Van Rodenberg and Carne
[2008] FamCA 478
•27 June 2008
FAMILY COURT OF AUSTRALIA
| VAN RODENBERG & CARNE | [2008] FamCA 478 |
| FAMILY LAW – CHILDREN – With whom a child lives – Cultural issues FAMILY LAW - PROPERTY |
| Family Law Act 1975 (Cth) |
| AIF v AMS (1999) 199 CLR 160 CDJ & VAJ (1998) 197 CLR 172 Mazorski v Albright [2007] FamCA 520 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Van Rodenburg |
| RESPONDENT: | Ms Carne |
| INDEPENDENT CHILDREN’S LAWYER: | SBA Family Lawyers |
| FILE NUMBER: | BRF | 11048 | of | 2003 |
| DATE DELIVERED: | 27 June 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 7-9 May 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hamwood |
| SOLICITOR FOR THE APPLICANT: | Christopher Hughes & Associates |
| RESPONDENT: | Respondent mother in person |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: | Mr Burridge |
| INDEPENDENT CHILDREN’S LAWYER: | SBA Family Lawyers |
Orders
Parenting Orders
All previous orders are hereby discharged.
The children H born … December 1996 and L born … March 1998 live with the father.
The children spend face to face time with their mother at all such times as might be agreed between the parties or failing further or other agreement, as follows:
3.1.For a period of two months from the date of these orders, each alternate Saturday from 9 am until 1 pm, supervised by Ms M with the first such period to occur on the first Saturday after the date of these orders;
3.2.thereafter, for a period of four months, between those same hours on that same day unsupervised;
3.3.Thereafter, for a period of six months, each alternate Saturday between 9 am and 5 pm;
3.4.Thereafter from after school Friday until before school Monday each alternate weekend;
3.5.During school holidays:-
3.5.1.In December 2008/January 2009 for two separate periods of one week provided that such time occur in the presence of the maternal grandfather and provided further that the children spend overnight in the same residence as the paternal grandfather;
3.5.2.For one half of the Easter 2009 school holiday period and each school holiday period thereafter
3.6.On each of the children’s birthdays and if a school day from 4 pm until 6 pm and if a non-school day from 9 am until 1 pm with the father to deliver and collect the children at the beginning and conclusion of each such visit.
3.7.From 4 pm on 24 December 2008 until midday on 25 December 2008 and between those hours on those days each alternate year thereafter and from midday on 25 December 2009 until midday on 26 December 2009 and between those hours on those days each alternate year thereafter.
3.8.On Mother’s day each year from 9 am until 5pm.
3.9.During NAIDOC week in July 2008 on two separate occasions of four hours on each occasion for the purpose of the mother participating in NAIDOC week activities, with the mother to provide to the father fourteen days notice in writing of the days and times upon which she wishes to spend time with the children in accordance with this order
3.10.On the Mother’s birthday, if a school day from 4 pm until 6pm and if a non-school day from 9am until 1pm, if same does not otherwise fall during a period when the mother is spending time with the children otherwise in accordance with these orders.
3.11.In the event that the parties are present at the same time at community events including but not limited to funerals or gatherings of the maternal family to which the children have been invited where their attendance is reasonably possible.
The mother shall do all such things, sign all such documents and pay such reasonable fees as might be required to commence therapy with Dr S as soon as reasonably practicable after the date of these orders.
Each of the parties shall do all such things sign all such documents and pay all such reasonable amounts of money as might be required so as to effect
5.1.each party being furnished with reports from the children’s school;
5.2.each party being furnished with the reports from any treating doctor or other health professional who provides the report as part of and during the course of such treatment;
5.3.the father continuing to occupy, and receiving quiet enjoyment of, premises situated at W, New South Wales and the mother be restrained and an injunction issue restraining the mother from doing any acts or deeds designed to effect the father’s occupation of these premises.
The parties are each restrained and an injunction is hereby issued restraining each of them from:-
6.1.speaking in negative or derogatory terms about the other in the presence or hearing of the children;
6.2.permitting or encouraging the use of negative or derogatory terms about the other in the presence or hearing of the children.
