Toliver and Molina
[2008] FMCAfam 43
•8 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOLIVER & MOLINA | [2008] FMCAfam 43 |
| FAMILY LAW – Children aged 5 and 3 – parties of Central African background – mother alleges father has been violent towards her and the children during parties’ relationship – in June 2006 mother unilaterally and secretly relocated residence of children from Adelaide to Melbourne – father denies allegations of abuse and violence and that any proper basis exists to justify children’s relocation – father seeks return of children to Adelaide and that they should live with him – mother seeks to live with children in Melbourne – competing applications for children to live with each of the parties in circumstances where one party proposes to live distant from the other parent – whether reasonable grounds exist to support allegations of family violence and abuse – presumption of equal shared parental responsibility – consideration of children having meaningful relationship with both parents – freedom of movement – best interests – considerations relating to children’s cultural background – evaluation of parties’ competing proposals. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 67N, 68L, 68LA Evidence Act 1995, s.140 |
| Re K (1994) FLC 92-461 Goode & Goode (2006) FLC 92-286 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 U v U (2002) FLC 93-112 Bolitho & Cohen (2005) FLC 92-224 B v B: Family Law Reform Act (1997) FLC 92-755 Briginshaw v Briginshaw (1938) 60 CLR 336 B & R & the Separate Representative (1995) FLC 92-636 H & H (2003) Fam LR 264 In the Marriage of Patsalou (1994) 18 Fam LR 426 J G & B G 19 Fam LR 255 |
| Applicant: | MR TOLIVER |
| Respondent: | MS MOLINA |
| File Number: | ADM3902 of 2006 |
| Judgment of: | Brown FM |
| Hearing dates: | 13 & 14 December 2007; 22 January 2008 |
| Date of Last Submission: | 22 January 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 8 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Toliver in person |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Eastern Community Legal Centre |
| Counsel for the Independent Children’s Lawyer: | Mr Pickhaver |
| Solicitors for the Independent Children’s Lawyer: | Richard J Croft |
ORDERS
The children R born in 2002 and H born in 2004 live with the mother.
The mother have sole parental responsibility for the children.
The father spend time with the children in Melbourne at specific times to be agreed between the parties subject to the following conditions unless the parties agree to their discharge.
(a)The time be professionally supervised and take place at a government funded contact centre in the area of Greater Melbourne;
(b)The father undergo the course of counselling recommended by Dr Kennedy, the family report writer involved in the case.
All applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Toliver & Molina is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Adelaide |
| MR TOLIVER |
Applicant
And
| MS MOLINA |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Toliver and Ms Molina are the parents of R born in 2002 and H born in 2004. These proceedings concern final arrangements for the care of these two children.
R and H were born in a refugee camp in Tanzania. Their parents,
Mr Toliver and Ms Molina had earlier fled to Tanzania from civil war in the Democratic Republic of the Congo.
In August 2005, the family came to Australia, with the assistance of the Australian government, because it was accepted they were refugees. The family was resettled in Adelaide.
The parties finally separated on 6 June 2006, following an earlier separation in November of 2005. Shortly after the later date, workers from the Migrant Resource Centre in Adelaide assisted the mother and the two children to leave Adelaide secretly from the father and move to Melbourne, where they continue to live.
It is Ms Molina’s position that she had no alternative but to leave Adelaide with the children in this way because the father had been consistently violent towards her and the children, both in Tanzania and Australia and she feared for her safety and that of R and H, if they remained living in Adelaide.
Mr Toliver denies that he is the violent and abusive person the mother portrays him as. To the contrary, he asserts that the mother has lied about him in order to gain financial advantage for herself. He also believes the mother has been manipulated by certain workers at the Migrant Resource Centre, particularly Tutsi women, who share
Ms Molina’s ethnic background.
From Mr Toliver’s perspective, it is a central feature of Congolese custom that, upon the separation of parents, the children of that particular relationship become the responsibility of the father concerned and, as such, should live with him. Although the father is matrilineally related to the Tutsis, his patrilineal inheritance is Hutu.
At the present time, Mr Toliver is deeply affronted at what has occurred in respect of R and H’s care since June of 2006. He believes that it is culturally inappropriate for the two children to remain in the mother’s care, particularly as this situation has been engineered by what he regards as a tissue of lies created by Ms Molina. Accordingly, he seeks the immediate return of the children, to his care, in Adelaide.
On the other hand, Ms Molina asserts that the children are happy and doing well in Melbourne and it would be detrimental to their welfare if they were compelled to be returned to the care of a person who has seriously abused them in the past. It is her position that she has been the parent, who has been predominantly responsible for R and H up to this stage, as previously Mr Toliver has displayed little interest in them.
In addition, she has no wish to return to Adelaide with the children, even if they remain in her predominant care, in the hope that this will enable R and H to have a more meaningful relationship with their father. At the present time, the relationship between father and children cannot progress, as Mr Toliver remains in Adelaide and Ms Molina remains in Melbourne.
Neither party is in a strong financial position and all sorts of practical difficulties will stand in the way of the children spending regular periods of time, with one or other of their parents, if Mr Toliver and
Ms Molina continue to live in separate cities. A solution to this problem would be the compulsory return of the mother and children to Adelaide.
However , Ms Molina would be fearful for her safety in Adelaide, if circumstances compelled her to return to the city. She says that she takes seriously threats of harm that the father has previously made against her.
In addition, she does not believe it would be possible for her to live anonymously in Adelaide as, given the small and interconnected nature of the Congolese community in Adelaide, it would only be a matter of time before the father located her, if she and the children returned to live there.
In such an eventuality, she believes either her safety would be seriously compromised or she would be subjected to intense pressure, from both the father and the wider Congolese community, to return to the previously abusive relationship she had had with the father.
Mr Toliver says he will not go to Melbourne to visit the children under any circumstances. It is his position that he would no longer regard R and H as being his children, if the court condones Ms Molina’s conduct, which he believes is culturally inappropriate and disrespectful of him.
In addition, he would be disappointed that the Australian Government, which had previously impliedly indicated to him that it supported his entitlement to autonomy in his pursuit of his cultural practices in this country, had allowed this court to endorse Ms Molina’s conduct, which obviously he considers flouts such practices.
Accordingly, this is a case of some cultural complexity and sensitivity. It also raises complex issues of relocation, particularly how R and H may have the appropriate level of relationship with both their parents and at the same time the parties themselves may be free to lead the lives of their own choosing, perhaps in separate cities of Australia.
In an evidentiary sense, the court will have to make findings about the mother’s serious allegations of family violence and, if those allegations are established, consider the best means to protect the children from harm. In this context, the court will have to balance the desirability of R and H having some form of relationship with both their parents with the need to protect them from harm.
More fundamentally, the court will have to choose between the parties’ competing applications, as to where and with whom of them the children should live. There is considerable conflict between the respective positions of the parties, who have very different views as to how the interests of the children will be best served.
The father says the children should live with him in Adelaide. The mother says the children should live with her in Melbourne. The father says he will not go to Melbourne to see the children if they remain there. The mother is unwilling and fearful to live with the children in Adelaide, so that they can see their father regularly. She has no clear proposals as to how the children could spend time with their father in Adelaide.
Accordingly, the case presents no obvious solution. Whatever is the outcome, it will be an imperfect one, so far as the children are concerned. There is a very good chance that the children will lose their parental relationship with one or other of their parents, depending on the outcome preferred.
Because of the complex issues, which have arisen in this case, concerning children of tender years, it has been ordered by the court that R and H’s interests should be represented independently of their parents.
The children’s independent lawyer[1] is Mr Croft. He has briefed a barrister, Mr Pickhaver to appear on behalf of R and H. The law requires Mr Croft and Mr Pickhaver to formulate a position, based on the evidence available to them, which they think will be in R and H’s best interests.[2]
[1] See Family Law Act at section 68L
[2] See Family Law Act at section 68LA
In his submissions, Mr Pickhaver advocates that the children should live with their mother in Melbourne and, if Mr Toliver is willing, should spend time with their father, at a contact centre in Melbourne, under professional supervision.
It is implicit in Mr Pickhaver’s position that he advocates that the court should accept Ms Molina’s evidence regarding the violence to which she says both she and the children have been subjected to in the past from Mr Toliver.
As such, he believes that the most important consideration, concerning the welfare of the children, is their need to be protected from being exposed to abuse and family violence [Family Law Act section 60CC(2)(b)].
Necessarily, in Mr Pickhaver’s submission, this consideration is likely to be more important to R and H than the children retaining and developing a “meaningful” relationship [Family Law Act section 60CC(2)(a)] with their father.
Ms Molina agrees with the position advocated by Mr Pickhaver. In particular, she is strongly opposed to any outcome which would see her being compelled to live in Adelaide with the children. She believes such an outcome would be both contrary to their best interests and would also constitute a significant infringement on her freedom to live how and wherever she chose.
She would characterise the evidence in this case as leading irrefutably to the conclusion that the children’s interests will best be served if they live with her. As such, neither the court nor the father should interfere with her freedom of movement.
Mr Pickhaver’s position is no doubt influenced by the evidence of the independent expert in this case. He is Dr Simon Kennedy, a clinical and forensic psychologist, who has extensive experience in assessing the nature of children’s relationships with their parents.
Dr Kennedy recommended that the two children should remain in the care of their mother in Melbourne. His overall evaluation of the situation of this family suggested to him that the father had the capacity to be both violent and unpredictable. R herself reported to him that the father had been violent to both her and her mother in the past. As such, Dr Kennedy believed that the likelihood was that family violence had occurred in the family in the past.
As a result, Dr Kennedy recommended that any future interaction between the children and their father should, at least initially, be subject to professional supervision. He also recommended that
Mr Toliver should pursue some form of culturally appropriate counselling to assist him with coming to terms with the end of his relationship with the mother and to enable him to develop an ongoing relationship with the children, in the cultural context of this country.
