed towards resolving this complex dispute between the parties and, as far as possible, finalising arrangements for [X]’s care. Whatever is the ultimate outcome of the case, [X]’s best interests remain the paramount or most important consideration.
The orders sought by the parties
Mr Taggart is the applicant in these proceedings, which he commenced on 19 August 2010. In his trial affidavit, he sought orders which would see [X] living predominantly with him, under his sole parental responsibility.
He proposed that [X] spend time with her mother, on alternate weekends, from after school on Friday until the commencement of school the following Monday and for half of each school holiday, as well as on other special occasions.[9]
[9] See father’s affidavit filed 19 January 2011 at paragraph 181
In the light of Mr M’s evidence and other concerns ventilated during the proceedings, Mr Taggart has now significantly modified his position from that delineated at the outset of the hearing. He now seeks the following orders:
“1. That the father have sole parental responsibility for [X] born [in] 2000.
2. The child [X] live with the father.
3. That the father be permitted to enrol the said child at the [M] Primary School and to arrange individual counselling for the child as advised.
4. That commencing in December 2011 for a period of twelve months the mother do spend time with the child at the [N] Children's Contact Service for a period of two hours each month under the supervision of the Director of the Service.
5. Commencing December 2012 and each alternate Sunday thereafter the child spend time with the mother from 10am to 5pm.
6. The mother’s time in paragraph 5 is subject to the following conditions:-
a) The mother is to attend upon a psychiatrist for a medical report relating to her mental health and is to undertake such treatment as recommended by the psychiatrist.
b) The mother is to provide the father with a copy of the medical report.
c) The mother is to comply with all directions for treatment and medication as prescribed by her psychiatrist.
d) The mother is permitted to attend counselling with the said child subject to the counsellor’s directions and upon the written invitation of the counsellor.
e) The mother’s time is conditional upon the counsellor providing written support for same to occur.
f) The child’s counsellor is to be provided with a copy of the Judgment herein.
7. The mother is restrained and an injunction is granted restraining her from:-
a) directly or indirectly contacting, harassing or interfering in any manner with the child or attending at the child’s school, residential address or any other place frequented by the said child without the written permission of the father;
b) directly or indirectly contacting, harassing or interfering in any manner with the father or his partner Ms H;
c) denigrating or permitting any other person to denigrate the father or his partner in [X]’s presence;
d) consuming any alcohol or drugs not prescribed to her within twenty four hours prior to spending time with the said child or consuming any alcohol or drugs not prescribed to her whilst the child is in her care.
8. Both parties are to keep each other informed of their respective telephone numbers and addresses.”
Clearly, the most significant aspect of the father’s current position is that he proposes [X] not interacting with her mother or siblings for a period approaching eight months. The rationale of this proposal is that it would give [X] an opportunity to settle into her new circumstances, without being subject to any overt or tacit emotional pressure emanating from Ms Felton.
Thereafter, for a period of twelve months, Mr Taggart proposes that any time occurring between [X] and her mother occur in a rigorously supervised and professional setting. Given what Mr Taggart asserts is the mother’s resistance to undergoing psychiatric treatment and the dangers he asserts the mother’s untreated psychiatric condition may represent for [X], as a precondition of the mother spending any time with [X], Mr Taggart submits it is appropriate that she undergo some form of psychiatric assessment and comply with any treatment prescribed for her.
In contrast to the father’s position, Ms Felton seeks orders that would see the parties having equal shared parental responsibility for [X] but she should live predominantly with her mother.
It seems to be Ms Felton’s position that it would not be reasonably practicable for [X] to live with her parents for equal periods of time, given that Mr Taggart is committed to living in [M] and she is currently settled in [H].
In this context, the mother proposes that [X] should spend alternate weekends from after school on Friday, until 5:00pm the following Sunday during school terms with her father, as well as for half of each school holiday periods and for the Father’s Day weekend.
One further complicating factor is that, during the course of the final hearing, Ms Felton announced that she, [C] and [Z] would move to live in [M] permanently in the event either that the court determined [X] should live with Mr Taggart or an order was made that she ([X]) should live in an equal time regime with each of her parents. With respect to Ms Felton, the implications of this proposal do not seem to have been closely considered by her.
The material relied upon
The father relies on the following affidavits:
i)An affidavit of himself filed 19 January 2011;
ii)An affidavit of Ms H sworn 19 January 2011;
iii)An affidavit of his sister, Ms W filed 19 January 2011.
Attached to Mr Taggart’s affidavit are many documents, which have been subpoenaed. These documents are central to Mr Taggart’s case.
Mr Taggart and Ms H were cross examined by the mother’s counsel, Mrs Read. Ms Felton chose not to call Ms W for cross examination. Accordingly, her evidence has not been challenged and must therefore be accepted by the court.
The chief import of Ms W’s evidence is that, following the parties’ separation, the father lived in a caravan in the backyard of her home, during which period [X] and [C] came to stay with him from time to time.
The mother relies on the following documents:
i)An affidavit of herself filed 2 June 2010;
ii)A further affidavit of herself filed 17 February 2011;
iii)Two further affidavits of herself each filed on 4 February 2011.
The mother was the only witness called on her behalf during the hearing before me. She was extensively cross examined by Mrs West, counsel for the father. Attached to Ms Felton’s affidavit of 4 February 2011 are two family reports prepared in September of 2002 and January of 2004, which deal with Ms Felton’s relationship with [Y] and [Z].
The evidence
I had ample opportunity to observe Mr Taggart, Ms Felton and Ms H, in close quarters, during the hearing. As such, I was able to make some assessment of their respective personalities and level of credibility.
Both Mr Taggart and Ms Felton were represented by skilled counsel. As a result, in my view, the veracity and credibility of each of them was thoroughly tested through the court process. In his evidence,
Mr M described this process as a “safety net” which enabled the court to “tease” things out from the evidence led before it.[10]
[10] See transcript of Mr M’s evidence at page 14
By this I take it Mr M means that the process of cross examination of witnesses in court gives judicial decision makers an advantage over expert report writers, such as himself, who must accept the veracity of what is told to them, unless it is self-apparently fallacious.
However, I am also well aware, as a result of the level of complexity which arises in many family law cases, that it is often fatuous for the court to decide cases involving children on the basis of findings of credit alone – that is the court believing one parent over the other. In effect, determining one is truthful and the other is not. That is often a simplistic reduction.
In addition, it is, I think, becoming increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact bout myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children of their parents maintaining at least the possibility of having a functioning parental relationship with one another, following court proceedings, the court should avoid making potential hurtful findings of fact, about a parent, wherever possible, as such findings of fact have the potential to be hurtful and damaging to the parties future parental relationship.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect as it may be, the process still requires an adjudication, which can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved so this adjudication can occur.
Mr Taggart and Ms H appeared to me to be thoroughly decent people. I have no doubt that they are each committed to ensuring [X]’s best interests are safe guarded. As such, I am satisfied that Mr Taggart has brought these proceedings, as a last resort, because he is worried about [X]’s safety, not because of any malign or covert motive to spite
Ms Felton in order to satisfy some emotional need on his part.
If Mr Taggart thought [X] would be safe with her mother, he would not have brought these proceedings. He seemed to me to be a sober and level headed person. As such, I do not think that his application can be characterised as a piece of hysterical over reaction, on his part, to imagined or exaggerated failings, which he has attributed to Ms Felton. In my view, the evidence indicates that he has had objective and significant reasons for bringing these proceedings.
Regrettably, Ms Felton was not an impressive witness. Her evidence was inconsistent and changed to meet the challenge of fresh criticisms against her, arising from the many subpoenaed extraneous sources. As such, I do not think that she was frank about her past difficulties or that she showed any insight into their possible implications for her ongoing care of [X].
Rather, the mother seemed intent on minimising her many past problems by blaming others for them, whilst showing herself in the best possible light. Two examples will suffice to demonstrate the unreliability and mutability of her evidence, but there are many other such examples arising from the evidence.