Each of the parties shall do all such things as might be required to keep the other informed in writing as to their current residential and postal addresses and contact telephone numbers
IT IS FURTHER ORDERED THAT as and by way of settlement of property and spousal maintenance:-
The parties each be entitled to the exclusion of any right title claim or interest by the other to all property of whatever type or description which they currently own or which is in their respective possession..
The wife’s application for spousal maintenance is dismissed.
10. The wife’s application for use and occupation of the premises situated at W in the State of New South Wales is dismissed.
11. The wife’s application for settlement of property is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym
Von Rodenberg& Carne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER:
| MR VAN RODENBERG |
Applicant
And
| MS CARNE |
Respondent
REASONS FOR JUDGMENT
Some six years ago, H born in December 1996 and L born in March 1998 came into the care of their father when their parents separated. They have remained in his predominant care ever since.
Consequent upon that separation, the mother lived in Sydney for slightly more than a year and spent some of that time studying. The father and the girls remained living in the far north coast region of New South Wales.
On 29 August 2003 interim orders were made by Judicial Registrar Smith providing that the children live with the father and have alternate weekend contact with the mother in one week; one night in the other week and half of school holidays together with contact on special days.
On 20 December, 2004, Carmody J delivered judgment after a trial. In that judgment, are findings in respect of issues mirrored in issues before this court. Those findings, many of which made reference to the report of a family consultant, Mr N, were dealt with under the heading: “The Need to Protect the Children from Psychological Harm”.
Carmody J ordered, in addition, that the mother attend counselling and that the appointed counsellor report to the court. His Honour ordered that, if the mother either did not take up the counselling referral or did not keep counselling appointments, the matter was to be listed as soon as practicable for the purpose of considering whether the contact arrangements be varied. If on the other hand, the mother “satisfactorily completes the counselling sufficiently in the opinion of the counsellor to have additional contact with the children”, the matter was to be listed as soon as practicable for “consideration of the future contact arrangements between the children and their mother”.
Subsequent events, to which further reference will subsequently be made, culminated in orders being made on 23 January 2006 by which the mother’s contact with the children was to be supervised and occur each Saturday for up to three hours at the regional Contact Centre.
Those orders also provided for Dr T, a consultant psychologist, to prepare a family report.
The mother’s contact with the children has been supervised by, and occurred at, the regional Contact Centre since that time.
As a result of Dr T’s suggestion, early in 2007, the mother commenced therapy with a psychologist, Dr S. A number of subsequent therapy sessions with Dr S ensued throughout 2007.
The father asserts that the children remain at risk of emotional or psychological harm by reason of their mother’s uncontained hatred of him and anger towards him and, as he asserts, continual pressure put upon the children by her as a result of those factors. He asserts, then, that, in broad terms, the children should continue to live with him and spend supervised time with their mother.
The mother says that her negative attitudes and behaviour are in the past, that she has changed and that her daughters should live with her. Her position with respect to time the children should spend with their father in that event is clouded and will be referred to in more detail later in these reasons.
It is in the context just described that this parenting case falls to be determined.
There are, also, applications for settlement of property and spousal maintenance. I will deal with each of those applications separately.
Principles Considerations and Issues
When parents cannot agree about the post-separation parenting arrangements for their children, “best interests” is the criterion by which the court arrives at orders which, the law requires, be imposed upon the parents. The enquiry as to best interests is the starting point of a parenting case and it is also the end point of the enquiry.
Reference to the Family Law Act1975 (Cth) (“the Act”) makes it clear that the court’s overriding mandatory function is to determine the orders that best promote the best interests of the particular children the subject of the proceedings in the circumstances specific to them. The court is reminded more than once (eg s.60CA; s.65AA), that a determination of those best interests is at the heart of the decision - “the paramount consideration” - when making parenting orders.
In Mazorski v Albright ([2007] FamCA 520), Brown J said (at para 2):-
The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC.
The purpose of each of the Primary and the Additional Considerations is, as the heading to the section makes clear, to direct a court as to how a decision is to be arrived at, about the subject children’s best interests.
