TAGGART & FELTON
[2010] FMCAfam 564
•3 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAGGART & FELTON | [2010] FMCAfam 564 |
| FAMILY LAW – Interim arrangements for care of child aged nine years – allegations of neglect and exposure to family violence – nature of interim hearing – assessment of risks arising for child – assessment of evidence available at the interim stage – whether risk of harm occurring to child unacceptable in all the circumstances – consideration of section 60CC factors – best interests – application of presumption of equal shared parental responsibility at the interim stage. |
| Family Law Act 1975, ss.4, 60B, 60CC, 61DA, 61DB |
| Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR TAGGART |
| Respondent: | MS FELTON |
| File Number: | ADC 1025 of 2010 |
| Judgment of: | Brown FM |
| Hearing date: | 1 June 2010 |
| Date of Last Submission: | 1 June 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 3 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Mason Westover Homburg |
| Counsel for the Respondent: | Ms Gilbert |
| Solicitors for the Respondent: | Graeme D Hemsley |
UNTIL FURTHER OR OTHER ORDER
The child of the relationship [X] born [in] 2000 live with the mother.
The aforesaid child live with the father as follows:
(a)During term time from the conclusion of school on Friday until school recommences the following Monday in alternate weeks of each fortnight and in the other week of each fortnight from after school on Wednesday until school recommences the following Thursday;
(b)For half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half in 2010 and the second half in all school holidays commencing in 2011; and
(c)In the event that Father’s Day falls on a weekend when the child is not in the father’s care pursuant to these orders between 11:00am and 4:00pm on Father’s Day.
In the event that the child is in the care of the father on Mother’s Day the child will spend time with the mother between 11:00am and 4:00pm on Mother’s Day.
In the event that the parties are unable to agree on arrangements for the child to spend time with each of them on her birthday ([date omitted]) and on Christmas Day, the child will spend from midday on 24 December until midday on 25 December in 2010 with the mother and from midday on 24 December until midday on 25 December in 2011 with the father.
The mother is retrained and an injunction issues restraining the mother from changing the child’s enrolment from the [G] Primary School without the written consent of the father.
The father is to have telephone communication with the child at 6:00pm on each Sunday when the child is not in his care.
The mother is to have telephone communication with the child at 6:00pm on each Sunday when the child is not in her care.
The mother is to ensure the child’s attendance at the [G] Primary School for each day school is in attendance unless the child is unable to attend school for legitimate medical or other reason proof of which shall fall on the mother to provide in the form of a medical certificate from the child’s treating medical practitioner or some other legitimate source.
The parties are to keep the other informed of their current residential address and contact details, including details of applicable telephone numbers, both mobile and landline.
The father is entitled to attend all occasions and functions at the child’s school which are routinely attended by parents.
The mother is directed to authorise the principal of the child’s school to provide to the father, at his own expense, copies of the child’s school reports and any school photographs pertaining to the child.
The parties are each restrained and an injunction issues restraining each of them from denigrating, abusing or threatening the other in the presence or hearing of the child or permitting any other person to do so.
IT IS FURTHER ORDERED:
The parties competing applications be fixed for final hearing on 10 & 11 February 2011.
The parties jointly commission a suitably qualified expert, the identity of whom is to be agreed between the parties and failing agreement to be as nominated by the court, to complete a family assessment in this matter to be completed on or before 15 October 2010.
The matter be further listed on 29 October 2010 at 9:30am.
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 temporary arrangements for the care of [X] until there can be a full hearing of all the issues which each party has raised about the other’s care of [X]. Lawyers refer to such a hearing as an interim one.
Interim hearings have to take place in a shortened form. There is no time available for the cross examination of the parties concerned. In addition there is usually insufficient time for all the available evidence to be to hand. The most common evidence, which is not available at the interim stage, is in the form of subpoenaed documents and any expert assessment which has taken place of the family concerned.
These types of evidence, coming as they do from independent sources, are very often central to the resolution of parenting cases at the final stage. In addition, for obvious reasons, at the final hearing stage, the parties concerned have more time to prepare their cases and call all the necessary witnesses. Necessarily, the final hearing is a longer one than the interim hearing which allows the court to make any necessary findings of fact – essentially deciding if it believes one party or one witness over the other.