Dr Kennedy suggested that Mr Toliver may be experiencing difficulties with his integration into the Australian cultural context and may also be suffering from the result of trauma suffered by him whilst living in Central Africa.
Mr Toliver is deeply affronted by Dr Kennedy’s report and recommendations and regards both as being fundamentally flawed, particularly in the sense that Dr Kennedy self-admittedly has no understanding of the customs and culture of the region of Central Africa from which he comes and so, in Mr Toliver’s view, has no entitlement to comment upon him and his children.
Dr Kennedy’s report exposes one of the central difficulties in this case. During the process conducted by Dr Kennedy to evaluate the children’s respective relationships with each of their parents, he observed both R and H to be happy to see their father.
Accordingly, it seems clear that the children have the potential to have some form of meaningful relationship with their father in future. The difficulty is that their father wishes to pursue this relationship only on the terms, which he believes are culturally appropriate, which require the children to be returned to his care forthwith in Adelaide.
These proceedings are directed towards resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their children live, it is the best interests of the children concerned which are paramount.[3]
[3] See Family Law Act at section 60CA
The court must balance the benefit of the children concerned having a meaningful relationship with both their parents with the need to protect them from physical or psychological harm, including the harm represented by family violence.
The court must decide which of the parties’ competing proposals, including those of the independent children’s lawyer, is most likely to advance the best interests of the children concerned. In addition, the court retains the ultimate authority to create the outcome which it considers will be in the best interests of R and H, irrespective of the positions advocated by each of the parties.
Background
Mr Toliver commenced these proceedings on 20 November 2006, over five months after Ms Molina and the children had left Adelaide. At that stage he did not know where the mother was and had not been able to serve his application on her.
Mr Toliver’s application had been prepared by his solicitor. On both an interim and final basis, he sought orders that the children return to live in the Adelaide area and the mother be restrained from changing their place of residence from the Adelaide metropolitan area in future. On the return of the children to Adelaide, he sought to spend alternate weekends with them from 5:00pm on Friday until 5:00pm the following Sunday.
As Mr Toliver was unaware of the precise location of the children, he sought an order from the court directing Centrelink to provide the court with information regarding the whereabouts of Ms Molina and the children.[4] Such a location order was made by FM Mead on 15 January 2007.
[4] See Family Law Act section 67N
In spite of this order, it took some time for the mother’s whereabouts to be located and for her to be served with the father’s application.
Ms Molina was served with the application on 26 April 2007. The solicitors retained by her filed a notice of address for service on 2 May 2007.
The proceedings came before me on 3 May 2007, on which occasion I made an order preventing the children from being moved outside of the Melbourne metropolitan area. The mother was given an opportunity to file material in response to the father’s application.
The mother filed a response on 16 May 2007. On both an interim and final basis, she sought orders that would see the children concerned living with her in Melbourne. She also wished to retain sole parental responsibility for R and H.
At that stage, she had no specific proposals as to the time the children should spend with their father, other than it should occur at a contact centre and be subject to supervision. At this stage, the mother also sought that the further hearing of the proceedings be transferred to the court’s registry in Melbourne.
I considered that I was under an obligation to determine the interim arrangements for the care of the two children, particularly given the time which had elapsed since the father had commenced his proceedings and the fact that those proceedings had been commenced in Adelaide.
I was confronted with a difficult decision. It was clear to me that the mother had acted unilaterally in removing R and H from Adelaide and that the two children concerned had had no relationship at all with their father for nearly a year.
I was also concerned at the vehemence with which the mother stated that the father had been violent towards both her and the children, a claim which it appeared the workers at the Migrant Resource Centre had taken sufficiently seriously for them to arrange the clandestine relocation of the mother and children.
Apart from the mother’s assertion of the fact, there was little evidence to support her allegations of violence. There were no police reports; no application for a domestic violence order; no medical reports documenting injuries sustained by her; and no independent eye witness accounts of violence.
The only independent corroborating documentary evidence were some case notes taken by a social worker in May and June of 2006, which had documented the mother’s complaints of violence and which had resulted in a notification of child abuse to the child protection authorities in South Australia. This notification had not been formally acted upon.
On 10 May 2007, the solicitors acting for the mother, filed a notice of child abuse, alleging that the father had beaten the children to such an extent that they had urinated; and he had further beaten the mother, so that she had suffered swollen eyes, lips and face.
For his part, Mr Toliver specifically denied having ever either physically or verbally abused either Ms Molina or the children. He acknowledged that he and Ms Molina came from different tribunal communities, as she was a Tutsi from Rwanda and he was a Hutu from the Congo. However, he denied any suggestion that Ms Molina would not have access to a supportive community network in the Adelaide area. As such he sought the children’s return to Adelaide.
The order that the children be independently represented in the proceedings was made on 24 May 2007. By this stage it was clear that serious allegations of child abuse had been raised; there were significant cultural issues pertaining to the children; and there was a real risk of the children losing a relationship with one or other of their parents, depending on the outcome of the case.[5] These considerations warranted independent representation of the children.
[5] See re K (1994) FLC 92-461
I determined the interim issues on 5 July 2007. Given the serious allegations of violence, which have been raised by the mother and the fact that the children had been living in Melbourne for a considerable period of time, I considered that it would not be in their best interests for there either to be a change in their parental custodian or for the mother to be compelled to return to live in Adelaide, against her will. For that reason, I determined, on an interim basis, that the children should continue to live with their mother in Melbourne.
At the time I was well aware of the implications of this order for the children’s ongoing relationship with their father. At that stage, the father had no firm proposals to visit the children in Melbourne and the mother had no suggestions as to how the children could travel to Adelaide, either with or without her.
Accordingly, having made this decision regarding the children’s place of residence, I was left in the invidious position of being unable to make any specific orders as to how the children might spend time with their father.
Given the obvious difficulties which existed, I came to the view that I should endeavour to expedite the final hearing of the matter. I also thought it the type of case which would benefit from some independent expert assessment of the children and the relationship they had with each of their parents, particularly given the significant issues of violence which had been raised.
On that basis, I determined that the final hearing of the matter should be fixed for mid-September, which was the earliest date I could accommodate. At that time I was told that a family report could be prepared in a comparatively short timeframe.
The issue of where the final hearing should be heard was a finely balanced one. Whatever location was preferred, one of the parties would feel at a disadvantage. Ultimately I determined that the major factor in favour of the proceedings remaining in Adelaide was the date which I could give for final hearing.
I further determined that the mother would be able to present her case and take part in the proceedings, via a video link from the court in Melbourne. In addition, the use of electronic facilities would ensure that she felt safe during the proceedings.
Unfortunately, the family report, which was ordered in July of 2007, could not be concluded by the September deadline. Accordingly, the proceedings were re-fixed for final hearing before me on 13 and 14 December 2007.
For reasons which will become apparent in due course, it was not possible to complete the hearing in the time scheduled and the proceedings were further adjourned until 18 January 2008, on which date they were completed.
The hearing
The hearing was difficult and emotionally draining for all concerned, myself included. Neither Mr Toliver nor Ms Molina speaks English with any degree of fluency. Accordingly, both required a Swahili interpreter for the proceedings.
Ms Molina attended court via a video link from the court’s premises in Melbourne. She attended there with her solicitor and her interpreter. Her counsel, Ms Ross was in Adelaide.
It must have been both disconcerting and alienating for her to have attended court in this way and been unable to see, face to face, the person who was making such an important decision regarding herself and her children.
Up until 13 December, 2007 Mr Toliver was legally represented. His affidavit material was professionally prepared and it seemed to be his position that he sought to spend time with the children, on the proviso that orders were made that the mother live with them in Adelaide. The court made arrangements for a Swahili interpreter to attend at court on 13 December 2007.
Mr Toliver did not appear at court, as required, on 13 December 2007. The matter was stood down, whilst his counsel Mr Boehm endeavoured to ascertain why Mr Toliver had not appeared. Mr Toliver eventually arrived at court shortly prior to the time for the luncheon adjournment.
Mr Boehm requested an opportunity to confer with his client, in the presence of his instructing solicitor Mr Seymour. I allowed this conference to take place, notwithstanding the delay to the proceedings. I understood that Mr Boehm had conferred with Mr Toliver the previous afternoon, at Mr Boehm’s chambers.
The upshot of this latter conference with Mr Toliver was that Mr Boehm considered that his instructions had been withdrawn. Accordingly, it became apparent that Mr Toliver wished to act on his own behalf in the ongoing hearing.
Mr Pickhaver, in his role as the children’s independent representative, considered that it was in R and H’s best interests for the proceedings not to be unduly protracted. He wished the court to commence with the hearing. This was also the position advocated by Ms Ross,
Ms Molina’s counsel.
Mr Toliver was at a considerable disadvantage in the proceedings. He did not have a sophisticated understanding of the legal principles involved. He did not have a legal adviser. The proceedings were conducted in English, a language he does not speak well, in a cultural context, which was foreign to him. As previously indicated, he is deeply aggrieved at his perception that the Australian Government, in the guise of this court, is dismissive of his cultural traditions and practices. He presents as a very proud man.
Notwithstanding my sympathies for Mr Toliver, I considered that not a great deal would be achieved by adjourning the proceedings. Certainly Mr Toliver had no firm proposals regarding the retention of alternative legal counsel. In addition, he made it clear that his position was that no other outcome, other than the children living predominantly with him in Adelaide, would be acceptable to him.
He vehemently denied that there was any basis for Ms Molina’s unilateral action in concealing the children from him in Melbourne. He also indicated to me that he took issue with the conclusions reached by Dr Kennedy and regarded his report as being flawed and biased.
