Tomkins and Ward and Ward and Richards (No.2)
[2009] FMCAfam 13
•19 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOMKINS and WARD & WARD and RICHARDS (No.2) | [2009] FMCAfam 13 |
| FAMILY LAW – Children – application for parenting orders – twins aged 3 – where the mother has significant disabilities (including postural imbalance and a staggering gait) resulting from brain injuries caused, in part, by a childhood cerebral haemorrhage – where twins placed with the applicant (who was the maternal uncle's de facto partner) when they were aged approximately 5 weeks – where twins have lived with the applicant since that time – where the twins' father has had minimal involvement in their lives – where the mother lives in South East Queensland and the applicant lives (with the twins) near Parramatta, New South Wales – where the mother is spending time with the twins on a regular basis – where the mother resents the applicant and asserts that she has "stolen" the twins from her – whether the mother is physically capable of caring for the twins without 24 hour per day, seven day per week assistance (or something close to that level of assistance) – where the applicant has cared for the twins very well – where the twins have "bonded" with the applicant – where removing the twins from the applicant and placing them with the mother would cause the twins to be involved in a complex care arrangement (which would include family day care, outside the mother's home, for six days each week) – where, in any event, placing the twins with the mother could result in the Queensland Department of Child Safely taking the twins into care – where the independent children's lawyer strongly supports the applicant's case to the effect that twins should continue to live with her – whether the mother and the applicant should have equal shared parental responsibility for the twins – consideration of section 60CC and other factors in the light of a complex factual situation, including the mother's disabilities and the applicant's status as a biological "stranger" to the twins. |
| Family Law Act 1975 (Cth), Part VII ss.4(1), 60B, 60B(1), 60B(2), 60B(3), 60CA, 60CC, 60CC(1), 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(4), 60CC(4)(c), 60CC(4A), 60CC(5), 61DA, 61DA(2), 61DA(3), 61DA(4), 64B(2), 64B(3), 65D(1), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65DAE Federal Magistrate Court Rules 2001(Cth), Div 15.2 Family Court Rules 2004 (Cth), Part 15.5 |
| AMS v AIF (1999) FLC 92-852 Davis & Spring (2007) FamCA 1149 Dennett & Norman (2007) FamCA 57 (FCoA FC) Goode (2006) FLC 93-286 Holmes (1988) FLC 91-918 Hungerford & Tank (2007) FamCA 637 Kire & Jackson & Grubb (2007) FamCA 1646 M & S (2006) FamCA 1408 Mazorski & Albright (2008) 37 Fam LR 518 McLeay (1996) FLC 92-667 Mills & Watson (2008) 39 Fam LR 52 Moose (2008) FLC 93-375 Oscar and Traynor (2008) FamCA 95 Pender & Haywood [2007] FamCA 1526 Re Evelyn (1998) FLC 92-807 Re: F – Litigants in Person Guidelines (2001) FLC 93-072 Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334 Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321 Rice v Miller (1993) FLC 92-415 (FCoA FC) Saxena (2006) FLC 93-268 Taylor & Barker (2007) FamCA 1246 West (2007) FamCA 546 |
| First Applicant: | MS TOMKINS |
| Second Applicant: | MR WARD |
| First Respondent: | MS WARD |
| Second Respondent: | MR RICHARDS |
| File Number: | PAM 2877 of 2006 |
| Judgment of: | Walters FM |
| Hearing dates: | 16 – 17 November 2006 14 – 18 May 2007 |
| Date of Last Submission: | 16 November 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 19 January 2009 |
REPRESENTATION
| Counsel for the First Applicant: | Ms McDiarmid |
| Solicitors for the First Applicant: | Watson Stafford, NSW |
| Counsel for Second Applicant: | Unrepresented |
| Counsel for the First Respondent: | Mr Battley (16 – 17 November 2006), Ms Kirkman-Scroope |
| Solicitors for the First Respondent: | Allan Dick Solicitors, Brisbane |
| Counsel for the Second Respondent: | Unrepresented |
| Counsel for the Independent Children’s Lawyer: | Mr George (16 – 17 November 2006), Ms Gillies |
| Solicitor for the Independent Children’s Lawyer: | Tiyce & Partners Lawyers |
ORDERS
IT IS ORDERED THAT:
MS TOMKINS (“Ms Tomkins”) and MS WARD (“Ms Ward”) have equal shared parental responsibility for the children [X] and [Y], both born in 2005.
The children live with Ms Tomkins.
The children spend time with MR WARD (“Mr Ward”) as agreed and arranged between Ms Tomkins and Mr Ward.
The children spend time with Ms Ward as agreed and arranged between Ms Tomkins and Ms Ward, and failing agreement as follows:
(a)except in the month of January in each year, on the weekends of the first and third Friday in each month, from 12 noon on Friday to 5 p.m. on Sunday;
(b)from 2 p.m. on 24 December until 6 p.m. on 26 December in 2009, and in each alternate year thereafter;
(c)for a period of 7 consecutive days in January 2009, such period to be agreed between Ms Tomkins and Ms Ward;
(d)from 9 a.m. on the second Monday in January until 9 a.m. on the third Monday in January in each of the years 2010 and 2011;
(e)notwithstanding any other provisions of these orders, from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2010;
(f)from 3 p.m. on 27 November until 3 p.m. on 28 November in 2009, and in each alternate year thereafter;
(g)from 3 p.m. on 28 November until 3 p.m. on 29 November in 2010, and in each alternate year thereafter; and
(h)upon the children commencing school, and subject to paragraph 5 below, one half of all school holidays, and being the first half of such holidays in 2011 (and in each alternate year thereafter) and the second half of such holidays in 2012 (and in each alternate year thereafter).
Upon the children commencing school, the spend time arrangement referred to in paragraphs 4(a) and (b) be suspended during all school holidays, and do resume after such holidays in an unbroken cycle as if such holidays had never occurred.
Notwithstanding any other provisions of these orders (save for paragraph 4(e) above), Ms Ward's time with the children be suspended, and the children be returned to live with Ms Tomkins at the following times:
(a)from 2 p.m. on 24 December until 6 p.m. on 26 December in 2010, and in each alternate year thereafter;
(b)
from 3 p.m. on 27 November until 3 p.m. on 28 November in 2010 (and in each alternate year thereafter) and from 3 p.m. on
28 November until 3 p.m. on 29 November in 2009 (and in each alternate year thereafter); and
(c)from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2009.
In relation to decisions regarding long term issues affecting the children – excluding the baptism, and excluding medical emergencies (which are provided for by separate orders herein):
(a)All joint decisions must be –
(i)evidenced in writing; and
(ii)signed by both Ms Tomkins and Ms Ward.
(b)If Ms Tomkins and Ms Ward are unable to come to a joint decision, then, prior to filing any further application to the court –
(i)they must both attend (by telephone or in person) upon a recognized dispute resolution practitioner in the Newcastle area; and
(ii)they must both attend upon the said dispute resolution practitioner at the same time.
The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact or communicate with MR RICHARDS.
MR RICHARDS is hereby restrained by injunction from coming into contact or communicating with the children or either of them.
The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact with Mr P.
The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to visit the home of MR W and/or from allowing MR W to transport the children (or either of them).
In the event that the children (or either of them) come into contact with MR W, Ms Tomkins and Ms Ward (and their servants and agents) must cause the children to be removed from his presence immediately if he becomes intoxicated or aggressive (including verbally aggressive).
Ms Ward’s time spent with the children (or either of them) – including overnight periods of time spent – must be supervised at all times by:
(a)Ms P; or
(b)Ms D; or
(c)Ms T; or
(d)any other supervisor agreed by the parties in writing.
Unless otherwise agreed in writing between Ms Tomkins and Ms Ward, all overnight periods of time spent by Ms Ward with the children (or either of them) must be spent at the home of:
(a)Ms P; or
(b)Ms D; or
(c)Ms Ward.
In the event that Ms Ward resides in Brisbane/[S], then Ms Tomkins must be responsible for delivering the children to and collecting them from the home of Ms P:
(a)on the first weekend in April; and
(b)on the first weekend in August; and
(c)for time spent with Ms Ward pursuant to paragraph 4(c) and (d) above; and
(d)for the Christmas holiday periods pursuant to paragraph 4(h) above.
For all other changeovers, Ms Ward must be responsible for collecting the children from Ms Tomkins’ home at the commencement of her time and Ms Tomkins must be responsible for collecting the children from Ms D’s home of at the conclusion of the time.
If Ms Ward will not be spending time with the children in New South Wales pursuant to any of the provisions of these orders, then Ms Ward must inform Ms Tomkins of that fact, in writing, at least seven days before the commencement of such spend time period.
The parties, their servants and agents be and are hereby restrained by injunction from:
(a)
abusing, insulting, belittling, rebuking or otherwise denigrating Ms Tomkins, Mr Ward, any supervisor, Ms Ward or
MR RICHARDS; and
(b)discussing these proceedings,
in the presence or hearing of the children (or either of them), and from permitting any other person to do so.
