FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TORRES & TORRES (No.2) | [2012] FMCAfam 107 |
| FAMILY LAW – Parenting – parental responsibility – children’s views – poor relationship between the parties. |
| Family Law Act 1975, ss.4, 10G, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA, 68B, 91B Federal Magistrates Court Rules 2001, r.23.01A |
| Herridge & Handerson & Ors [2011] FamCAFC 156 In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 Lindell & Ranteri [2010] FamCA 52 McCall & Clark [2009] FamCAFC 92 N & M [2006] FamCA 958; (2006) FLC 93-296 Torres & Torres [2010] FMCAfam 1456 |
| Applicant: | MS TORRES |
| Respondent: | MR TORRES |
| File Number: | SYC 5754 of 2007 |
| Judgment of: | Monahan FM |
| Hearing dates: | 5 and 6 December 2011 |
| Date of Last Submission: | 6 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Self Represented Litigant |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Self Represented Litigant |
| Counsel for the Independent Children’s Lawyer: | None |
| Independent Children’s Lawyer: | Legal Aid NSW - Ms O’Donnell |
ORDERS
All previous orders in relation to the children [X], born [in] 1995, (“[X]”) [Y], born [in] 1997, (“[Y]”) and [Z], born [in] 1998, (“[Z]”) (or collectively “the children”) be and are hereby discharged.
The father have sole parental responsibility for the children.
The children live with the father.
[Y] and [Z] spend time with the mother as agreed or, failing agreement, as follows:
(a)each alternate Saturday in accordance with the current cycle between 11:30am and 1:30pm; and
(b)for any additional time as requested by [Y] and [Z] and agreed between the parties prior to such time occurring;
with such time to occur at any reasonable public place nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent between the mother, [Y] and [Z].
[X] spend time with the mother in accordance with his wishes.
For the purposes of the time that the children spend with the mother, changeovers occur at such place as may be agreed between the parties or, failing agreement, at [R] Shopping Centre.
In the event that the children express a wish to communicate with the mother, the father do all things to facilitate the children communicating with the mother by telephone, or other appropriate means, at all reasonable times.
In the event that the children express a wish to spend time, or communicate, with the maternal grandparents, the father take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents.
The father ensure that the mother is kept informed of:
(a)any medical problems or illnesses suffered by the children while in the father’s care; and
(b)any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties about the children, the mother and the father communicate by SMS regarding matters of an urgent nature, and otherwise communicate by email or SMS about day to day matters, including arrangements for each party to spend time with the children.
During any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
Within 14 days of the date of these Orders (and thereafter within 14 days after the enrolment of any of the children in a different school) the father do all acts and things and give all irrevocable authorities necessary to ensure that the children’s school(s) forward directly to the mother at her current postal address and at her expense (if applicable) copies of all of each child’s school reports, merit cards and any written material pertaining to each child’s academic and extra-curricular activities.
Within seven (7) days of receipt, the father provide the mother with copies of all order forms for school photographs for each child.
Both parties be restrained from the following:
(a)discussing these proceedings with, or in the presence or hearing of, any of the children or from permitting any third party to do so; and
(b)denigrating, criticising, or permitting any third party to denigrate or criticise:
(i)the other party;
(ii)any partner of the other party; or
(iii)any family member of the other party
in the presence or hearing of any of the children.
Both parties advise, and keep each other advised, of their current telephone numbers and contact addresses and notify the other party of any changes to those details as soon as practicable, and no later than 24 hours after any such changes.
Before any application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties:
(a)the parties do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (“the Act”) or by the Commonwealth Attorney General; or
(b)the mother and the father participate in family dispute resolution with a person authorised under s.10G of the Act.
Subject to the following, the appointment of the Independent Children’s Lawyer be discharged:
(a)the Independent Children’s Lawyer provide a sealed copy of these Orders to the children’s schools within seven (7) days; and
(b)the Independent Children’s Lawyer explain these Orders to the children.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Torres & Torres (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5754 of 2007
| MS TORRES |
Applicant
And
| MR TORRES |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves an application by MS TORRES (“the mother”) against MR TORRES (“the father”) seeking various parenting orders in relation to the children of their relationship, [X], born [in] 1995, (“[X]”) [Y], born [in] 1997, (“[Y]”) and [Z], born [in] 1998 (“[Z]”) (or collectively “the children”).
The mother is seeking orders that the parties have equal shared parental responsibility for the children and that the children ultimately spend equal time with each party. This is opposed by the father, who is seeking the continuation of the Orders made on 28 February 2011. The Independent Children’s Lawyer (“ICL”) is seeking that different orders be made in relation to the children.
The parties have had a long and unfortunate history before the Family Court, dating from 2001, as well as before the Federal Magistrates Court, dating from 2007. The current proceedings were commenced by way of an Initiating Application filed by the mother on 2 November 2010, which was later superseded by her Amended Initiating Application filed on 5 October 2011 (“the current proceedings”). The father filed his Response on 23 November 2010 which has also since been superseded by his Amended Response filed on 2 November 2011.
Background
The current proceedings were the subject of an interim decision delivered on 17 December 2010 (“the Interim Decision”).[1] The background of this matter until that date is set out in paragraphs 6 to 21 of the Interim Decision.[2]
[1] Torres & Torres[2010] FMCAfam 1456.
[2] Ibid, at [6] to [21].
As a result of the Interim Decision I made the following Orders:
“2.The Respondent facilitate the return of [Z], born [in] 1998 (‘the youngest child’) to the Applicant by no later than 12noon on 18 December 2010.
3.The Respondent facilitate [X], born [in] 1995, and [Y], born [in] 1997 (‘the elder children’) to spend time from 12noon on 18 December 2010 with the Applicant pursuant to paragraph 4(b) of the Orders made on 12 August 2010.
4.The Applicant have liberty to apply on 24 hours notice should the Respondent fail to comply with paragraphs 2 and 3 herein.
5.The Applicant as soon as possible obtain a referral from a general medical practitioner to a psychologist for the purpose of commencing therapy to improve her parenting relationships and her parenting skills (‘the therapy’).
6.For the purposes of paragraph 5 herein, the Applicant should either have completed the first session of the therapy or obtained an appointment with the relevant psychologist on or before seven (7) days before the mention hearing.
7.All current parenting orders remain in full force and effect.”
In addition, I made Orders for the appointment of an ICL, noting that a solicitor from Legal Aid at Bankstown had previously appeared in that capacity, and directed that the ICL interview [Z] prior to the adjourned date of 4 March 2011.
At various points during the current proceedings, the mother had filed an Application for Contempt, on 27 October 2010, an Application for Contravention, on 29 October 2010 and, as stated, an Initiating Application, on 2 November 2010.
The father filed an Application in a Case on 31 January 2011 which was made returnable in my duty list on 28 February 2011. On that date the mother’s Contempt and Contravention Applications were withdrawn and dismissed, and an Order was made pursuant to s.91B of the Family Law Act 1975 (“the Act”) for the (then) Department of Community Services to intervene in the proceedings.[3] The following interim Orders were also made, noting that paragraphs 6, 7, 10, 12, 13, 14, 16 and 17 reflected a signed minute of proposed orders:
[3] See paragraph 2 of the Orders made on 28 February 2011.
“6.All previous orders in relation to the children [X], born [in] 1994 (‘[X]’), [Y], born [in] 1997 (‘[Y]’), and [Z], born [in] 1998 (‘[Z]’), (collectively, ‘the children’) be suspended.
7.The children live with the Respondent.
8.[Y] and [Z] spend time with the Applicant in a public place each alternate Saturday, such time to commence on the first Saturday after the Applicant complies with paragraph 11 herein, between 11:30am and 1:30pm and the first two (2) such periods are to be spent under the supervision of a person as may be agreed between the parties, or, in the absence of any agreement, Mr S, the maternal uncle.
9.The first period of time spent by [Y] and [Z] with the Applicant take place at McDonalds Family Restaurant located at [R] and thereafter at such reasonable public place as may be nominated by the Applicant and communicated by her to the Respondent and to [Y] by SMS text message by at least 48 hours prior to the period of time to be spent.
10.The Applicant use her best endeavours to obtain a referral to a psychiatrist (‘the psychiatrist’) for the purpose of obtaining a diagnosis and prognosis of her current mental health and for the psychiatrist to provide the Applicant with a treatment plan to address any identified mental health issues.
11.The Applicant cause notice of the date of any psychiatric appointment obtained by her to the Independent Children’s Lawyer and to the Respondent and the spend time arrangements set out in paragraph eight (8) herein commence on the first Saturday immediately following the provision of such notice.
12.The Applicant provide the Independent Children’s Lawyer with the name and address of the psychiatrist and the Independent Children’s Lawyer provide a copy of all records produced under subpoena from [S] Hospital relating to the Applicant, a copy of the two (2) Family Reports prepared in this matter dated 10 May 2010 and 24 February 2009, and the letter from NSW Police addressed to the Respondent dated 18 January 2011, attaching the Police Report for Event reference number: [omitted].
13.Pending any appointment with the psychiatrist, the Applicant continue her therapy with [S] Community Mental Health and/or Ms V and comply with all referrals as may from time to time be made by that agency and/or Ms V.
14.The Applicant be restrained from contacting the children’s schools.
15.Subject to paragraph eight (8) herein, the Applicant is restrained from permitting the maternal grandparents or any maternal relatives from being in attendance during the time [Y] and [Z] spend with her.
16.The children be permitted to communicate with the Applicant by telephone at any reasonable time.
17.Neither party may discuss these proceedings with the children, or in the presence or hearing of the children.”
The matter next returned before me on 17 May 2011, on which occasion paragraphs 8 and 9 of the Orders made on 28 February 2011 were amended by consent. The effect of the variation was that paragraphs 8 and 9 of the Orders made on 28 February 2011 were to read as follows:
“9(a)That the children spend time with the Applicant each alternate Saturday between 11.30am and 1.30pm at any reasonable public place nominated by the Applicant and communicated by her to the Respondent and [Y] by SMS text message at least 48 hours prior to the period of time to be spent, and
9(b)That the children [Y] and [Z] may spend further time with the mother on the occasions referred to in order 9(a) provided that this is requested by the children and agreed between the applicant and the respondent prior to the time spent.