The hallmark of many, if not all, interim hearings concerning children, is that they arise against a background of emergency after some crisis has arisen in the lives of the parties involved, most often their separation or some other significant event. As a result emotions are often at their most raw and it is difficult for parents to maintain a degree of objectivity about what exactly has happened up to that stage. In such circumstances, it is only natural that one parent will think the worse of the other and assume that the worst has happened or is likely to happen to any children involved.
Such situations also cause great difficulties for the court. It may not be able to make findings of fact about issues in dispute between the parents concerned because all the evidence needed to make such findings is not as yet to hand. Yet the urgency of the situation and the degree of conflict and disputation between the parents concerned require that a decision be made.
The process of decision making, at the interim stage, has been likened to what occurs in the emergency room of a hospital. The court’s responsibility is to stabilise the situation as best it can, so that, if necessary, further and more detailed attention may be given to the case at a later stage. If you like, after triage, the case can be referred on for more specialised treatment later.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
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.
In the case of Goode & Goode[1], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[1] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
The presumption set out in section 61DA is a complex legal concept. In essence, the law requires the court to presume that it is the best interests of any child, whose parents bring an application before the court about parenting arrangements for that child, to have equal shared parental responsibility for him or her. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
The parties’ proposals
Mr Taggart seeks that the court should apply the presumption of equal shared parental responsibility to him and Ms Felton, in their on-going care of [X]. Essentially he points to the fact that as he and the mother have not had to have recourse to the court orders, in the five years since they separated, it is self apparent that they are able to make decisions about [X] effectively.
If the presumption is applied he would want [X] to spend substantial and significant periods of time with him [section 65DAA(3)]. In this regard he proposes from after school on Wednesday until the commencement of school the following Monday, in alternate weeks; and for half of each school holiday period.
In addition, he wants the court to make an injunction restraining the mother from changing [X]’s place of schooling away from the [G] Primary School. The intention being that Ms Felton and [X] would continue to live in [G]. He also wants to be able to have a telephone conversation with [X] at 6.00 pm on the Sundays when she is not otherwise in his care.
The basis of his application for substantial and significant time is his recognition that, up to this stage, Ms Felton has undoubtedly been [X]’s primary carer. He also concedes she ([X]) has a close relationship with [C]. As such he acknowledges that it would not be appropriate for [X] to be parented in an equal time arrangement or for her to come and live predominantly with him at this stage.
In the longer term, Mr Taggart wants orders that would see [X] living with him and spending time with her mother at times to be agreed between the parties.
Given the circumstances surrounding the parties coming to court in the current matter, it seems to me to be somewhat simplistic for Mr Taggart to argue that the absence of previous court orders alone is indicative of the parties having a viable parenting relationship to sustain a substantial and significant time regime for [X].
As an alternative route to the interim outcome he seeks, if the presumption of equal shared parental responsibility is not to be applied, the father argues that the protective issues which he has raised about the mother’s parenting of [X] should dictate that [X] spends significant periods of time in her father’s care to protect her from coming to harm.
The mother’s position is that she should have sole parental responsibility for [X] and [X] should continue to live predominantly with her. She proposes that [X] should spend time with her father on alternate weekends during school time from 5.00 pm on Friday until 5.00 pm the following Sunday and for half of each school holiday period, as well as on agreed special occasions.
Background and agreed issues
The father was born [in] 1949. He is a retired [occupation omitted]. He lives with his partner Ms H in [M]. She is a retired [occupation omitted].
The mother was born [omitted] 1970. She is employed [in the hospitality industry]. Presently she is living with her partner Mr M in [G]. Mr M is [employed in the transport industry]. Neither Ms H nor Mr M has provided an affidavit so far in the case.
The parties met in February 2000. The mother has three children from earlier relationships. They are [Y] born [in] 1991; [Z] born [in] 1991; and [C] born [in] 1998. [C] has mainly lived with her mother. [Y] and [Z] have lived with their father in the past. Currently [Z] is living with the mother. He is a student at [O] High School.
The parties separated in 2005. [X] and [C] continued to live predominantly with the mother. Up to this stage, there have been no court orders or parenting plans in place in respect of arrangements for the care of [X].