Ms Tomkins and Ms Ward must advise each other, in writing, at least
7 days before any change to their residential address, mobile telephone or landline number.
This order is sufficient authority for each of Ms Tomkins and Ms Ward to obtain information regarding the children (or either of them) from any school, child care facility, medical practitioner, sporting club or entity, therapeutic consultant or third party that the children (or either of them) might attend for educational, psychological, sporting or medical purposes or activities.
Ms Tomkins and Ms Ward must advise each other, in writing, at least
7 days before any scheduled medical, psychological or therapeutic appointment that both or either of the children are scheduled to attend, and both be at liberty to attend same.
In the event that either child requires emergency medical treatment,
Ms Tomkins and Ms Ward must each advise each other, as soon as practicable, of such requirement, and include details of the attending medical practitioners, their contact details and the condition for which treatment is required.
At least 3 months prior to the children being enrolled in any educational facility, Ms Tomkins must provide Ms Ward with details of the facility, proposed enrolment details, and the contact details of the facility.
Ms Tomkins and Ms Ward must maintain a communications book, which shall pass with the children.
The children be baptised in the Roman Catholic faith, unless otherwise agreed in writing between the parties.
Ms Ward be responsible for taking all steps to give effect to paragraph 25 above, and must provide Ms Tomkins with 28 days notice of the date, time and location of that baptism, and Ms Tomkins and her invitees be at liberty to attend and participate as appropriate in the ceremony, and any celebration.
Ms Tomkins and Ms Ward must cause each of the supervisors to be furnished with a copy of these Orders prior to them supervising any period of time.
The independent children’s lawyer do provide to the Department of Child Safety, Queensland, and the Department of Community Services, New South Wales, a copy of these Orders as soon as practicable.
In these orders, a requirement that notice be given in writing can be adequately satisfied by the sending of an SMS text message or e-mail.
All extant applications otherwise be dismissed.
AND THE COURT NOTES:
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Tomkins and Ward & Ward and Richards (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
PAM 2877 of 2006
| MS TOMKINS |
First Applicant
| MR WARD |
Second Applicant
And
| MS WARD |
First Respondent
| MR RICHARDS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This case is about the living arrangements for twins who are now three years of age. Their names are [Y] and [X], and they were born in 2005.
The primary question for determination is whether the twins should live with their mother, Ms Ward, or with Ms Tomkins (who is the former de facto partner of Ms Ward's brother, Mr Ward).
The twins have lived with Ms Tomkins since they were approximately 5 weeks old. She is their primary carer and primary attachment, and she looks after them well.
Ms Ward has a number of disabilities caused by brain injuries resulting from a cerebral haemorrhage and later brain tumour suffered in childhood. She also suffered from hydrocephalus. Among other things, Ms Ward now has significant ataxia. In other words, her ability to coordinate her movement is impaired – leading to postural imbalance and a staggering, unsteady gait. She also experiences debilitating headaches.
Given the nature of Ms Ward’s disabilities, much of the case focused on the question of whether she is physically capable of caring for the twins if she does not have 24 hour per day, seven days per week assistance (or something close to that level of assistance). Without going into unnecessary detail at this stage, I have no doubt that if the twins were to be placed in Ms Ward's care, and if she did not have very significant support on a very regular basis, then, unfortunately, they would be exposed to an unacceptable risk of harm.
The twins’ father is Mr Richards. Mr Richards involved himself in the proceedings to some extent (including by giving evidence), but, generally speaking, he was prepared to simply support Ms Ward's case and not otherwise seek to be heard. He does not live with Ms Ward, but the current nature of their relationship is otherwise unclear.
Ms Ward lives in [S], Queensland with [Z] (who is her son from a previous relationship). [Z] was born in 1995.
The twins live with Ms Tomkins in [C], near Parramatta, New South Wales. Mr Ward lives nearby, and sees Ms Tomkins and the twins very frequently.
Ms Tomkins also has children from a previous relationship, but they are now adults. Indeed, Ms Tomkins is a grandmother.
Mr Richards, too, has a child from a previous relationship. His name is [M], he is 16 years old and he lives with Mr Richards.
Ms Ward presents as angry, bitter and frustrated. In many ways, she feels that Ms Tomkins has “stolen” the twins from her. To put it bluntly, she wants them back (although the reality is that the twins have never actually lived in Ms Ward’s sole care). In my opinion, there is no valid reason for Ms Ward to feel the way that she does towards
Ms Tomkins (although I certainly understand and accept her very strong desire to have the twins live with her, and to have the opportunity to care for them on a full time basis). Unfortunately,
Ms Ward and some of those who support her have simply lost their sense of proportion. They have also shifted their focus from what might be considered to be in the twins’ best interests to what might be considered to be in Ms Ward’s best interests. They see conspiracies where none exist, and they seem unwilling to give (or incapable of giving) credit where it is due. That is not to say that Ms Tomkins could not have done more to promote Ms Ward’s relationship with the twins. She could indeed have done more, but she has nevertheless done a great deal to promote the relationship, and she has done so in extremely difficult circumstances.
The cast in this very sad case is large. It includes Ms Ward's mother, Ms P (who clearly loves Ms Ward, and is proud of her independence, but feels that she must support Ms Tomkins' case), Ms Ward's aunt,
Ms D, the Queensland Department of Child Safety (QDOCS), an experienced family report writer, friends and supporters of Ms Ward (professional and otherwise), medical practitioners, and an occupational therapist whose evidence was so obviously flawed and lacking in balance that counsel for the Independent Children’s Lawyer submitted (with every justification) that it "slid into the realm of farce".[1]
[1] See WS(ICL) at paragraph 142
For the reasons set out below, I have decided that the twins should continue to live with Ms Tomkins.
That being the case, the next question for determination concerns the amount of time that the twins should spend with Ms Ward, and how that time should be structured. Although the law now refers to a child “spending time” with a person with whom the child does not live,[2]
I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[2] See, for example, s.64B(2) of the Family Law Act 1975
I have concluded (also for the reasons set out below) that the twins should have as much contact with Ms Ward as is practicable, and I have prepared draft proposed orders to give effect to that conclusion.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the more significant of the various issues in dispute between the parties elsewhere in these Reasons.
For the sake of clarity (and brevity) –
a)I shall refer to the parties by their first names (and I mean them no disrespect by doing so);
b)I shall refer to the independent children's lawyer as the ICL;
c)
I record, at this stage, that Ms Tomkins was represented by
Ms McDiarmid of counsel, Ms Ward was represented by
Ms Kirkman-Scroope of counsel and the ICL was represented by Ms Gillies of counsel – and that Mr Ward and Mr Richards were self represented; and
d)
I also record that all counsel prepared written submissions pursuant to directions made at the conclusion of the trial, and that I have referred to Ms McDiarmid's submissions as WS(L), to
Ms Kirkman-Scroope's submissions as WS(S) and Ms Gillies’ submissions as WS(ICL).
I would add that the trial occupied a total of 11 days. On the first two days (in November 2006), Ms Ward was represented by Mr Battley of counsel and the ICL was represented by Mr George of counsel.
Ms McDiarmid appeared for Ms Tomkins throughout the trial.
Mr Ward and Mr Richards were self represented
Given that Mr Ward and Mr Richards were self-represented, I was very conscious of the obligation upon the Court to provide a fair trial – for all parties. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072.[3] I applied those guidelines during the course of the proceedings, and am comfortable that the trial was indeed fair. In summary:
[3] See, in particular, paragraphs 209-253 of the decision.
a)Procedural fairness was afforded to all parties.
b)
The “mechanics” of the trial, and (for example) the right of the parties to cross-examine witnesses, were explained to
Mr Richards and Mr Ward.
c)Other relevant procedures were explained to them as those issues arose.
d)I explained to them that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible.
e)Where appropriate, I attempted to clarify the substance of their submissions.
f)
Where appropriate, I took other steps as authorised by the
Full Courtin Guideline #9 in paragraph 253 of the decision in
Re: F – Litigants in Person Guidelines.
In Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph “were no more than the name implies” and that they “derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on”.
His Honour added that the Court must be concerned with “the spirit rather than the strict letter of the guidelines”.
In the present case, Mr Ward was present throughout the trial, whilst Mr Richards “drifted in and out”. I have not the slightest doubt that both of them fully understood exactly "what was going on" at all times.