9(c)That the mother may spend additional time with the children as agreed between the parties.”
On 4 July 2011, I made Orders pursuant to r.23.01A of the Federal Magistrates Court Rules 2001, that a limited issues (or ‘wishes’) report be prepared by a Legal Aid social worker to ascertain the views of [Y] and [Z] (and [X], should he choose to participate). On 1 August 2011, I entertained a consent minute in Chambers and made corresponding Orders that Mr B prepare this report.
The parties were next before me on 19 August 2011, on which occasion I again amended the 28 February 2011 Orders, to stipulate that changeovers would occur at [R] Shopping Centre.[4] I also directed the mother to provide her address to the Court and the ICL and otherwise adjourned the matter to 7 September 2011 to consider whether the matter should be set down for final hearing.
[4] See paragraph 2 of the Orders made on 19 August 2011.
On 7 September 2011, I listed this matter for final hearing on 5 and 6 December 2011 and made appropriate trial directions. I also made the following notations:
“A.There is currently no operative Order as to parental responsibility.
B.Mr B, social worker, will be available to be cross-examined on the report annexed to his Affidavit sworn on 8 August 2011 and filed on 12 August 2011.
C.The Independent Children’s Lawyer does not intend to call evidence from Ms M, but the Independent Children’s Lawyer does intend to seek to admit into evidence all relevant family reports that have been prepared in the matter to date.
D.In the event that either party requires Ms M to be present at the Final Hearing for cross-examination, that party will need to inform her of this and make arrangements for her to attend Court at 11:00am on the first day of the Final Hearing.”
The Final Hearing commenced before me on 5 December 2011 and concluded the following day (“the Final Hearing”).
At the Final Hearing, both the mother and the father were self-represented and Ms O’Donnell appeared as the Independent Children’s Lawyer.
Chronology
In addition to the above procedural background, each party and the ICL provided the Court with a chronology of events. While not necessarily representative of any agreement between the parties, the ICL’s chronology provides a useful timeline of the parties’ relationship[5]:
[5] ICL’s Case Outline document dated 5 December 2011, pp. 3-11. The Court has made some changes to reflect the evidence.
[omitted] 1962 Date of birth of the father - now aged 49. [omitted] 1969 Date of birth of the mother - now aged 43. [omitted] 1992 Date of marriage; father is violent towards the mother during their honeymoon (as alleged by the mother). [omitted] 1995 Date of birth of [X]. 1997 Father threatens and intimidates the mother at various times (as alleged by the mother). [omitted] 1997 Date of birth of [Y]. 26.01.1998 Mother is assaulted by the father and is hospitalised (as alleged by the mother), father leaves the home shortly thereafter, returning April 1998. June 1998 Parties first separation, mother leaves family home, children remain with the father (as alleged by the father); parenting orders are made at the Local Court for the father to have contact with the children on Sundays from 9:00am to 8:00pm. August 1998 Parties separate until February 1999, children remain with the mother (as alleged by the father). October 1998 Mother is hospitalised for a period, father asks her to arrange for her parents to care for the children. November 1998 Father has some contact with the children, parties manage to reach some agreement with the assistance of mediation provided by their church (as alleged by the father). [omitted] 1998 Date of birth of [Z]. February 1999 Parties reconcile. July 1999 Further periods of separations and reconciliations up to 2001. December 2000 Father asks mother to leave the house and she takes the children and goes to a refuge (as alleged by the mother). 2001 - October
2003Parties separate and reconcile on various occasions (as alleged by the father). 28.04.2004 Date of further separation, father has no contact with the children until October 2004 (as alleged by the father). 01.01 .2006 Date of final separation; mother tells father to leave the home (as alleged by the father); father is violent towards the mother who obtains an interim AVO (as alleged by the mother).
13.01.2006Interim AVO for the protection of the mother and the children granted at [omitted] Local Court; father is eventually charged with assault. 06.04.2006 Date of divorce. October 2006 Mother learns that father is in new relationship and she begins calling him on a daily basis asking that he not see Ms P (as alleged by the father). 19.11.2006 Mother threatens to burn down the father’s home (as alleged by the father). November 2006 Father is not permitted contact with the children until approximately March 2007 (as alleged by the father). March 2007 Parties agree for father to spend time with the children following further intervention of their church (as alleged by the father). August 2007 Father allegedly ceases employment. September 2007 Mother ceases contact between father and children (as alleged by the father). 24.03.2008 [X] goes to live with the father. 20.04.2008 [X] begins to tell the mother that she ‘threw him out’. 31.05.2008 [Y] and [Z] begin to tell the mother that they do not want to spend time with the father. July 2008 Father commences de facto relationship with Ms P. August 2008 The children tell the father that the mother told them that he and Ms P are ‘living in sin’ as in the eyes of God he remains married to the mother. 19.09.2008 Parties attend Legal Aid Conference and enter into ‘heads of agreement’. 24.09.2008 Father recommences spending time with [Y] and [Z]. 11.10.2008 [X] commences spending time with the mother. October 2008 [X] complains to the father about the mother’s behaviour whilst she was driving them around in her car, [X] calls the mother a ‘bloody bitch’ (as alleged by the father). 29.10.2008 Father files Initiating Application seeking orders that the children [Y] and [Z] live with him on Wednesday nights, on alternate weekends and half of the school holidays and that [X] live with the mother an alternate weekends, on Wednesday afternoons and half of the school holidays. 28.11.2008 Father files Amended Initiating Application seeking orders to include orders for Christmas contact. 03.12.2008 Mother files her Response seeking orders for the return of [X]. 05.12.2008 Orders made pending further order: [X] to live with the father, children to spend time with non resident parent as agreed, order for the appointment of an Independent Children’s Lawyer, order for the preparation of a Family Report. 06.02.2009 Interim consent orders - Federal Magistrates Court Sydney: [Y] and [Z] spend time with the father from 5:00pm to 7:00pm on alternate Sundays commencing 8 February 2009, that [X] spend time with the mother from 5:00pm to 7:00pm on alternate Sundays commencing 15 February 2008, the parents to do all things to ensure the children are available to attend. 24.02.2009 Date of release of Family Report by Ms M. 18.03.2009 Interim Orders by consent: parents to have equal shared parental responsibility, [X] to live with the father, [Y] and [Z] to live with the mother and to spend time with the father on alternate Sundays from 10:00am to 5:00pm, [X] to spend time with the mother from 10:00am to 5:00pm on alternate Sundays, parents to ensure the children are available, parents to participate in UNIFAM ‘Keeping in Contact’ programme, further orders for telephone communication, children to attend all sporting events, parents entitled to attend all children’s sporting events and similar activities, non-denigration orders; hearing ‘not reached’. 08.10.2009 Hearing of matter before Maguire FM on issue of the time [Y] and [Z] would spend with the father. 11.01.2010 [Z] and [Y] return from block time with the father, [Y] tells the mother she has decided she wants to live with the father. 14.01.2010 Date fixed for delivery of judgment by Maguire FM; court is advised that [Y] has gone to live with the father, children have not spent time together as siblings since this time. 27.01 .2010 [Y] tells the mother she wants to see her but ‘only once she has signed the custody papers because she was now living with dad’ (as alleged by the mother). February 2010 [Y] commences at her current school, [Z] commences at same school but at Primary level; mother pays the fees for the children’s attendance (as alleged by the mother). 01.02.2010 Mother meets with [Y] on her first day at school, at end of day she approached [Y] and attempts to take her home (as alleged by the father). 04.02.2010 Orders for an updated Family Report. 05.03.2010 Father attends at [Z]’s school asking to see him, [Z] refuses (as alleged by the mother). 16.04.2010 Family attend upon family consultant for updated Family Report interviews. 13.05.2010 Date of release of updated Family Report by Ms M. 12.08.2010 Final orders made by consent by Maguire FM:
[Y] and [X] to live with father and [Z] to live with mother. Children to spend time with non-resident parent each alternate weekend and children to spend time with each other each weekend.03.09.2010 Mother becomes upset and returns children (all three) to father’s home.
[Z] reports to his siblings that he had attempted suicide on 5 separate occasions two years earlier (as alleged by father).04.09.2010 [Z] tells mother that he wants to live with the father and his siblings (as alleged by father). Father alleges that mother calls him and threatens to kill him. 06.09.2010 Father attends [Z]’s school to collect him at 3:00pm but is advised the mother has removed [Z] from school one period before the end of the day. 07.09.2010 Father alleges he reports matter to DoCS after mother allegedly refuses to let [Z] move over to live with him 10.09.2011 [Z] comes to spend time with father as per current orders. 17.09.2010 All three children spend weekend with father by agreement of mother and at the request of [X] and [Y] who wish to study that weekend (as alleged by father). 20.09.2010 [Z] comes to father’s home after school and states that he does not wish to live with the mother any more (as alleged by father).
Father meets with counsellor from UNIFAM. Counsellor advises father she will talk to the mother about the situation (as alleged by father).21.09.2010 Mother collects [Z] one period before the end of school and takes him to her home(as alleged by father). 24.09.2010 All three children go to mother’s home for the weekend and for the first week of the school holidays -as alleged by father. 28.09.2010 [X] telephones the father and advises of events that have occurred whilst the children were staying with their mother. [X] also states that maternal grandfather had told them they would be responsible for anything that happened to their mother (as alleged by father). 04.10.2010 Father collects all three children so they may spend time with him for the second half of the school holidays. 11.10.2010 [Z] comes into care of father after returning to the father’s home after school on that day. 22.10.2010 Father alleges the mother attempts to collect the children from father’s home. Children go down to speak to mother. 27.10.2010 Mother files Contempt application. 29.10.2010 Mother files Contravention application. 02.11.2010 Mother files Initiating Application seeking return of [Z] to her care. 19.11.2010 Mother attempts to collect children from father’s home until children go down to speak to her (as alleged by father). 13.11.2010 Father takes [Z] to local GP, Mental Health Plan prepared for [Z] by GP and [Z] is referred to Ms L, psychologist, under the Mental Health Plan (as alleged by father). 19.11.2010 Mother attempts to collect children from father’s home and children call father (as alleged by father). 20.11.2010 Father takes [Z] to Children’s Hospital, [suburb omitted]. 11.12.2010 Father takes [Z] to an interview with Ms L, psychologist. 15.12.2010 Matter listed at Federal Magistrates Court Sydney. 17.12.2010 Matter listed before Monahan FM.