Considerable controversy exists in respect of how often [X] saw her father following the parties’ separation. The mother says that it was only fairly recently [X] began to spend time with her father on weekends. It is her case that she and [X] “would go months without hearing from the father” and then occasionally he would attend at her home at [omitted] to collect [X] so the two could spend time together. She also says that for the first two years of the parties’ separation,
Mr Taggart did not see [X] at all. The father says that he saw [X] on “most weekends”. This is one of many disputes between the parties, which cannot be resolved at the interim stage.
The father has been living in [M] for the past three years. The mother has been living in [G] for at least a year. The two locations are separated by a drive of between 20 and 25 minutes. [X] has been attending [G] Primary School. She attended [P] Primary School for about a week at the end of April this year. At the time the mother had moved to live with her step-father at [L] in the southern suburbs of Adelaide. The mother concedes that she has now resumed her relationship with Mr M in [G].
The mother’s case is that it is only since July of 2009 that the father has regularly spent alternate weekends in her father’s care. She also asserts that [X] is reluctant to go to spend time with her father unless [C] accompanies her. It is common ground that the father and [X] had a two week holiday together in [B] in January 2010.
The mother was involved in an incident at the [M] Hotel on 19 November 2009. The police were called to the incident. The mother concedes that she was injured in the incident and was charged by police with failing to provide a sample of her breath sufficient for breath analysis. The father’s awareness of this incident seems to have been one of the factors in him commencing these proceedings, which he did on 19 March 2010.
Prior to 19 March, the father had unsuccessfully attempted to involve the mother in a process of family dispute resolution. The mother says she did not know about the appointments which had been arranged.
The mother was served with the father’s application on 12 April at an address in [L]. She had not filed any answering material to the application prior to the first directions hearing on 27 April 2010.
On this occasion the parties agreed – the mother was represented by the duty solicitor – that [X] would continue to live with her mother and spend time with her father on alternate weekends from 5.00 pm Friday until 5.00 pm the following Sunday. She was to be exchanged between the parties at a shop in [omitted].
It was further ordered that the parties attend a child dispute conference on 27 May 2010 pursuant to section 11F of the Family Law Act. The family consultant concerned, Ms Derrington, reported that the parties were unable to reach any agreement about the issues in dispute between them. Ms Derrington recommended that both parties should attend some form of post separation parenting course. She reported as follows:
“It became clear that these parents have some fundamental communication deficits in regards to their overall parenting of [X], and that they may not understand how crucial it is that as separated parents they are able to communicate in a manner which quarantines their daughter from their dispute.”
The court allocated 1 June 2010 at 4.00 pm as the time scheduled for the hearing of the parties’ competing interim applications. The mother’s solicitor faxed her answering documents to the court shortly prior to midday on the day scheduled for the interim hearing. The father did not have a chance to respond to this material. The mother did not have an opportunity to respond to two brief affidavit filed by the father, which dealt with issues arising as a result of the mother’s temporary move to [L].
Both parties currently agree that their competing final applications should be fixed for final hearing as soon as is reasonably practicable and some form of family assessment undertaken in respect of [X] and her relationship with each of them. Both parties are legally aided and the cost of such an assessment will come out of the funds allocated to them respectively to finance these proceedings. The parties both agree that it is not appropriate that [X] be independently represented in the case.
Matters in dispute between the parties
It is difficult for me to form a complete narrative of what has occurred in the parties’ relationship, since they separated around five years ago, other than that [X] has lived predominantly with her mother and sister [C]. This is the most important strand of the mother’s case. By necessary implication, it is her case that there have been no problems in the period in question and, as such, the court can have some confidence in her parenting ability.
It is clear that, in strictly historical terms, the father has not raised specific criticism of the mother’s parenting of [X] between 2005 and the period starting in mid 2009 when, on the mother’s case, he began seeing [X] regularly on weekends.
Although the father has criticisms of the mother’s behaviour during the parties’ relationship, the major thrust of his case is centred on what he says are serious problems in her parenting which have come to his attention in the last six to nine months. Essentially, it is his case that the matters about which he has some knowledge, either from the mother herself or from [X], are likely to be the tip of an iceberg of compromised parenting about which the court should be very concerned.