Witnesses and relevant persons
A large number of people were involved in these proceedings (directly or indirectly). It follows that a short overview is appropriate:
a)I have already referred to Ms Ward, Mr Richards, Ms Tomkins, Mr Ward, [Z], [M] and the twins.
b)Ms P is Ms Ward's mother. Of course, she is also Mr Ward's mother, and the twins’ grandmother. Ms P swore two affidavits, and gave evidence on 15 May 2007.
c)Mr W is Ms Ward's father. He did not swear an affidavit, and did not give evidence in the proceedings.
d)Mr T and Mr Z are Ms Ward's (and Mr Ward's) brothers. Neither swore an affidavit, and neither gave evidence in the proceedings.
e)Ms D is Ms Ward's aunt. She is Mr W's sister. She lives in Newcastle, New South Wales. Ms D and her daughter Ms T have supervised Ms Ward's time with the twins. Ms D swore an affidavit, and gave evidence on 4 October 2007.
f)Ms T is Ms D's daughter, and Ms Ward's first cousin. She appears to be a close friend of Ms Ward. Although Ms T seems to have had significant involvement in certain of the events forming the subject of evidence during the course of the trial, she did not swear an affidavit and did not give evidence.
g)Mr P is a close friend and supporter of Ms Ward. He is a part-time taxi driver. He described himself as [Z]’s "surrogate dad" and said that he and Ms Ward are "virtually like a family". Mr P and Ms Ward lived in the same house for approximately 4 years after [Z] was born. They may or may not have lived together prior to that time. Mr P swore an affidavit, and gave evidence on 4 October 2007.
h)Anthony Scott Robinson is a psychologist, and an experienced family report writer. He prepared a family report in this matter dated 9 May 2007. Mr Robinson gave evidence on 4 October 2007.
i)Dr R is Ms Ward's treating neurologist. He did not swear an affidavit, but gave evidence on 17 May 2007.
j)Dr D is a consultant paediatrician based in Woollahra, New South Wales, who saw the twins and prepared reports relating to them in September 2007. He did not swear an affidavit, but gave evidence (by telephone) on 4 October 2007.
k)Dr P is a neurological surgeon. It appears that Ms Ward has been under Dr P's neurological care for some 15 years, and that he is aware of her neurological condition and the disabilities that she suffers. Dr P did not swear an affidavit and was eventually subpoenaed to give evidence. He failed or refused to respond to the subpoena. As a result, he did not give evidence.
l)Ms G is an occupational therapist. She provided reports regarding Ms Ward's physical and functional abilities. She swore two affidavits, and gave evidence on 5 October 2007.
m)
Ms M (known as Ms M) is a social worker, and an advocate and support worker for Ms Ward. She is the manager of Gold Coast Advocacy Inc. She swore an affidavit, and gave evidence on
3 October 2007.
n)Ms J is a social worker. She has known Ms Ward for a long time. At the time that she swore her affidavit (on 13 November 2006), she was employed with Blue Care in [L], Queensland. She was Ms Ward's social worker from May 2006 until she left her employment with Blue Care. Ms J gave evidence on 5 October 2007.
o)Ms F is a Child Safety Officer (and currently acting team leader) with the [L] Child Safety Service Centre of QDOCS. She did not swear an affidavit, but gave evidence on 3 October 2007.
Although affidavits were provided by certain other witnesses, they did not give evidence (either because they were not required for cross examination or for other reasons). The contents of those affidavits were not referred to by counsel in their written submissions and, although I have read the affidavits, I regard the evidence contained in them to be of marginal relevance only.
Background information
In these Reasons, all statements of fact comprise findings of fact.
Ms Ward was born in May 1966. She is now 42. Mr Richards was born in January 1958. He is now 50. They commenced a relationship in 2003. It is difficult to identify the current nature of their relationship. They may or may not be separated.
Mr Richards has been violent to Ms Ward on at least one occasion.
[Z] (Ms Ward's first child) was born in July 1995. He is now 13. I do not know who his father is, although Mr P says that he regards himself as [Z]'s "surrogate father".
The twins were born in November 2005. They are now three.
Mr Ward is a [occupation omitted], earning approximately $700 per week after tax. He is aged approximately 39 or 40. It would appear that he had very little contact with Ms Ward from when he was approximately 17 years old until shortly before the twins were placed in Ms Tomkins' care.
Mr Ward has two children from a previous relationship, [L] (aged approximately 9) and [G] (aged approximately 6). They live with their mother in Newcastle. Unfortunately, at the time that Mr Ward gave evidence in May 2007 he had not seen the girls for approximately
12 months – because of a dispute with their mother. I accept, however, that he wishes to have a relationship with them.
Ms Tomkins was born in February 1965. She is now 43. She has two children from a previous relationship, [S] and [B] (now aged approximately 22 and 20 respectively). [S] and her husband have a child of their own.
Ms Tomkins is not engaged in paid employment.
Ms Tomkins and Mr Ward met in or about 2002 and commenced a relationship approximately 3 months later.
The twins commenced living with Ms Tomkins in January 2006, when they were approximately 5 weeks old. Although the circumstances surrounding the placing of the twins in Ms Tomkins' care were in dispute, it is fair to say that Ms Ward agreed to the arrangement at the time. Had she not agreed, the likelihood is that the twins would have been taken into care by QDOCS.
Ms Tomkins and Mr Ward ceased living together around the time that the twins commenced living with Ms Tomkins. They spend a great deal of time together, however, and have discussed the possibility of getting married in the not too distant future. Mr Ward sees the twins every afternoon (or almost every afternoon) and every weekend when they are not with Ms Ward. He assists Ms Tomkins in caring for them.
Ms Tomkins lives in a rented three-bedroom house in [C], near Parramatta. She has lived in the property for approximately 20 years and believes that she is able to stay there indefinitely. She receives a total of approximately $750 per fortnight from QDOCS (or from the New South Wales Department) to assist her with the care of the twins.
The family report
Mr Robinson (the report writer) saw Ms Ward, Ms Tomkins, Mr Ward, [Y], [X] and [Z] on 20 April 2007. He spoke with Ms F and Ms P not long afterwards.
At that time, Mr Robinson recorded that Mr Richards had had minimal contact with the children and had not played an active role in their care. Mr Richards did not attend the interviews for the purpose of the preparation of the report. Ms Ward told Mr Robinson, however, that she had an ongoing relationship with him.
Mr Robinson described the twins as –
… well groomed, healthy and happy, though rather shy children of normal physical development. There were no indications of abuse or neglect.
Mr Robinson observed that the twins were relaxed and comfortable in their interactions with Ms Tomkins and Mr Ward. They took turns sitting on Ms Tomkins' knee. They enjoyed playing with both
Ms Tomkins and Mr Ward.
Mr Robinson described the twins’ relationship with Ms Ward as follows:
When the children separated from (Ms Tomkins) and entered the room in which the observed play session was to be conducted with (Ms Ward), they immediately became very distressed. They both started crying quite loudly and (Ms Ward) was unable to calm them down or engage them in play.
Eventually, as the children were unable to settle, the report writer requested (Ms Tomkins) to join the children in the play session with (Ms Ward), and when (Ms Tomkins) entered the room, the children immediately ran to her and stop crying.
They continued to cling to (Ms Tomkins) for a considerable length of time despite (Ms Ward's) attempts at engaging them in play and her efforts to encourage them to interact with her. At times the children appeared to become even more fearful of (Ms Ward) when she made these efforts to engage them in play. She appeared to be somewhat insensitive to their need for personal space and to their reactions in withdrawing further from her when she attempted to come very close to them.
… there was minimal interaction between the children and
(Ms Ward).
Under the heading "Assessment", Mr Robinson wrote:
Both children appeared to have formed a close attachment to
(Ms Tomkins). They also appeared to be relaxed and comfortable in their relationship with (Mr Ward).
The children appeared to have virtually no attachment to
(Ms Ward) and appeared to even be fearful of her. Additionally, (Ms Ward) displayed little ability to encourage them to relax with her and engage in play with her. However, there were indications from the play session observations that they could learn to become more relaxed and comfortable with her with
(Ms Tomkins’s) encouragement and perhaps with more frequent contact with her.
The quality of care that (Ms Tomkins) is providing the children appears to be of a high level. …
I do not propose to discuss the family report in any greater detail. It speaks for itself.
Orders sought
In the broadest of broad terms, Ms Ward seeks orders to the effect that the twins live with her. The actual orders sought appear to be those contained in her amended response filed on 27 November 2006. There is no need for me to set out the orders in these Reasons. Suffice it to say, however, that they leave open the question of the twins spending time with Mr Richards. They also provide for the twins to spend very limited time with Ms Tomkins and Mr Ward. Further, and as Ms Gillies observed in her written submissions, there is no requirement in the orders for Ms Ward to have any assistance during the time that the twins are with her; nor is there any provision for transitional orders designed to ease the twins’ movement from Ms Tomkins' care to
Ms Ward's care.
Ms Gillies submitted, and I accept, that Ms Ward's failure to particularise appropriate transitional arrangements for the twins from one household to the other "throws doubt on Ms Ward's capacity to look at the situation in a child focused manner", especially when regard is had to Mr Robinson's evidence relating to the care that should be taken in order to effectively manage such a transition.
At one point in the proceedings, it was suggested that Ms Ward might relocate to Newcastle, but it appears that she has now effectively abandoned this proposal.
The orders sought by Ms Tomkins and Mr Ward are those contained in a minute attached to Ms McDiarmid's closing submissions. In broad terms, they provide for Ms Tomkins to have sole parental responsibility for the twins, and for them to continue to live with her. The orders also provide for the twins to spend time with Mr Ward as agreed between Ms Tomkins and Mr Ward. In relation to contact between Ms Ward and the twins, the orders provide for the same to occur on
two weekends in each month, and at other times as defined. Contact is to be increased after the twins start school.