The clear wording of the statutory delineation suggests to me that the “Primary Considerations” are to have particular importance but, as the word “Additional” suggests, they are to be considered in conjunction with the other Considerations and do not, per se, outweigh or “trump” the “Additional Considerations”.
The Act’s mandatory considerations (s 60CC) are, like their predecessors (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v JMB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII. The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC. Those findings, then, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time. (See eg s 65DAA; s 61DA(4))
It is then, important in my view, to make specific findings as to the best interests of these specific children specific to the circumstances in which they find themselves.
It is clear that a central issue in this case involves a collision between the Act’s two primary considerations: how might a relationship classified as “meaningful” accommodate any findings as to the risk of harm.
The mother’s time with her daughters has been supervised by the regional contact centre pursuant to court orders that have been in place for about 2 ½ years. Equally, however, the relentless and multi-faceted allegations, complaints and concerns expressed by the mother about the father, as well as her attitude towards him which has been transmitted to the children, raise, as has been identified in expert evidence before the court, real issues about the potential for psychological or emotional harm of the children effected by that behaviour.
Obviously enough, a consideration of the children’s best interests requires a consideration of relevant circumstances wider than the Act’s Primary Considerations alone. A number of Additional Considerations are clearly relevant.
The mother is an indigenous woman. The father is a non-indigenous man. Each of the girls is an “aboriginal child” within the meaning of s. 4 of the Act, each “being a descendant of the aboriginal people of Australia”.
The mother’s aboriginal culture has always been, and continues to be, a central part of her life. She seeks to make it a central part of the girls’ lives. Additionally, the mother places significance on cultural considerations specific to the fact that she and the girls should be able to share in aspects of their Aboriginality specific to their gender. The mother gave as an example her desire to take the girls to women’s sites.
Both parties are cognisant of the fact that the girls are now eleven and a half and ten, and, in H’s case, pubescent. Each of the parties accept that the children have expressed views which, to one degree or another, they each assert should be taken into account by the court. Further, each of the parties accept that each of the girls, but H in particular, will, in the not too distant future, be of an age where their respective views as to the nature and extent of the time that they spend with each of the parents will be extremely significant and, in day-to-day practical terms, effectively determinative.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent, and the capacity of the mother to provide for the children’s’ needs is each clearly important. So, too, if the mother’s claims are accepted, the father’s capacity to provide for the physical needs of the children and their intellectual needs is in question.
In circumstances where the children have been in the predominant care of the father for about six years (or, put another way, about half of their lives) and where, for the last two and half years, the time with their mother has occurred in the restricted environment of a contact centre, the likely effect of changes in the children’s circumstances and the changes in the nature of the relationship with the respective parents is each clearly an important consideration. So, then, the importance of s 60CC(4) and 4(A) is obvious.
As well as the Considerations to which reference has just been made, I am also cognisant of the statutory presumption of equal shared parental responsibility, as well as the central place of the Objects and Principles applicable to parenting cases underpinning Part VII of the Act.
The Parties Proposals
The parties’ proposals, and the manner in which they are formulated by each of them, have the potential to say much about a number of considerations and principles relevant to a determination of bests interests (see, eg. s 60CC(2)(a); (3)(c), (e),(f); s 60B(1)(a) and (d)).
The parties’ proposals should in my view be seen as the manifestation of these particular parents expressing, in practical terms, their “solution”, or their best attempt at resolving, the problem created by the conflict between them and their inability to agree upon a solution.
The father’s proposals are contained in a document handed up at the commencement of the hearing. That proposal is that the children live with him and spend time with their mother each alternate Saturday for two hours or such longer time as the regional children’s contact centre permits and under the supervision of that contact centre. Together with time on special days the proposal includes two separate occasions for three hours each during NAIDOC week. In addition it is proposed that the mother spend time with the children supervised by Ms M, who is known to both parties and was called as a witness in the case for the Independent Children’s Lawyer. Those periods of time, the father proposes, should be up to six hours in duration. In addition, his proposal includes time “in the event the parties and the children are present at the same time at a community event including but not limited to a celebration or a funeral…” and at the gatherings of the maternal family.