The mother’s affidavit material has all the hallmarks of being hastily prepared. She has chosen to refute each of the father’s specific allegations against her but has not elected to provide a coherent history of what has been happening in her life, particularly in terms of her relationship with Mr M. Mr Taggart makes much of this omission, submitting through his counsel that what the mother elects not to disclose is likely to be more significant than what she does.
In line with what Ms Derrington reports, it is my impression that the parties do not communicate well and currently do not trust one another. The father is not welcome in the mother’s home and vice versa. The parties’ relationship is one characterised by hostility and mistrust. As such the father is unlikely to know precisely what is occurring in the mother’s home from his own knowledge. It may also be imprudent of him to rely on everything [X] tells him as being accurate. As I have already observed, such a situation provides fertile ground for the fertilisation of fears and suspicions.
The father’s criticisms of the mother can be summarised as follows:
·During the parties’ relationship, the mother drank to excess and regularly became argumentative and physically abusive.
·She moved house regularly and did not inform him of her changes of address.
·The mother has refused to allow him to spend time with [X] without valid reason.
·[X] has been exposed to violent arguments been the mother and Mr M.
·
[X] sleeps on the floor at the accommodation the mother and
Mr M currently occupy.
·The mother’s recent move to Adelaide is symptomatic of her unstable and violent relationship with Mr M and he is concerned that she has recently resumed it.
·The father is also concerned that the incident of 19 November is also symptomatic of a deep level of dysfunction in the mother’s life and raises the following issues, which he contends the mother has not adequately answered:
Ø why was the mother on licensed premises with [X], [Z] and [C], at night? Was she fleeing from Mr M?
Ø was she drunk?
Ø did she start the altercation which resulted in her being injured?
Ø did [X] witness the incident and, if so, what have been the emotional consequences for her of seeing her mother being assaulted, possibly by a large group of people?
Ø is [X] to be a witness in any subsequent court proceedings?
Ø were the children, particularly [X], placed in crisis care (Families SA) following the incident, whilst the mother was in police custody? If so, for how long?
Ø precisely what has the mother been charged with and what were the circumstances leading to the charge(s)?
·It is the father’s position that [X] has told him that she has seen Mr M behaving violently towards her mother. As such, he is concerned that she and Mr M have a violent and alcohol fuelled relationship of which the incident at the [M] Hotel is an example.
·The mother regularly goes to hotels to drink and leaves the children unattended.
·[X]’s attendance at [G] Primary School has been extremely poor since May of 2009.[2]
·The mother does not provide breakfast and lunch for [X].
·The mother leaves [X] unattended whilst she goes to work.
·The mother does not have a telephone.
·The mother is either an unlicensed or disqualified driver but nonetheless regularly chooses to drive, often with the children in the car.
·The mother has threatened to move away for [G], either to [U] or [P].
·The mother is secretive about her living arrangement, particularly the nature of her relationship with Mr M and what gave rise to her moving to [L].
·The mother has sent him argumentative and abusive text messages.
·The mother has a serious and not fully disclosed psychiatric condition. (This allegation arose in submissions, as a result of a matter raised by the mother in her answering affidavit.)
[2] The records provided by Mr Taggart indicate that [X] missed 19 days of school between 28 May 2009 and 10 December 2009 and 3 days of school between 3 February 2010 and 5 March 2010.
The mother counters the father’s allegations as follows:
·She denies she drank alcohol to excess during the parties’ relationship or was abusive towards the father. She says he was violent and abusive towards her and in fact she had him charged with assaulting her on one occasion.
·The mother denies that she has issues to do with her consumption of alcohol.
·The mother denies that her relationship with Mr M is one characterised by violence.
·The mother says that she and Mr M had separate accommodation up until 21 April 2010.
·The mother says that [X] and [C] share a bedroom and [X] has her own bed.
·The mother denies that she ever contemplated a permanent move to either [U] or [P].
·The mother concedes that on only one occasion has she driven unlicensed, whilst the children were in the car.
·The mother, whilst conceding that she was involved in a serious incident at the [M] Hotel, has a completely different view of the matter.
Ø She was at the hotel only to use the toilet and to ask for directions.
Ø She was the victim of an unprovoked attack there.
Ø She only hit a man because he grabbed her first.
Ø It was 8.30 pm and [Z], [C] and [X] were in the car with her but did not enter the hotel itself.