Due to the time lost on 13 December, the case could not be completed on 14 December 2007. At that stage, Mr Toliver advised me that he wished to call evidence from members of the Congolese community, regarding Congolese parenting practices. It being a significant element of his case that it was culturally inappropriate for R and H to be parented by their mother, on the separation of their parents.
The proceedings were adjourned for completion to 18 January 2008. Directions were made for Mr Toliver to file any further affidavits of evidence on which he wished to rely. Ms Ross had made it clear that her client did not accept that there was any cultural practice of the sort specified by Mr Toliver, accordingly she wished to know in advance the nature of the evidence on which the father sought to rely.
In any event, no further affidavit evidence was forthcoming from
Mr Toliver. He indicated to me that his witness required more time to prepare the necessary affidavit. The witness concerned was not present at court on 18 January.
In the absence of the affidavit, I was not disposed to further adjourn the proceedings. Again I considered it was likely to be in the children’s best interests for the proceedings to be concluded sooner rather than later. This position was supported by both Mr Pickhaver and Ms Ross.
I accept that, for Mr Toliver, it is both culturally inappropriate and insensitive for the court to determine this deeply personal matter regarding the parental arrangements for his children. However there is a dispute between Australian residents regarding these arrangements. In addition, the children concerned are within Australia. Accordingly it is a matter of Australian jurisdiction.
In such circumstances, both Mr Toliver and Ms Molina are entitled to invoke the assistance of this court to resolve the dispute between them, according to principles of Australian law contained in the Family Law Act. Regardless of my sympathy for Mr Toliver and my awareness of the cultural inappropriateness of these proceedings for him, I must nonetheless not shy away from my responsibility to determine the matter according to the law of Australia.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children.
The service of R and H’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, particularly grandparents [section 60B(2)(b)].
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and there is no need for it to consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[6]
[6] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
The application of the presumption of equal shared parental responsibility and the parenting arrangements which flow from it are rendered particularly problematic in cases involving one parent wishing to relocate permanently the children involved far away from the other parent concerned. Obviously, in such circumstances, an equal time, or a substantial and significant time arrangement, becomes highly impracticable.
In addition, regardless of the application of the presumption, the optimal parenting arrangements envisaged by the legislation concerned, become redundant, unless restrictions are placed on the freedom of movement of either one or both of the parents concerned. This, of itself, raises complex constitutional and legal issues.
Pursuant to rights read by the High Court into the Australian Constitution, Australian citizens, and those resident in this country, have a right to freedom of movement, both internally within Australia and indeed overseas.
This principle is often difficult to reconcile, in relocation cases such as this one, with the entitlement children have, pursuant to the Family Law Act, to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.
In AMS v AIF; AIF v AMS[7] Kirby J set out nine general propositions, derived from the relevant authorities concerning relocation, which can be summarised as follows:
[7] AMS v AIF; AIF v AMS (1999) FLC92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia when compared to overseas ones, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangement are in the child concerned’s best interests.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
In A v A: Relocation Approach,[8] the Full Court of the Family Court, following the decision of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child.
[8] A v A: Relocation Approach (2000) FLC 93-035
It held that the best interests of the child remained the paramount consideration but not the sole consideration. As such, the court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties.
That evaluation must assess the advantages and disadvantages, for the child’s best interests, of each proposal and consider each relevant section 60CC factor. When evaluating the proposals, the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement.
In particular, the court should be careful not to fall into the error of dissecting a relocation case into separate or discrete issues, namely who of the parties concerned should have primary responsibility for the care of the children concerned and secondly whether that parent should be “permitted” to relocate with the child.
The High Court again considered the question of relocation in U v U.[9] This was an international relocation case. In this case, the High Court again reiterated that the first instance court was obliged to give careful consideration to the proposed arrangements put forward by each party, but was not specifically bound by them.
[9] U v U (supra)
As the best interests of the child concerned remained the paramount consideration, it was incumbent upon the court to investigate the possibility of the other parent moving to be closer to the child concerned, rather than first considering restraining the parent who wished to relocate the children.[10]
[10] U v U per Hayne J at 89,103
This was so because proceedings concerning the welfare of a child were not exclusively adversarial proceedings. Accordingly, the court could examine outcomes, independent of the positions primarily put forward by the parties themselves. This was said to be a prelude to the “deeper inquiry” of what will best serve a child’s best interests.
Courts, such as this one, have also recently been cautioned about applying a too formulaic approach to relocation cases. Rather, it has been said that the proper approach is to weigh and assess each of the competing proposals of the parties, against the yardstick provided by section 60CC and consider all the other relevant factors, including the right of freedom of movement of the parent who wishes to relocate. However the court must always bear in mind that ultimately the decision it makes must be the one which is in the best interest of the child concerned.[11]
[11] See Bolitho & Cohen (2005) FLC 92-224 at 79,699
As a result of these considerations, I conclude that the main thrust of the enquiry in this case remains what outcome is likely to best serve R and H’s best interests. Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as an extensive relationship as possible, with both their parents, there is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved.
The issue of a parent’s entitlement to move and the implications this may have for that parent’s personal level of happiness may have an impact on the best interests or welfare of the children concerned. This is particularly so when the parent concerned wishes to move away from a violent relationship or feels that his or her personal safety will be compromised if he or she is compelled to remain in a place where he or she feels threatened.
For obvious reasons, these issues have greater implications for the children concerned, when that parent has and will remain primarily responsible for providing the principle home for the children concerned. Conversely, the sense that this happiness is being frustrated by the other parent, is almost certainly likely to have ramifications for the emotional well being and sense of stability of the child concerned.[12]
[12] See B v B: Family Law Reform Act (1997) FLC 92-755 at 84,222
As the child’s best interests remain the paramount consideration in considering any relocation and as one of the components of a child’s best interests is the right to have a meaningful relationship with both his parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned. Such considerations may be crucial in determining whether a particular relocation is likely to be in a child’s best interests.
I must also not overlook the fact that it may be unreasonable to restrict one party’s freedom of movement, when it is open to the other parent to move, even if this is not his or her ultimate preference. It may be inequitable for a parent to be restricted, in his or her movements, when the other parent is not subject to such a restriction and he or she is not involved in providing the child’s predominant place of residence.
In conclusion, the case requires no ready solution. Every relocation case is different and requires careful analysis. As is apparent from this survey of the law, the exercise I must undertake is “to attempt a resolution of often irreconcilable considerations”[13], which arise from complex issues.
[13] See AMS v AIF (supra) per Kirby J at 86,041
However, the ultimate issue in the case is best interests of R and H and in this regard, the parties competing proposals and any other outcomes which are reasonably open to the court must be weighed and assessed against the yard stick provided by section 60CC and the principles which underpin it. However, such assessment must not occur in a vacuum, isolated from any considerations of Ms Molina’s right of freedom to movement.
The evidence
Neither party has filed extensive affidavit material in the case. Due to their mutual limitations in the English language and the necessity for them both to use interpreters, both in giving evidence in court and to instruct their legal advisors, it was difficult for each of the parties to present a coherent history of their life together and to provide an accurate chronology of events.
Significant differences emerged between them, including when they met and the circumstances of the relationship between them. The most significant evidentiary difference and the one of most legal moment in the determination of these proceedings concerns the truth or otherwise of Ms Molina’s allegations that Mr Toliver was consistently violent and abusive towards her and the children.
The issue of the different ethnic backgrounds of the parties was also explored during the hearing. My impression is that this exploration was not particularly successful. I suspect their exists a vast gulf between what the parties can say in court of their respective experiences in Central Africa and what those experiences actually were.
The Central Democratic Republic of the Congo is bordered on the East by the states of Rwanda, Burundi and Tanzania. Hutus form the majority in both Rwanda and Burundi. As is well known, there have been extensive periods of civil unrest in both Rwanda and Burundi between Hutu and Tutsi tribal factions, culminated in documented instances of genocide, particularly the Rwandan genocide of Tutsis in 1994.
In 1994, there was a massive inflow of refugees from both Burundi and Rwanda into the Democratic Republic of the Congo, which led in turn to a protracted armed conflict in the Democratic Republic of the Congo. The various conflicts in Central Africa, in the 1990’s, represent the bloodiest period of world history since the Second World War. Five million people are believed to have perished in the various conflicts involved.
The father deposed that he was born in the Central Democratic Republic of the Congo in February 1972. His father was of Hutu extraction; his mother of Tutsi. His evidence was that he followed his father as a Hutu, as it was the tradition for children to follow their father’s lineage. However, he also said that he regarded himself as neutral in any conflict between Hutus and Tutsis and that many Congolese mistrusted him because of his mixed background.
Mr Toliver stated that Ms Molina was from Burundi and was a Tutsi. Dr Kennedy’s understanding was that Ms Molina’s family had moved from Rwanda to the Congo in the 1950’s. Ms Molina apparently reported to Dr Kennedy that Tutsis in general are not accepted by the Congolese and that in Eastern Congo inter-racial marriages are problematic.
There is a massive divergence between the parties regarding the circumstances of their meeting. It is the father’s position that the parties met and married in the Congo, at some time in 1994, prior to the war coming to the Congo. He states that the marriage between the parties was approved by respective members of each of their families and a dowry was paid.
Ms Molina was apparently born in April 1980. Initially, she deposed that she accepted that the parties were married in the Congo in July 1994, when she was aged about fourteen years of age. This does not accord with what she told Ms F, a social worker who assisted her to move from Adelaide to Melbourne or what she told Dr Kennedy and what she subsequently deposed in court.
Given these discrepancies, the mother’s history is difficult to piece together. I do not think there is anything sinister in these various discrepancies and believe they flow from language difficulties and the trauma the mother has in recounting them. On balance, I think the mother’s history of her relationship with the father is more likely to be the correct one.