It was Ms Felton’s position that Mr Taggart was essentially disinterested in [X] following the parties’ separation. Ms Felton told Mr M that Mr Taggart had no contact with [X] for the first two years after the couple separated. The implication of this evidence being that Mr Taggart had a comprised level of understanding of the responsibilities incumbent on being a parent and his current application was opportunistic.
Mr Taggart, supported by his sister, would have it different and paints a picture of a parent who did what he could to stay in touch with [X]. When confronted with this evidence, Ms Felton asserted that it was in fact she who has been responsible for ensuring that [X] now has a close and loving relationship with her father. In contrast, at the time of the interim hearing, it was her position that there was little if any relationship between the two.
In addition, Ms Felton indicated to Mr M that she had not been able to see [Y] and [Z] for a period of around four years because the boys’ father, Mr D had abducted them and she had been compelled to take formal steps to locate them.
The true situation is somewhat different in that Ms Felton delivered the two children to her mother prior to travelling to the Northern Territory, as a means of dealing with her then drug addiction. On her return to Adelaide, Ms Felton did not pursue a relationship with the boys for a number of years. The children were not abducted.
I acknowledge that these matters are not central to the present case, but they cause me to doubt the veracity of much of Ms Felton’s evidence, particularly what happened at the [M] Hotel and what the true nature of her relationship with Mr S was and is.
Certainly, whatever concessions Ms Felton has made about her own impaired decisions or other issues pertaining to her have come about because of evidence coming to light from sources extraneous to her rather than as a result of any frankness on her part.
The other significant witness in this case was the expert nominated by the parties to complete a family assessment for the court, Mr M. He had a marked advantage over me in the case in the sense that he was able to observe and speak with [X] directly and see her interacting with each of her parents.
All family reports must be considered a “snap shot” in time, which is taken in somewhat artificial and stilted circumstances. However, notwithstanding these axiomatic limitations, I found Mr M’s report and evidence to be thorough and well considered.
In these reasons for judgment, findings are made on the balance of probabilities, following my observation of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
General background
Mr Taggart was previously married. He married [in] 1969. He has two adult children from this marriage, which Mr Taggart describes as “a very good marriage of thirty years”. I have no reason to disbelieve this evidence. The marriage ended when his wife died of liver cancer on 30 July 1999. In January of 2000, he met the mother for the first time at a hotel in [P].
Ms Felton was born [in] 1970. She is not currently in the paid work force. Her first child [U] was born [in] 1987. Obviously, the mother was very young at this time. [U]’s father was subsequently jailed for a lengthy period of time in respect of a serious crime of violence. As a result, [U] was raised by his paternal grandparents and no or very little relationship exists between him and the mother.
The father of [Y] and [Z] is Mr D. Ms Felton was involved in a relationship with Mr D between 1988 and 1995. Ms Felton’s relationship with Mr D was a volatile one, marked by mutual drug use and family violence.
As previously indicated, Ms Felton did not have any contact with either [Y] or [Z] for a period of around four years. After she had commenced her relationship with Mr Taggart, she began court proceedings in order to reconnect with them. Two family reports were prepared in respect of these proceedings.
In the first report, the mother provided a detailed personal history to the family report writer concerned, Ms M. At the time of this report, Ms Felton was using the name “S”. Ms M recounted the history as follows:
“Ms S gave a chronology of her life experiences since she was fifteen years of age. She talked extensively about her past but was able to discuss issues objectively and rationally. Basically she said that she attracted violent men and was using prescribed drugs and amphetamines for a number of years. She said that she “would have to take five valium just to get out the door”.
Ms S was involved with a man who committed murder. He was the father of her first child [U], now fifteen, who resides with his paternal grandparents in New South Wales.
She claimed that her relationship with Mr D was marred by violence, that they both took prescription drugs and Mr D drank heavily.
After the relationship with Mr D ended Ms S became involved with Mr H who is the father of [C] [born in] 1998. Ms S was a victim of domestic violence and they were both using amphetamines. As a consequence [C] was removed from their care at the age of two weeks old. This also lead to their separation which resulted in Ms S becoming homeless and eventually lead to Ms S having to leave [Y] and [Z] in her mother’s care whilst she sought housing for her and the children.
Within a few weeks of the children being in their grandmother’s care Ms S decided to go to the Northern Territory. Ms S stated that when she went to the Northern Territory she lives in a tent for four months and four weeks of that time in the desert. She said that she hardly communicated with anyone. She said that she did not communicate with her mother during this time. She concentrated “on getting my head together. I had to sort myself out. I was no good to any of my kids the way I was”.
On her return to Adelaide Ms S decided not to pursue contact with [Y] and [Z]. She had bitter thoughts about Mr D and thought that it was about time that Mr D took some responsibility and looked after them for a while. She also thought that no Court would let her see them after she abandoned them. She said that mentally and emotionally she was not ready to see her children because she was still resolving all the issues associated with the relationship with Mr D and was overwhelmed with guilt as a result of leaving her children. Ms S said that it was too painful for her to deal with at that time”.[11]
[11] See family report of Ms M being annexure RMF1 to the mother’s affidavit filed 4 February 2011.
I have no reason to doubt the chronology of the account given in this report to Ms M, which is confirmed by Families SA records. Ms Felton provided the history set out above to Ms M in September of 2002. By this time, Ms Felton was living with Mr Taggart.
At the time, Ms Felton was positive about her relationship with
Mr Taggart, describing him as having assisted her to rejoin the human race. These themes were taken up by Ms M, who had visited the home occupied by the parties at the time. She wrote as follows:
“Ms S spoke very positively about her life now. She said Mr Taggart is a very sensitive supportive partner who despises drugs. Whilst the writer was interviewing Ms S Mr Taggart was looking after [C]. [X], their child, was sleeping. After the interview was complete Ms S showed the writer around the back yard and pointed out all the herbs and vegetables they were growing. Mr Taggart was observed to be a gentle person who conveyed patience with [C] as she “helped” him in the shed.”[12]
[12] Ibid at page 4
Following the release of Ms M’s report, Ms Felton began to spent time with [Y] and [Z], initially in a supervised setting. The periods of time with the children were later extended, following a further family report from Ms D, completed in January of 2004. Again Ms Felton was positive about the nature of her relationship with Mr Taggart. Ms D took the following history from Ms Felton:
“Ms S described her relationship with Mr Taggart in positive terms. She said, “[Mr Taggart]’s really good”. She said that [C] “thinks [Mr Taggart] is her father”, and that Mr Taggart is a committed father to both the girls. Ms S said that Mr Taggart was a strong support for her in regaining the care of [C]. Ms S said that Mr Taggart has close, loving relationships with his two adult children who are aged 30 and 28, and with his seven grandchildren. Ms S explained that although she is close to Mr Taggart’s older children, she is “mostly the decision maker in the home””.[13]
[13] See the family report of Ms D dated 20 January 2004 being annexure RMF1 to the mother’s affidavit file 4 March 2011.
Clearly the period between 1998 and 2000 was a very difficult one for the mother. This was the period when she was involved with [C]’s father, Mr H. The mother concedes that this relationship was one marked by violence, including Mr H trying to stab her on one occasion.
The mother downplays the significance of this incident now, indicating that the injury she received was “minor” and Mr H was never “incarcerated for the offence”. I am concerned that Ms Felton has not displayed a great deal of insight into the implications of her violent relationships with both Mr D and Mr H for the psychological wellbeing of [Y] and [Z]. Families SA records, dated 10 September 1997, give the following history:
“Ms Felton was seriously assaulted by de-facto, Mr H on Sunday. She is currently in [omitted], to have surgery on Fri – she has broken cheek amongst other injuries. Mr H chased [Ms Felton] out of the house after fight erupted, he punched and kicked her on the front lawn, before she got away, chased her again and continued to kick her etc. Police attended and found [Ms Felton] unconscious and Mr H hiding in the house. [Ms Felton] is now denying that Mr H was the perpetrator saying that somebody broke into the house – neighbours saw events however and say that it was Mr H. [Y] and [Z] were taken in by the neighbours and cared for.