Ø After she had been the victim of this attack by a group of people, she returned to the car were the children were located and attempted to drive off, whilst she tried to contact the police on her mobile phone.
Ø It was only because she “had been badly beaten and was concussed” that she declined to undertake a breath test. The implication of this evidence presumably being that she was not intoxicated.
Ø She was taken to the police station, as were the children but she does not clearly recall what happened. She understands that the children remained with her at the police station.
Ø In this regard, the mother contends that “the children were never in crisis care. The children were taken out to breakfast by Crisis Care who also took us all home.”
Ø [X] and [C] did not see what happened at the hotel because they hid under a blanket.
Ø The mother concedes that she posted some account of the incident on Facebook, which apparently included a photograph of herself with a black eye.[3] However she says she did so only so her sister, who lives in London, could know what had happened to her.
Ø She denies that she has any form of compensation claim on foot and that [X] will be a witness in such proceedings.
·The mother denies leaving [C] and [X] unattended. She concedes that she does go out from time to time but, if she does, she leaves the children in the care of [Z] or [Y], who are both over seventeen years of age.
·The mother denies that she has moved as frequently as the father contends. She says she has moved only three times, which is not unreasonable.
·She denies that [X] is not provided with breakfast and lunch. She says [X] is provided with plenty of fresh and healthy food.
·She may not have a landline telephone, but she does have a mobile phone, on which she and the children are readily contactable.
·The mother has indicated that she has been prescribed the drug sodium valproate as a result of suffering major depression as a result of suffering a post-traumatic stress disorder. (This disclosure resulted in the father’s counsel raising concerns that the mother had not previously been completely frank about her psychiatric health and still had not disclosed the full extent of her illness.)
·The mother concedes that [X]’s attendance at school has been compromised. However, it is her case that [X] suffers from chronic tonsillitis, asthma and is prone to chest infections. As such, she has missed school for legitimate reasons related to her health.
[3] See annexure B to the father’s affidavit.
The mother has her own criticisms of Mr Taggart. She says that [X] became quite unwell, with a chest infection, whilst she was on holiday with her father in [B]. She is critical that it was Ms H rather than the father who took [X] to the doctor and Mr Taggart did not allow [X] to return home with the ventolin inhaler which had been prescribed for her.
However her major criticism is that Mr Taggart did not play an active part in [X]’s life for many years. It is her case that [X] is wary of her father and needs [C]’s reassurance to visit her father. Ms Felton is also critical that the father has not provided more evidence regarding the nature of the relationship between [X] and Ms H.
In all these circumstances, it is the mother’s case that what she proposes represents the maximum amount of time [X] is likely to be able to tolerate being separated from her mother and siblings. It is also her case that the court should have no serious protective concerns about her parenting of [X].
The mother’s account of what happened at the [M] Hotel, untested though it is, did not fill me with confidence. There is much strength to Mr Bowler’s contention that it is an account filled with inconsistencies and unlikelihood and one marked by omissions. However the father was not there to witness what happened and, as yet, there is no independent and objective account available as to what actually happened.
However, it is clear that [X] was at [M] on the night in question and was taken to the police station afterwards. What will be the long term consequences of the incident for her remains unclear. Neither the mother nor [X] is likely to provide the father with a completely reliable version of what happened. At this stage I am unable to make any concluded finding of fact about the matter and as such must be cautious about it.
Neither party has had time to subpoena records from the police about the incident and I do not know how any charges against the mother will ultimately lead. The central question for the court remains – was this an isolated incident or evidence of a consistent course of conduct on the mother’s part?
Similarly, there has been no time for the parties to obtain independent and objective evidence about [X]’s health and progress at school. Is she the sickly child Ms Felton describes or is she a child in danger of falling behind at school because of the mother’s lax and compromised parenting as Mr Taggart implies.
The answer is likely to lie, at least in part, with [X]’s medical records and a letter from her teachers, who are likely to have an evidence based view about her well [X] is doing at school and so have a valid opinion about the quality and nature of Ms Felton’s parenting of her. I do not have that material as yet. The same is true of the mother’s own medical records. I must be careful not to conjecture about the nature of her depression and conclude that this illness alone disqualifies her to parent [X].