The mother told both Ms F and Dr Kennedy that she was kidnapped by Burundi rebels, from her home village in the border region of the Congo. She believes that she was thirteen years of age when she was kidnapped. Earlier, her father had been murdered by Burundi cattle thieves. Since her kidnap, Ms Molina has lost contact with her mother and three siblings.
Whilst a captive in Burundi, the mother had to cook and clean for the rebels and was continually raped. She reported to Dr Kennedy that she was a prison in Burundi for around two years. She says that she lived in the bush in Burundi during this period. Accordingly, it is her position that she could not have met and married the father in Congo in 1994.
Ms Molina told Dr Kennedy that, after a period of about two years, she was able to escape from her captors and to walk into Tanzania, where she sought sanctuary in a refugee camp. It is Ms Molina’s evidence, as I understand it, that she met Mr Toliver in the refugee camp.
It is the mother’s position that she met the father in the Tanzanian refugee camp at sometime in either 1999 or 2000. She states that the relationship between them was based on convenience and was a device to assist them each reach asylum in a country in the West. As such,
Ms Molina does not believe that the marriage between them was a proper one, certainly she denies that any dowry was paid.
Accordingly, the parties have very different views regarding the basis for their marriage – the father asserting it was a marriage of love; the mother that it was a matter of convenience. Whichever be the case, it is clear that the parties’ relationship occurred against a background of extreme turbulence and civil discord. It is also clear that the parties’ ethnic backgrounds are different and such ethnic differences have been the basis of extreme civil unrest and warfare in Central Africa.
As previously indicated, my impression of the father is that he is an extremely proud man. Such was his demeanour in court. In addition, ostensibly at least, he was extremely dismissive and patronising towards the mother.
Mr Toliver indicated that when he married Ms Molina “she had nothing… not even a pen.” He suggested that the mother had made up her accounts of having been kidnapped and abused. The implication being that she had concocted these stories in order to explain her loss of virginity.
Mr Toliver stated “her greed for money caused her to lose her virginity.” Mr Toliver explained his stance in the proceedings on the basis that his culture dictated that, when parents separated, “the children have to live with the dad and have to follow the culture of the dad.” He confirmed that it was a shameful thing for parents to be separated and that he regarded marriage as being for life.
Mr Toliver is proud of the fact that he was the provider and head of his family in Tanzania. He forcefully deposed that he was unable to “forsake [his] culture and traditions” and that when he came to Australia, the Australian Government had told him that it would respect his culture. In Mr Toliver’s words “he did not come to Australia as anyone’s slave.” I record these comments to indicate the level of disparity in this case. From Mr Toliver’s perspective his “future depends on the kids. Without the kids [he does not believe he] has any future.”
Ms Molina gave her evidence in a calm manner, which was in contrast to Mr Toliver, who was often agitated and angry. I appreciate however that these presentations may be influenced by cultural factors and so may not be indicative of veracity. I also appreciate that Mr Toliver did not have a lawyer to assist him with the presentation of his case.
However, at the end of the day, I had no reason to disbelieve
Ms Molina’s evidence. On the other hand, I am left with a sense of disquiet about much of Mr Toliver’s evidence. Certainly I think it unlikely that Ms Molina would have sufficient levels of calculation to be able to fabricate or even exaggerate her claims against the father and so be able to convince others dishonestly of their veracity, particularly given her level of English and bearing in mind how long she has been in Australia. On balance, I consider her evidence is likely to be more reliable than that of the father’s.
Besides the parties themselves, Dr Kennedy was the only other witness to give evidence in these proceedings. Dr Kennedy is a clinical and forensic psychologist of considerable experience. He has been registered as a psychologist since 1984 and been in private practice since 1986. He describes his speciality as being “psycho-legal evaluation, reporting and testimony”.
He has been a consultant clinical psychologist to the Children’s Court Clinic in Victoria since 1993. He estimates that approximately twenty-five percent of the assessments of children he prepares occur in the child protection domain. Accordingly, he is no stranger to assessing the emotional consequences for children of being exposed to either abuse or family violence. Dr Kennedy believes that he has prepared approximately five hundred family assessments. I found Dr Kennedy’s report to be thorough and well considered. I accept his evidence and the recommendations which he makes.
Dr Kennedy had a fundamental advantage over me. He was able to observe R and H interacting directly with their parents. Obviously a significant component of those interactions included exchanges in Swahili, which Dr Kennedy does not understand. Dr Kennedy acknowledged that he was at a disadvantage in this regard. However, he did not consider it a significant disadvantage, as he based his view of the children on his behavioural observations of them rather than what they said to their parents or their parents said to them.
Dr Kennedy also conceded that the environment in which his evaluation of the family took place was an extremely unusual one for both Mr Toliver and Ms Molina. Dr Kennedy recognised that neither could be regarded as being part of mainstream Australian culture.
In my estimation, Dr Kennedy was aware of the great difficulties in this case, particularly issues of cultural disparity between himself and each of the parties. He was also aware that the parties, Mr Toliver in particular, would find it difficult and perhaps insulting to discuss some of the issues which are canvassed in the family report.
My impression is that Dr Kennedy approached these problems with sensitivity and tact. I do not think that his lack of understanding or experience of Congolese culture, in any significant way, discounts the value of his report, particularly his assessment of the children’s emotional needs and vulnerability.
Mr Toliver raised Dr Kennedy’s lack of direct experience of Congolese culture with him, by implications suggesting that this dearth of experience precluded him from being able to express a reliable opinion in this case. Dr Kennedy acknowledged that cultural issues are important in regards to children.
However, in his view, care issues to do with children remained relatively consistent across cultures. In particular, he said that it had been universally found, across all cultures, that it was unhelpful and potentially damaging for children to be exposed to violence or conflict between their parents. I unequivocally accept that this is so.
a) Ms Molina’s allegations of family violence and abuse
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [In the marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arise within the private confines of the family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the children 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 or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents which have previously occurred, either unintentionally or for tactical reasons.
Mr Toliver quite rightfully points out that there is little independent corroborative evidence to support Ms Molina’s allegations that he is a violent and abusive person. This is so. He also points out that he brought his family from Tanzania to Australia to protect them from harm, and, as such, he is unlikely to subject them to harm himself. He also said that violence against women was inimicable to his culture and religion.
Ms Molina has never made a complaint of violence, at Mr Toliver’s hands, to the police. Nor has she ever applied for a domestic violence order. Such things are a frequent feature of proceedings in this court, even when the violence complained of is at the lower end of the scale. In addition, Ms Molina is unable to provide any specific medical evidence to indicate that she has received treatment in respect of any of the assaults of which she complains.
I do not think that the absence of any of these categories of evidence should cause me to discount Ms Molina’s evidence. In this regard, I must examine the cultural and social context of the parties. They have been in Australia for only a short period of time. Their respective level of English, on their arrival, was at best rudimentary but most likely non-existent. Ms Molina had few friends and it seems none outside of the Congolese community in Adelaide. She had no one to whom she could easily turn.
In addition, Mr Toliver sees himself as the undisputed head of his household. This was my impression and it was also Dr Kennedy’s. In such circumstances, it is hardly surprising that there is a lack of an independent record supporting Ms Molina’s claims.
In addition, many, if not all of the mother’s complaints of violence and abuse occurred behind closed doors. As such, they were beyond independent verification and due to what I consider to be a pronounced power imbalance between the parties, it was likely to be difficult for Ms Molina to make a complaint about them to someone in authority. Indeed, it is not beyond the bounds of possibility that Ms Molina was unaware that such behaviour was beyond ordinary social norms within Australia.
In his evidence before me, Mr Toliver’s tone and attitude towards
Ms Molina was essentially negative. This may not always have been the case, I do not know. In addition, although he said he was not ill-disposed towards Tutsis generally and any conflict between Tutsis and Hutus had no place in Australia, this was not the impression I derived from his evidence.
As previously indicated, it seems to be Mr Toliver’s position that
Ms Molina has been manipulated by women in the Tutsi community in Adelaide to fabricate her complaints about him in order that she can leave Adelaide and be more financially independent of him through her receipt of a sole parent pension. I regard these claims as fanciful and being a further indication of the power imbalance, between the parties, whilst they were living together.
Although the parties themselves are the only significant witnesses regarding the nature of the relationship between them, they are not the only direct observers of it. R and H were also present during many of the incidents of which the mother complains.
R reported to Dr Kennedy that her father “would kick mum every day … he would kick mum with his foot and hit her very hard … on the head … and he would slap me and my brother … he would slap hard … on my feet he would slap me and my brother very hard.”
Dr Kennedy reported that R’s statements regarding the physical abuse occasioned to her, H and her mother were consistent. It is Mr Toliver’s view that Ms Molina has coached R to say these negative things about him for her own (Ms Molina’s) personal ends.
This was not Dr Kennedy’s view. R appeared to him to be a straight forward child, who was free from formal influences in her reporting to him. The sense that Dr Kennedy had was that these were matters of straight recall for her and were not influenced directly by her mother.
In addition, Dr Kennedy was struck by the fact that R’s recollections occurred more than twelve months after the events of which she complained. Dr Kennedy thought it was significant that these somewhat distant events remained fresh in R’s mind. For Dr Kennedy, this emphasised the significance of them for R and the likelihood that her recollection was true.
In addition, Dr Kennedy found Ms Molina to be uncomfortable, tearful and fearful during her interview with him, particularly at the prospect of coming into contact with Mr Toliver. Dr Kennedy did not think that this presentation was feigned.
To the contrary, in Dr Kennedy’s view, the mother’s presentation was consistent with her suffering from the consequences of post-traumatic stress disorder. These symptoms might have resulted from her previous experiences in the Congo but, in Dr Kennedy’s view, were also likely to have been exacerbated by her marital history with the father. Certainly, Dr Kennedy was of the view that the mother’s presentation to him was congruent with her expressions of fear about the father and her recounting of her previous history with him.