The boys were very distressed and frightened, they thought that [Ms Felton] was dead. Boys express that they are terrified of
Mr H and that he swears at them and sometimes hit them”[14]
[14] See TT2 to the father’s affidavit filed 19 January 2011
At the time, the relevant intake workers were concerned that the mother was both denying that she was involved with Mr H and that he was the perpetrator of the serious assault upon her. In these circumstances, Families SA were concerned that Ms Felton may not be able to adequately protect the two children concerned.
In many ways, it is difficult to assess the relevance and probity of this evidence, which relates to incidents over thirteen years ago, concerning children who are not the subject of the current proceedings. The mother’s case is that she has matured and changed.
The father’s position is that, for complicated reasons the mother’s history, particularly her susceptibility to become involved in destructive relationships, is likely to repeat itself and she herself is unable to escape a cycle of violence, which will have implications for the psychological and physical safety of any children in her care.
At the time of this involvement with Families SA, the mother acknowledges that she was abusing serepax, rohypnol and alcohol. In February 1999, further Families SA records indicate that Ms Felton was using intravenous amphetamines. At this time, [Z] was found to have suffered a marked weight loss and both he and [Y] were reported as going to school without lunch.
[C] was removed from the mother’s custody and placed in foster care, shortly following her birth. The mother was able to visit her at the Families SA office, under the supervision of departmental workers.
Mr Taggart used to accompany her on these visits. The relevant order, in respect of [C], placing her in the care of the Department expired at some time in 2001. At this stage she was returned to Ms Felton’s care.
As previously indicated, [C] has always had the surname “Taggart”. In the past, the mother has conceded that [C] regards Mr Taggart as her father. It seems to me to be highly likely that the presence of
Mr Taggart in Ms Felton’s life was instrumental in [C] returning to her care. It also seems to be the case that he was central to the mother being able to reform her relationship with [Y] and [Z].
The Parties’ Relationship
Both parties are critical of the other for their respective behaviour during their relationship, which lasted between 2000 and July 2005. The father asserts that the mother was “moody, difficult and volatile” and drank alcohol to excess on a regular basis. On the other hand, the mother asserts that it was the father, who was violent and abusive.
In my assessment, Mr Taggart is likely to be the more reliable historian. He characterises Ms Felton as being “very volatile, when she drinks”. In contrast, he describes himself as a moderate drinker.
Mr Taggart concedes the parties argued frequently, usually about the extent of Ms Felton’s drinking, which, in the father’s words, caused her to become “explosive”.
Mr Taggart categorises himself as not being an argumentative person. This accords with my own impression of him and the earlier descriptions in the Family Reports of Ms M and Ms D. Mr Taggart reached the conclusion that the relationship between him and
Ms Felton was not working but he was reluctant to leave it because of [X].
Initially, the parties lived in a unit at [omitted]. In March of 2001, the family moved to [omitted]. [C] joined the family on 8 June 2001.
I accept Mr Taggart’s evidence that he was closely involved in caring for both children.
It is the father’s evidence that the mother’s drinking escalated during the parties’ relationship and, as a consequence, he was often the victim of the mother’s violent outbursts. The father does not assert that the mother was ever directly abusive to either [X] or [C], even when she had been drinking. However, he is critical of her because her behaviour disturbed the children and she seemed either incapable or unwilling to change it.
Mr Taggart summarises his relationship with the mother as follows:
“I did not see the mother be violent toward [X]. However, she was often very abusive and violent toward me in the presence of the children. I used to plead with the mother, “Stop it, You’re upsetting [X]”. The mother did not stop and she took no notice of the children and the effect her behaviour had on them. I used to believe that I was protecting the children by leaving the house in the hope that the mother would calm down.
On several occasions the mother and I separated. Each time we separated I left the house to stop the mother’s violence toward me. The mother always rang me and begged me to return. The mother always promised to stop drinking and go to A.A., although, the mother did not ever do either of these things. Each time I did return to the relationship because I thought it was best for the children.”[15]
I accept this evidence.
[15] See father’s affidavit filed 19 January 2011 at paragraph 61 & 62
The Period Post Separation
Mr Taggart asserts that he came to a point where he could no longer tolerate living with the mother because of her drinking and behaviour towards him. The father describes himself as feeling “battered”, by which I take it he means that he categorises himself as being the victim of the mother’s violent behaviour. I accept that this was so.
Against this background, in mid 2005, Mr Taggart left the parties’ home, which was then located in [T]. The property was privately rented, although Mr Taggart had borrowed the required security deposit from Housing SA. [X] and [C] remained in their mother’s care.
At the time of the parties’ separation, Mr Taggart was not in a strong financial position. He was in receipt of social security benefits and had not as yet qualified for a disability support pension. It is his evidence, which I accept, that he was not able to borrow money from Housing SA to secure accommodation for herself, because the previously borrowed bond for the [T] property remained outstanding.
It is also Mr Taggart’s evidence that he refused offers of single men’s accommodation made to him, at the Salvation Army, because he wanted accommodation which would enable both [X] and [C] to stay overnight with him. However, initially at least, such accommodation was out of his reach for financial reasons.
Immediately after separation, Mr Taggart stayed with a friend in [P]. Then, as previously indicated, he moved in with his sister, Ms W, in a caravan located in her backyard at [omitted].
The father deposes that he felt anxious at the prospect of leaving both [X] and [C] in the mother’s sole care, given her level of drinking. However, he felt powerless to intervene because of his own lack of suitable accommodation.
There is considerable controversy, between the parties, as to what level of interaction the father had with both [X] and [C] in the period of around 20 months, after the parties finally separated. The mother asserts that “for the first two years after the father and I separated, he had no contact with [X]”[16]
[16] See mother’s affidavit filed 2 June 2010 at paragraph 11.
I find this assertion to be plainly wrong. It is contradicted by both the father’s evidence and that of his sister, Ms W. I am concerned that the mother made the assertion, at the time of the first interim hearing, because it suited her tactically. As previously indicated, it is a factor, amongst others, which causes me to question her credibility.
The father’s evidence is that he saw [X], whenever he could. The longest he went without seeing [X] was a period of about a month. Usually, [X] would stay over with him for periods of two or three days at a time, often accompanied by [C].
As such, I am satisfied that Mr Taggart has a close and loving relationship with [X], which was developed in the first five years or so of [X]’s life, when the two shared the same household and Mr Taggart was closely involved in her care. This relationship was maintained, albeit intermittently, during the unsettled period following the parties’ separation.
In early 2006, the mother commenced a relationship with a person,
Mr C. The mother denies she ever lived with Mr C. She also denies that she ever described him, to Mr Taggart, as being a violent person, who drank too much. Mr Taggart knows very little about Mr C, from his own personal experience. Mr C used to deliver [X] and [C] to him from time to time.
In December of 2006, the mother moved to rented accommodation at [address omitted], in [T]. This was a rural property. The father was critical of the mother for not refunding him the security deposit, which he had borrowed in respect of the former family home.
In March of 2007, Mr Taggart moved into a privately rented house at [M] [address omitted]. He chose this area because it provided rental accommodation, suitable for a child, which he could afford. During 2007, he was approved for a disability support pension.
It is common ground between the parties that once Mr Taggart had begun to live in [M], the arrangements for him to spend time with [X] were consolidated. He began to see her on alternate weekends and for longer periods during school holidays. At this time, [X] was attending school at [T].
In January of 2008, Mr Taggart met Ms H, who also lives in [M]. In July of 2008, the two began to live together in [M]. They remain committed to each other and continue to live together. I have no reason to doubt the strength and sincerity of their relationship.
The parties’ relationship with one another, during this period, seems to have been relatively good. Mr Taggart was seeing [X] regularly and he makes no specific criticism of the standard of care Ms Felton provided to [X]. In particular, he describes [X] as looking healthy, wearing clean clothes and seeming to be happy. In addition, nothing unusual was recorded in her school reports.