The essential task for the court, at this stage, is to undertake an appraisal of the risk arising to [X] from Ms Felton’s parenting of her and if there is some risk fashion a response which is commensurate with the degree of risk involved. I must also bear in mind that there may also be significant emotional risks for [X] if I abruptly change her living arrangements.
This is a difficult task to perform given the imprecise and incomplete nature of the evidence before me. I must be careful not to act on the basis of innuendo alone and respond in some knee-jerk fashion, which may have long term consequences for [X] and her sense of security and on-going happiness. Fundamentally, it is my view that there is a risk in the outcome proposed by each of the parties for [X] and I must be careful to weigh and balance the risks against each other.
At this stage, there can be no outcome which will be a perfect one for [X], which is without some degree of risk. My task is to assess the risk arising from each possible outcome. If, at the end of this process, an outcome arise which I consider contains an unacceptable risk of harm occurring to [X], I should not impose it.
[X]’s best interest – Section 60CC considerations
(a) The primary considerations
It seems clear to me that [X] is likely to derive benefits from maintaining a meaningful level of relationship with each of her parents. Meaning, in parental relationships, comes both from the quantity and quality of time a child spends with a parent. The level of relationship and so its quality is also likely to depend on previous interactions between parent and child and the context of those interactions.
Parental relationships do not become meaningful merely by reason of court order alone. They require time to nurture and develop. In this case, it is significant that [X] has lived predominantly with her mother since the parties separated, a period now approaching five years.
Although I am unable to ascertain precisely how much time [X] has spent with her father in that period and the quality of that time, I am concerned at the prospect of abruptly recalibrating [X]’s relationship with her father in the absence of compelling reason to do so and in circumstances where the emotional footing of that relationship has perhaps not been fully constructed because of separation between parent and child.
In the current circumstances of the case, it does not seem to me to be an unreasonable conclusion for me to draw that the most meaningful parental relationship currently existing in [X]’s life is that which she shares with her mother. In my view, this is a significant factor indeed.
The main thrust of the father’s case seems to be that the court needs to act to protect [X] from being potentially being exposed to a combination of neglect, abuse and family violence arising from the mother allegedly unstable life. Accordingly each parent seeks to rely on the alternative limbs provided by section 60CC(2). In this regard one consideration is not given pre-eminence over the other. Which consideration is given more weight in any given case must depend on the overall circumstances of the case concerned.
I am concerned about [X]’s poor attendance at school. In my view this may constitute serious neglect of [X] if Ms Felton is unable to provide proper explanation as to why she has missed so many days. However I cannot conclude conclusively that the mother has neglected [X]’s educational needs. In addition, this is an issue which may be rectified at this stage by putting the mother on notice that [X] needs to attend school unless she has a valid medical reason to excuse her attendance.
Objective (and so independent) evidence of other neglect by the mother of [X] is not to hand. In this regard, in my opinion, it is highly relevant that the father is unable to muster either any allegations or concrete examples of the mother’s neglect of [X] in the period between the parties’ separation in 2005 and the middle period of 2009.
This may indicate either that the mother’s parenting of [X] was without any significant level of compromise in the period in question or that the father was an absent parent for this lengthy period of [X]’s life. Both indications are likely to militate against the father’s preferred outcome at this stage.
Certainly the father is unable to provide compelling and objective evidence that the mother’s parenting of [X] was compromised for around about four and half years of her life. In particular, there is no evidence that Families SA have been concerned about the mother’s parenting of [X].
This is also the case concerning his allegations that [X] has not been properly nourished, housed and supervised by her mother in the period since she began to live in [G]. The mother categorically denies these matters which, from the father’s perspective, seem to rely on disclosures made to him by [X] and which are uncorroborated from any direct observations made by the father himself. In essence, there is no independent and objective evidence that [X] is being neglected and the fact remain that between 2005 and now, the father has taken no active steps to change parenting arrangements in respect of her.
The incident at the [M] Hotel is concerning. At the very least, it would seem that [X] was indirectly exposed to violence. She must have seen her mother with a black eye and possibly other injuries if she did not actually witness the assault which gave rise to those injuries. In the aftermath of this incident she was subjected to the foreign and for a child frightening environment of a police station.