The parties acknowledge that they first separated in early November 2005, only a few months after the family had arrived in Australia.
Ms Molina acknowledges that the separation was not as a result of her own direct instigation. To my mind this is significant. It acts to discount the father’s suggestion that that the mother is manipulative and calculating. It also tends to support my impression that there was a significant power imbalance, between the parties, when they first arrived in Australia.
Ms Molina deposes that she had been unable to attend her English lessons because she had no money to pay her bus fare. As a result, she attended at the Migrant Resource Centre to ask for assistance. When asked why she did not have any money, she advised the workers there that Mr Toliver was in control of the family’s finances.
This disclosure lead to workers from the Centre contacting Mr Toliver and him being asked to attend to discuss the situation. I am satisfied that this resulted in a volatile interchange between Mr Toliver and the workers involved to such an extent that it was considered that it would be unsafe for Ms Molina to return home with him. I think it extremely likely that Mr Toliver violently proclaimed to the workers that they were teaching Ms Molina to disrespect her husband.
Mr Toliver acknowledges that he was called to the Migrant Resource Centre about some issue to do with the mother’s bus fare. He denies that the conversation and interchange he had there was in any way extraordinary. It seems to me to be unlikely that the workers at the Migrant Resource Centre would have taken the extreme case of taking the mother and children into protection if this had been the case.
It seems to me to be more likely that Mr Toliver felt insulted at what he believed was the unwarranted intrusion of the workers into his personal domestic affairs. During the process of evaluation for the family report, Dr Kennedy found Mr Toliver to be irritable and tense. This suggested to him a propensity on the father’s part to behave impulsively or angrily. In these circumstances, Dr Kennedy did not have reason to doubt that the father had a capacity to be both violent and unpredictable.
In such circumstances, it seems on balance to me to be likely that the father did behave in a violent and unpredictable way, at the Migrant Resource Centre, in June 2006. His behaviour was of such moment that the workers at the Migrant Resource Centre felt concerned for the mother and children’s safety.
In all these circumstances, I think it beyond the bounds of probability that the mother has either fabricated the incident, or that others, particularly a Tutsi worker at the Centre, have incited the father or otherwise manipulated the situation.
It is Ms Molina’s evidence that Mr Toliver was able to locate her at the emergency accommodation, which had been obtained for her. Ultimately Ms Molina decided to return to Mr Toliver. I do not think that this decision on her part should cause me to discount the seriousness of Mr Toliver’s behaviour of which she complains.
Ms Molina was in a difficult position, isolated in a foreign country in which she had recently arrived. In my view, she remained an extremely vulnerable person.
It is Ms Molina’s evidence, that, once she returned home, Mr Toliver punched and kicked her to such an extent that her eyes, face and lips were swollen. I do not disbelieve Ms Molina’s evidence in this regard, although I acknowledge that she did not report these serious assaults to the police or attend upon a doctor.
Ms Molina deposes that she did not attend a doctor or report the incidents because she was fearful about what the consequences would be for the father. She was fearful that he might be imprisoned. As such, being “new in Australia” she was “worried about what would happen to [her] and the children”.[14]
[14] See mother’s affidavit of evidenced filed 12 October 2007 at paragraph 2(c)
In assessing the likely veracity of this statement, I bear in mind that the mother had been in Australia for around five months. Her English was limited. In such circumstances, her behaviour and response to the situation do not appear incongruous or unlikely to me, particularly given R’s reports to Dr Kennedy.
It is common ground between the parties that they finally separated on 6 June 2006. Prior to this date, the mother had consulted a doctor,
Dr B at the Migrant Health Centre. Dr B referred the mother to the counsellor, Ms F. Ms F kept notes of her involvement with the mother from 25 May 2006 onwards. It seems that Ms F was instrumental in removing the mother and children from Adelaide. This is described in the notes as an “escape plan”.
It is clear from Ms F’s notes, which she prepared with the assistance of a Swahili interpreter that the mother complained of suffering serious violence from Mr Toliver. She also complained of verbal abuse and described Mr Toliver as easily irritated. She also said that Mr Toliver hit the children with his hands and beat them to such an extent that they urinated due to pain. She said that the father’s action left red marks on the children’s bodies. As a result of this behaviour Ms Molina said she did not feel safe at home and requested help from Ms F to leave her domestic situation.
Ms F is apparently involved with the Adelaide Central Community Health Service. Due to the complaints made by Ms Molina, she was obliged to notify the relevant child protection services. This she did, apparently on 8 June 2006. Her note records that the authorities indicated that they would not intervene in the proceedings as “other services [were] heavily involved”.
It is Ms Molina’s evidence that the precipitating factor in her deciding to separate from Mr Toliver was that he had threatened to kill her because he had believed she had stolen $5.00 from him and was seeing another man. This led her to ring the Migrant Health Centre, who in turn contacted emergency accommodation on her behalf. A few days later the service arranged for the mother and children to move to Melbourne to secure accommodation there.
It is Ms Molina’s position that she remains fearful of the father, particularly her perception that he feels humiliated by her decision to leave him with the children. As such, she is frightened to return to Adelaide because she believes there is the possibility that Mr Toliver will carry out previous threats he has made to kill her.
It is her position that her Central African identity make her highly visible in Adelaide and, as such, members of the Congolese community in Adelaide are likely to pressure her to return to the father. In the circumstances of this case, neither of these suggestions seems to me to be far fetched.
The standard of proof to be applied in this case is the balance of probabilities [Evidence Act 1995 (Cwlth) section 140]. In determining whether this standard is satisfied, I am entitled to look at the gravity or seriousness of the matters alleged.
In this case, I am well aware of the seriousness of the allegations made by Ms Molina against Mr Toliver. I am also well aware of the serious consequences, so far as Mr Toliver is concerned, if an adverse finding is made against him. As such, I must be cautious about an over reliance on any inexact piece of evidence or on an indirect inference.[15]
[15] See Briginshaw v Briginshaw (1938) 60 CLR 336 at 362
Bearing these matters in mind, on balance, I prefer the evidence of the mother over that of the father in respect of the issue of family violence and abuse of the two children concerned.
On the balance of probabilities, I accept that Mr Toliver did physically assault Ms Molina on numerous occasions. I am also satisfied that he has struck the two children concerned on more than one occasion and this is conduct which cannot be excused.
b) Dr Kennedy’s report and evidence
On 5 July 2007, I made orders which provided for Mr Toliver to be able to see the children, in Melbourne, at times to be agreed between the parties. At this time, neither party had any specific proposals as to how this could occur.
Certainly, I was told that Mr Toliver would be financially unable to travel to Melbourne. Mr Toliver was however able to travel to Melbourne for the purposes of the family assessment, which took place on 3 September 2007. By this time Mr Toliver had not seen either of the children for over a year.
Notwithstanding this considerable break in their relationship and R’s negative comments about him, Dr Kennedy reported that both children were excited to see their father and he interacted fairly easily with them, the three exhibiting mutual familiarity with one another.
Dr Kennedy was not surprised at this level of ease and familiarity. He noted that it was usual for children to be excited about seeing a parent, whom they had not seen for a significant period of time, particularly if the reunification occurred in a context where the children concerned felt safe and perceived they would not be subjected to any conflict. However, notwithstanding these riders, it seems clear that there is a significant level of reserve in the relationship between R and H on the one hand and their father on the other.
However, more importantly, it was Dr Kennedy’s view that the nature of the relationship, which the children had with their mother was qualitatively different to the one which they had with their father.
Ms Molina was observed to interact warmly with the children, who appeared very close and comfortable with her. Accordingly, it was
Dr Kennedy’s view that the children had a strong relationship with their mother.
On the other hand, Mr Toliver was more reserved with the children and did not play or interact with them, at their own level. He also was unable to exclude the children from his own perceptions of the parties’ marital circumstances. For example, he suggested to the children that he would take them back to Adelaide on that day. Dr Kennedy thought this suggestion was inappropriate, given the circumstances of the matter.
Overall, it is Dr Kennedy’s evidence that the children have a warmer and more intimate relationship with their mother. On the basis of their presentation to him, Dr Kennedy was of the view that the children were well cared for. R was described as a well groomed five year old, who was easy going. H as a happy and active boy. Accordingly, it is clear that Dr Kennedy was of the view that the children are doing well in the mother’s care at present.
Dr Kennedy described Mr Toliver as a “traditionalist”, so far as the parenting of children was concerned. Mr Toliver made it clear to
Dr Kennedy, during the assessment process, that it was his view that children should be parented by their father predominantly, following marital break down.
On the other hand, it was Dr Kennedy’s perception that the mother would be willing to involve the father in the ongoing care of the children, provided that she was satisfied that both she and they would be safe. Accordingly, Dr Kennedy did not believe that the mother was wanting to exclude the father from the children’s lives for any malign or secret motivation of her own.
As previously indicated, it was Dr Kennedy’s overall evaluation of the family that domestic violence had been perpetrated on both the mother and the children by Mr Toliver. He reached this view as a result of R’s disclosures to him; the mother’s presentation; and his assessment of the father’s presentation, which suggested to him that Mr Toliver had some mental health issues, perhaps relating to his exposure to trauma in the Congo.
It was also Dr Kennedy’s impression that the issue of conflict between Tutsis and Hutus was “very important” to Mr Toliver, although
Dr Kennedy conceded that he was not able to get to the bottom of this issue.
As a result of his observations, Dr Kennedy concluded that Mr Toliver was operating from a set of “culture-specific beliefs”, which were inappropriate in an Australian setting. For this reason, he recommended that Mr Toliver undergo a course of counselling to assist him with integration into the Australian context, particularly regarding child discipline and violence issues.