However, by mid 2008, Mr Taggart began to have concerns about the mother’s behaviour and its implications for [X]. In his own words,
Mr Taggart says he “started piecing things together and things weren’t as good as they should be.” These “things” were matters told to him by both [X] and the mother herself. I have not been provided with independent and objective evidence to document these concerns, which are denied by Ms Felton.
Essentially, Mr Taggart asserts that the mother was going out at night drinking, leaving the children unsupervised. The mother denies these allegations, asserting that she is only a social drinker, who never frequents licensed premises. She concedes that she did attend a Jimmy Barnes concert but asserts that [X] and [C] were being appropriately minded by their older brother, [Z].
In January of 2009, the mother, [X], [C] and [Z] moved to live in rented accommodation in [G]. [X] was enrolled at the [G] Primary School. Arrangements were made for Mr Taggart to collect [X] from the school on alternating Friday afternoons. It was once she had moved to [G] that Ms Felton began a relationship with Mr S.
The Events of 2009
Because of his concerns about the mother’s care of [X] during 2008, Mr Taggart asked Ms Felton if [X] could come and live with him for an extended period of time. This request was turned down. In late 2008, Mr Taggart made overtures to Ms Felton to attend a process of mediation with him to sort out ongoing arrangements for [X]’s care. Ms Felton declined to attend the mediation.
During 2009, Mr Taggart became increasingly concerned about what [X] had told him about the nature of Ms Felton’s relationship with
Mr S. [X] said that Mr S and her mother used to fight outside; that
Mr S had tried to take a ring off Ms Felton’s finger with a hammer; and she and [C] “run and hide when Mr S and Mum are fighting”.
The impression Mr Taggart had was that [X] was frightened of Mr S. In this context, Mr Taggart deposed that he came to the conclusion that [Ms Felton] was “not going to change [her behaviour] and would tell [him] baloney” about her relationship with Mr S. It is against this background that what occurred at the [M] Hotel assumes central importance in the case, particularly in terms of any necessary assessment of Ms Felton’s credibility and insight.
What happened on 19 November 2009
The father does not know what happened on 19 November 2009, from his own knowledge or experience. He is reliant on what the mother tells him about the matter, as well as on what he is able to glean from contemporaneous records kept by police officers and workers from Families SA, who were involved with the mother and children on the date in question. I do not consider that the mother is likely to be a reliable historian in respect of the incident.
These proceedings are “child-related proceedings”. Accordingly, they are to be conducted in accordance with the principles enunciated in Division 12A of the Family Law Act 1975. Two of these principles are as follows:
·The proceedings are to be conducted in a way that will safe-guard any child concerned against family violence, child abuse and child neglect [s.69ZM(5)].
·The proceedings are to be conducted without undue delay and with as little formality, legal technicality and form, as possible [s.68ZM(7)].
In accordance with these principles, pursuant to s.69ZT, the formal rules of evidence, as codified in the Evidence Act 1995, do not apply to child-related proceedings. Rather, the court is authorised to give the weight it considers appropriate to the evidence which is led before it, as a consequence of this relaxation of the formal rules of evidence in child-related proceedings.
Pursuant to s.69ZT(3), the criteria, which the court should apply in any determination as to whether the formal rules of evidence should apply to any particular aspect of the evidence led in a child-related proceedings are as follows:
·The importance of the evidence in question;
·The subject matter of the proceedings;
·The probative value of the evidence concerned.
Mrs Read, counsel for Ms Felton, has cautioned the court on relying on the police and Families SA records, which relate to the mother’s conduct at [M] Hotel, on 19 November, because the various compilers of those records and the other witnesses concerned have not been tested, through cross examination, in the proceedings before me. I agree that the records need to be approached cautiously but believe that I can have regards to them for the following reasons:
·These are child related proceedings and accordingly section 69ZT applies.
·In any event, I am satisfied that the various documents in question constitute business records as defined by section 69 of the Evidence Act 1995 and the applicable definition of business contained in part 2 of the dictionary to the Act. Accordingly, the documents are otherwise admissible pursuant to these provisions.
·The father is the applicant in these proceedings. He has outlined his concerns about the mother’s conduct on 19 November 2009. The mother has not chosen to provide a chronological narrative, from her perspective, of what happened on the date in question.
·Rather, in the manner of a pleading, she has chosen to respond to the individual matters raised by the father, in a reactive manner. Necessarily, given the father was not present at the hotel, on the night in question, there are gaps in the mother’s case, which she has chosen not to fill. In my view, these factors necessitate me having regard to the documentary evidence, which Mr Taggart has obtained.
·Finally, the evidence is relevant to issues of family violence. [X] was present at the hotel on the night in question. As such, I must pay heed to the principle that the proceedings are to be conducted in a way that will safeguard [X] from family violence and possible abuse and neglect.
Ms Felton’s account of what happened on 19 November is largely unsatisfactory and has changed as time has passed and more information has come to hand, which is not favourable to her. I found her to be evasive and contradictory, when cross examined about the incident.
Mr Taggart learnt of the incident, when he accessed a message on his telephone from workers from Families SA the next morning. Police at [omitted] police station declined to give him any information about their involvement with the mother other than one of them said words to the effect “you can’t leave your daughter living with that woman”.
About a week later, on 25 November 2009, Mr Taggart read an article about the incident in the local paper. The article indicated that a woman had been accused of punching a police officer, who had tried to stop her drink driving, whilst her three children were in the car. The woman concerned had been charged with drink driving, assaulting police, refusing to take a blood alcohol test and breaching the conditions of her learner’s permit.
In her initial affidavit, the mother provides the following account of what occurred on the evening of the [M] Hotel incident:
“As to paragraph 30 of the father’s affidavit I say that there was one occasion only that I drove the car without a driver’s licence and that the children were in the car. The circumstances surrounding that incident were that I held learner’s plates. I accept that there was nobody in the car with a full driver’s licence. I needed to get out of the house so I went to the children’s school and got the children and waited for my son to [sic] [Z] to get off his bus. The children and I went to Woolworths, to the beach and then to my place of work, [omitted]. I cooked dinner for the children at [omitted] where I work as a [omitted]. We were all at the [workplace] for two and a half hours. I admit that I had a beer while eating and I realise the stupidity of my actions. I say that I currently do not have a car.
As to paragraph 31 of the father’s affidavit I say that I pulled into the hotel at [M] to use the toilet and I asked for directions. There were some people in the front bar who started to become aggressive and I left. When I left the hotel one of the men who had been in the bar approached me in the car park. That man grabbed at me and I hit him. Unbeknownst to me the group he was with were also outside and I was then attacked by them. I ran back to the car, the three children were with me. I got into the car and tried to ring the police on my mobile. I started the car and then tried to drive away but I was completely shaken and frightened and was not able to drive in a sensible manner. The people chased us up the street and each time I stopped to talk to the police the group would be at the car.
Eventually Police arrived and by that time I had pulled over onto the road side. I told the police where I was and they came to my care. The police asked me to do a random breath test which I did not do. I had been badly beaten and was concussed. I went to the doctors the next day and I will provide a report to the court a soon as I am able to have the documents subpoenaed. I do not remember the events but I do recall I was taken to the Police station and that the children came with me. I did not receive any medical treatment. After about three weeks the Police began to investigate the incident and a forensic team came to see me, they sent evidence off for a forensic investigation.”[17]
[17] See mother’s affidavit filed 2 June 2010 at paragraph 25-27
In cross examination, the mother admitted that she had never held a driver’s licence. In these circumstances, I reject her evidence that she has only driven her motor vehicle on one occasion, when the children have been in it. To the contrary, I find that the mother perennially drives whilst unlicensed and this has included incidents when she has been transporting the children.