Ms Tomkins also proposes that Ms Ward's time with the twins be supervised by Ms P, Ms D, Ms T or other agreed supervisor, and that all overnight periods be at the home of either Ms P or Ms D.
Leaving aside mechanical-type orders, Ms Tomkins also proposes that:
a)the twins not be brought into contact with Mr Richards;
b)the twins’ contact with Mr W be controlled;
c)she and Ms Ward keep each other advised of their address and contact details;
d)she advise Ms Ward prior to any scheduled medical or similar appointment that the twins or either of them are/is to attend, and Ms Ward be at liberty to attend the appointment;
e)she advise Ms Ward immediately in the event that either child requires emergency medical treatment, supplying details of the need for such treatment;
f)she give Ms Ward at least three months notice before enrolling the twins in any educational facility, giving details of the proposed enrolment; and
g)Ms Ward arrange for the twins to be baptised in the Roman Catholic faith (unless otherwise agreed), and Ms Tomkins and her invitees be at liberty to attend and participate as appropriate.
Mr Richards did not seek any orders.
Mr Ward joined in the orders sought by Ms Tomkins.
The orders sought by the ICL are contained in a minute handed up by Ms Gillies on 5 October 2007. In broad terms, they are as follows:
a)Ms Tomkins is to have sole parental responsibility for the twins;
b)the twins are to live with Ms Tomkins;
c)
the twins are to spend time with Mr Ward as agreed with
Ms Tomkins;
d)the twins are to spend time with Ms Ward for at least the following periods:
i)
the first complete weekend in each calendar month (from
9 a.m.Saturday to 5 p.m. Sunday);
ii)from 2 p.m. on 25 December to 2 p.m. 26 December in 2007 and each alternate year thereafter;
iii)
in 2008 and each alternate year thereafter, from 9 a.m. on
5 January until 5 p.m. on 7 January, and from 9 a.m. on
9 January until 5 p.m. on 11 January (such periods to occur at Ms P's home unless otherwise agreed); and
iv)from 9 a.m. on the Saturday immediately preceding Mother's Day until 5 p.m. on Mother's Day in 2008 and each alternate year thereafter;
e)the twins are to spend the entire weekend of Mother's Day with Ms Tomkins in 2009, and in each alternate year thereafter;
f)
in the event that Ms Ward continues to live in the Brisbane/[S] area, Ms Tomkins is to ensure that the twins are delivered to
Ms Ward at Ms P's home on (at least) the first weekend in January, April, July and October in each year;
g)the twins are to spend no time with Mr Richards (and injunctions are to be put in place to ensure that he has no contact with them);
h)injunctions are to be put in place to ensure that the twins are not brought into contact with Mr P;
i)the twins’ contact with Mr W is to be controlled;
j)for the purposes of spending time with the twins in New South Wales, Ms Ward must collect them from Ms Tomkins' home at the commencement of contact and Ms Tomkins must collect them from Ms D's home at the conclusion of contact;
k)Ms Ward is to confirm with Ms Tomkins in writing, at least seven days before any contact period in New South Wales, that she will in fact exercise such contact, and in the event that Ms Ward fails to provide such written advice the relevant contact period is to be suspended (unless Ms Tomkins otherwise agrees in writing);
l)Ms Ward's contact is to be supervised at all times by Ms P, Ms D, Ms T or other agreed supervisor, and all overnight contact periods are to be spent at the home of either Ms P or Ms D (unless otherwise agreed);
m)all parties are to be restrained by injunction from denigrating each other or the relevant supervisor and from discussing these proceedings with or in the presence or hearing of the twins, and from permitting any other person to do so;
n)Ms Tomkins and Ms Ward are to keep each other advised of their address and contact numbers;
o)Ms Tomkins and Ms Ward are to provide each other with any necessary authorisation needed to obtain information from any school, child care facility, medical practitioner, therapeutic consultant or third party that the children might attend for educational, psychological or medical purposes;
p)Ms Tomkins is to keep Ms Ward advised of any scheduled medical or similar appointments, and Ms Ward is to be at liberty to attend the appointments;
q)Ms Tomkins is advise Ms Ward as soon as practicable if either of the twins requires emergency medical treatment;
r)Ms Tomkins is to provide Ms Ward with at least three months notice of the children's enrolment in any educational facility;
s)
the twins are to be baptised in the Roman Catholic faith, with the relevant arrangements to be made by Ms Ward, but with
Ms Tomkins having the right to attend and participate as appropriate; and
t)Ms Tomkins and Ms Ward are to maintain a communications book which is to pass with the twins.
The ICL’s minute also contains certain mechanical or procedural orders.
I emphasise that I have not reproduced the precise terms of the orders sought by the parties. I have simply referred to them in summary form. The fundamental issue, however, is whether the twins live with
Ms Tomkins or with Ms Ward and, if they live with Ms Tomkins, the amount of contact that they should have with Ms Ward and any relevant safeguards.
The law[4]
[4] This generic summary of the law is extracted from my decision in the matter of Mills & Watson (2008) 39 Fam LR 52
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[5]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[6]
[5] See section 64B(3)
[6] See the definition of "major long-term issues" in section 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[7] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[8]
[7] See section 65DAC; see also Pender & Haywood [2007] FamCA 1526, at paragraph 56
[8] See section 65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[9]
… to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
[9] See section 60B(1)
The principles underlying these objects are:[10]
… that (except when it is or would be contrary to a child's best interests):
[10] See section 60B(2)
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
parents should agree about the future parenting of their children; and
children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[11]
[11] See section 60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[12] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[12] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see section 60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in section 60CC(3). They include:[13]
[13] This list is not intended to be comprehensive. It is simply a summary of the factors in section 60CC(3). The actual factors set out in section 60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)whether it would be "preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[14] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[15]
[14] See section 60CC(4A)
[15] See section 60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[16]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[16] See paragraph 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[17] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[18]
[17] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[18] See section 65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[19] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[19] See section 61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[20] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[21]
[20] See section 61DA(2) and the definition of "family violence" in section 4(1)
[21] See section 61DA(3); it is important to note, however, that the Full Court in Goode (at paragraph 78) held that the discretion in section 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[22]
[22] See section 61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[23]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[24] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[25] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[26] with each parent would be both reasonably practicable[27] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[28]
[23] See, for example, Goode at paragraphs 46 and 47, and Pender & Haywood [2007] FamCA 1526 at paragraph 44
[24] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[25] See section 65DAA(1)
[26] "Substantial and significant time" is defined in section 65DAA(3)
[27] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[28] See section 65DAA(2); see also Goode at paragraphs 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the
Full Courtsaid[29]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[29] See paragraph 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[30]
[30] See paragraph 63
In Mazorski & Albright,[31] Brown J dealt with the “additional considerations” (in section 60CC(3)), prior to dealing with the primary considerations (in section 60CC(2)). In Moose,[32] Boland J (with whom May J agreed) approved of such an approach, saying that, in certain cases, it may help to focus the court's attention on relevant matters to be determined under section 60CC(2) if it first considers and makes findings about relevant factors under section 60CC(3)
[31] (2008) 37 Fam LR 518
[32] (2008) FLC 93-375
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[33]
[33]The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[34] or
[34] But see subparagraph (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[35] or
ii)impracticable.
i)It should be borne in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[36]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[37]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[38] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[39]
[35] But see subparagraph (k) below
[36] See Taylor & Barker at paragraph 74
[37] See Goode at paragraph 65.8
[38] See Goode at paragraph 65.11
[39] See Goode at paragraph 65.9
Ms Tomkins is not one of the twins’ parents
No counsel suggests that Ms Ward is to be preferred to Ms Tomkins as a carer for the twins simply because she is their mother and
Ms Tomkins is not related to them. Re Evelyn (1998) FLC 92-807 was cited for the proposition that a biological parent does not stand in any preferred position, and that that fact does not in any way impinge upon the principle that the best interests of the children are paramount.[40]
[40] See also Rice v Miller (1993) FLC 92-415 (FCoA FC), Dennett & Norman (2007) FamCA 57 (FCoA FC), West (2007) FamCA 546 (Benjamin J), Davis & Spring (2007) FamCA 1149 (Young J) at para 117, Kire & Jackson & Grubb (2007) FamCA 1646 (O’Reilly J) at paras 73-5
Principal issues for consideration
On the second day of the trial (17 November 2006), I was provided with a document headed "List of Issues Identified by the ICL”. The document was prepared by Mr George (who was then counsel for the ICL) and accepted as accurate by Ms McDiarmid. Minor amendments were made by Mr Battley (who was then counsel for Ms Ward).
Mr Battley then accepted the document (as amended) as accurate.
The issues identified in the document are as follows:
a)Capacity of Ms Tomkins to provide for the emotional, psychological and physical needs of the children.[41] Mr Battley added the following: Capacity of the parties to provide for the needs of the children, including emotional and intellectual needs.