Order that [Z] return to mother; ICL re-appointed; mother referred to therapy.18.12.2010 Mother collects children from fathers home; incident at father’s home - mother allegedly swears and is aggressive; police called and children left with father (as alleged by father). 19.12.2010 Father delivers children to mother’s home and confirms with mother he will collect them on 3 January 2011. 21 &
22.12.2010Father alleges children call him and ask him to take them home to father’s house. Father alleges that he refuses request. 23.12.2010 Incident at mother’s home; police called; police called but leave. Maternal grandfather present.
Later that evening [X] calls father and advises Police were called again and return to mother’s home, remove mother to [S] Hospital and she is admitted under Mental Health Act 2007 (NSW) as she is allegedly threatening to self harm (as alleged by father).
Father collects children and takes them home.12.01.2011 Written reasons for ex tempore judgment by Monahan FM on 17 December 2010 released. 28.01.2011 ICL interviews [Z]. 28.02.2011 Orders made by Monahan FM that, pursuant to s.91B of the Family Law Act 1975 (Cth), DoCS is requested to join proceedings; all previous parenting Orders discharged; pending further Order children to live with father; mother to obtain assessment from psychiatrist of her choice re: her mental health; mother to continue therapy with Ms V; restraint on Maternal grandparents being in attendance in time mother spends with children [X] and [Y]; by consent; children to spend time with mother in a public place for two hours each Saturday; mother restrained from attending children’s schools. 17.05.2011 Further mention and ‘tweaking’ of current interim orders for mother to spend time with children. 04.07.2011 Mailer listed for mention before Monahan FM.
Order made that wishes report to be prepared if possible by Legal Aid NSW and as arranged by ICL.01.08.2011 Orders made in chambers by consent of parties for wishes report. 02.08.2011 Children interviewed by Mr B, social worker at Legal Aid NSW and wishes report prepared.
Mr B noted that [Z] and [Y] had each expressed a wish for the current arrangement to continue with the option for an extension of time for a couple of hours on occasion.12.08.2011 Report by Mr B, social worker, filed in Federal Magistrates Court, Sydney, on behalf of ICL. 19.08.2011 Further mention of matter before Monahan FM at 10:00am. 07.09.2011 Further mention of matter before Monahan FM at 10:00am. Matter set down for final hearing on 5 and 6 December 2011. 05.12.2011 Date of Final Hearing.
Proposals
Mother’s proposal
The mother filed a “Case information” document on 2 December 2011 (“the mother’s case outline”). In that document the mother indicates that she seeks “sole responsibility and care” of the children.[6]
[6] Mother’s case outline, filed 2 December 2011, page 1.
In the alternative, the mother seeks the orders sought in her Amended Initiating Application filed on 5 October 2011, to achieve the following outcome:
·all prior parenting orders regarding the children be discharged;
·mediation take place between the children and the mother to improve their relationship and, more importantly, the relationship between the mother and [X];
·the father attend parenting classes;
·the parties have equal shared parental responsibility for the children;
·the children ultimately spend equal time with each party, with time with the mother to be “built up” over the following periods:
o 10 December 2011, from 12:00pm to 4:00pm;
o 24 December 2011, from 10:00am to 8:00pm;
o 7 January 2012, from 9:00am to 8:00pm (being Orthodox Christmas Day);
o each alternate Saturday commencing 14 January 2012 up to and including 24 March 2012, from 10:00am to 6:00pm, or time in lieu as agreed between the parties;
o each alternate Friday commencing 6 April 2012 up to and including 30 June 2012, from after school Friday until the start of school on Monday, or time in lieu as agreed between the parents;
o thereafter, on an equal-time basis on a fortnightly or monthly cycle as the Court deems to be in the best interests of the children;
o for one week in the short NSW school holidays until 30 June 2012;
o for one half of the Christmas school holidays with 25 December being spent with a different parent each year;
o for each Mother’s Day weekend each year from after school on Friday until the start of school Monday, and if Mother’s Day falls on a weekend that would be the father’s then the time will be suspended and other time made up in lieu at the earliest possible opportunity and likewise for Father’s Day; and
o for such further periods as agreed;
·“only the dates, not the length or pattern of time, change, if these orders are made any time after 5 December 2012 with the times outlined starting from the first weekend after final orders are made”;
·in the event that [X] chooses not to spend time in accordance with these arrangements he shall nonetheless spend one hour per fortnight with the mother, from either 11:00am to 12:00pm or 12:00pm to l:00pm each alternate Saturday, corresponding with the weekend that the mother spends time with [Y] and [Z];
·the parties be restrained from discussing the proceedings with, or in the presence or hearing of, the children;
·the parties be restrained from denigrating, harassing or intimidating the other party in the presence or hearing of the children;
·until the children spend equal time with each party, the father keep the mother informed of any medical problem, illnesses and any other matter relevant to the children’s welfare;
·orders in relation to the school being provided with relevant permissions and provision of school photographs and the like;
·the father not contact the children whilst they are with the mother unless and until he is attends parenting classes;
·reasonable telephone contact by [Y] and [Z] to the mother and the father provide both with a mobile telephone for that purpose; and
·before making further application to the Court, the parties are to attend counselling, mediation and/or family dispute resolution.
Father’s proposal
The father filed a case information document on 30 November 2011 (“the father’s case outline”). The father seeks the continuation of the “current orders”, that is the interim Orders made on 28 February 2011 (“the February 2011 Orders”), presumably as amended by Orders made on 17 May 2011 and on 19 August 2011, and as already extracted in this decision.
ICL’s proposal
The ICL provided the Court with a comprehensive case outline document and proposed minute (“the ICL’s Minute”). As stated, the ICL seeks that different orders be made in relation to the children to achieve the following effect:
“1.That all previous orders in relation to the children [X] born [in] 1995 (‘[X]’) [Y] born [in] 1997 (‘[Y]’), and [Z] born [in] 1998 (‘[Z]’) be and are hereby discharged.
2.That the father shall have sole parental responsibility for the children [X], [Y], and [Z].
3.That the children [X], [Y], and [Z] shall live with the father.
4.That the children [Y] and [Z] shall spend time with the mother each alternate Saturday between 11.30am and 1.30pm at any reasonable public place nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent between the mother, [Y] and [Z].
5.For the purposes of the time that the children spend with the mother, the changeovers shall occur at [R] Shopping Centre, unless otherwise agreed between the parties.
6.That the children [Y] and [Z] may spend further time with the mother on the occasions referred to in order 3. of these orders provided that such further time is requested by the children and agreed between the father and mother prior to the time spent between the mother, [Y] and [Z].
7.That the mother may spend additional time with [Y] and [Z] as agreed between the parties.
8.The father shall ensure that the mother is kept informed of:
a.any medical problems or illnesses suffered by the children while in the father’s care, and
b.any other matter relevant to the child’s welfare
9.That for the purposes of communicating information between the parties about the children the mother and the father shall
a.communicate by SMS regarding matters of an urgent nature and otherwise
b.communicate by email or SMS about day to day matters including arrangements for each party to spend time with the children
10.That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the father shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that the school forward directly to the mother at her current postal address copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.
11.That the father shall furnish to the mother within seven days of receipt of same copies of all order forms for school photographs of each child.
12.The mother is hereby restrained by injunction from contacting or attending upon the children’s schools.
13.That during any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre. or hospital.
14.That the mother shall be restrained from permitting the maternal grandparents or any other maternal relatives from attending her time with [Y] and [Z], unless agreed in writing between the parties at last 48 hours prior to any such time.
15.That [Y] and [Z] shall be permitted to telephone the mother at any reasonable time.
16.Neither parent shall discuss these proceedings with [X], [Y] or [Z], or in the presence or hearing of any of the children and shall immediately direct the children to leave the vicinity of any third party who discusses these proceedings in the hearing or presence of the children.
17.That both parties shall advise, and keep each other advised, of their current contact telephone numbers and their current contact addresses and shall notify the other party of any changes to those details as soon as practicable, and no later than 24 hours after any such changes.
18.Before an application is made to a court for a variation of these orders to take account of the changing needs or circumstances of the children or of the parties, each party is to take the following steps:
a.the mother and the father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General, or
b.the mother and the father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.
19.A copy of these orders shall be provided to the children’s schools within seven days of the date of these orders by the Independent Children’s Lawyer.
Notation
a) It is noted that if the children express a wish to the father to spend time with or communicate with the maternal grandparents the father shall take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents.”
Issues
The following issues were in dispute at the Final Hearing:
·whether the presumption of equal shared parental responsibility should apply, or whether the father should have sole parental responsibility for the children;
·whether the children should live with the parties in an equal time arrangement, or live with the father and spend time with the mother – and, if so, whether the children should spend any overnight time with the mother;
·whether the views of the children should be given significant weight by the Court in reaching its decision as to their best interests; and
·what orders, if any, should be made in respect of the eldest child, [X], who is now aged 16½ years.
Family Reports
Ms M, Regulation 7 Family Consultant, prepared the Family Report dated 24 February 2009 (“the 2009 Report” tendered by the ICL and marked as Exhibit “ICL1”) as well as an Updated Family Report dated 13 May 2010 (“the 2010 Report” tendered by the ICL and marked as Exhibit “ICL2”).
In addition, and pursuant to consent Orders made in Chambers on 1 August 2011, Mr B, a Social Worker employed by Legal Aid NSW, prepared a ‘wishes report’ in relation to [Y] and [Z] only. This report was annexed to an affidavit sworn by Mr B on 8 August 2011 and filed by the ICL on 12 August 2011 (“the 2011 Report”).
The 2009 Report
Ms M interviewed the parties, the children and the father’s partner,
Ms P, on 13 February 2009 for the 2009 Report.
Ms M outlines the relevant background and issues in paragraphs 1 to 10 of the 2009 Report. Ms M then goes on to outline her interview with the father in paragraphs 11 to 20, her interview with the mother in paragraphs 21 to 28 and her interview with the father’s partner, Ms P, in paragraphs 29 to 32.