I should point out that Mr Toliver found this recommendation to be deeply offensive and insulting. He indicated to me that he saw no need to pursue such counselling and had no intention of doing so.
From Mr Toliver’s perspective, I can understand why he feels as he does. However, his attitude is not helpful to advancing the matter. There is a cultural gulf between him and his understanding of the issues put forward by Dr Kennedy.
Overall, Dr Kennedy summarised his evaluation of the family as follows:
“… the children, R and H presented as happy to see the father. The father’s behaviour with the children showed some inappropriateness, and a tendency to involve the children in a potential alienation situation. The primary care relationship for the children appeared to be with the mother. The mother’s interaction with the children and parenting appeared appropriate.
The major issues relate to the mother’s fear of the father, and the father’s apparent impulsivity. Contact between the father and the children could be best facilitated by both parents being located in one city, but only if the father’s behaviour with the mother and the children is appropriate.”[16]
[16] See Family Report at page 16
Dr Kennedy conceded that it was difficult to see how both parties could be safely accommodated, within the same city, particularly as
Mr Toliver had vociferously indicated his unwillingness to move from Adelaide.
In this context, I asked Dr Kennedy to consider what the implications would be for the children, if the mother was, in effect, compelled to return to live with the children in Adelaide, so that R and H’s relationship with their father could be preserved and enhanced.
Dr Kennedy was not sanguine about such a proposal. He was concerned at the prospect of the mother moving away from an environment, in Melbourne, where she had developed a number of appropriate support mechanisms, both in the African immigrant community but also in wider society. He was concerned that the mother would not have the same level of support in Adelaide and this would have a negative effect on the children.
This was apart from the consequences of any fear or apprehension the mother herself would feel, if she was compelled to return to Adelaide. Dr Kennedy considered that it would be inevitable that the children would be extremely detrimentally affected if their mother’s care of them was infused with a significant level of anxiety because she felt threatened in some way. In such circumstances, he thought it highly likely that the children’s development would regress, both emotionally and socially and the children themselves might become anxious.
Dr Kennedy conceded that this was the central dilemma of the case. He acknowledged that it was not in the best interests of R and H to have little or no contact with their father. However, on the other hand, he did not think that it would be in the children’s interests if their primary provider of care was stressed, anxious and frightened, something he thought very likely if the mother was compelled to return to Adelaide.
However, of the two invidious outcomes, Dr Kennedy considered that the prospect of the children having their primary parenting relationship undermined, by their mother’s ongoing sense of insecurity, was likely to be the more seriously detrimental one for the children. I accept this assessment.
Given the dynamics of this case, Dr Kennedy considered that there was no proper basis on which the parties concerned could exercise joint parental responsibility for their children or parent the children in a joint manner. Again, I agree with this assessment.
As a result of his evaluation of the family in this matter, Dr Kennedy recommended that R and H should remain in the care of their mother in Melbourne. He conceded that it was difficult for him to make recommendations regarding the management of the children’s ongoing relationship with their father.
He was not greatly surprised that Mr Toliver was unwilling to come to Melbourne to see the children. In order to facilitate his relationship with the children, in an Australian context, Dr Kennedy believed that Mr Toliver needed to access a variety of support services. This would require engagement and cooperation on Mr Toliver’s part, which
Dr Kennedy considered was unlikely to be forthcoming from him.
Dr Kennedy was concerned about the history of violence towards the children, which had been recounted to him and which he considered likely to be true. As such, he recommended that any time the father spent with the children should be supervised by an external source, preferably a contact service. Dr Kennedy recommended supervision because he was concerned that Mr Toliver may not adhere to any specific court orders regarding his physical disciplining of the children.
At this stage, Dr Kennedy considered that the children were too young to travel from Melbourne to Adelaide alone. As such, given the attitude of Mr Toliver, it was difficult for Dr Kennedy to make specific recommendations about the level of frequency with which Mr Toliver should see the children. All in all, it would seem that Dr Kennedy regarded the matter as highly problematic.
Determining R and H’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the child concerned from harm as a result of exposure to abuse and family violence; and the benefits of the child having a meaningful relationship with both parents.
Which of these considerations is given more emphasis must depend on the particular circumstances of the case concerned. In all the circumstances of this case, I consider that the need to protect the children from future harm should be given pre-eminence. For the reasons previously provided, I accept that both children have been subjected to direct physical abuse, at their father’s hands and also subjected and exposed to family violence.
I do not think these have been isolated incidents but are part of a serious and protracted course of behaviour on Mr Toliver’s part. As such, there is a very real and serious risk of the children being exposed to such conduct again, particularly if the children are placed in their father’s care. This risk is not an acceptable one for the court to countenance.
The children have seen their father strike their mother, who has been their primary source of both physical and emotional succour. I accept Dr Kennedy’s evidence that this type of exposure is emotionally damaging to children of the ages of R and H. In addition, it is likely to provide an inappropriate model, from which the children learn their own future behaviour.
In the circumstances of this case, I believe the desirability of protecting R and H from potential harm, as encapsulated in the objects contained in section 60B(1)(b), (c) and (d) are of paramount importance in ensuring the children’s best interests are met. There is a serious potential, in my view, if the children are placed in the principle care of the father, that they will not receive “adequate and proper parenting” and so will not achieve their full potential.
In reaching this decision, I am well aware that this must have very significant implications for the children’s capacity to maintain and extend a meaningful relationship with their father. This is particularly so if Ms Molina remains living in Melbourne, with the children and
Mr Toliver remains steadfast in his refusal to leave Adelaide. In addition, I have no reason to disbelieve Mr Toliver’s statement that, if R and H are placed permanently in their mother’s care, he would essentially disown them as his children.
Obviously, if Mr Toliver is intent on severing his parental relationship with the children, unless he can maintain it on his terms, R and H will have no level of relationship with their father, let alone a meaningful one, in the sense envisaged by the relevant provisions of the Family Law Act. This cannot be a satisfactory result for the children, but nor is the prospect of them being exposed to future abuse or inappropriate role modelling.
It seems clear from Dr Kennedy’s evidence that the children have a warm and loving relationship with their mother, which, as a result, is imbued with a significant level of meaning. In my view, the best interests of the children dictate that their maternal relationship should be supported and preserved. This militates against their being any significant change in arrangements for their care, at this stage.
At least in his formally prepared material, the father proposed that the children should continue to live with their mother and she, in some way, should be compelled to return with them to Adelaide. Such an outcome could be only achieved at the price of the abrogation of
Ms Molina’s entitlement to live how and where she chooses. In my view, even if this were not the case, such an outcome would have significant disadvantages, from the perspective of the children’s best interests.
I accept that Ms Molina would be deeply distressed and unhappy if she was compelled to live in Adelaide. She would feel a prisoner in the city and would perceive that her every action was subject to scrutiny, not only from the father, but also from other members of the Congolese community, with whom the father is aligned. In essence, Ms Molina would not be able to live her own life, but would perceive that she was living at Mr Toliver’s direction, even though the two of them were now separated.
In addition, I am satisfied that such an outcome would have other serious detrimental consequences for the children’s emotional well being. I think it is axiomatic that a happy parent is more likely to be a capable parent. I accept that Ms Molina is likely to feel both unhappy and personally insecure, if she returns to live in Adelaide.
This in turn is likely to impact upon her capacity to parent R and H to the full extent of her abilities. In particular, I accept that, if Ms Molina is an anxious and fearful parent, this will have implications for the children’s emotional well being.
In particular, I accept Dr Kennedy’s assessment that of the two outcomes for the children from this case, the more invidious one is that their primary provider of care (their mother) becomes anxious and fearful, rather than the consequences of them losing the potential to have a meaningful relationship with their father.
Given these factors and the objects of the Act, to which I have already eluded, I think that, in the circumstances of this particular case, the need to protect R and H from harm assumes greater importance than the court attempting to impel a greater level of meaning into their relationship with their father, an objective which will be problematic to achieve.
I am fortified in this analysis by what was said in the explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006. In particular, I refer to the following passage:
“The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B …
For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.”[17]
[17] See explanatory memorandum to the Family Law Amendment (Shared Parenting Responsibility) Bill 2006 at paragraph 49-50.
The practical underpinning of how children are to have meaningful relationships with their parents is provided by the presumption created by section 61DA and the machinery which flows from it in section 65DAA.
In this case, for the reasons provided, I am satisfied that there are reasonable grounds to believe that Mr Toliver has engaged both in abuse of R and H and family violence. As such, the presumption of equal shared parental responsibility does not apply in this case. I am also satisfied that, overall consideration of the children’s best interests, must dictate that the presumption should not apply.
In addition, it does not seem unreasonable that, if Mr Toliver wishes to pursue some level of relationship with the children, he should do so in Melbourne, regardless of whether or not this is his preference. Certainly, it would seem to me to be an unwarranted fetter on the mother’s entitlements that she be compelled to return to live in Adelaide, with the children, when the father himself is unwilling to pursue any other course in regard to the children, other than that of his own choosing.
The additional considerations
(a) The children’s views
The children are too young for their views to be determinative in this matter.
(b) The nature of the relationship between the children and each of their parents
At the present time, the children’s most significant relationship is with their mother, who has been their principal provider of care since the date of their respective births. As I have already indicated, I accept
Dr Kennedy’s evidence that the children’s maternal relationship is warm and appropriate.
There is no reason, relating to a proper consideration of the children’s best interests, to justify a change in the children’s principal provider of care. In such circumstances, Ms Molina need not provide compelling reasons, as to why she wishes to live with the children in Melbourne.