The mother would say that both she and [X] were the innocent victims of this violence. As a child, [X] can only be regarded as such an innocent. I remain highly dubious as to why Ms Felton took the children to the hotel in the first place and that she was the innocent victim of an unprovoked attack seems somewhat implausible. However, I do not as yet know the full circumstances of the incident nor does Mr Taggart.
The concept of family violence is specifically defined in the Family Law Act [section 4]. The definition is a wide one. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.
Accordingly it seems that, strictly speaking, [X] was exposed to family violence at the [M] Hotel, although that violence did not arise from a member of [X]’s family or within a familial context. Nonetheless the allegation of exposure to family violence must be closely examined by the court bearing in mind the serious emotional consequence which may arise for a child if he or she is exposed to violence.
It is emotionally damaging if a child witnesses a loved parent being assaulted or if that child is exposed to the aftermath of such an assault. Obviously such an incident will cause a child distress and anguish and possibly fear, which may lead to on-going emotional insecurity. In addition exposure to such violence may provide an impressionable child with inappropriate role modelling as to how disputes are resolved by adults.
Even if the mother was completely sober at the [M] Hotel on the night in question, others of the protagonists involved do not seem to have been. As such, it may call into question the mother’s level of insight into the responsibilities of being a parent that she went to the hotel in the first place and was not able to extricate herself from the situation arising without such serious issues arising both for her and the children.
Exposure to family violence for children is a complex issue. Violence itself is necessarily not a homogeneous concept. The court must examine each incident of violence arising and assess its implications for any child concerned. Not every exposure to violence will be damaging for a child. The court must examine the degree of violence involved; the circumstances surrounding the violence; and most importantly, the possibility of a re-exposure to such violence for the child in future.
Hand in hand with this evaluation must be some appraisal of the level of insight for the parent concerned of the consequences of his or her behaviour or the behaviour of others with whom he or she is associated. Does the parent concede that there are issues arising from past aberrant behaviour or does he or she seek to minimise the consequence of that behaviour or blame or condone others for it?
The fundamental task for the court is to assess prospective dangers for any child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances and is unlikely to arise again in future.
Although in this case, I am concerned that the mother has attempted to minimise the consequences of the hotel incident and has blamed others for it, in my assessment she is unlikely to return to such a hotel again with either [X] or indeed [C]. In this sense the incident seems more likely to be an aberration rather than being indicative of the mother’s lifestyle.
The evidence does not indicate that the mother is an alcoholic and so incapable of staying away from licensed premises. In addition, there remains the possibility that the mother is honest in her account of what happened and that she intended only to pay a brief and innocent visit to the hotel in question and was set upon for her troubles.
The nature of the mother’s relationship with Mr M is more troubling and perhaps more unclear. The mother has given no proper account of why she moved to [L] earlier this year and so disrupted [X]’s schooling. I accept that it is potentially extremely deleterious for [X] if she has been exposed to a violent relationship between her mother and Mr M. It would be especially troubling if Ms Felton herself is either a co-dependent member of such a violent relationship from which she is unable to permanently extricate herself or is unable to understand the corrosive emotional consequences of it for [X].
The father relies on what [X] has told him about Mr M. Again there is no independent and adult corroborative evidence to support the father’s concerns. There are no police records; no applications for domestic violence orders; or other similar records which would support the father’s concerns. Ms Felton denies the allegations concerned and in fact says that the father has been violent towards her, in a family situation.
(b) Additional considerations
The additional considerations are more numerous [section 60CC(3)] than the primary considerations. Again, their application must depend on the particular circumstances of the case concerned.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
It seems to be the case that [X]’s most significant relationships currently are with her mother and older siblings with whom she has shared a home for as long as she can remember. In these circumstances, I believe I must be cautious about precipitately changing arrangements for her care. Essentially I am concerned that [X] has no long term experience of living in her father’s household for extended and regular periods of time, particularly during school terms [see sections 60CC(3)(b) & (d)].
At this stage, I hold considerable reservations about the capacity of each parent to involve the other in parenting decisions concerning [X] and for each parent to discharge the onerous responsibilities incumbent on being a parent. In this regard, it is the mother’s case that the father absented himself from [X]’s life for extended periods of time. On the other hand, it is the father’s case that the mother is high-handed and dictatorial in how she makes decisions regarding [X]’s parenting [see sections 60CC(3)(c); (i); & 60CC(4)]. These remain issues for final hearing.