[41] The following notation appears in the list of issues: "At present, the evidence raises no complaint in relation to this issue".
b)Capacity of Ms Tomkins to promote a relationship between the children and the parents. At issue is whether Ms Tomkins has taken all steps possible to promote an appropriate relationship between the parents and the children.
c)The nature of the relationship between Ms Tomkins and Mr Ward.
d)The capacity of Ms Ward to provide for the emotional, psychological and physical needs of the children. At present, the parties are at issue as to whether Ms Ward has the capacity to provide for these needs.
e)Ms Ward's physical and psychological health and how this will impact on her capacity to parent.
f)
The nature of the relationship between Ms Ward and
Mr Richards, including issues of domestic violence.
g)[Z]'s current physical and emotional state, his relationship with Ms Ward and others and the impact of all this considering his relationship with the twins.
h)Ms Ward's capacity to continue parenting [Z] and her capacity to then assume the care of the twins.
i)The capacity of each party to promote a relationship between the children and their extended family. Mr Battley added the following: "Disagree that this issue should include the words 'their extended family'".
j)
The practical difficulty associated with Ms Ward and/or
Ms Tomkins spending time with the children.
k)The effect of change in the long and short term upon the children of being separated from their primary carer.
According to Ms Gillies,[42] the principal issues at trial were the following:
a)Ms Ward's physical ability to look after the twins.
b)The psychological effect of severing the twins from their primary attachment figure and placing them into a home where they will be exposed to a multitude of different carers and people on a daily basis.
c)Ms Ward's ability to provide for the emotional and intellectual needs of the twins.
d)Ms Ward's ability to protect the twins from family violence and abuse.
e)Ms Ward's ability to prioritise the twins’ needs above her own.
[42] See WS(ICL), paragraph 6
I have done my best to deal with all relevant issues (however defined) in these Reasons.
Ms Ward's physical ability to care for the twins
According to Ms Kirkman-Scroope, the question of whether or not
Ms Ward is physically capable of caring for the twins comprises the principal issue in the proceedings. She cites the following passage from Ms Tomkins' evidence:[43]
Walters FM: If by some miracle, Ms Ward were to wake up tomorrow and be physically fit … sound in body and mind … and without the physical problems that she has encountered in her life, and now suffers from, I imagine on that basis and if that were to occur, you wouldn't be arguing that the children should (not) be returned to her full-time care, or would you be?
Ms Tomkins: No, I wouldn't be, your Honour. I wouldn't be sitting here today if Ms Ward was capable of doing that. … If Ms Ward was capable of taking care of her children, QDOCS would never have said that they were coming to take them in care and I would never have given up my life to rear the children.
[43] Transcript (15 May 2007) at page 81
Both Ms Ward and her mother, Ms P, provide interesting histories of Ms Ward's medical problems in their affidavit material. For example, Ms P describes Ms Ward's medical and developmental history (leading up to the time that Ms Ward gave birth to [Z]) in paragraphs 8 to 33 of her first affidavit -- commencing with the occasion when Ms Ward collapsed at school, having suffered a cerebral haemorrhage. Ms Ward was then five years old. She refers to Ms Ward having a tumour removed from her brain when she was approximately seven, and
Ms Ward thereafter having to undertake radiation therapy. She also records the circumstances leading to Ms Ward being diagnosed with hydrocephalus and having a shunt inserted in her head to drain the fluid. The shunt was inserted a few months after the removal of the tumour.
When Ms Ward was approximately 13, the shunt that had been inserted some five or six years previously was replaced. The old shunt had become infected and an external shunt was inserted in its place.
According to Ms P, Ms Ward's balance and coordination deteriorated over the years, and she had problems with her vision and memory.
Among other things, Ms Ward now has significant ataxia (being involuntary movements that cause instability in gait). She also has poor balance and requires the use of a walker or the support of a wall or furniture to walk short distances. Ms Ward's balance is compromised when she has to carry an object.
Ms Ward suffers from debilitating headaches. They can last for days. In or about September 2007, Ms Ward suffered from a headache which was so severe that she had to be transported to hospital by ambulance and treated with pethidine. Ms Ward concedes that her headaches affect her mobility.
Ms Ward also concedes that she will require something in the order of 24 hours per day, seven days per week (24/7) assistance in caring for the twins for the foreseeable future. No such arrangement is presently in place. Unfortunately, the evidence (in particular, Ms M's evidence) reveals that, if placed with Ms Ward, the twins would have to attend family day care (outside Ms Ward's home) for six days each week.
In addition, care could be provided for two hours each morning (six days per week) in Ms Ward's home.
The corollary of the arrangement proposed in the previous paragraph involves Ms Ward caring for the twins herself each weekday overnight (from approximately 6 p.m. to approximately 8 a.m.), and from approximately 6 p.m. on Saturday evening to approximately 8 a.m. on Monday morning. I find that she is simply unable to care for the twins alone for those periods or, indeed, for any extended periods.
A good illustration of the limitations that Ms Ward confronts was provided by the evidence of her aunt, Ms D. Ms D, who lives in Newcastle, has regularly supervised contact between Ms Ward and the twins. She confirmed that both she and her daughter, Ms T, are involved in the supervision. One of them is in the room with Ms Ward and the twins at all times. When Ms Ward gets up to tend to the twins at night, Ms T also gets up. Ms D accepted that somebody must be present with Ms Ward at all times "in case things go wrong" (such as when, on one occasion, [X] fell off his bike and injured himself slightly).
Ms D also confirmed that Ms Ward is not physically capable of picking up the twins (because her balance is not good and she can fall), and that she and Ms T will not allow Ms Ward to pick them up. Understandably, Ms Ward is frustrated by her inability to carry the twins (and, no doubt, by the fact that Ms D and Ms T will not allow her to do so).
Indeed, Ms D's evidence was to the effect that many of the tasks associated with the care of the twins while Ms Ward is spending time with them in Newcastle are undertaken by either Ms D or Ms T.
For example, Ms T appears to be responsible for bathing the children, and either Ms D or Ms T prepares their meals. Ms T lifts the twins in order to place them in and remove them from their high chairs.
Revealingly, Ms Ward complained that one child’s nappy was soiled on an occasion when she and Ms T travelled to Sydney to collect the twins. She clearly inferred that the existence of the soiled nappy reflected poorly on Ms Tomkins' parenting skills. I do not accept that it does, and I note that Ms Ward later resiled from her broader allegation that Ms Tomkins has not adequately cared for the twins. But as
Ms Gillies submits, the most telling aspect of Ms Ward's evidence in relation to the soiled nappy incident is the fact that Ms Ward did not change the nappy herself; she told Ms T to change it. Clearly, and as is apparent from Ms D's evidence, Ms T is responsible for what may be regarded as ordinary, routine physical tasks associated with the care of the twins.
As I have already recorded, the court heard from an occupational therapist, Ms G, whose evidence was so flawed and lacking in balance that Ms Gillies submitted that it "slid into the realm of farce". I concur with that description. For her part, Ms McDiarmid submitted that
Ms G's evidence was completely discredited, that it was at odds with the occupational therapy assessment report from the Gold Coast Hospital[44] and the Headway report[45] (which was compiled after a
10 day in-home assessment of Ms Ward with the twins), and that
Ms G's focus was to look for ways to assist Ms Ward in caring for the twins in her home. I accept Ms McDiarmid's submission in those respects.
[44] Exhibit LT14
[45] Exhibit LT15
I regret to have to record that Ms G was among the least impressive “expert” witnesses that I have ever heard give evidence. She was anything but non-partisan, and she failed to assist the court by providing an objective, unbiased opinion in relation to matters within her expertise. Regrettably, she clearly adopted the role of an advocate for Ms Ward.[46]
[46] These findings are particularly disappointing in the light of Ms G's statements (recorded in both affidavits sworn by her) to the effect that she had read and understood Division 15.2 of the Federal Magistrates Court Rules 2001 (or Part 15.5 of the Family Law Rules 2004), and to the effect that she was intending to comply with those rules.
There is little point in spending undue time on Ms G's evidence. I refer, however, to the following:
a)Ms G's principal report is dated 11 November 2006. It is based primarily on Ms G's observations of Ms Ward with the twins, in Ms Ward's home in [S], over a three-hour period on 4 November 2006.
b)Although Ms G said in her report and during the course of her evidence that she had read previous reports relating to Ms Ward's functioning (including, in particular, the Headway report), it became clear during cross examination that she had not, in fact, read them. At one point, she said that she had "glanced at" the Headway report.
c)In her report, Ms G wrote that, within the timeframe of the assessment, Ms Ward demonstrated an ability to undertake routine day to day activities associated with caring for the twins. She added, however, that Ms Ward's “capacity to undertake these tasks on a regular daily basis has not been assessed”.
d)
Ms G conceded that she had spent some 10 to 15 hours discussing Ms Ward’s situation with a former work colleague, and that she had spoken with Ms M on two or three occasions (and that this contact had taken place prior to and after the assessment). Ms G's former work colleague and Ms M are both very supportive of
Ms Ward, and Ms G admitted that both had asked her to “confirm” that Ms Ward would be capable of caring for the twins.
e)Although Ms G saw fit to make positive comments in her report regarding Ms Ward's care of [Z], she asserted that she also had knowledge of the fact that there had been problems associated with that care. I was unable to understand her attempt to explain why she had not referred to those problems in her report. She seemed to suggest that the existence of problems associated with Ms Ward's care of [Z] were "not within the scope of (her) requirement", and that she was only concerned with Ms Ward's ability to care for [Z] during the three-hour observation session. In my opinion, Ms G's answer in that regard is clearly inconsistent with the thrust of her report.
f)
I was also unable to understand Ms G's attempt to respond to
Ms McDiarmid's suggestions to the effect that caring for twins involves an emotional capacity to deal with the children's significant demands and, in that respect, is far more difficult than simply performing certain physical actions. For example, and noting that the evidence revealed that Ms G is herself the mother of twins:
Ms McDiarmid: … Did you consider whether (Ms Ward) was already at her limit in terms of what she was able to cope with?