Details of Ms M’s interview with the children appear in paragraphs 34 to 42 of the 2009 Report and her observations of the children with the parties appear in paragraphs 43 to 47.
Ms M provides her evaluation in paragraphs 48 to 60 of the 2009 Report. In summary she states that:
·the children have attachments to both parents, although it is clear that [X] is now aligned with his father and [Y] and [Z] are aligned with their mother;
·the parties’ marriage was characterised by much conflict and instability (as well as some violence) and although difficult to determine, it is likely that the children were exposed to that conflict;
·the parties remain conflicted and seem very willing to involve the children in their conflict in an attempt to get the children to take on their respective positions;
·the father seems to have encouraged [X] to view events in a way which reflect extremely badly on the mother;
·[X] now appears to see himself as having the power to bring about an arrangement whereby his siblings would spend time with him and his father (and Ms M goes on question how the parties could have allowed [X] to form the view that he could “negotiate ‘a deal’ between his parents… about the amount of time that he and siblings spend with their parents”);[7] and
·it appears that the children have been exposed, by the mother, to a great deal of negativity about the father and this seems to have been caused by the extreme distress that the mother has experienced as a result of the final breakup of her marriage to the father and him entering into another relationship.
[7] 2009 Family Report, paragraph 51.
As to her evaluation of the children’s views at that time, Ms M states at paragraphs 57 to 59 of the 2009 Report:
“57. [Y] and [Z] both expressed a wish to remain living with their mother and [X] expressed a strong wish to stay living with his father. Although it is not ideal for siblings to live separately it is clear that [X] wishes to remain living with his father. Given this, his age and the less than optimum accommodation that is available for him at his mother’s home, it appears that the best option for [X] would be for him to remain living with his father, but only on the proviso that strategies be put in place to repair his relationship with his mother.
58. [Y] and [Z] seem to have a stronger attachment to their mother than their father and it is likely that they would find it difficult if they were moved into their father’s care, given the present difficulties in their relationship with their father and their current attitude to his partner. It is concerning that, although Ms P said that she is supportive of all the children having a positive relationship with their mother she seems to have a particularly negative attitude to Ms Torres and it may therefore be difficult for her to do this. Mr Torres and [X] also seem unified in the negative attitude that they express towards Ms Torres and it would not be in [Y]’s and [Z]’s interests to live in a home where their mother is viewed so negatively.
59. Although Ms Torres clearly has said extremely inappropriate things to the children about Mr Torres she does not seem to view him in the almost totally negative way in which he views her. Given this it is probably in their best interests to remain living with their mother. However, the children need to spend time with their father with and to spend time with [X]. As with [X], similar strategies need to be put in place to repair their relationship with their father.”
Given the facts presented to the Court in late 2011, Ms M’s comments in paragraph 52 of the 2009 Report are rather prophetic:
“52. Given that all three children appear to have positive feelings for both parents, it is possible that if both parents are prepared to focus on their children’s needs and not their own conflict, Ms Torres could rebuild her relationship with [X] and Mr Torres could rebuild his relationship with [Y] and [Z]. Unless both parents are prepared to do this that it is likely that the children will loose [sic] their relationship with one of their parents.”
Finally, Ms M provides the following recommendations in paragraphs 61 to 69 of the 2009 Report:
“61. It is recommended that the parents share joint equal parental responsibility for [X], [Y] and [Z]
62.It is recommended that the family be referred to a Parenting Orders Program such as a ‘Keeping Contact’ program
63. It is recommended that [X] live with his father
64. It is recommended that [Y] and [Z] live with their mother
65. It is recommended that [X] spend time with his mother every alternate weekend from the conclusion of school on Friday afternoon until the commencement of school on Monday morning after the family have engaged in a Parenting Orders Program
66. It is recommended that [Y] and [Z] spend time with their father each alternate weekend from the conclusion of school on Friday afternoon until the commencement of school on Monday morning after the family have engaged in a Parenting Orders Program
67. It is recommended that the time that the children spend with their parents be arranged so that the children spend each weekend together.
68. It is recommended that until the family is involved with a Parenting Orders Program that the children spend from 10:00am until 4.00pm each Sunday together and that they spend this time in one week with their father and in the other week with their mother
69. It is recommended that the children spend half of the school holidays with each parent[.]”
The 2010 Report
Interviews for the 2010 Report were conducted by Ms M with the parties, the children and Ms P on 16 April 2010.
After providing an update as to the children’s living arrangements in paragraphs 6 to 10 of the 2010 Report, Ms M details her interview with the father in paragraphs 11 to 18, her interview with the mother in paragraphs 19 to 28 and her interview with the father’s partner, Ms P, in paragraphs 29 to 30.
Details of Ms M’s interview with the children appear in paragraphs 31 to 42 and her observations of the children with the parties appear in paragraphs 43 to 44 of the 2010 Report.
Ms M provides the following evaluation of her interviews and observations in paragraphs 46 to 58 of the 2010 Report:
“46. It is unfortunate that since the last report was prepared and the parents had come to an agreement regarding the living arrangements of their children, with the assistance of Unifam, they have now returned to virtually the same positions that they both held when they first became involved in this Court process. The major change being, however, that now [X] and [Y] are living with their father and [Z] is living with his mother. It is clear that [X], who had been forced to take a major role in his parent’s conflict, was very happy that his parents had been able to come to an agreement, probably because this relieved him of the burden that his parents’ conflict placed on him. It is regrettable for the children that their parents were unable to maintain their agreement.
47. It appeared that both parents were working towards a final agreement and it seems strange that, if that was indeed the case, Mr Torres took the approach to his daughter expressing a wish to live with him, that he did. It could be suggested that, by adopting the approach that he did, that is, advising [Y] to approach her mother about living with him, he was very instrumental in bringing about the present situation, whereby [Y] lives with him and [X].
48. Mr Torres advised me that he had not thought about how Ms Torres might react to [Y] telling her that she was thinking about living with him, or about the possibility of [Y] suffering any psychological harm if her mother were to react in a strongly negative way. Given Mr Torres’ previous experience of Ms Torres’ reaction when [X] told her that he wanted to live with his father, it seems unlikely that he would not have anticipated Ms Torres reaction to [Y] telling her (Ms Torres) the same thing.
49. There are strong indications that Mr Torres has not worked towards maintaining the agreement about the living arrangements for his children, which I understand he and Ms Torres agreed to late in 2009.
50. It is clear that Ms Torres has continued to be very anxious about [Y] and [Z] spending time with their father and she seems to have become increasingly anxious as the time that they spent with him increased. It seems that the counselling that Ms Torres has continued to receive has not been able to assist her with these anxieties to any significant degree. Ms Torres is very aware that her behaviour towards [X] and [Y] has in part led them to distancing themselves from her by choosing to live with their father. In spite of her insight she seems unable to alter her behaviour. Ms Torres might benefit from intensive counselling or psychotherapy to assist her to deal with some of these difficulties.
51. It is clear that both [X] and [Y] love their mother and value her place in their lives. She, however, seems to have had major difficulties adjusting to parenting them as they have approached adolescence. This may be related to her having a general anxiety about her children separating from her and eventually becoming fully independent from her. This is also something, which could, perhaps, be dealt with in counselling or psychotherapy.
52.It is clear that currently Ms Torres is involving [Z] in her conflict with his father to a very large degree. Much of what [Z] said to me seemed to echo his mother’s thoughts and sentiments and much of the language he used seemed far more sophisticated than would be expected from a child of his age. It seems likely that his mother has spoken to him extensively about what has happened and how she feels about [X] and [Y] living with their father and her feelings about Mr Torres.
53. Ms Torres presents as a very emotionally fragile woman who has limited support networks. It seems that Mr Torres has exploited her vulnerability to encourage both [X] and [Y] to live with him. Ms Torres is now fearful that if [Z] were to spend any time with his father, he may also choose to live with Mr Torres and for this reason she does not want [Z] to send any time with him. It is understandable that she might feel this way, given what has happened in relation to [Y] and also to [X]. Given what Mr Torres said to me about [Z] moving into his home, her anxieties may have some justification.
54. However, [Z] is now in the position of being his mother’s ally in her conflict with his father and this is not in his interests. [Z] is clearly very aligned with his mother against his father and Ms Torres does not seem able to protect him from exposure to her own extreme feelings of betrayal and hurt. [Z] seems to have taken on these feelings as his own and seems to view any hurt that is inflicted upon his mother as a hurt that has been directed at him.
55. It is vitally important for [Z]’s psychological well-being, both in the short and long term, that he be protected from taking on the role of his mother’s ally against his father and to some degree, his brother and sister. It is hoped that Unifam might be able to assist in preventing this from continuing. For this reason, he also needs to spend time with his brother and sister on a regular and frequent basis as, in spite of the present difficult situation, the bond between the children still seems secure and their relationships should be supported. The close siblings relationships may provide all three children, but especially [Z], with some protection from the possible negative consequences of their parents’ conflict.
56. [Y] and [X] should spend alternate weekends with their mother, as they were prior to [Y] moving into her father’s care. [Z] should also spend some time with his father, as it is clear that in spite of his negative comments about his father he still views him as a very important person in his life and his relationship with his father should be sustained and strengthened, if possible. The time that [Z] spends with his father should be re-introduced slowly, and with the assistance of Unifam. [Z] should initially spend time with father and his brother and sister during the day-time only, on one day on the weekend when his brother and sister are at their father’s home.
57. It may be helpful if Unifam were able to work with
Mr Torres to encourage him to respect any agreement that he and Ms Torres come to, or any Orders that are made by the Court. Unless Mr Torres is willing to do this, it is unlikely that any agreement or Orders that are made will have any long term stabilising effect on the children’s lives.
58. The parents have shared equal joint parental responsibility for their children since their separation and although there is likely to be some difficulties with such an arrangement in the future, there are insufficient reasons why this should not continue.”
Lastly, Ms M provides the following recommendations in paragraphs 59 to 68 of the 2010 Report:
“59. It is recommended that the parents share joint equal parental responsibility for [X], [Y] and [Z]
60. It is recommended that the family continue their involvement in the Unifam ‘Keeping Contact’ program.
61. It is recommended that Ms Torres engage in intensive counselling or psychotherapy, if possible organised through Unifam[.]