The mother also asserted that Mr S had “nothing to do with the incident” in question. She also denied that [Z], [C] and [X] were in crisis care. As outlined above, it was the mother’s initial position that she “had a beer”. In contrast the assessment of the relevant Families SA worker, who was called into assess the situation regarding [Z], [C] and [X] following Ms Felton’s arrest was as follows:
“… mother was highly intoxicated whilst driving with three of her children in the car, and was subsequently arrested and locked up; the children are currently in the station with no responsible adult to care for them and require emergency placement.”
As a result of this assessment, it was found that Ms Felton had neglected the children concerned by driving whilst under the influence of alcohol and without a licence. This episode had occurred at night and it was the view of Families SA that there was a high risk of the children coming to harm in such a situation.
It was further found that the mother had subjected the children to emotional abuse because, whilst at the hotel, the mother had been involved in an altercation involving fighting between the mother and others. The car in which the children were travelling had been chased and abuse had been yelled. It was the assessment of the worker concerned that this “emotional environment” had left them “fearful and worried”.[18]
[18] See annexure TT4 attached to the affidavit of the father filed 19 January 2011
For the reasons which follow, I find that the mother is likely to have significantly downplayed the seriousness of what happened on the night in question. In addition, I find that she has attempted to minimise the level of her alcohol consumption and excuse the behaviour of Mr S towards her in the period prior to her deciding to drink and drive, which ultimately led to her arrest at the [M] Hotel.
In cross examination, the mother accepted that it was untrue that she had only had a single beer whilst eating. She indicated that she had four or five beers, after she had completed her [work] shift at [omitted]. Importantly, she also indicated that she was unwilling to return to her home following the completion of her shift because she had been earlier involved in an altercation with Mr S.
I found Ms Felton’s account of this incident to be unsatisfactory. Certainly, Ms Felton did not allude to the incident in her affidavit material. I am also concerned that Ms Felton has down played the significance of the matter. This causes me to question the overall frankness of her evidence concerning Mr S and his behaviour towards her.
In cross examination, Ms Felton deposed that Mr S had been drinking on the day in question. She also indicated that he had thrown a cup, which had “bounced” into a window causing it to smash. She acknowledged that this had “really annoyed” her but she denied that it was a violent outburst directed towards her. The implication being that there was something accidental in the window being broken.
Nonetheless, Ms Felton was not prepared to return to the house following her shift. For this reason, [Z], [C] and [X] were at the [workplace], whilst their mother was working there and had an evening meal there. The children were also with their mother, when she acknowledges that she was drinking, after her shift had been completed.
The mother has given several accounts of her level of alcohol consumption. In her initial affidavit she referred to one beer consumed with food. In cross examination, she indicated she had five or six beers, after finishing her shift at work. To Families SA workers, she indicated having had about a dozen beers, some of which she had consumed earlier with Mr S. This had led to the two of them having an argument with one another, culminating in Mr S throwing a glass, which had smashed a window, sending glass and alcohol all over the kitchen.
Whether the mother’s account of her alcohol consumption, given in cross examination, is accurate, is unclear to me. I note however that the mother was held in custody, following her arrest at the [M] Hotel, for a period of around eight hours and was noted to be grossly intoxicated. In my view, the evidence indicates that she was severely impaired by her alcohol consumption on the night in question.
Following this episode of alcohol consumption, either at the mother’s place of work or earlier, the mother decided to drive with the children, so that they could all stay overnight at a friends residence in [omitted]. Clearly this was an ill-advised action on the mother’s part. She was unlicensed and intoxicated. The reason she provided to the court for not returning to her home was that “she did not want to take the children home to a house with a broken window and a drunken man.” This account is at odds with her earlier description that there was something accidental in the breaking of the window.
In any event, the mother drove with the children in the direction of [omitted]. It is her evidence that she got lost and decided to stop at the [M] Hotel to ask for directions and to use the toilet. What precisely happened at the hotel is unclear to me and, as previously indicated, I am concerned that either the mother is incapable of providing an accurate account of the matter, due to her level of intoxication, or is unwilling to do so.
Mr Taggart does not have access to all the records, which the police compiled in respect of the incident. As charges had been preferred against the mother, the police declined to provide its full file to the father’s solicitors, until such time as the charges against Ms Felton had been finalised. The mother apparently pleaded guilty to a charge of assaulting police and driving under the influence, shortly prior to the commencement of the final hearing before me on 10 February 2011. She was fined in respect of these matters.
Mr Taggart’s solicitors were however provided with details of evidence from two persons, who were present at the [M] Hotel on the night in question, both of whom asserted they had been assaulted by the mother but who apparently declined to proceed with charges against her.
One of the people, a woman working at the hotel, stated that she had been pulled to the ground by the mother and slapped in the face. The reason this person gave for not wishing to press charges against the mother was as follows:
“I think she is in enough trouble, she’s got enough problems. Also, she knows where I live. My son and her son are friends and go to school together. She has already been phoning me to say that I should tell the truth. I am worried that she may cause a problem if I go ahead with it.”
The other person was a patron of the hotel. He says that he went to assist bar staff, who were involved in an altercation with the mother. He asserts that he was punched six times in the face and kicked in the testicles by the mother.
The mother, in cross examination, indicated that she could not remember what time she was at the hotel. It could have been at 10:45pm, which of course would have been a late night for [C] and [X], who had school the next morning.
What triggered the altercation at the hotel is unclear to me. To Families SA workers, Ms Felton said that she could be “a bit of a smart arse and had said a few things in the pub.” What followed seems to have been an unpleasant and violent melee, which lasted for some time.
Ms Felton sustained a large black eye and had other bruising and lacerations to her face and body.
In my view, although I cannot be certain, it is not beyond the bounds of the possibility that the altercation began when bar staff and patrons at the hotel attempted to stop the mother driving away in her car, with the children, when she was obviously seriously intoxicated and the mother took umbrage at what she perceived to be unwarranted interference.
What is also clear is that the children, including [X], witnessed the incident and were distressed by it. They would have also seen the obvious injuries to their mother’s face. In these circumstances, it seems irrefutable that [X] and indeed [C] would have been traumatised by the incident.
The children were reported by Families SA workers as saying that they had seen “their mother being dragged along the ground. Mum drove around the corner and men were kicking mum’s door and shouting … two men were yelling ‘get out of the car’. Mum drove away, turned around, the guy was punching and kicking her, they tried to close the car door on mum’s legs.”
It also seems to be the case that a number of police officers were required to arrest and restrain the mother, when they arrived at the hotel. It also seems to be the case that Ms Felton had to be lodged in the police cells at the [omitted] police station. The children spent the night at the police station, whilst their mother was incarcerated.
[X] confirmed to Mr M that her mother had been involved in a fight at the [M] Hotel, which [X] had seen and which had been “very scary” and had resulted in the children having to sleep at the police station. [X] also said that the incident had occurred “late at night.” The Families SA incident report notes that the children reported that their “mum and Mr S fight on occasions and the girls get scared when this happens.”
[X] in particular, stated that “they sometimes push and shove each other.”[19] Again, this was a theme taken up by Mr M in the family assessment report. He asked [X] why the family had had to move away from [G]. Mr M reported his interchange with [X] about this incident as follows:
“The writer asked [X] why the family had to move. She answered, “Someone we lived with had a fight with Mum.” The writer asked her who this was. [X] said, “[Mr S]”. He [sic] writer asked if her mother and Mr S fought very often. [X]’s said that they did. The writer asked her if she saw them fighting. [X] explained, “Most of the time we were in bed. My sister who is twelve shared the room with me. You could hear them. It was scary. We blocked our ears so we couldn’t hear them.”[20]
[19] See annexure TT4 annexed to the father’s affidavit filed 19 January 2011
[20] See family assessment report dated 5 November 2010 at page 10
The Families SA incident report notes that Ms Felton said to workers that she had ended her relationship with Mr S and he would be moving out of her household in [G]. Ms Felton was also reported to be on “mood stabilisers for bi-polar disorder and depression.” Ms Felton says she cannot remember telling the worker she was “bi-polar” and believes the worker may have “guessed it”.