Ms G: I wasn't asked to consider that within the scope of my assessment.
Ms McDiarmid: But what I am putting to you is that, surely, the scope of your assessment as to whether somebody can care for twins must include their overall circumstances?
Ms G: I was asked to look at her physical and functional ability to actually care for the children, not whether she could cope with the additional requirements that are for anybody looking after twins. Now, any twins are quite demanding, but anybody in the community would find those demands, would have those demands placed on them, whether they have a physical disability or not. ... I was there to look at her functional capacity to care for the twins, not actually the day to day rigours and problems associated with two young children, which I thought was outside the scope of my assessment and really for the child protection agencies and the social worker to determine whether she had the capacity to care for them socially.
Ms McDiarmid: All right. So, are you suggesting to us that we should look at your report very narrowly in terms of just whether as a matter of physical mechanics she can care for twins?
Ms G: I would suggest that's what I was asked to do, yes.
g)Following the above exchange, I asked Ms G whether the short answer to the question of whether as a matter of physical mechanics Ms Ward can care for twins is "no". Ms G confirmed that, without support, Ms Ward cannot care for the twins. Indeed, Ms G confirmed that, without support, Ms Ward cannot care for herself.
h)Ms G also said that Ms Ward's ability to lift and carry the twins safely (indeed, her ability to lift and carry any item safely) is compromised, and that she would prefer if Ms Ward were to use an appropriate piece of equipment (such as a high chair) for such tasks.
i)After further questioning, Ms G conceded that she would not recommend that Ms Ward lift the children because she is likely to fall and, as a result, potentially injure herself and/or the children.
j)
Ms G then attempted to suggest that Ms Ward will not need to lift the children. When I put to her that it might be necessary for
Ms Ward to deal with some form of emergency (for example, if it becomes necessary to lift the children quickly and remove them from danger), Ms G's response was to the effect that children can be injured even if their parent or supervisor does not suffer from the problems that Ms Ward suffers. Indeed, she endeavoured to suggest that although toddlers require a lot of supervision, they are seemingly at less risk than younger children because they are more mobile. I accept (of course) that the twins (or any children) could be injured as a result of events that have absolutely nothing to do with their carer, but that is hardly to the point. The fact of the matter is that I am obliged to consider and compare the parties’ competing proposals, and that that task involves comparing the quality of physical care that each can provide. There can be absolutely no doubt that the twins would be at greater risk of harm if they were to be in Ms Ward's sole care than they would be if they were to be in Ms Tomkins' sole care. Indeed, much of Ms Ward's case was involved with the mechanics of putting in place support arrangements for her, the primary purpose of which is to minimise the risks to which I have referred.
k)Ms G then proceeded to minimise the difficulties associated with caring for and supervising active toddlers. When Ms McDiarmid put to her an incident which occurred when the twins were very young, and which involved Ms Ward letting one of the twins slip under the water when bathing the child, Ms G said that it had no effect on her views. Ms G was similarly unmoved when referred to passages from reports in which Ms Ward's poor memory skills and inability to implement safety procedures (even when such safety procedures had been discussed with her only 10 minutes before) were described.
l)During cross examination by Ms Gillies, Ms G eventually conceded that her report provides nothing more than "a snapshot of what was happening in that particular three hours" (during which "things went relatively smoothly"). There were no major tantrums on the part of the children, Ms Ward was not suffering from a debilitating headache or any other transitory health problem, the children themselves were not unwell, and no crises (as it were) occurred. I accept Ms Gillies’ submission to the effect that "… an assessment for three hours that did not reveal Ms Ward's ability to cope with any of the exigencies of normal day to day life is next to useless in determining Ms Ward's day to day functionality in caring for three children".
I do not propose to discuss Ms G's evidence further. Unfortunately, she seemed wholly unable to make appropriate concessions, and she demonstrated that she saw her role as advocating for Ms Ward (and other people with disabilities). She also demonstrated that she could not remain impartial. Although Ms G denied that she was biased in that sense, I reject her denials and confirm the findings that I have already recorded regarding her evidence. I give it no weight, unless it is corroborated by other more independent evidence.[47]
[47] There are many examples of Ms G's lack of impartiality in her evidence. See, for example, transcript (5 October 2007) at pages 450-3 and 457-61
Relevantly, I accept the three reports comprising exhibits LT13 LT14 and LT15 in preference to Ms G's report and evidence. Exhibit LT13 is a report prepared by Ms W, occupational therapist, of the Gold Coast Health Service following a home visit on 7 November 2005 (a few weeks before the twins’ birth on 28 November 2005). The purpose of the visit was to assess Ms Ward's "present ability and to discuss with her what she identifies as possible difficulties when she brings the twins home".
It is clear from Ms W's report that she was concerned about Ms Ward's preparations for the care of the twins.
Ms Ward told Ms W that [Z] was becoming involved in altercations at his school "quite often" and that it appears that [Z] is being victimised and bullied at school. Ms Ward also told Ms W that the relationships between [Z] and Mr Richards, and between [Z] and [M] (Mr Richards’s son), were "strained" and that "if things did not improve she would take out a restraining order against (Mr Richards and [M])".
Ms W described Ms Ward's home as being in a poor state of repair. She said that Ms Ward was "at high risk of tripping and falling as she has mats covering holes in the lino and carpets". She concluded that "there is a very high risk to Ms Ward, [Z] and the babies".
Exhibit LT14 is a report prepared by Ms S, occupational therapist, of the Gold Coast Hospital. It was prepared in or about mid December 2005 (when the twins were two and a half weeks old). The report contains the following preliminary comments:
Ms Ward's mobility and balance deteriorated during her pregnancy to the point where she became (reliant) on a four wheel walker both in and outside her home. Ms Ward and [Z] both reported that she still had frequent falls. Ms Ward also stated that she gets bad headaches, particularly in the heat, often lasting for two days when she becomes very fatigued.
After the birth of the twins, by caesarean section, Ms Ward was still reliant on the walker and commented on the fact that her balance had not improved, even though she was no longer pregnant.
Under the heading "Physical", the report contains the following:
Ms Ward presents with a significant ataxia and poor balance. When walking, she requires the support of her walker or can walk short distances (less than 1 metre) if there is the support of a wall or furniture. Ms Ward's balance is compromised when she also has to carry an object.
When standing still for tasks, for example, making a cup of tea or changing a nappy, Ms Ward needs a wide base of support, and/or a support behind her, for example, a wall or a bench. Ms Ward often sways when standing still and will frequently use the safety support behind her.
Ms Ward has a significant tremor in her upper limbs, which impacts on her precision of fine tasks, coordination of two-handed tasks and strength. Ms Ward has demonstrated that she can safely pick up heavier objects (greater than 3 kg) but that it is more difficult to place the object, or baby, down softly. Ms Ward can complete tasks such as dressing the babies; however, the time to complete these tasks is increased due to her difficulties with dexterity. These tasks are made easier for Ms Ward when she can complete them in a sitting position.
The report refers to Ms Ward displaying (both in hospital and in her home) "poor short-term memory and problem solving skills, poor concentration and a moderate degree of distractibility". It comments that she does not seem prepared to utilise any strategies to assist herself to overcome her poor memory skills.
The report also makes reference to Ms Ward's "inability to implement safety procedures when caring for her babies even when discussed only 10 minutes prior". It continues:
During bathing and feeding times, Ms Ward has exhibited a tendency to become distractible after 20 to 30 minutes, at which point she loses the focus on her children and seeks out conversation. This is a huge risk factor and Ms Ward has needed to be re-engaged with her baby -- e.g. told to always look at her baby when bathing or to keep feeding her baby.
The report concludes that Ms Ward needs a significant degree of support (at various levels -- relating to the implementation of memory strategies and assistance with functional problem-solving skills, physical supervision and assistance with tasks) in order to safely care for the twins.
Exhibit LT15 (the Headway report) is a report prepared by Mr T, of Headway Gold Coast. It is dated 4 January 2006. Its expressed purpose is "to outline the current state of affairs regarding Ms Ward and her ability to provide care for her newborn twins".