62. It is recommended that [X] and [Y] live with their father[.]
63. It is recommended that [Z] lives with his mother[.]
64.It is recommended that [X] and [Y] spend time with their mother every alternate weekend from the conclusion of school on Friday afternoon until the commencement of school on Monday morning.
65. It is recommended that [Z], initially spend time with his father, during the day, on one day each alternate weekend and that Ms P not be present during this time.
66. It is recommended that [Z] spend additional time with his father as arranged between the parents with the assistance of Unifam
67.It is recommended that an Order be made that neither parent is to allow any of their children to reside with the other parent without the permission of the Court.
68. It is recommended that Unifam be provided with a copy of this Report.”
The 2011 Report
Mr B conducted separate interviews with [Y] and [Z] on 2 August 2011. [X] did not wish to be interviewed.
With respect to his interview with [Y], Mr B states:
“1.[Y] was separately interviewed for about forty five minutes on the 2 August 2011. She presented as a confident, articulate and intelligent girl, currently in year 8 at [school omitted]. [Y] is doing exceptionally well at school and was dux of her year last year. She aspires to study pharmacy or medicine and told me she would like to either own her own pharmacy or alternatively pursue a career in psychiatry. She impressed as being a particularly mature and thoughtful girl very capable in my view of expressing well considered views.
2.[Y] made it very clear early in the interview that she is very happy with the current parenting arrangements and enjoys living with her father and regularly seeing her mother each alternate Saturday. Essentially she would like the current arrangements to continue. It is clear she loves both parents and has a very strong bond with her siblings.
3.[Y] told me the alternate Saturday time with her mother has been positive and she and her younger brother have on a number of occasions wanted to extend the time they spend with their mother by a couple of hours. [Y] explained that she would like to be able to continue to see her mother each alternate Saturday (the contact generally is at the [R] shopping centre) between 11.30am and 1.30pm. She would also like to be able to extend the contact by a couple of hours on some occasions. She said she would not like the contact extended beyond a couple of hours as she has study and other commitments. [Y] said she would like to be able to send a text message, email or phone her mother when she wants to extend the contact to obtain her mother’s agreement and would then advise her father.
4.[Y] believes it is important for the variation in visiting arrangements to be negotiated at least a day before the contact so that everyone is clear with what has been agreed. As mentioned this has happened on several occasions and apparently has worked to everyone’s satisfaction. [Y] said her father is flexible and supportive of the variation in contact if it is negotiated in advance.
5.[Y] made it clear that she does not want to stay over at her mother’s but is happy for the contact to continue in a public place. She rated her certainty about the arrangements continuing as they are (with the scope for flexibility mentioned above) as ‘ten out of ten’.”[8]
[8] The 2011 Report, pages 3-4.
With respect to his interview with [Z], Mr B states:
“6.[Z] was interviewed after [Y] for about forty minutes. He appears to be an intelligent boy and told me he had been ‘getting some good marks’ at school. He also impressed as being a sensitive and thoughtful child who expressed some very clear and well considered views about future parenting arrangements.
7.Like [Y], [Z] clearly loves both parents, but told me unequivocally he is happier at his father’s as he is with his brother and sister. This appears to have made a great deal of difference to him as it is evident he enjoys a strong bond with them and found the separation from them very difficult. Pleasingly he was able to tell me: ‘Things are going great now’.
8.[Z] told me he enjoys seeing his mother and is satisfied with the level of contact he is having with her. He said there have been occasions when he and [Y] have wanted to see their mother for a couple of additional hours, and they have been able to negotiate this as outlined. I formed the impression that [Z] does not want to increase the contact beyond this and would prefer the contact he has with his mother to include his sister[.]
9.[Z] told me he does not want to stay over at his mother’s and wanted his certainty about continuing the contact much as has been happening as ‘ten out of ten’.”[9]
[9] Ibid, pages 4-5.
Under the heading “In summary”, Mr B states:
“10.Both [Y] and [Z] expressed a wish for the current arrangements regarding living with, and spending time with, their parents to continue. I formed the opinion that the views and wishes they expressed were their own. As mentioned, they would on occasions like to extend the time they spend with their mother by a couple of hours. This would occur with the agreement of all parties and be negotiated prior to the visit, as has been happening recently.”[10]
[10] Ibid, page 5.
Evidence
Both parties provided the Court with affidavit and oral evidence and were cross-examined by the other party and the ICL.
In addition, Mr B gave oral evidence and was cross-examined by the parties and re-examined by the ICL.
Ms M was not required by either party or the ICL for cross-examination in respect of the 2009 and 2010 Family Reports.
Mother’s evidence
The following documents were relied upon by the mother:
·Amended Initiating Application filed on 5 October 2011;
·Mother’s affidavit sworn and filed on 5 October 2011;
·Mother’s affidavit sworn and filed on 16 November 2011; and
·Mother’s case outline.
The mother gave oral evidence and was cross-examined by the father and the ICL.
The mother generally presented as a polite witness. The mother is clearly concerned for the children’s welfare, however her responses were generally more self-focused than child-focused. That said, the mother was willing to make some concessions and admissions when needed.
Father’s evidence
According to the father’s case outline, the father sought to rely upon all affidavits filed by him in the Federal Magistrates Court to date. In any event, the following documents were relied upon, or were sought to be relied upon, by the father:
·Amended Response filed on 2 November 2011;
·Affidavit affirmed on 11 November 2010 and filed on 23 November 2010;
·Affidavit affirmed and filed on 19 May 2011;
·Affidavit affirmed on 11 November 2010 and filed on 23 November 2010;
·Affidavit affirmed and filed on 31 January 2011;
·Affidavit affirmed and filed on 2 November 2011; and
·The father’s case outline.
The father also gave oral evidence and was cross-examined by the mother and the ICL.
The father also generally presented as a polite witness. Like the mother, he is clearly concerned for the children’s welfare. The father’s responses were generally child-focused and he was willing to make some concessions when needed. That said, the father was prone to criticise the mother whenever the opportunity arose, even in circumstances where he appeared genuinely complimentary of her.
Mr B’s evidence
Mr B was cross-examined on the 2011 Report by both parties and re-examined by the ICL.
Mr B reconfirmed that [Y] and [Z] expressed a wish for the current parenting arrangements to continue. He also confirmed his opinion that the views and wishes they expressed were their own.
During her questioning of Mr B, Ms O’Donnell asked:
“And you do mention the children as being articulate, what was their general presentation, Mr B?
‑‑‑Yes, the children were delightful, they were clearly very intelligent in their presentation, they were very verbal, they both seemed to have a clear understanding of what they wanted for the future in relation to living with and spending time with their parents. They didn’t seem, in my opinion, to be influenced in those views and wishes, they seemed to be very much forming those views based on their own subjective experience.
And were they – I note that the evidence is that they seem to be very positive about both parents?
‑‑‑Yes, yes well clearly they love each of their parents and that came through during the interview but notwithstanding that they both declared very – a strong preference to be living with the father and they both couched that in terms of wanting to be with each other as well, to have all of the siblings would be together seemed to be a very important consideration for them.
And so in their – the information they gave you were they explicitly critical of either parent?
‑‑‑They seemed to be protective – wanting to be protective of the parents, I think that in that sense I think they’ve taken on somewhat of a parental kind of attitude I suppose. I think they recognise the vulnerability of the mother in particular and I don’t think they want to hurt her in any particular way, I think they see her as being particularly vulnerable.
So there was certainly nothing there that was critical of them or denigrating either parent in any way?
‑‑‑No, no.”[11]
[11] Transcript, 5 December 2011, pages 16 -17.
Law and discussion
All parenting proceedings are governed by the provisions of Part VII of the Act.
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purpose of making a parenting order, the Court must regard the best interests of a child as the paramount consideration.
What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case as different circumstances require different resolutions. That said, to determine the best interests of a child, the Court must consider the primary and additional considerations under s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[12] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.
[12] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, the “general direction in life that is so important for children in teenage years”.[13]
[13] Lindell & Ranteri [2010] FamCA 52, at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility. Section 61DA states as follows:
“(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Consequently, there are three circumstances where the presumption does not apply: where there are reasonable grounds of child abuse or family violence (s.61DA(2)); in an interim hearing where the Court finds it inappropriate (s.61DA(3)); or when it is found not to be in a child’s best interests (s.61DA(4)).
In this case there is a dispute between the parties as to the allocation of parental responsibility for the children. The mother seeks an order for equal shared parental responsibility. This is opposed by both the father and the ICL who favour an outcome where the father would have sole parental responsibility for the children.
As noted in the Orders made on 7 September 2011, there is currently no operative order for parental responsibility. I note that the final orders made by consent by Maguire FM on 12 August 2010 did provide for the parties have equal shared parental responsibility for the children. However, that Order was suspended by way of the February 2011 Orders.[14]
[14] See paragraph 6 of the Orders made on 28 February 2011.
As stated, the father and the ICL are seeking that the Court make an order for sole parental responsibility in favour of the father. While the Court may make a parenting order, pursuant to s.64B, allocating sole parental responsibility to a party, before doing so, the Court would need to be satisfied that s.61DA(4) applied in the particular case and hence that the presumption in s.61DA(1) is suitably rebutted. By extension, for s.61DA(4) to be enlivened, the Court must necessarily address the issues in s.60CC and be persuaded on the evidence presented at the Final Hearing that the children’s best interests are served by an order for the father to have sole parental responsibility. I will refer to and discuss those factors further below.
In the case of N & M [2006] FamCA 958; (2006) FLC 93-296, Rose J determined that it was not in the children’s best interests for an order to be made for equal shared parental responsibility. In that case, his Honour found that each of the parties had failed to fulfil their responsibilities, and had failed to participate in decisions regarding the major long-term issues in relation to the children. Moreover, his Honour found that the poor communication of the father and father’s behaviour in providing obstacles to a beneficial and meaningful relationship between the children and the mother did not render an order for equal shared parental responsibility to be in the children’s best interests.