Ms Felton has a significant criminal record including for offences involving violence. I do not know the circumstances of these offences but given this history and the evidence of Mr Taggart, which I have accepted, that he was the victim of frequent assaults by the mother, I find it difficult to accept Ms Felton’s evidence that what occurred at the [M] Hotel was an isolated aberration on her part or she was the innocent victim of the violence of others.
In addition, given Mr Taggart’s evidence about the mother’s alcohol consumption, during the parties’ relationship and the obvious causal connection between alcohol consumption and what occurred at the [M] Hotel, I also find it impossible to accept the mother’s evidence that she is currently a moderate social drinker.
Events since the [M] Hotel incident
Mr Taggart, for self apparent reasons, was gravely concerned about being contacted by Families SA, in respect of what had happened at the [M] Hotel. His concerns were intensified when the incident was reported in the local press. It was his perception that the mother was not being frank about what had happened, particularly when she denied any wrong doing on her part.
It is Mr Taggart’s evidence that the mother’s arrest had a profound affect on [X], particularly because she had seen directly what had happened. Mr Taggart deposes that [X] told him that “[C] and [Z] hid under the blanket. I didn’t. I got to try and remember what happened.”[21]
[21] See father’s affidavit filed 19 January 2011 at paragraph 90
The implication of this latter statement being that the mother had told [X] that she ([X]) might have to be a witness, when her mother brought proceedings against the police for wrongful arrest. Mr Taggart’s evidence is that [X] mulled over the incident in her mind and was worried about it for some time.
Families SA were obviously aware of the incident at the [M] Hotel and its implications for [Z], [C] and [X]. Findings of neglect and emotional abuse were substantiated in respect of each of the children. However, for reasons for which are unclear to me, Families SA declined to take any further action in respect of the children.
Around this time, Mr Taggart began to have other concerns relating to [X]’s irregular attendance at school. I have been provided with details of [X]’s school attendance for the second half of 2009, as well as for the first portion of 2010, at the [G] Primary School.
[X] was absent from school for nineteen days from 28 May 2009 until the school year ended in December, including for three days following the incident at the [M] Hotel. In my view this is a significant period of time and likely to have had an adverse influence on her performance in the class room.
[X] left [G] Primary School sometime around the start of August 2010. The records shows that [X] was absent from school on around thirteen occasions for the period from 3 February 2010 until 4 August 2010. This period coincided with the time the mother’s relationship with
Mr S seems to have been at its most volatile.
She was absent for fourteen days, in the second half of 2010, after she commenced at the [F] Primary School, although it should be acknowledged that she had to attend medical appointments on four of these occasions.
In January 2010 Mr Taggart and Ms H took [X] on holiday with them to [B], where Ms H has lived in the past and where she has family. [X] had some respiratory problems, whilst she was away, and Ms H took her to a doctor, who prescribed a ventolin puffer. This intervention seems to heightened tensions between Mr Taggart and Ms H on the one hand and the mother on the other. Ms Felton is critical that Ms H, rather than Mr Taggart, took [X] to the doctor.
It is the evidence of Mr Taggart and Ms H that, following the holiday to [B], Ms Felton was unwilling to allow them to spend time with [X]. Mr Taggart was also concerned, from what [X] had told him, that she had witnessed arguments between Mr S and Ms Felton.
Against this background, he contacted the Family Relationships Advice Line – Telephone Dispute Resolution Service, as he had been advised to do, to see if Ms Felton would be willing to take part in a process of family dispute resolution. Ms Felton did not attend the scheduled conference and Mr Taggart was granted a certificate to this effect on 6 January 2009. The existence of such a certificate is a pre-cursor to a person being able to institute proceedings, in court, in respect of a family law matter.[22]
[22] See section 60I of the Family Law Act
At some time in January of 2010, Mr S moved out of Ms Felton’s home in [G]. Mr Taggart was relieved. However, he continued to be concerned that the mother stayed overnight at Mr S’s house, from time to time and [X] went with her. [X] indicated that she had to sleep on the lounge, at Mr S’s house, because he did not have a bed for her.
Against this background, Mr Taggart commenced proceedings, in this court, on 19 March 2010. His application was made returnable on 27 April 2010. Ms Felton did not formally respond to this application until 2 June 2010. However, on 7 April 2010, the father learned that Ms Felton and the children had moved to an address in [L], where Ms Felton’s stepfather lived.
Ms Felton has not been particularly frank about the reason for this move. She, [Z], [C] and [X] were at [L] for between three and four weeks and [X] was enrolled at the [P] Primary School.
In cross examination, Ms Felton acknowledges that the reason she moved to [L] was because Mr S had been violent towards her. In hindsight, she conceded that he (Mr S) had constituted a risk to [C] and [X] and the change of school had been very disruptive to them.
The mother finally responded to Mr Taggart’s application to the court, shortly prior to the time it was scheduled for interim hearing, which was 1 June 2010. It is instructive to note that she made no reference whatsoever to the circumstances which had led her to relocating the children to [L]. Nor did she confide the reason in Mr Taggart, whom she mistrusts as a result as what she believes is his unwarranted medalling in her affairs.
In her affidavit, filed on 2 June 2010, Ms Felton denied that she had ever lived with Mr S or that the children had been exposed to any violent arguments between her and Mr S. She specifically denied that Mr S had ever dragged outside any household, which she shared with him.[23]
[23] See mother’s affidavit filed 2 June 2010 at paragraphs 18-19
Ms Felton painted a very different picture of her relationship with Mr S in an affidavit, which she provided to the [omitted] Police Station, on
7 April 2010.[24] In this affidavit, Ms Felton complained that Mr S had behaved violently towards her on 31 March 2010.
[24] See exhibit D
To police, Ms Felton indicated that she had been living with Mr S for the past two or three weeks, whilst her house in [G] was being renovated. She described Mr S as “a bad user of speed and has been for years”.
On 31 March, Ms Felton found Mr S to be really drunk. She indicated that she could tell he had been using “speed”. In this state, he grabbed her around the throat with both of his hands and forced her backwards, out of the house. Ms Felton considered that, due to his level of intoxication, Mr S might not have known who she was. She did not ascribe any reason for the assault to the police.
Ms Felton completed her description of the assault as follows:
“Then all of a sudden he gave me a huge shove and pushed me with all his might out the front door. I was airborne. I landed on my coccyx bone and then fell backwards and hit my head on the cement. He then came up to me and put me in a head lock with his arm and he dragged me around to the back of the house through the back gates. My head was bleeding quiet [sic] a lot, dripping everywhere. He dragged me into the garage and threw me into his car, the silver magna and he drove me to my house at [address omitted]. Once the vehicle was stopped he pushed me out of the car and onto the footpath which is low and then drove off.”
Ms Felton considers that she suffered concussion as a result of this assault. She also describes having a large gash or cut, on her head, which bled for around a fortnight. It is an inescapable conclusion that this wound would have been visible to [X] and [C] and they would have known who inflicted it on their mother.
Notwithstanding this assault, on or around 1 May 2010, Ms Felton returned to live in [G] and resumed her relationship with Mr S. Again, it is my finding that Ms Felton has not been frank about this occurrence, either with the court or Mr Taggart. This is a matter of some concern to me, particularly given the current controversy as to whether she has or has not finally severed her connections with Mr S.
It seems the only conclusion that can be drawn from comparing what Ms Felton deposed in her initial affidavit to the court and the statutory declaration she prepared for police on 31 March 2010 is that Ms Felton has been grossly untruthful, both to this court and Mr Taggart, about the true nature of her relationship with Mr S and why she moved to [L] and then back again to [G].
This is one of the more significant considerations in this case. On any view, Mr Taggart proposes an enormous change for [X]’s life and care, which would involve her being separated from both her mother and her siblings. How [X] would react to such an outcome must be uncertain.
Mr M considered that she might feel guilty at her perception that she had abandoned her mother. This might lead to some form of grief reaction. He also considered it not beyond the bounds of possibility that [X] might feel relieved at having her living arrangements changed.