There remain significant question marks about the capacity of both parents to provide for [X]’s emotional needs, given Ms Derrington’s opinion of the parties’ current level of parenting relationship and the conflict implicit in it. In addition uncertainty surrounds Ms Felton’s capacity to provide for [X]’s educational and intellectual needs [see section 60CC(3)(f)].
The parties live in reasonable proximity at [omitted]. It has not always been so. It is important that Ms Felton and [X] not leave [G] until all issues have been sorted out appropriately between the parties.
Ms Felton has said that she has no intention of leaving [G]. In such circumstances, there are no practical impediments to [X] maintaining her relationship with her father at the present time, although it is a reasonable drive between [M] and [G] [see section 60CC(3)(e)].
Conclusions
After having considered all of the applicable section 60CC factors, I have come to the conclusion that it would not be appropriate to apply the presumption of equal shared parental responsibility to [X] and the parties at this interim stage. In my view, the parties parenting relationship is too turbulent and their capacity to communicate with one another too compromised for the presumption to be applied at this stage.
In this regard, I note that section 61DB specifically provides that, at the final hearing stage, the court must disregard any allocation of parental responsibility made at the interim hearing stage. In my view, the question of equal shared parental responsibility, in this particular case, is one more appropriately left to the final hearing stage, when more evidence will be available to the court.
Given that I have elected not to apply the presumption of equal shared parental responsibility in this case, I need not consider whether it would be in [X]’s best interests and reasonably practical to implement an arrangement for her to live either for equal periods of time or substantial and significant periods of time with each of her parents.
However, I must still consider each of the applicable section 60CC considerations and arrive at the outcome which I believe, at this stage, will best serve [X]’s interests. I must particularly bear in mind the two primary considerations stipulated by section 60CC(2) of the Act.
I consider that, at this stage, it would not unacceptably expose [X] to a potential risk of harm, if she continues to live predominantly with her mother. However, I am concerned about [X]’s current level of attendance at school and, as such I will make an order emphasising the importance of schooling for her, which will require the mother to ensure her attendance at school, unless there is a valid medical reason to excuse her attendance. I accept that such an order should be unnecessary.
Otherwise, I do not consider that the father’s other concerns about the mother’s alleged neglect of [X] justify a significant change in her parenting regime, at this stage. I reach this conclusion because of the lengthy period of time [X] has previously lived with the mother without apparent complaint from the father and the absence of objective evidence to support the majority of the father’s allegations, which are denied by the mother.
In my view, there exist significant risks of harm being occasioned to [X]’s sense of secure relationship with her mother and siblings, particularly the emotional sustenance she draws from these relationships, if there is any significant departure from the longstanding arrangements for her care. I reach this conclusion because it appears to me to be more likely than not that it is only fairly recently that
Mr Taggart has played a consistent role in [X]’s life.
I acknowledge that [X] has the potential, if she does not already do so, to have a close, loving and so meaningful relationship with her father. At this stage, I am satisfied, that balancing all the competing considerations, [X] can have a sufficiently meaningful level of relationship with her father if she spends alternate weekends with him, as well as one other evening with him in the intervening week of each fortnight, as well as half of each school holiday period.
At this juncture, given my concerns about the level of [X]’s relationship with her father and also given her tender years, I am concerned that it is potentially too daunting for [X] to spend five days, during term times, away from her mother and [C] and [Z].
At this stage, the most practical and logical location for [X] to be exchanged between the parties is at her school. This means that during term time it is expedient for [X] to spend from after school on Friday until school recommences the following Monday, in alternate weeks, with her father.
Given the father’s protective concerns about the mother’s parenting of [X], which at this stage the mother is unable to completely dispel, it also seems to me to be appropriate that [X] spends from after school on Wednesday until school recommences the following Thursday with her father in the other of each school fortnight.
Given the distance between [M] and [G], this seems to be a workable outcome. It will also mean that [X] will not be separated from her mother and siblings for lengthy periods of time. I also consider that it will enable Mr Taggart to interact with [X] in a variety of contexts and settings, including both school nights and non-school nights, as well as special occasions. As such, it will ensure that the two have a meaningful relationship with one another, pending final hearing.
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 one hundred (100) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 3 June 2010
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