In the recent case of Herridge & Handerson & Ors [2011] FamCAFC 156 (“Herridge”) the Full Court of the Family Court of Australia (“the Full Court”)[15] on appeal made some interesting comments on the approach taken by the trial judge, Cohen J, in determining whether the presumption of equal shared parental responsibility was rebutted pursuant to “best interests” considerations. The Full Court found that while Cohen J substantially departed from the legislative pathway created by s.61DA of the Act, no appealable error on that ground was established and “had he considered s.61DA of the Act, and considered that the presumption did not apply, consideration of ‘best interests’ could not have changed the trial Judge’s conclusion”.[16] Consequently, the following comments extracted in Herridge by Cohen J in respect of making an order for sole parental responsibility in favour of the father are helpful:
“267.In the circumstances, although there is a presumption that equal shared parental responsibility is in the best interests of a child, that presumption is strongly rebutted. The mother and father are quite unlikely to agree on any significant matters. The mother will probably see such disagreement as a way of overturning the orders of the Court and frustrating the father into resorting to self-defeating behaviour. Her level of self-absorption is such that she is not likely, in any event, to compromise when differences arise, so any hope of cooperation or compromise would be in vain. The mother has already made many decisions affecting the boys’ long term future which have shown either her bad judgment or deliberate agenda to further her needs in preference to the boys’ needs, or both. Because the father is not as inclined to do this and will have the boys living with him, it is much more preferable that he have sole parental responsibility for decisions and the implementation of those decisions which will have a long term rather than an immediate effect on the boys.”[17]
[15] Consisting of Coleman, May and Crisford JJ.
[16] Herridge & Handerson & Ors [2011] FamCAFC 156 at [72].
[17] As quoted in Herridge & Handerson & Ors [2011] FamCAFC 156, at [60].
I further note that in both the 2009 Report and the 2010 Report, Ms M recommended an outcome of equal shared parental responsibility. That said, both of these Reports were made before the events of late 2010 and at a time when the siblings were separated – [X] and [Y] living with the father and [Z] with the mother. They were also made without Ms M having knowledge of [Z]’s suicidal thoughts as disclosed to the mother in 2008. In other words, while the views of a family consultant, like Ms M, will normally have weight with the Court because of her expertise and experience, she did not have all the evidence before her when the Reports were authored. Consequently, in light of judicial decisions such as the Full Court of the Family Court in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 (“Hall”), Ms M’s recommendations on this and other issues must be read cautiously. The following comment by the Full Court in Hall supports this conclusion:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b) Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[18]
[18] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
The ICL submitted that an order for equal shared parental responsibility is now contraindicated because the evidence would suggest that the parties’ relationship remains “toxic” and “highly conflicted”.[19]
[19] Transcript, 6 December 2011, page 93.
As to future directions, including parenting education and counselling, the ICL submitted that:
“Both parents have had the benefit of going to Unifam for several months; there has been a post-separation parenting plan. It does not appear to have achieved anything, in terms of overcoming the conflict between them …it’s not apparent that any amount of parenting classes could assist this couple, at this stage.”[20]
[20] Ibid, pages 93-94.
At this stage, it would appear that there is sufficient evidence before the Court to support the ICL’s submission in this respect.
Equal time or substantial and significant time
In the event that an order is made for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether a child’s best interests would be served by making an order that a child spend equal time,[21] or alternatively, substantial and significant time,[22] with each parent.
[21] Section 65DAA(1) of the Act.
[22] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and “reasonably practicable” given the circumstances. Section 65DAA(2) to (5) of the Act provides specific statutory criteria for the Court to consider.
As the mother (ultimately) seeks an equal time arrangement, there is an issue of equal time parenting before the Court. That said, s.65DAA of the Act is only triggered if the Court is satisfied that the s.61DA presumption applies.
In her written submissions, the ICL argued against an order for [Y] and [Z] to spend equal time, or substantial and significant time, with the mother because:
o “the parents have demonstrated an ongoing conflict and prolonged inability to communicate and resolve difficulties (Family Report 1 para 48, 49, 50);
o the parents appear to have involved the children directly in their dispute and the children have subsequently aligned themselves with the parent with whom they live (Family Report 1 para 25, 40, 48, 51 AND SEE Family Report 2 para 50);
o the relationship has been characterised by conflict, violence and instability which has continued after separation (Family Report 1 para 23, 48, 49) thus disabling the parents from implementing any arrangement for shared care.”[23]
[23] ICL’s Case outline document, 5 December 2011, page 12.
Again, the evidence would support these submissions.
Injunctions and restraining orders
The current orders, and the proposed orders sought by the ICL, contain certain injunctions and restraints upon both parties.
The power of the Court to grant injunctive relief in areas relating to a child arises from s.68B of the Act. This section is directed to a child (but includes adults in a situation associated with a child).
Section 68B of the Act states:
“(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
There is an overlap between ss.68B(1) and 68B(2) of the Act, in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone, or independent, power, meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) of the Act is ancillary and only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the “best interests of the child” is an important, but not paramount, consideration, unless the order or injunction is a parenting order.[24]
[24] Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; (2001) FLC 93-074; Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088.
The evidence would support the retention of the current restraints that are in place, namely paragraphs 9, 10, 13 and 14 contained within the Minute attached to the Orders made by McGuire FM on 12 August 2010. These are:
“9.That each parent shall sign the appropriate authority at the children’s schools and at any school which the children may in the future attend, to authorise the school to forward to the other parent copies of each child’s school report and any other documents ordinarily provided to parents.
10.That the parents be restrained from:
a)Discussing with any of the children their views in relation to where they wish to live;
b)Discussing any aspect of these proceedings with the children;
c)Showing the children any document pertaining to these proceedings;
d)Questioning the children in relation to any views alleged to have been expressed by them to date.
e)Questioning the children to excess about activities in the home of the other parent.
…
13.In the event that both parents are present at such an event, the parents shall use their best endeavours to be civil and polite to each other.[25]
14.That each parents shall refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.”
[25] “Event” here refers to sporting fixtures, extra-curricular activities, school functions and events that allow for parental attendance as set out in paragraph 12 of the Orders made 12 August 2010.
By way of summary, and on the assumption that there is an order for sole parental responsibility in favour of the father, the ICL seeks the following additional restraints:
·the father give all irrevocable authorities necessary to ensure that all relevant schools forward directly to the mother copies of school reports and related information;
·the father give the mother a copy of all order forms for the children’s school photographs;
·the mother be restrained from contacting or attending upon the children’s schools;
·in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child notify the other as soon as is practicable; and
·the mother be restrained from permitting the maternal grandparents or any other maternal relatives from attending during her time with [Y] and [Z], unless agreed in writing between the parties at last 48 hours prior to any such time.
As to the asserted reasons underpinning the need for a restraint upon the mother preventing her from approaching the children’s schools, the ICL stated:
“I think that arose … out of the initial separation, and initially of [X] going to live with the father. And also there was an incident, I think, that’s in the evidence of the … second family report – that the mother indeed attended the school, there was a scene. She tried to – or there seemed to be the mother wanting to spend time with [Y]; [Y] was reluctant to do that. So there was some pushing and pulling … so that evidence is contained within the second family report.
But the Independent Children’s Lawyer is not wedded to the issue of not permitting that, particularly if the court is going to have a view that the conflict between the parties, and their behaviour as between each other, is such that sole parental responsibility should be allocated to the father. If the court is of the view that equal parental responsibility should be maintained, then clearly, an order not permitting, or injuncting the mother from approaching the school is not one that’s practicable.” [26]
[26] Transcript, 6 December 2011, page 96.
The Court agrees that any restraint upon the mother would only be considered in circumstances where she does not have equal shared parental responsibility or shared responsibility for long term education decision-making. That said, I am not satisfied there is sufficient evidence before the Court that the mother should be the subject of a general restraint directed at the school. In fact, there may be benefits for the children for the mother to have some interaction with the children’s schooling. Of course, if the mother were to behave inappropriately in any dealings she may have with the school, then the school may properly decline to engage with her.
As to the argument for the need for a restraint upon the mother allowing the children to spend time with the maternal grandparents and extended family, the ICL stated:
“Yes, there’s some views about the grandparents. It’s difficult, on the father’s evidence, to ascertain – he has expressed some concerns and criticisms of the grandparents, but on the other hand, it’s my recollection of his evidence that he wouldn’t stop the children contacting the grandparents. So that it may be that that simply has to – could be left as that the children will be permitted to contact the grandparents at their own wish, particularly if they have their own mobile phones, and they’re able to contact them. We’ve not heard any evidence from the grandparents – that’s not been part of these proceedings, and it may well be that the orders should be silent on that. But certainly, it shouldn’t be a mandatory order; I would simply submit that it be left open. That maybe that the mother, for certain reasons, wants the grandparents to see the children on … a special day for her, or a special day for the children – but we have no other evidence, your Honour .”[27]
[27] Ibid.
There is an issue about the maternal grandparents’ alleged involvement with the children and a question mark hanging over whether they acted inappropriately in caring for the children in circumstances when the mother was hospitalised and the father was not advised. That said, whether there is a need for such a restraint is questionable in circumstances where the children may only be spending time with the mother and not otherwise living with her. The children have a fundamental right, subject to the ‘best interests’ principle, to spend time with extended family.
The Court is not satisfied there is sufficient evidence to merit the restraint sought by the ICL in respect of the maternal grandparents and maternal extended family.
Best interests of a child
As stated previously, the Court is under an obligation to make parenting orders that it determines are in a child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.
Primary considerations: s.60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
The Full Court considered this provision and the concept of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92 (“McCall”).[28] In McCall the Full Court stated:
“109. The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’.
110. It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
111. The Macquarie Dictionary defines the adjective ‘meaningful’ as ‘full of meaning, significant’. Significant is defined as ‘important; of consequence’
112. The Shorter Oxford English Dictionary defines ‘meaningful’ as ‘Full of meaning or expression; significant …’ ‘Significant’ is defined as ‘Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...’”
[28] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
The Full Court later stated, at [118] to [122]:
“118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121. In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in [Mazsorski & Albright (2007) 37 Fam LR 518]. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C [[2006] FamCA 994].
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”
In this case, I would agree with the ICL’s submission that it is difficult to provide an outcome for [Y] and [Z] to have a meaningful relationship with both parties given each party’s antipathy towards the other and each party’s conflicting views about how best to parent the children.[29] This is even more difficult given the strong views being expressed by the children which are discussed further below.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[29] ICL’s Case Outline document dated 5 December 2011, page 13.