R and H know and remember their father, despite not having seen him for over a year. They were curious and excited to see him again, in
Dr Kennedy’s rooms. Clearly there is a relationship between the children and their father, which has not been broken by the mother’s removal of them to Melbourne from Adelaide.
In addition, the children share much family history with their father. As they grow older, the father is a potential source of information for the children about their origins and background in Central Africa. As such, Mr Toliver has a significant potential to shape the future identities of both R and H.
However, I accept Dr Kennedy’s evidence that the relationship the children have with their father is qualitively different to that which they enjoy with their mother. R and H are reserved with their father. In addition, it seems that R has some level of apprehension regarding her father. Accordingly, I do not think the relationship the children have with their father can be described as a warm one.
I do not believe that the reasons for this lack of warmth can be ascribed to cultural factors alone. Rather, it is likely to be as a result of the father’s behaviour to both the children and their mother and his prior lack of extensive involvement in their care. Clearly, these are factors which favour the children remaining in the principle care of Ms Molina and militate against a change in where and with whom the children should live.
(c) The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other parent
The matters which fall for consideration under this heading are significant in this case. The actions of the mother, in moving the children from Adelaide to Melbourne, cannot be said to be indicative of an attitude on her part, which is supportive of the children having an ongoing relationship with their father. As a result of Ms Molina’s action, the children now have not seen Mr Toliver, in any meaningful sense, for well over a year.
I have not heard any evidence from Ms F and other workers at the Migrant Resource Centre, who engineered the mother and the children’s departure from Adelaide. Ordinarily, courts such as this one, should be careful not to condone such unilateral action. However, in the circumstances of this case, I do not think their actions and that of the mother can be characterised as unreasonable.
In particular, I accept that the mother would have remained highly visible and vulnerable, in Adelaide, as a member of the Congolese community. As such, I accept that she was particularly vulnerable to both potential harm and pressure from the father.
I also accept that she was and is frightened of the father and, in objective terms, had reason to be. In such circumstances, I accept that she had little alternative but to flee with the children, regardless of the implications of such flight for the children’s relationship with their father.
Notwithstanding these actions on the mother’s part, Dr Kennedy considered that Ms Molina would be capable of supporting the children having a relationship with their father, provided she was satisfied that both she and they would be safe.
In particular, Ms Molina indicated that she had “no problem” with
Mr Toliver seeing the children, so long as she felt secure. Accordingly, I do not think that she is intent on severing the relationship between the children and their father, at all costs.
As previously indicated, Mr Toliver has indicated that he will not consider coming to Melbourne, in any circumstances, if the children remain living in their mother’s care in Melbourne. It is possible that he may change his mind in future but realistically, I have no reason to disbelieve his statements in this regard.
I can understand why Mr Toliver would be deeply dissatisfied with such an outcome. I am not in a position to compel Mr Toliver to pursue his relationship with the children. I can also understand why he would regard the conditions proposed by Dr Kennedy as being both unnecessary and insulting.
In assessing the matters which fall for consideration under this criterion, I am required to have reference to the matters set out in section 60CC(4). If Mr Toliver makes good his promise to disown the children, clearly it will be as a result of his own actions that he has not taken the opportunity to participate in decision making regarding the children and to spend time and communicate with them.
I appreciate that it has been very difficult for Mr Toliver to pursue any form of relationship with the children, since June of 2006. However, in my estimation, the difficulties have not solely been of Ms Molina’s making. To a large extent, Mr Toliver has not been proactive in regards to either communicating with the children or spending time with them. He is disinterested in coming to Melbourne to see them.
Mr Toliver’s proposed solution, to the difficult issues in this case, is that the children should immediately return to live with him in Adelaide. Accordingly, it is a solution wholly on his terms. In such circumstances, he has indicated that he would ensure that the children were able to see their mother regularly in Adelaide. I did not find this undertaking particularly compelling, although I concede that I have no way of really measuring his integrity in regards to it.
Ms Molina has also deposed that she would be prepared to consider the children travelling to Adelaide, to see their father, in school holidays, when they are older. The logistical issues in regards to this proposal are likely to be considerable and the mother’s plans are not fleshed out in any detail. However it seems to me that she is the more flexible parent in regards to the children spending time with the other.
(d) The likely effect of any change in the children’s circumstances, including the likely effect of being separated from one of their parents
Assessing the effects of changes and separations are at the heart of this case. The most important and obvious change that will flow, if R and H continue to live permanently in Melbourne, is that it will greatly reduce, if not totally end, their relationship with their father. This is the central dilemma of the case.
The father’s preferred outcome would represent a very significant change for the children. They would leave the care of their mother, with whom they have a close and warm relationship, and come into the care of their father, towards whom they are reserved and apprehensive. I do not think that such an outcome could be justified on the basis of any proper consideration of the children’s best interests, notwithstanding it would reinforce the children’s relationship with their father.
Another of the potential outcomes in the case, which was envisaged by Mr Toliver’s original application, is that the children and Ms Molina should return to Adelaide, so that Mr Toliver may see R and H more regularly.
It seems likely that the mother would sustain a severe adverse psychological reaction to such an outcome. As I have already indicated, I accept that this would undoubtedly have severely detrimental consequences for her ability to parent both children to the maximum extent of her capabilities. It is also likely to deepen her sense of resentment towards Mr Toliver and create an atmosphere, which can only be described as an unsuitable one in which to parent two young children.
It seems to me that the best outcome for the children is that they remain in their mother’s care, in Melbourne, where she feels happy and well settled. In my view, it is likely to be severely detrimental for the children, if they are removed from this environment, to which they have become accustomed, in the period of the last year or so. There is nothing to indicate that the children are not thriving in this environment.
The years of early childhood are significant for the establishment of parental bonds, which in turn are important for the development of a sense of identity in adulthood. R is just about to start primary school. H is too young to attend school. The children are young. They have little understanding as to why their father has disappeared from their lives and in future may have cause to wonder who and where he is. This would be highly regrettable.
In such circumstances, I have considerable concerns that, notwithstanding any future change of heart on Mr Toliver’s part, the prospects of the children maintaining any level of paternal relationship with him, are highly doubtful. However, notwithstanding these concerns, I consider that, at this stage either a change in the children’s residence providing parent or an outcome which compels the mother to return to Adelaide, too high a price to pay for the possibility of the children maintaining their paternal relationship.
The latter outcome could only be achieved at the price of the mother’s entitlement to freedom of movement being severely circumscribed. In any event, even if the mother and children do return to Adelaide, I do not regard it as certain that the father would be sufficiently motivated to pursue any meaningful level of relationship with the children.
In addition, it seems that considerations related to the protection of the children should dictate that, certainly initially, any interaction between Mr Toliver and the children should be subject to supervision.
Mr Toliver would not consent to such a condition. So the curtailment of the mother’s freedom will not necessarily achieve its object.
In all these circumstances, the mother’s preferred outcome, imperfect as it is, appears to me to be the one most calculated to serve R and H’s best interests. To my mind, it is also the outcome which is the most calculated to protect them from suffering further harm, as a result of exposure to abuse and family violence.
The father, from his perspective, wishes to have the optimal level of relationship with the children. Such an outcome can only come about at the cost of the reduction of the children’s most significant relationship, that which they share with their mother. This is not likely to be in R and H’s best interests.
In my view, there are courses of action, which are open to the father, which would enable him to possibly extend and improve his relationship with the children. It is open to him to move to Melbourne and to pursue some supervised time with the children and undertake the counselling, recommended by Dr Kennedy, although this is not palatable to him.
As the High Court pointed out in U & U, the prospect of the father moving to Melbourne cannot be regarded merely as a theoretical or forensic test of his level of devotion to R and H. In my view, in reality, such an outcome is open to him.
The father has few ties in Adelaide. He is not currently working in Adelaide. I would imagine that he could just as easily pursue his English studies in Melbourne as in Adelaide.
In such circumstances, it seems unreasonable that the mother should be compelled to give up her life in Melbourne, so that the father may have some improved and theoretical level of relationship with the children, which, in any event, may prove impossible to achieve in practice.
The positives and negatives of both allowing and disallowing the children’s relocation to Melbourne must be considered from the perspective of R and H’s best interests. I am satisfied that the benefits of the relocation outweigh the deficits, notwithstanding the obvious problems the relocation will cause to the children’s relationship with their father.
(c) The practical difficulty and expense of the children spending time and communicating with their parents
It is a long way from Adelaide to Melbourne. Neither party is in a strong financial position and both are likely to be dependent upon social security payments for the foreseeable future. The father is likely to find it difficult to obtain accommodation for himself in Melbourne, if he is disposed at all to come to Melbourne to visit R and H from time to time. In addition, at present, it will be difficult for the mother to take the children to Adelaide, to see their father. Their current tender years preclude them from travelling independently for the next few years.
Accordingly, there are many practical difficulties, which are likely to impact upon the children’s ability to spend time with their father in future. In addition, at present, the father does not seem disposed to communicate with the children by means of the telephone.
One of the major factors, which militates against the mother’s proposal is that it is likely that it will be logistically difficult and expensive for the children to spend time with the father in future. However, these difficulties must be put in perspective. It was as a result of the father’s conduct that the mother was compelled to relocate. In addition, the father seems unwilling to make any compromises himself, in order to pursue his relationship with the children.
In all the circumstances of this case, I do not think that the difficulties, which will be encountered in the father being able to spend time with the children are such that considerations of them should prevail over the mother’s entitlement to freedom of movement.
(f) The capacity of the parties to provide for the children’s emotional and intellectual needs
(i) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties.
These criteria are so closely linked that it is convenient to consider them together. Dr Kennedy considered that R and H were doing well in their mother’s care. It seems to be the case that the children are learning English quickly and have made friends in Melbourne.