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s.60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
Turning from the general to the specific, it seems clear that
Mr Richards has so far failed or refused to take any effective steps to “correct the deficiency in (his) character”. The evidence appears to be that he is not likely to change.
Unfortunately, Mr Richards is deeply resentful of Ms Tomkins and those who have seen fit to support her.
I find that Mr Richards has done nothing to “demonstrate that he is a fit person to exercise unsupervised contact”, or even, as appears from the Headways report, supervised contact. In my opinion, he has also done nothing to demonstrate that he is “not going to destabilise (Ms Ward’s) family” – or Ms Tomkins’s for that matter.
There is no need for me to repeat other comments that I have made elsewhere in these Reasons regarding Mr Richards.
The issue of family violence does not otherwise amount to a relevant consideration, in that it does not adhere to any of the other parties. Nevertheless, and as I have discussed elsewhere in these Reasons, the nature and durability of Ms Ward's relationship with Mr Richards is
ill-defined and uncertain. It seems clear that QDOCS has serious concerns regarding Mr Richards's involvement with the twins, and I have no doubt that it would very carefully investigate Ms Ward's domestic arrangements if the twins were to be placed with her.
Orders least likely to lead to the institution of further proceedings
There is a strong possibility that, as the twins grow older, and as their relationship with Ms Ward develops and improves, Ms Ward will be minded to again take steps to have them live with her. I cannot predict the outcome of any application that Ms Ward might make at that time.
The simple fact that such an application is likely to be made suggests that this consideration favours Ms Ward's proposals over Ms Tomkins’ proposals.
On the other hand, and as Ms Kirkman-Scroope concedes, there is persuasive evidence that QDOCS will become involved if the twins are placed with Ms Ward as a result of these proceedings. Whilst it is not a "given" that the result of such involvement by QDOCS would be the removal of the twins from Ms Ward, there is a strong likelihood that such may be the result. QDOCS would have to carefully reassess
Ms Ward's parenting capacity and details of her support network. It would also have to assess Ms Ward's living arrangements and her relationship with Mr Richards (among other things).
On the totality of the evidence now before me, I find that it is likely that QDOCS will not only reassess Ms Ward and her arrangements (in the broadest sense) if the twins were to be placed with her, but that it will also conclude that the twins should not remain in her care. In other words, the likelihood is that a decision on my part to place the twins with Ms Ward would, in effect, cause them to be taken into care by QDOCS.
Overall, I find that the orders least likely to lead to the institution of further proceedings in relation to the twins (at least in the short to medium term) are those foreshadowed in these Reasons.
Other relevant facts or circumstances
Ms Kirkman-Scroope concludes her submissions by emphasising the fact that Ms Tomkins "is of no familial relation to the children". She argues that, in the event that Ms Tomkins’ relationship with Mr Ward "does not withstand the test of time", then "the biological identity of the children will create some emotional difficulty for them". I am well aware, of course, that Ms Tomkins is not related to the twins. I have taken that factor into account, and find that Ms Tomkins (now) fully understands the need to promote a close and loving relationship between the twins and their mother and her family. As I have said elsewhere in these Reasons, Mr Richards, unfortunately, is in a different category.
Beyond the above, and as I have already recorded, no counsel suggests that Ms Ward is to be preferred to Ms Tomkins as a carer for the twins simply because she is their mother and Ms Tomkins is not.
I would add that I accept Ms McDiarmid's submission to the effect that it was never established at trial that the relationship between
Ms Tomkins and Mr Ward is at risk of breakdown. Indeed, their evidence was that they intend to marry.
I note that Ms Gillies discusses the ICL’s proposed contact arrangements under this general heading. I accept and adopt paragraphs 179 to 182 of those submissions. Unfortunately, problems with contact (or, perhaps more accurately, problems with the arrangements associated with contact) have dogged these proceedings from the outset. I have done the best that I can in all the circumstances to outline contact orders that are –
a)in the twins’ best interests;
b)as practical as possible; and
c)not unduly onerous on all those affected by them.
There do not appear to be any other facts or circumstances that are of significance, and that I have not otherwise discussed.
Reconsideration of meaningful relationship and protection from harm
Having dealt with those considerations pursuant to section 60CC(3) that I consider relevant, I shall now revisit the considerations referred to in section 60CC(2).
In my opinion, there is little further that needs to be said. I have dealt with the twins’ relationship with the parties elsewhere in these Reasons. I recognise the benefits to the twins of having a meaningful relationship with Ms Ward and (in the unusual circumstances of this case) Ms Tomkins, Mr Ward and, for example, Ms P and [Z]. The orders that I have outlined below reflect my attempt to protect, preserve and promote that relationship.
I have also dealt with the need to protect the twins from any form of harm that may have its genesis in Mr Richards’s actions or attitudes.
It seems to me that the possibility of QDOCS taking the children into care if they were placed with Ms Ward also represents a form of "harm" from which the children should be protected. There is clear evidence that the consequences for the twins of being taken into care would be very damaging indeed.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that the twins’ best interests remain the overriding consideration;
b)taking into account the objects and principles set out in section 60B; and
c)having regard to my discussion of the section 60CC factors above,
d)I conclude that, in general terms, Ms Tomkins’s proposals are more likely to be in the twins’ best interests than Ms Ward’s proposals (subject to my findings in relation to the issue of parental responsibility).
Parental responsibility
Given that Mr Richards did not actively participate in the proceedings, and given my findings in relation to his behaviour (including my findings relating to the subject of family violence) it is clear beyond argument that the presumption of equal shared parental responsibility contained in section 61DA does not apply. But even if it did apply,
I am firmly of the view that it is not in the twins’ best interests for
Ms Ward and Mr Richards to have equal shared parental responsibility for them -- either together or in conjunction with Ms Tomkins.
Leaving aside issues of the applicability of presumptions and their rebuttal, Ms Gillies submits that Ms Tomkins should have sole parental responsibility for the twins. She argues that –
a)notwithstanding that Ms Ward and Ms Tomkins advised the court that, in their view, they would be able to communicate effectively about the twins, such communication has not occurred to date;
b)Ms Ward and Ms Tomkins were unable to explain how shared parental responsibility might operate in the future;
c)the fact that Ms Ward and Ms Tomkins live in different States means that there is a likelihood that Ms Tomkins will be unable to contact Ms Ward at times when it is necessary for her to make urgent decisions about such matters as the twins’ health or education; and
d)Ms Ward's deep resentment towards Ms Tomkins arising out of Ms Ward's belief that Ms Tomkins "stole" the twins seems ingrained, and it follows that Ms Ward may find herself unable to work cooperatively with Ms Tomkins for the benefit of the twins.
Ms McDiarmid (with, it would appear, some degree of reluctance) supports Ms Gillies’ submission in this regard.
In Oscar and Traynor,[112] Murphy J. said in relation to equal shared parental responsibility:[113]
It seems to me that the greater the degree of mistrust, lack of communication, disrespect and dysfunction in the co-parenting relationship, the greater the indication that an attempt for those parents to equally share the responsibilities (and, importantly, actively carry them out) is unlikely to be in the children's best interests.
[112] (2008) FamCA 95
[113] At paragraph 260
As discussed below, and notwithstanding the comment from Oscar and Traynor quoted above, I am not persuaded that Ms Ward and
Ms Tomkins are unable to share parental responsibility for the twins. Both have told me that they are prepared to work together for the twins’ benefit. I note, as well, that these proceedings commenced when the twins were very young indeed. The case has been fought tenaciously by all parties, but the trial finished in late 2007 and there appears to have been no further applications to the court since that time. I regard the absence of such applications as a positive development – one which indicates or implies a possible change in
Ms Ward's attitude.
It cannot be ignored that Ms Ward is the twins’ mother and
Ms Tomkins is not. In my opinion, it is more than reasonable for
Ms Ward to share parental responsibility for the children with
Ms Tomkins. That they may live in different States is of little relevance. There are a myriad of ways in which communication between Ms Ward and Ms Tomkins can take place when issues relating to the twins’ long-term care, welfare and development arise. In any event, the need for one party to make an urgent decision regarding a child's health, education or the like can arise even where parents (or others having parental responsibility) live in very close proximity -- if, for example, the other parent (or person having parental responsibility) is away or otherwise uncontactable for a variety of reasons. Still, I would expect such occasions to be extremely rare.
I recognise that there has not been a positive relationship between
Ms Ward and Ms Tomkins for almost the whole of the twins’ short lives. Indeed, their relationship has been conflictual, and significantly so. As well, Ms Ward and Ms Tomkins have not communicated about the twins in a satisfactory manner – although each now appears to accept that the other has something positive and worthwhile to offer the twins.
Ms Ward’s actions in the past (for which she has been criticised in these Reasons) reveal that she has had difficulty adopting a child focused approach in dealing with issues as they have arisen. I am satisfied, however, that Ms Tomkins has always (or almost always) adopted a child focused approach.
The twins’ major long-term issues include matters relating to their education, religious and cultural upbringing and health (together with their living arrangements, to the extent that changes to the same might impact on the time that they spend with Ms Ward). Their names also comprise a major long-term issue.