This is a live issue in this case. There is evidence before the Court that raises questions about the mother’s mental health and her past parenting of the children.
While the incidents involving the mother and the children in September and December 2010 are very concerning, it is the mother’s handling of [Z]’s suicidal thoughts that is arguably the most concerning.
The mother’s decision not to share or otherwise act upon [Z]’s disclosures to her in 2008 is troubling.
While I expressed some criticisms of the father in the Interim Decision regarding the way he had gone about dealing with [Z]’s disclosures, I am now satisfied that [Z] did make these disclosures and that the father had no knowledge about them until [Z] came into his care in September 2010.
Additional considerations: s.60CC(3)
Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views
I refer again to the views expressed by all three children to Ms M and by [Y] and [Z] to both Ms M and Mr B.
There is no evidence before the Court that would suggest that [X] is not sufficiently mature enough to make his own decisions about which parent he chooses to live with and otherwise spend time with.
It is clear from both the 2009 and 2010 Family Reports that [X] wants to continue to live with his father and spend time with his mother as he wishes. I note in particular, that while [X] describes his mother as “a good Mum”, ‘she gets ‘enraged and angry’ and that he does [not] like the ‘angry Mum’ and that this ‘angry person comes out too often’.”[30] I note that the mother concedes that, with the benefit of hindsight, she should have acted differently with the children and that she was “completely not myself” during the incident in late December 2010.[31]
[30] 2010 Family Report, paragraph 33.
[31] Transcript, 6 December 2011, page 28.
Generally speaking, I am also satisfied that there is no evidence before the Court that would suggest that [Y] is not sufficiently mature enough to make her own decisions about which parent she chooses to live with and otherwise spend time with. That said, I note that the parties and the ICL are all seeking orders in respect of [Y].
While [Y] had stated a wish to remain in her mother’s care in the 2009 Report, she had changed her view by the time she was interviewed for the 2010 Report. In paragraphs 34 to 37 of the 2010 Report, Ms M states:
“34. [Y] told me that she had spoken to her father ‘a little bit’, prior to spending three weeks with him in the Christmas school holidays, about the possibility of living with him. She said that her father told her that he would support her in whatever decision she might make. She said he told her that he was not going to ‘limit’ her. She said that her father told her to talk to her mother about what she wanted to do. [Y] told me that she wants to continue living with her father and that she would run away if the Court ordered her to live with her mother. [Y] told me that one of the problems living with her mother is that she does not have enough privacy and she told me that she now has her own room at her father’s place.
35. [Y] said that her mother had sworn at her and had cancelled her uniform and books that she needed for Year Seven. She told me that she was very upset about this. She said that her mother told her to ‘go away and leave us’ when she told her she wanted to live with her father. [Y] also said that her mother said that she would not get enough Centrelink benefits if she ([Y]) lived with her father. [Y] told me that she was very upset by the way that her mother had treated her. She said that she had wanted to tell her mother about her wish to live with her father in a way, which would not cause her mother a lot of distress. She said that she is very unhappy that this did not happen.
36. [Y] said that in spite of the difficulties with her mother, she wants to see her and spend time with her. She told me that she loves her mother and that she is upset that she has hurt her and that she really misses her. [Y] told me that she knows that her mother loves her and she wants her mother to understand that she still loves her but that she prefers to live with her father. [Y] became very teary whilst she was telling me this. [Y] also told me that she is very upset that she has not been able to have ‘a good conversation with [Z]’ since she has been living with her father.
37. [Y] told me that when she started to spend weekends with her father her mother asked her, when she back to her house, what her father had said and done when she was with him. She said that her mother also asked her if she wanted to live with her father. She said that she found this very difficult to deal with.
38. [Y] told me that her opinion of Ms P has now changed and she now thinks that she is ‘really good’. She told me that her mother would ‘get upset about Ms P’ when she lived with her father and that, because of this, she had been nasty to Ms P. She said that she is sorry about this.”
I have already referred to the views expressed by [Y] to Mr B, to the effect that she would like the current arrangements to continue.
The views expressed by [Z] have changed considerably during the last three years. In his two interviews with Ms M, [Z] was quite clear about his desire to live with his mother. This was notwithstanding the decision of [X], and later [Y], to live with the father.
Of some concern are [Z]’s comments, as expressed to Ms M, in paragraphs 39 to 42 of the 2010 Report:
“39. [Z] told me that he does not want to spend any time with his father, as he does ‘not feel comfortable around him’. He said that this is ‘because of what he did’. He explained that his father had lied to him and his mother about Ms P, as he had told them ‘he had thrown her out and would not have her back’. He said that his father had referred to Ms P as a ‘resource’. He also told me that ‘we [he and his mother] were disgusted’ when they saw that Ms P was coming to the Report interviews with his father. [Z] told me ‘he has really hurt me emotionally’ and then added that his father had not hurt him directly but had rather hurt him through his mother and his grandmother. He said that his father ‘had taken the kids away from her [his mother]’ and that ‘she had raised them for years’. He told me that [X] and [Y] should live with him and his mother and that he prays ‘to God that I am not going to live with him’.
40. [Z] said that it had been ‘okay’ spending time with his father on alternate weekends prior to [Y] going to live with his father, but told me that ‘circumstances have changed’ since [Y] has lived with her father and he no longer wants to spend this time with his father. [Z] became visibly upset when we spoke about the possibility of him spending time with his father.
41. [Z] told me that his mother is a ‘good Mum’ and that she is ‘loving and caring’ and that ‘she never tries to hurt me emotionally’ and that all his mother wants is for him to be happy. He also told me that ‘We [he and his mother] love [Y][’] and he told me that [Y] had promised him that she ‘would not leave’. [Z] said, ‘If I left her [his mother], her life would be shattered’.
42. [Z] told me that his father is a ‘bad person who is cruel’ and that his father had ‘twisted’ his brother’s and his sister’s minds. He said that his father is ‘a person I would not like to be proud of as my Dad’. He told me that his mother thinks that ‘Dad is ruthless[’] and ‘everything bad’.”
It is difficult to reconcile the views expressed by [Z] in April 2010, with those expressed by him to Mr B in August 2011. Something has either acted as a catalyst to explain [Z]’s dramatic change of views, or alternatively, [Z] was not honest with either Ms M or Mr B (or both).
Given Mr B’s evidence that the children’s views appeared genuine, it is more likely that the incidents that occurred between [Z] and the mother after April 2010, and more particularly in September and December 2010, have influenced his views supporting the retention of the current parenting arrangements.[32] It is likely, given Ms M’s evidence, that [Z] has now “allied” himself with his father and siblings.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
[32] Mr B’s Report, page 5.
I refer to the comments previously made in this decision.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
Again, I refer to comments previously made in this decision.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
The mother’s proposal would result in a significant change to the children’s existing circumstances. If implemented, it is possible that the children will not react well to it. Moreover, it is likely that if any Orders were directed at [X], he would likely be unwillingly to co-operate with their implementation.
It is also possible that [Y] and [Z] will not willingly co-operate with any order that would require them to live with, or spend significant time with, the mother.
The other issue that arises based on the mother’s proposal, given that [X] has expressed his wish to remain with the father and the Court is unlikely to go against this, is that the there would be a separation of the siblings in every other week that [Y] and [Z] would live with the mother. This is especially concerning given the history of the children being separated, a situation which persisted until late 2010.
There is significant judicial authority accepting the evidence of social scientists that siblings should only be separated during their childhood years in exceptional, or compelling, circumstances.[33] On this point, Hutley JA made the following comment nearly 40 years ago in Barnett v Barnett (1973) 2 ALR 19:
“The cases in which the welfare of the children requires that a family be divided must be very rare…There may be special circumstances, for example, where children detest each other …widely separated in age, or the means of neither parent alone permit him or her taking care of all the children, where such division may be in their interests.”[34]
[33] Barnett v Barnett (1973) 2 ALR 19, at 29 (per Hutley JA), see also Bennett & Bennett (1991) FLC 92-191; and Mitchell & Sposato [2009] FMCAfam 1081.
[34] Barnett v Barnett (1973) ALR 19, at 29 (per Hutley JA).
That said, the Full Court (per Murray and Lusink JJ) stated in In the Marriage of Hayman (1976) 2 Fam LR 11, 558; 14 ALR 216 at 240 that:
“It seems to us that there is a substantial difference between the making of a decision as to whether a family be divided as the result of a hearing, and the making of a decision as to whether a family already divided for some time, should remain divided or be reunited. When the latter is the case, other factors such as the effective change of the environment and presently existing relationships are at least two of the matters which have to be taken into account. …”[35]
[35] (1976) 2 Fam LR 11,558, at 11,578.
While this view was adopted in In the Marriage of Mathieson (1977) FLC 90-230; (1980) 6 Fam LR 116[36], the trial judge (Fogarty J) also stated that:
“However having regard to the matters contained in ss 43 and 64 and the existing social views of the community it appears to me that the court should strive to maintain the family unit as far as is practical in the circumstances and this may involve an approach which initially at least gives primacy to avoiding separation of the children where that is possible. However clearly the ultimate issue is still the welfare of that individual child and it must always be a question whether that test is advanced by requiring that child to continue to live in the same household as his brothers and/or sisters"[37]
[36] 6 Fam LR 116 at 120
[37] 6 Fam LR 116 at 126-127
There is evidence before the Court that the relationship between the siblings in this family is a close one. Moreover, the children have expressed their views and preference of living together.[38]
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
[38] See the 2011 Report and the comments made by [Z] in particular in relation to this issue.
If the mother’s proposal is adopted, then there are potential difficulties and expenses to consider depending upon where the mother resides. This relates in particular to the travel modes to and from the children’s schools and the costs thereof.
That said, this may not be an issue if the mother relocates to an area close to the father’s current residence. Indeed, the mother indicated in her evidence that she would be willing to secure rented accommodation close to the father’s home and possibly even in the same street.[39] When she was questioned about this, the mother said that while she didn’t want to live in the same street as the father, she wanted “to live in the same street as the children” and she understood that “that means I have to live [in] same street as the father”.[40] It is difficult to reconcile the mother’s evidence in this respect with her wish that the father not know the location of her current residence. The Court is therefore concerned that such an outcome would be unlikely or otherwise problematic.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
[39] Transcript, 5 December 2011, pages 12 and 41.