Ms Molina has obtained government provided accommodation for herself in Melbourne. She describes it as comfortable and herself as lucky to have received it. The house is close to R’s school, a playground and other amenities. I have no reason to think anything other than that Ms Molina is capable of providing for the children’s emotional and intellectual needs and has made appropriate arrangements for this to occur.
Ms Molina indicated that she wishes the children to have good manners and to be good citizens. She herself wishes to improve her understanding of English, with a view to obtaining a certificate in aged care, at some time in the future. She would like to get work for herself in this field. The evidence indicates that both she and the children are assimilating themselves into Australian society.
The father has displayed a disparaging and abusive attitude towards the mother in the past. R, in particular, is well aware of this behaviour. Given the findings I have made, it is incumbent in them, that I consider that the mother has demonstrated a greater aptitude for discharging the responsibilities of being a parent than the father has.
One of the significant disadvantages of the father’s proposal is that it would involve the removal of the children from the care of a warm and insightful parent and their placement into the care of a parent, who has discharged significantly less of the responsibilities of parenting R and H in the past. In this regard, I accept the mother’s evidence that
Mr Toliver was not significantly involved in the day to day parenting of the children, when the parties lived together.
(g) The children’s maturity, sex, background and other characteristics
The children are heirs to a rich cultural tradition, on both their mother and father’s side. What are the specific differences between Hutu and Tutsi culture was not explored in the proceedings before me in detail, other than that it is Mr Toliver’s position that the cultural orientation of the children dictate that they should revert to his care, upon the end of the relationship between him and Ms Molina.
The children have been significantly affected by one of the most violent conflicts in history, which in turn resulted in a massive movement of refugees, of which their parents were part. The children’s background is thus a complex one. They have been violently uprooted and moved into a vastly different environment.
In addition, R and H are obviously African children. As such, they constitute a visible minority, within the Australian mainstream. Circumstances beyond their control compelled their parents to seek refuge in this country. Being younger, the children are likely to assimilate cultural and linguistic change more easily than their parents.
However, cultural background is important to children. It provides them with a sense of identity. In addition, positive role models, within their own cultural orientation, are likely to protect them from the corrosive consequences of exposure to racism, which sadly is likely to be probable.[18] The best such role models are most usually the children concerned’s parents.
[18] See B & R & the Separate Representative (1995) FLC 92-636 at 82,398
I am satisfied that Ms Molina is likely to provide such a satisfactory role model for the children. I accept that she has friends in both the African migrant community in Melbourne, as well as the wider community. She identifies as a person from Central Africa, having lived there for most of her life to date. However, she is also adapting to the circumstances of life in this country.
Accordingly, the fact of the children remaining in her care, will not deprive them of the influences of African culture, in their ongoing care and development, nor will their mother’s care prevent them from assimilating into Australian society. I accept that the mother will provide R and H with an appropriate African role model. However, they will be bi-cultural and most probably bi-lingual children, who will need to absorb a number of cultural influences to develop successfully in this country.
The role and structure of families differs across and within cultural and religious groups, as do the role and functions of fathers and mothers within families. Mr Toliver is right to point out that Australia is a multi-cultural society, which tolerates and encourages both cultural and religious diversity. One of the most difficult tasks for a court, exercising jurisdiction under the Family Law Act, is to determine the best interests of children, in cases where the parents concerned hold different ethnic or cultural values.[19]
[19] See H & H (2003) Fam LR 264 at 269
There is great debate over the meaning and concept of the culture – amongst politicians, members of the community, as well as in courts of law. However, culture is learnt, it is not innate, or biological.[20] Accordingly, culture is mutable, changing as it comes into contact with other influences and forces.
[20] See H & H supra at 270
One of the greatest influences for cultural change is migration. The lives R and H will lead in suburban Australia are likely to be radically different to those which they would have led in a refugee camp in Tanzania or indeed in the Congo. Inevitably, the children will attend public schools in Australia and be exposed to all manner of cultural divergence. They will not mix with just African children.
The evidence from Ms Molina is that the children are currently leading lives of rich cultural divergence. They have friends from Ethiopia and Sudan, as well as friends who were born in Australia, no doubt from all manner of different backgrounds.
R and H will assimilate all those influences. However, they will grow to maturity in a liberal and democratic society, which values freedom and the ethos that equality of opportunity be open for both men and women.
In such circumstances, in my view, it is not likely to be either appropriate or in the best interests of R and H for arrangements for their care to be determined according to the norms and practices of the area within the Congo from which Mr Toliver comes.
These children are, on a day to day basis, subject to the cultural influences of Australia, the predominant culture in which they live. They no longer live in Central Africa. Their Congolese background is a part, albeit a very significant part, of their cultural background, but it should not dictate the whole future process of their development, particularly given the dispute between their parents. In any event, the precise nature of Congolese family practice is a matter of controversy between the parties, which I cannot resolve.
I would not want these comments to be taken as being in any way a disparagement of Mr Toliver’s cultural background. That is certainly not my intention. In any event, for the reasons already provided, I do not believe that the children will be deprived of access to their cultural background, if they remain in the predominant care of their mother.
On the other hand, I would be concerned that the children may not be appropriately exposed to Australian and other multi-cultural influences, if they revert to the care of their father. As I say, it is highly likely that, in their two or so years in Australia, the children have rapidly assimilated many mainstream Australian cultural influences.
(h)Aboriginality
These considerations are not relevant in the present case.
(j)Any family violence involving the children
(k) Any Family violence order
I have already eluded to family violence in these reasons for judgment. I am satisfied that the children have been exposed to family violence. The best means of ensuring that they are not exposed to such family violence in the future is if they remain in the mother’s care.
I note that there is no family violence order relevant in this order and Ms Molina has never applied for such an order. The absence of such an order is of no consequence to these findings.
(l)Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The rationale being section 60CC(3)(l) is easy to glean. Litigation, in regards to children, is expensive in both emotional and financial terms and does little to encourage an easy parenting relationship between the parties concerned.
In addition, litigation has the potential to perpetuate conflict between parties, which is harmful to the emotional security of the children concerned. Accordingly, it is desirable that courts, such as this one, make orders that will minimise the prospects of the parties concerned seeking further orders in future.
The father has said that he will have nothing more to do with the children, if they remain in their mother’s care. However if he changes his mind in this regard, arrangements for him to spend time with the children in Melbourne are likely to be fraught with all manner of difficulties.
If there is a change in the living arrangements for the children, as the father proposes, this in turn is likely to create many controversies between the parties and so the prospect of further litigation.
All in all, I do not think that the matters which fall for consideration under this heading are likely to be strongly determinative in the matter. Whatever is the outcome, there will be problems for the children. How those problems pan out in future is uncertain to me.
Conclusions
In my view, the presumption of equal shared parental responsibility should not be applied in this case because of considerations of family violence and abuse. In addition, given the poor parenting relationship between the parties, it is not likely to be in the best interests of the children for the presumption to be applied.
Accordingly, it is not necessary for me to consider the children either spending equal periods of time or substantial and significant periods with each of their parents. In any event, such outcomes, for obvious reasons, are highly impracticable.
Having considered all the matters, which are raised by section 60CC, I have come to the conclusion that the best interests of the children will be served if they remain living with their mother in Melbourne and that she should have parental responsibility for them. Accordingly, as she has been found to be the better placed parent to provide a home for the children, she need not have a compelling reason to support her desire to live with them away from Adelaide.
Regardless of this fact, I consider that Ms Molina did have sound and valid reasons for wanting to move with the children to Melbourne. She feels happier and more secure in Melbourne. The evidence indicates that the children are doing well in her care in Melbourne. In my view, it is likely to be detrimental to the children, if they and their mother are compelled to return to Adelaide, a place where certainly the mother has been previously unhappy.
I am well aware that such an outcome has serious consequences for the children’s ability to maintain a meaningful relationship with their father. Given the father’s currently expressed attitude, there is a strong possibility that the children will lose their paternal relationship or at best it will be seriously undermined.
However, in my view, it would be artificial in the extreme and would present no guarantee that such a relationship would be preserved in future to compel the mother to return the children to Adelaide. In addition, the possible detriments to the children are likely to be extreme and to significantly outweigh any benefits, which the children will receive from such an outcome.
In addition, it is open to the father to move to Melbourne, if he wishes to pursue his relationship with the children. He is not so ensconced in Adelaide that such a move would be unduly onerous or unreasonable for him. If he wishes to have some form of a relationship with the children it is inimicable to the mother’s interests and the best interests of the children that it should occur only on terms of the father’s dictation.
The allegations of family violence and abuse raised by the mother are serious. They are supported by Dr Kennedy, particularly in the light of what was told to him by R. Protective concerns loom large in this case. The further protection of the children from harm is fundamental to their best interests.
It is easy to feel sympathy for Mr Toliver. It seems likely that he is experiencing significant difficulties in adapting to life in Australia, given his previous traumatic experience in Africa. I can also understand why he would feel aggrieved at the recommendations of
Dr Kennedy. However, those sympathies should not impinge on the children’s best interests.
In my view, the best interests of the children dictate that a cautious approach should be taken in respect of any arrangements for
Mr Toliver to spend time with them in future, particularly given the diffidence the children feel for him and R’s past reports of abuse.
In such circumstances I believe it is appropriate that I make orders that any time Mr Toliver spends with the children take place pursuant to supervision and after Mr Toliver has completed the course of counselling recommended by Dr Kennedy. It is implicit that any time the children spend with their father should take place in Melbourne.
I am sadly well aware that Mr Toliver is likely to reject these orders, which will mean that the children concerned will not have a meaningful relationship with him in the future. But, in my view, it would be an act of irresponsibility towards the children’s best interests to relax those conditions, in the most probably vain hope that this will lead to some improvement in the prospect of the children having a meaningful relationship with their father in future.
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 three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 8 February 2008
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