In my opinion, it is in the twins’ best interests to have both Ms Ward and Ms Tomkins involved in making decisions relating to their
long-term care, welfare and development. Having regard to the concessions made by both Ms Ward and Ms Tomkins, I propose to order that they have equal shared parental responsibility for the twins. There is no reason why Ms Ward should not be permitted to have input into the sorts of issues referred to in the previous paragraph. And the fact that Ms Tomkins must consult Ms Ward in relation to these matters will hopefully ensure that she will not be tempted to take the sort of actions that have (perhaps unfairly) formed the subject of adverse comments by both Ms Gillies and Ms Kirkman-Scroope.
Of course, an order for equal shared parental responsibility will require Ms Tomkins and Ms Ward to make joint decisions about "major
long-term issues" relating to the twins, and to consult with each other and attempt to reach agreement in order to do so. If I were to find that Ms Tomkins and Ms Ward are simply unable to cooperate with each other to the extent necessary to ensure that equal shared parental responsibility can operate satisfactorily and in the best interests of the twins, then, because the conflict that could arise from an unsuccessful or dysfunctional consultation process will almost certainly be harmful to the twins’ best interests, I should proceed to order that Ms Tomkins have sole parental responsibility. But I am not prepared to make such a finding. Nor am I prepared to find that, to the extent that there has been an inability to cooperate in the past, that inability or incapacity is likely to continue in the future.
I will not pretend that I do not have some discomfort with the making of an order for equal shared parental responsibility. I recognise that there is a possibility that it will not work, and that Ms Ward will use Ms Tomkins’s attempts to discuss matters with her (directly or indirectly) to insult, belittle or criticise her. But Ms Tomkins said that she is prepared to give the arrangement an opportunity to work, and my hope is that, with the completion of these proceedings and the publication of these Reasons, some of the mistrust and disrespect that has characterised Ms Ward's attitude to and behaviour towards
Ms Tomkins will begin to dissipate.
The mechanics of the consultation between the parties that is a necessary component of equal shared parental responsibility comprise a matter that should form the subject of discussion between the parties’ legal representatives.
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "the Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the orders that I have outlined below are those that are most likely to protect the twins and advance their best interests (which, after all, comprise the paramount consideration in these proceedings).
Orders
Subject to submissions by counsel regarding the form or "mechanics" of the same, I propose to make the following orders:
a)MS TOMKINS (“Ms Tomkins”) and MS WARD (“Ms Ward”) have equal shared parental responsibility for the children [X] and [Y], both born in 2005.
b)The children live with Ms Tomkins.
c)The children spend time with MR WARD (“Mr Ward”) as agreed between Ms Tomkins and Mr Ward.
d)The children spend time with Ms Ward as agreed and arranged between Ms Tomkins and Ms Ward, and failing agreement as follows:
i)except in the month of January in each year, on the weekends of the first and third Friday in each month, from 12 noon on Friday to 5 p.m. on Sunday;
ii)from 2 p.m. on 24 December until 6 p.m. on 26 December in 2009, and in each alternate year thereafter;
iii)for a period of 7 consecutive days in January 2009, such period to be agreed between Ms Tomkins and Ms Ward;
iv)from 9 a.m. on the second Monday in January until 9 a.m. on the third Monday in January in each of the years 2010 and 2011;
v)
notwithstanding any other provisions of these orders, from
9 a.m.on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2010;
vi)from 3 p.m. on 27 November until 3 p.m. on 28 November in 2009, and in each alternate year thereafter;
vii)from 3 p.m. on 28 November until 3 p.m. on 29 November in 2010, and in each alternate year thereafter; and
viii)upon the children commencing school, and subject to paragraph (e) below, one half of all school holidays, and being the first half of such holidays in 2011 (and in each alternate year thereafter) and the second half of such holidays in 2012 (and in each alternate year thereafter).
e)Upon the children commencing school, the spend time arrangement referred to in paragraphs (d)(i) and (ii) be suspended during all school holidays, and do resume after such holidays in an unbroken cycle as if such holidays had never occurred.
f)Notwithstanding any other provisions of these orders (save for paragraph (d)(v) above), Ms Ward's time with the children be suspended, and the children be returned to live with Ms Tomkins at the following times:
i)from 2 p.m. on 24 December until 6 p.m. on 26 December in 2010, and in each alternate year thereafter;
ii)from 3 p.m. on 27 November until 3 p.m. on 28 November in 2010 (and in each alternate year thereafter) and from 3 p.m. on 28 November until 3 p.m. on 29 November in 2009 (and in each alternate year thereafter); and
iii)from 9 a.m. on the day before Mother's Day until 5 p.m. on Mother's Day in each alternate year, commencing 2009.
g)The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact or communicate with MR RICHARDS.
h)MR RICHARDS is hereby restrained by injunction from coming into contact or communicating with the children or either of them.
i)The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to come into contact with Mr P.
j)The parties, their servants and agents be and are hereby restrained by injunction from allowing the children (or either of them) to visit the home of MR W and/or from allowing MR W to transport the children (or either of them).
k)In the event that the children (or either of them) come into contact with MR W, Ms Tomkins and Ms Ward (and their servants and agents) must cause the children to be removed from his presence immediately if he becomes intoxicated or aggressive (including verbally aggressive).
l)Ms Ward’s time with the children be supervised at all times by:
i)Ms P; or
ii)Ms D; or
iii)Ms T; or
iv)any other supervisor agreed by the parties in writing.
m)
All overnight periods of time spent by Ms Ward with the children (or either of them) must be spent at the home of MS P or MS D, unless otherwise agreed in writing between Ms Tomkins and
Ms Ward.
n)
In the event that Ms Ward resides in Brisbane/[S], then
Ms Tomkins must be responsible for delivering the children to and collecting them from the home of Ms P:
i)on the first weekend in April; and
ii)on the first weekend in August; and
iii)for time spent with Ms Ward pursuant to paragraph (d)(iii) and (iv) above; and
iv)for the Christmas holiday periods pursuant to paragraph (d)(viii) above.
o)For all other changeovers, Ms Ward must be responsible for collecting the children from Ms Tomkins’ home at the commencement of her time and Ms Tomkins must be responsible for collecting the children from Ms D’s home of at the conclusion of the time.
p)If Ms Ward will not be spending time with the children in New South Wales pursuant to any of the provisions of these orders, then Ms Ward must inform Ms Tomkins of that fact, in writing, at least seven days before the commencement of such spend time period.
q)The parties, their servants and agents be and are hereby restrained by injunction from:
i)
abusing, insulting, belittling, rebuking or otherwise denigrating Ms Tomkins, Mr Ward, any supervisor,
Ms Ward or MR RICHARDS; and
ii)discussing these proceedings,
iii)in the presence or hearing of the children (or either of them), and from permitting any other person to do so.
r)Ms Tomkins and Ms Ward must advise each other, in writing, at least 7 days before any change to their residential address, mobile telephone or landline number.
s)Ms Tomkins and Ms Ward must provide each other with any necessary authorization needed to obtain information from any school, child care facility, medical practitioner, therapeutic consultant or third party that the children might attend for educational, psychological or medical purposes.
t)Ms Tomkins and Ms Ward must advise each other, in writing, at least 7 days before any scheduled medical, psychological or therapeutic appointment that both or either of the children are scheduled to attend, and both be at liberty to attend same.
u)In the event that either child requires emergency medical treatment, Ms Tomkins and Ms Ward must each advise each other, as soon as practicable, of such requirement, and include details of the attending medical practitioners, their contact details and the condition for which treatment is required.
v)At least 3 months prior to the children being enrolled in any educational facility, Ms Tomkins must provide Ms Ward with details of the facility, proposed enrolment details, and the contact details of the facility.
w)Ms Tomkins and Ms Ward must maintain a communications book, which shall pass with the children.
x)The children be baptised in the Roman Catholic faith, unless otherwise agreed in writing between the parties.
y)
Ms Ward be responsible for taking all steps to give effect to paragraph (x) above, and do provide Ms Tomkins with 28 days notice of the date, time and location of that baptism, and
Ms Tomkins and her invitees be at liberty to attend and participate as appropriate in the ceremony, and any celebration.
z)Ms Tomkins and Ms Ward must cause each of the supervisors to be furnished with a copy of these Orders prior to them supervising any period of time.
aa)The independent children’s lawyer do provide to the Department of Child Services, Queensland, and the Department of Community Services, New South Wales, a copy of these Orders as soon as practicable.
bb)In these orders, a requirement that notice be given in writing can be adequately satisfied by the sending of an SMS text message or e-mail.
I certify that the preceding three hundred and thirty-eight (338) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate: Luciana Ramos
Date: 12 January 2009
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36
I refer to the previous footnote regarding the problematical nature of this evidence (although no objection was taken to it). Mr W did not swear an affidavit and did not give evidence at trial, but
Ms Tomkins and Ms P can give evidence that the statements were made to them. I do not rely upon their evidence in this regard as evidence of what Mr W may actually think is in the twins’ best interests.
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