[40] Ibid, page 61.
I refer to comments previously made in this decision.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
Again, I refer to comments previously made in this decision.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I refer to comments previously made in this decision.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
There is a history of violence and alleged violence in this matter. The father acknowledged at the commencement of his evidence that:
“… the applicant has, on numerous occasions, claimed that I’ve been violent on a lot of occasions that I haven’t and I want to make it quite clear that I refute all of those and I’ve only hit one female only once in my life, that was the first and last time; and that was the applicant on 25 January 1998.”[41]
[41] Transcript, 6 December 2011, pages 49-50.
Under cross-examination by the mother, the father denied that he was violent with her when they finally separated on 1 January 2006.[42] The father did acknowledge that there was an incident between himself and the mother that day and that he had “pushed her back” after the mother had moved towards him.[43] To clarify his evidence, I asked the father:
[42] Ibid, pages 61-62.
[43] Ibid, page 62.
“When you say ‘push her back’ what do you mean by that?
---I held my hand open-handed on the top of her chest and stopped her there and just pushed her back slowly, very slowly. I did not choke her; I did not squeeze. I was trying to be as controlled as I can to make sure she does not get hurt.”[44]
[44] Ibid, page 63.
The father went on to acknowledge that this incident lead to the mother obtaining and Apprehended Violence Order (“AVO”) and that he was apparently charged with assault but the matter did not proceed.[45] The mother subsequently confirmed to the Court that she caused the charge against the father to be withdrawn by the Police.[46]
Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …
[45] Ibid, pages 63-64.
[46] Ibid, page 64.
I refer to the above comments.
There are no current family violence orders.
Section 60CC(3)(l): 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
While the Court proposes that any Order that it makes be subject to any agreement between the father and the mother that benefits the children, it is clear that the parties will require specific Court Orders to assist them in their future parenting of the children.
I reiterate my earlier comments that it is likely that if any Orders were directed at [X] that he is not likely to willingly co-operate and that it is also possible that the other children will not willingly co-operate with any Order that would require them to live with, or spend significant time with, the mother.
Section 60CC(3)(m): any other fact or circumstance that the Court thinks is relevant
There are no additional matters that the Court thinks is relevant that have not already been referred to in this decision.
Section 60CC(4) of the Act
The Court is also required under s.60CC(4) of the Act to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”.
I again refer to and reiterate the comments made earlier in this decision.
Conclusion
I am satisfied, pursuant to s.61DA(4) of the Act and based on the evidence before me, that applying the presumption in favour of equal shared parental responsibility between the parties is not in the best interests of the children in this case. In this respect I agree with the submissions made by the ICL.
I have determined that it would be in the children’s best interests for the father to have sole parental responsibility for the children for the reasons articulated above. The evidence before me shows that the parties do not trust each other and have proven themselves unable to communicate effectively in relation to the children. I am not confident that the parties would be able to successfully consult and come to joint decisions as to major long terms issues in relation to the children and am instead convinced that an Order for equal shared parental responsibility on a final basis would only provide further opportunities for conflict between the parties.
After considering the evidence and submissions in light of the structured discretion contained in the Act, I am satisfied that the children’s best interests would be served by the Orders sought by the ICL with some minor amendments.
Consequently, all previous parenting Orders in relation to the children will be discharged and the following Orders made in lieu:
·the father have sole parental responsibility for the children;
·the children live with the father;
·the children spend defined times with the mother, as agreed between the parties or, failing agreement, [Y] and [Z] spend time with the mother on alternate Saturdays from 11:30am until 1:30pm, with such time to occur at a public place as nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent. [Y] and [Z] may spend further time with the mother should they request to do so and as agreed between the parties;
·unless otherwise agreed between the parties, changeovers for the time that [Y] and [Z] spend with the mother will take place at [R] Shopping Centre;
·[X] spend time with the mother in accordance with his wishes;
·in the event that the children express a wish to communicate with the mother, the father facilitate such communication at all reasonable times;
·in the event the children express a wish to spend time with or communicate with the maternal grandparents, the father take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents;
·the father keep the mother informed of any medical problems or illnesses suffered by the children while in the father’s care and any other matters relevant to the children’s welfare;
·the parties communicate information in relation to the children by way of SMS or email, as appropriate to the situation;
·within 14 days of the date of these Orders, and thereafter within 14 days of the children’s subsequent enrolment at any different school(s), the father will do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time forward directly to the mother at her current postal address, at the mother’s expense (if applicable), copies of each child’s school reports, merit cards, and any written material pertaining to each child’s academic and extra-curricular activities;
·within seven days of receipt, the father send to the mother a copy of the order form(s) for school photographs of the children;
·in the event of any of the children being hospitalised or receiving medical attention, the party in whose care the relevant child is at that time notify the other party as soon as is practicable after the first contact with either the medical practitioner, medical centre or hospital;
·both parties be restrained from discussing these proceedings with, or in the presence or hearing of, any of the children or from permitting any third party to do so;
·both parties keep the other advised of their current telephone numbers and current contact addresses and notify the other party of any changes to those details as soon as practicable, and in any case no later than 24 hours after any such changes; and
·before any application is made to a court for a variation of these Orders, the parties are to attend counseling, mediation or participate in family dispute resolution.
The ICL will be directed to forward a copy of these Orders to the children’s current schools and to explain the effect of the Orders to the children. Thereafter, the appointment of the ICL will be discharged, subject to any argument she may have in relation to costs.
Lastly, there will be final Orders and notations of the Court to reflect this decision, the Court being satisfied that such Orders are in the children’s best interests
I certify that the preceding one-hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 23 April 2012
- AGLC
- Torres and Torres (No.2) [2012] FMCAfam 107
- Case
- [2012] FMCAfam 107
- Decision Date
CaseChat Overview and Summary
The court faced several critical legal issues, including the determination of which parent should have sole parental responsibility, the allocation of living arrangements, and the establishment of visitation and communication schedules between the children and their non-resident parent. Furthermore, the court needed to consider the implications of the children's expressed wishes, their developmental needs, and the potential impact of the parents' conflict on the children's well-being.
The court concluded that sole parental responsibility should be awarded to the father, with the children residing primarily with him. However, the court recognised the importance of maintaining meaningful relationships between the children and their mother. It was determined that [Y] and [Z] would have regular visitation with their mother, with specific details regarding the times, locations, and conditions of these visits outlined in the orders. [X], who expressed a preference to spend time with his mother, was to have his wishes accommodated. The court emphasised the necessity for both parents to facilitate communication and interaction between the children and their maternal grandparents and to keep each other informed of significant events affecting the children's welfare. The court also mandated that both parents refrain from discussing the proceedings with the children and from disparaging each other in front of them.
The court's decision was grounded in a comprehensive assessment of the children's needs and the parents' capabilities, aiming to foster a stable and supportive environment for the children's ongoing development and well-being. The detailed orders reflect a balanced approach, seeking to honour the children's relationships with both parents while prioritising their best interests in the context of their parents' ongoing dispute.
Orders
Orders of the court
1.
All previous orders in relation to the children [X], born [in] 1995, (“[X]”) [Y], born [in] 1997, (“[Y]”) and [Z], born [in] 1998, (“[Z]”) (or collectively “the children”) be and are hereby discharged.
2.
The father have sole parental responsibility for the children.
3.
The children live with the father.
4.
[Y] and [Z] spend time with the mother as agreed or, failing agreement, as follows:
(a) each alternate Saturday in accordance with the current cycle between 11:30am and 1:30pm; and
(b) for any additional time as requested by [Y] and [Z] and agreed between the parties prior to such time occurring;
with such time to occur at any reasonable public place nominated by the mother and communicated by her to the father and [Y] by SMS text message at least 48 hours prior to the period of time to be spent between the mother, [Y] and [Z].
5.
[X] spend time with the mother in accordance with his wishes.
6.
For the purposes of the time that the children spend with the mother, changeovers occur at such place as may be agreed between the parties or, failing agreement, at [R] Shopping Centre.
7.
In the event that the children express a wish to communicate with the mother, the father do all things to facilitate the children communicating with the mother by telephone, or other appropriate means, at all reasonable times.
8.
In the event that the children express a wish to spend time, or communicate, with the maternal grandparents, the father take all reasonable steps to facilitate such time and such communication between the children and maternal grandparents.
9.
The father ensure that the mother is kept informed of:
(a) any medical problems or illnesses suffered by the children while in the father’s care; and
(b) any other matter relevant to the child’s welfare.
10.
For the purposes of communicating information between the parties about the children, the mother and the father communicate by SMS regarding matters of an urgent nature, and otherwise communicate by email or SMS about day to day matters, including arrangements for each party to spend time with the children.
11.
During any period referred to in these Orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
12.
Within 14 days of the date of these Orders (and thereafter within 14 days after the enrolment of any of the children in a different school) the father do all acts and things and give all irrevocable authorities necessary to ensure that the children’s school(s) forward directly to the mother at her current postal address and at her expense (if applicable) copies of all of each child’s school reports, merit cards and any written material pertaining to each child’s academic and extra-curricular activities.
13.
Within seven (7) days of receipt, the father provide the mother with copies of all order forms for school photographs for each child.
14.
Both parties be restrained from the following:
(a) discussing these proceedings with, or in the presence or hearing of, any of the children or from permitting any third party to do so; and
(b) denigrating, criticising, or permitting any third party to denigrate or criticise:
(i) the other party;
(ii) any partner of the other party; or
(iii) any family member of the other party
in the presence or hearing of any of the children.
15.
Both parties advise, and keep each other advised, of their current telephone numbers and contact addresses and notify the other party of any changes to those details as soon as practicable, and no later than 24 hours after any such changes.
16.
Before any application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the children or of the parties:
(a) the parties do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (“the Act”) or by the Commonwealth Attorney General; or
(b) the mother and the father participate in family dispute resolution with a person authorised under s.10G of the Act.
17.
Subject to the following, the appointment of the Independent Children’s Lawyer be discharged:
(a) the Independent Children’s Lawyer provide a sealed copy of these Orders to the children’s schools within seven (7) days; and
(b) the Independent Children’s Lawyer explain these Orders to the children.
18.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A and those particulars are included in these orders.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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