The mother’s Amended Application for Final Orders seeks an order that the children live with her and spend time with their father each alternate weekend form 5pm Friday until Monday morning and overnight Wednesday each alternate week together with half the school holidays. Time on special days is also provided for. However, the mother’s proposals were made less clear, at least in terms of their underlying sincerity or substance, as a result of evidence given by her under cross-examination. There, questions were directed as to whether the mother maintained her previous attitudes towards, and hatred of, the father. Specific matters arising from her affidavit were put to her.
I suggested to the mother that, if her beliefs about untoward behaviour by the father towards the children remained intact, it must surely follow logically that she would seek to stop, or significantly curtail, his time with the girls if they were to live with her. The mother ultimately agreed that, in effect, her underlying belief was that the father’s time should be supervised.
At the commencement of the mother’s submissions at the conclusion of the trial, the mother indicated that she had prepared written submissions which she had left at home. With the acquiescence of the other parties, I permitted the mother to forward those written submissions to me, the father and the Independent Children’s Lawyer within a week after the conclusion of the trial. Those submissions were received. Included in them were orders consistent with the mother’s Amended Application.
Clearly enough, then, the mother’s proposals will ultimately need to be seen against findings made by the court with respect to a central issue of risk identified earlier.
Further, and in any event, because the ultimate statutory dictate to this court is to arrive at orders which the court considers to be in the best interests of these particular children, the court is at liberty to, and must, if ultimately the findings as to the children’s best interests so dictate, fashion orders outside of the proposals of the parties designed to accommodate those findings as to best interests.
Parental Responsibility
The proposals of each party make no mention of any order with respect to parental responsibility. By operation of law, each of the parties has parental responsibility with respect to the children.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered.
But, because this court proposes to make parenting orders there is a presumption that the parties shall have “equal shared parental responsibility”. (s. 61DA) That concept is, in terms, different. The expression “equal shared parental responsibility” is not separately defined.
The statutory presumption may be rebutted. I do not consider that the evidence justifies a finding that the mother has engaged in “abuse” or “family violence” (s. 61DA(2)) as each is defined in s. 4 of the Act. But, the presumption is also rebuttable in circumstances where the court has reasonable grounds to believe that it is in the best interests of the children to do so.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it casts a positive obligation on those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
In this particular case, the statutory presumption, and the envisaged joint activities just referred to, must be considered against a background of anger and hatred by one party towards the other. Additionally, it is common ground that the parties have not engaged in any form of meaningful communication whatsoever for a period of some years. I consider it highly likely that, at least for a considerable period of time, that current incapacity to communicate in any real form will continue.
It seems to me that there is no reasonable prospect of the parents carrying out the joint activities contemplated by the Act as necessary as, and integral to, the exercise of equal shared parental responsibility. In fact, in my opinion, the need for that co-operation implicit in the operation of equal shared parental responsibility is highly likely to be productive of yet more conflict between the parties and is likely to adversely impact upon the children.
In my view, it is not in the best interests of these children for the presumption to apply and I find that it is rebutted.
However, that does not mean, in my view, that an order for “sole parental responsibility” ought necessarily follow. An order for “sole parental responsibility” in favour of a party means, it seems to me, that the other party has no rights, responsibilities and authority in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of the discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
No evidence was placed before me with respect to any “kinship obligations and child-rearing practices of the [childrens’] Aboriginal … culture” within the meaning of s 61F of the Act. As I have said, though, the importance of the girls’ aboriginal culture and the mother’s clear identification of the importance for them of gaining knowledge of, and participating in, all aspects of that culture is firmly fixed in my mind as a very important matter.
In my view, the exclusion of the mother from parental responsibility with respect to the children is not in their best interests. I particularly have in mind in arriving at that conclusion that some decisions made by the mother may be culturally based and they are matters more appropriately decided by the mother.
Neither is it appropriate, in circumstances where no specific evidence was directed to the issue, and where no specific submissions were made upon it, to attempt to delineate areas of responsibility and to make specific orders in respect of those matters in favour of each parent.