However, on balance, Mr M thought that [X] was likely to need professional support and counselling, if there was a significant change in her living arrangements. He also thought that it was probable that her performance at school might suffer and she might act out her distress, at leaving her mother’s household, through acts of aggression and disobedience directed towards Mr Taggart and Ms H.
Mr M also considered that Mr Taggart himself would have to adjust to a change of role, so far as [X] was concerned. Both he and [X] would have to adapt to a relationship where Mr Taggart, in conjunction with Ms H, was [X]’s primary carer.
I am of the view that Mr Taggart, in conjunction with Ms H, has the required skills and necessary insights to rise to this challenge. In addition, I am satisfied that Mr Taggart is likely to access appropriate services, primarily CAMHS, to enable both him and [X] to adapt to this change.
However, the most significant consequence of a change in [X]’s living arrangements is the strong possibility that it will lead to an irremedial rift opening up between her and [C]. [C] may align herself, with her mother, against Mr Taggart and [X], whom she perceives as having wrongfully abandoned her. The long term significance of this, for [X]’s well being, cannot be underestimated.
As the evidence, in this case, concluded, Ms Felton indicated her intention to move to [M] to be close to [X] in the event the court determined that she should live with Mr Taggart. This was notwithstanding the effect this would have on her accommodation and educational arrangements for her other children. Ms Felton is likely to act impulsively.
Given that Ms Felton is hardly likely to be supportive of an outcome, which sees [X] living predominantly with her father, she is also likely to do whatever is in her power to sabotage the placement. This is likely to put [X] under an intense level of emotional pressure, particularly if she is living in the same small country town as her mother and siblings.
In this context, with the support of Mr M, Mr Taggart proposes that [X] be quarantined from her mother and siblings for a lengthy period of time before a regime of professionally supervised time is commenced. If Ms Felton is living in the same community as Mr Taggart, this may not be a workable solution to the difficulty arising from this dynamic in the parties' relationship.
In addition, the potential for [X] to lose a warm and intimate relationship with her siblings, as a consequence of a change in her current living arrangements, is an outcome which cannot be easily dismissed. It may have consequences for the remainder of her life.
The relationship between siblings is one of the most significant of all human relationships. Such relationships often endure for the entire lives of the brothers and sisters concerned. Changing [X]’s living arrangements has the potential to place her and [C] – a child with whom she has shared the whole of her life to date – in different and vehemently opposed camps. It may be impossible for the existing love between the sisters to bridge that gap.
I hope that I have not under-estimated the significance of this relationship for [X] but I have come to the conclusion that other protective concerns I have for her outweigh this consideration. As I have already indicated, I think I would be derelict in my responsibility for [X], if I left her in a situation which I assess to be potentially unsafe because of my concerns for [C] and the relationship between the two sisters.
e) The practical difficulty and expense of the child spending time with and communicating with a parent
In geographical terms, it is not a large distance between the mother’s home in [H] and the father’s home in [M]. However, given the parties’ current financial resources and access to motor vehicles, it is an expensive exercise for them to negotiate the distance. In the mother’s case, given her lack of a driver’s licence, she will be reliant on others to transport her.
Were it not for the fraught parenting relationship between the parties, there would be few practical difficulties arising in [X] being able to spend quality time with each of her parents regularly and indeed with her siblings.
The impediments to the children having a viable relationship with one another and [X] having a good relationship with each of her parents do not arise from logistical considerations alone. Rather what impediments exist are seated in the parties’ mistrustful relationship with one another. Both Mr Taggart and Ms Felton consider that they have ample reason to mistrust the other.
f) The capacity of the parties to provide for the child’s emotional and education needs
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
These considerations are so closely related that it is convenient to consider them together. At this juncture, I consider that Mr Taggart is better placed to provide for [X]’s educational needs. He is more likely than Ms Felton to ensure that [X] attends school regularly.
[X]’s attendance at school during 2009 and 2010 has been poor. No satisfactory explanation has been given for this poor attendance, which is tantamount to neglectful parenting. During this period, Ms Felton has moved on several occasions, resulting in a change of school on [X]’s part. I consider Mr Taggart is likely to be able to provide [X] with a more secure and settled environment in which to grow up.
In addition, for reasons already provided, I am satisfied that Ms Felton has exposed [X] to serious violence in the past. Most significantly this occurred at the [M] Hotel, on which occasion I am satisfied that
Ms Felton demonstrated a derelict attitude towards the proper responsibilities of being a parent and put [X] at risk of sustaining serious long term emotional harm.
It was extremely poor parenting for Ms Felton to drink and drive, whilst she had the children in the vehicle with her. This ill considered conduct was exacerbated by the fact Ms Felton does not have a driver’s licence. It seems highly probable that she has transported the children in the past, whilst being unlicensed.
For reasons already provided, I do not accept it as being likely that
Ms Felton was a victim of unprovoked violence on this occasion. It seems more probable than not that her own conduct precipitated the violent altercation, which distressed [X]. The incident happened on a school night when [X] should have been safe in bed.
Above all, it seems likely that the mother was on the road because she was fearful of returning home to Mr S – a person whom she had categorised as a persistent abuser of amphetamines and alcohol. Yet after this incident, she continued her relationship with him, in spite of him continuing to use drugs and be violent towards her. Accordingly, I do not consider the incident at the hotel was an isolated aberration in Ms Felton’s life.
After November of 2009, she continued to expose [X] to Mr S’s criminal and anti-social behaviour. The evidence reveals that she has had to take flight from him on at least three occasions. Yet she has returned to live with him. As such, she presents as a poor role model for [X], who will be influenced by her mother’s behaviour in how she forms relationships and interacts with male partners, when she is an adult.
[X] has expressed fear at Mr S’s behaviour towards her mother. [X] has been cast into a role where she feels protective towards her mother and wants to assume responsibility for her safety. It is an untenable role for a child of [X]’s age to discharge. It has left [X] anxious, waiting ever vigilant for the next crisis in her mother’s life to appear.
Experience for [X] has shown that she has right to be fearful and anxious for her mother, who has continued to be involved with Mr S. Again, for reasons already delineated, I remain concerned that
Ms Felton has not terminated her relationship with Mr S. As such, I am satisfied that Ms Felton has demonstrated both a compromised attitude to the responsibilities of being a parent and an impaired capacity to provide for [X]’s emotional needs.
g) The maturity, sex, lifestyle and background of the child
I do not think that Mr Taggart’s sex, of itself, disqualifies him from being the principal carer for [X], who is on the cusp of puberty. [X], at ten years of age, is an active child. Mr Taggart and Ms H are each in their early sixties.
It is also the case that Mr Taggart lives with a significant level of disability because of his back injury. I do not think that either
Mr Taggart’s age or his level of disability should act as a disqualifier, so far as him being considered as the parent more appropriate to provide the home where [X] lives predominantly. I am satisfied that Mr Taggart and Ms H can supply an appropriate lifestyle for [X], who is familiar with living in a rural setting.
h) Aboriginality
This is not a relevant consideration.
j) Any family violence
k) Any family violence order
I do not proposed to revisit these criteria, which I have already considered under the primary considerations, other than to say that matters relating to family violence and its emotional consequences for [X] are at the centre of these reasons for judgment and the orders which follow from them.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
For obvious reasons, finality is preferable in children’s cases. Litigation is expensive and draining emotionally for those involved in it. However, some cases are, by their nature, so fraught with difficulty that it is simplistic to consider that an order can be made which will preclude the possibility of any future litigation.
This case does not offer an easy or obvious outcome. In my view, the proposals of both the father and the mother are fraught with all manner of difficulties and outcomes, which are as yet unknown and unforseen. As I have stated earlier, I have reservations about the durability of the mother’s current alliance with Southern Domestic Violence and fear that the two will fall out.
In addition, I have concerns that the mother’s history of involvement with violent men, including Mr S, will repeat itself, as it has done in the past. Both these eventualities are likely to necessitate a revisiting of final arrangements for [X]’s care, if the outcome is that the current status quo is continued.
For the reasons already provided, neither such scenario can be described, in my view, as either an outlandish one or one beyond the reasonable bounds of probability. If either eventuated, it would mean that the emotional upheaval for [X], occasioned by a change in her living arrangements, had been delayed rather than avoided. Necessarily, it is likely to mean another round of acrimonious proceedings between the parties.
The prospect of a change in [X]’s living arrangements, from her mother’s to her father’s household, is also likely to precipitate further litigation between the parties. It would be naïve to think that the current arrangements for [X]’s care can be seamlessly reversed so that she would live with her father and spend time with her mother on weekends and during school holidays. Ms Felton is not likely to accept such an outcome without demur.
Ms Felton has already announced that she will move to [M], if [X] is living with her father there. Although I consider this to be an ill considered and impulsive statement, I do not discount it. This outcome is likely to be highly problematic and to heighten tensions between the parties. It is also likely to presage inevitable litigation between the parties.
For these reasons, Mr M has recommended that no orders be made in respect of [X] spending time with her mother, in the short to medium term – a recommendation which Mr Taggart has adopted. I have already delineated the deleterious consequences of this outcome, so far as [X]’s relationship with her sister [C] is concerned.
Accordingly, such an outcome would represent unfinished business for all concerned, including [X] and [C]. At some stage in the future, it would be necessary for the court to address the issue of the extent of time which [X] should spend with her mother and the conditions, if any, which should attach to it.
One issue which remains outstanding in this case is the mother’s psychiatric condition and its implications so far as her relationship with [X] is concerned. I acknowledge that the evidence about this issue is limited and the prospects of it being fully examined problematic. However, it is, in my view, an important issue.
It seems to me to be essential that the mother is at least given the opportunity to undergo an appropriate psychiatric examination before issues of her spending time with [X] are further and finally considered. Such an outcome obviously necessitates the current proceedings being prolonged.
Conclusions
I have found this to be a distressing and difficult case. I accept that [X] was exposed to serious and repeated episodes of family violence, whilst she has been in the care of her mother. This is the most significant factor in the case.
Although Ms Felton deserves sympathy for the difficult circumstances of her life to date, which have involved other individuals, at one stage or other, having to assume responsibility for the care of her four other children, the exposure of a child to family violence, on a protracted basis, represents a failure of parenting of the most serious kind.[42]
[42] See Re L (Contact: Domestic Violence) [2000] 2FLR 334 at 339
I accept that [X] has been rendered anxious and frightened by this exposure. She has been placed in a role where she has assumed protective responsibility for her mother. She has lived with a sense of dread about what may happen next. The manner in which Ms Felton has responded to this violence has provided a defective role model for [X].
The mother would have it that what has occurred recently in her life is an aberration from the norm and she has responded to its challenges properly by seeking appropriate support and help. Regrettably, in my view, the evidence she has presented in respect of this central issue in the case is incomplete and cursory.
True it is the mother had to flee the violent and corrosive relationship with Mr S. In such circumstances, the government funded social services were right to offer her support and accommodation, but I do not know and am unable to assess whether the mother herself has made any lasting changes in her life. No specific evidence was called from the services themselves in respect of the mother’s response to the counselling offered to her.
For complex reasons, as yet not fully examined, it seems that the mother’s personality draws her into situations involving violence. She would say she was the victim rather than the perpetrator of this violence. In the absence of any comprehensive psychiatric examination, I am unable to determine the truth one way or the other, but I am left with the concern that this aspect of the mother’s life renders her care of a child of [X]’s age deeply problematic.
As such, I assess that there is an unacceptable risk that the mother will re-expose [X] to family violence in future, if she remains in
Ms Felton’s predominant care. I do not think that the evidence led before me demonstrates that Ms Felton has any insight into the emotional and development consequences, for a child of [X]’s age, of being exposed to serious family violence.
Above all, I remain concerned that Ms Felton has not finished her relationship with Mr S and their exists an unacceptable possibility that she believes that she can maintain some form of liaison with him which she can manage without any detrimental consequences for either herself or her children. I do not think that her evidence to the court, about Mr S, was frank or honest.
Given my findings about family violence, the presumption of equal shared parental responsibility is rebutted in [X]’s case. In any event, given the polarised nature of the parties’ current parenting relationship, it is not likely to be in [X]’s best interests that the parties share parental responsibility for her equally.
Accordingly, the court need not consider either equal time or substantial and significant time arrangements for [X]’s care. It is however, I think, self evident that it would not be reasonably practical for [X] to be parented under either such regime at the present time, particularly given the parties’ communication issues and the distance between their respective homes.
I found Mr Taggart to be a kind and gentle person. He was not motivated by any malice towards Ms Felton. Rather, he wants the best for [X] and, as such, was no longer prepared to stand idly by, whilst obvious defects in the mother’s lifestyle repeated themselves.
The home which Mr Taggart shares with Ms H is a safe and happy one. [X] knows it well. Her adjustment to this household has the potential to be very difficult. However, in my assessment, Mr Taggart, in conjunction with Ms H, has the necessary skills and insight required to help [X] make the transition successfully. It is also not beyond the bounds of possibility that [X] will be relieved at the change. In my view, it is also self apparent that [X] will attend more regularly and do better at school, if she lives with her father.
In my view, having found that [X] has been exposed to serious family violence and there is a significant risk that this exposure will be repeated, once the focus provided by these proceedings has been released, it would make a mockery of the provisions of the Family Law Act, if the court did not give pre-eminence to issues of family violence in its decision regarding [X].
Accordingly, after considering the various section 60CC factors, I have come to the view that [X] should live with her father. I think that this outcome will best serve [X]’s interests. However, this outcome is not without its dangers and pitfalls. The most obvious of these is the interruption of the relationships [X] has with her mother, [C], [Z] and [Y] – all of which are important to her.
It is this aspect of the case, which is particularly difficult and problematic. Ideally [X] and [C] should live in the same household, given the proximity of their ages and commonality of experience. However, this outcome is not possible.
My authority, so far as [C] is concerned, is limited. Neither party seeks specific orders in respect of her. My responsibility is to fashion the orders which I think will best serve [X]’s interests. The desirability of [X] maintaining a warm relationship with [C] is a part of this responsibility, which must be weighed and assessed against other considerations set out in the applicable legislation.
I cannot be distracted in this task by considerations relating to [C] alone. Central though [X]’s relationship with her mother and [C] is to her sense of identity, in my view, the harsh reality is that [X] is not safe remaining in her mother’s care and this is the most germane consideration relating to how her interests will best be served.
Ms Felton will be passively and actively resistant to any required protective regime for [X]’s care. For obvious and understandable reasons, she will be resentful at such an outcome. This means there must be a moratorium in respect of [X]’s relationship with both her mother and [C], pending further investigation.
The most significant of these investigations is likely to be a comprehensive psychiatric investigation of Ms Felton, in the light of this decision. It is also likely to be beneficial to [X] herself to provide her with time and space to adjust to her change in circumstances, which on any view will be both a dramatic and sudden one.
Accordingly, I will make orders that will result in [X] living with her father, who should have parental responsibility for her. I will make no specific orders for [X] to spend time with her mother and other siblings at this stage. This outcome dictates that the proceedings should be adjourned.
During this period of adjournment, I will order that the parties do all things necessary to enrol at the [N] Children's Contact Service to ascertain their suitability to take part in the supervised contact program. The adjourned date will be 31 August 2011 at 9:30am.
This is a period of around four months. It will give [X] time to settle in to life with her father. In addition, during this period, it will be open to the parties to obtain a psychiatric assessment in respect of Ms Felton on the basis agreed between them in terms of who the assessor should be and what background material is provided to that expert.
I am aware that this outcome will be highly controversial and deeply upsetting so far as Ms Felton is concerned. It will be difficult for her to accept this decision. For this reason, I will make injunctions restraining her from attempting to contact Mr Taggart, Ms H or [X] and preventing her from attending at [X]’s school.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and forty-seven (447) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 28 April 2011
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