I propose, in the circumstances in which these children find themselves, and having found the statutory presumption is rebutted, to make no order for parental responsibility. The effect of that is that each parent will retain parental responsibility for the children in respect of long-term issues.
The Childrens’ Father
I was impressed with the father as a witness. He appeared to me to give his evidence in an honest and straightforward manner. In particular, I was interested in, and listened carefully to, his evidence as to the reasons why he sought to have the time between the children and their mother supervised.
Given the behaviour by the mother of the nature, type and extent alleged and which, at least in broad terms, the mother appears to admit having occurred up until 2005, I was interested to see how much, if any, of the father’s proposal for supervised time had about it an element of “punishing” the mother for her past behaviour.
Having given that matter particular and specific consideration, I have concluded that it does not significantly inform the father’s position. I am of the view that he suggests time being supervised because of a genuine concern he has about the risk of damage to the children or, as he put it, the risk of “pressure” on the children from the mother as a result of the denigration of him and, as he sees it, her desire to have the children think of him and his parenting in an extremely negative way.
When I asked him, directly, how children of this age could properly develop an ongoing relationship with their mother in the restricted environment of the contact centre, he appeared in answer to articulate a dilemma which, as it appeared to me, he had himself confronted mentally many times and about which he was genuinely troubled.
He acknowledges that a relationship between the children and their mother for two hours at a contact centre is a long way short of what is desirable (or, perhaps, “meaningful”). However, equally, he seemed genuinely concerned about the mother’s negative attitudes and anger and worried that behaviour of that type and extent would damage the children if they were exposed to it in a consistent and unrestrained way.
He also seemed to me to be genuinely troubled about how to provide protection for the children whilst at the same time providing them with the opportunity to have a significantly greater relationship with their mother than what the contact centre could afford.
I prefer generally the evidence of the father over that of the mother. I accept the account of the mother’s behaviour contained in the father’s affidavit of evidence in chief. In many respects his description of the mother’s behaviour is consistent with that found by Justice Carmody and the original family consultant Mr N which, in this context I adopt (see s 69ZX(3)(b)). It is also generally consistent with the picture painted by the reporting consultant psychologist in the proceedings before me, Dr T.
Given the nature, extent and relentlessness of the mother’s behaviour, the father frankly admitted in the witness box that he did not think he could trust the mother to have changed. He sees the mother’s assertions that she has changed her behaviours and attitudes as, in effect, a “conversion on the road to Damascus” (not his words) prompted, at least in part, by the pendency of these proceedings and the final hearing of them.
Further, as alluded to earlier, the father sees orders which this court might make – certainly at least as far as H is concerned – as being likely to apply, in practical terms, for about the next eighteen months to two years. In other words, the father asserts (or perhaps acknowledges) that, by about the time H is in her early teens, she will, in large measure, begin to determine for herself how and in what circumstances time with her mother will occur and the content and parameters of their relationship.
In that way, in his mind at least, he sees supervision applying, in practical terms, until that situation evolves. Whilst that might inherently bring with it an approximate time limitation on supervision, the father does not, in the orders sought, propose imposition of an arbitrary age or time specifying the cessation of supervision.
The Childrens’ Mother
It seems to me that, central to the resolution of this case, is a determination by the court as to the extent to which the court should “trust” the mother’s evidence that she has changed and can, in effect, be trusted to allow these two children to freely and openly express their love unconditionally for their father and to develop – unconditionally – a meaningful relationship with each of their parents.
This is an issue with which, frankly, I have struggled. In arriving at a concluded view, I have taken into account a number of matters.
First, I have taken account of my own assessment of the mother from her material, her demeanour in court and her oral evidence. I have not the slightest doubt that the mother deeply loves her daughters and is highly motivated to be a positive guiding influence in their lives. The tendered notes from the contact centre (Exhibit ICL1) speak of an organised mother who spends her time creatively and well with the children and of clear, mutual, overt expressions of love.
I found the mother to be a proud, highly intelligent, educated and articulate woman. Her pride in her ancestry and her desire to imbue that pride in her daughters was obvious and is reflected, for example, in her written submission:
… My father, […], is the [custodian of the land]. I have been working and learning from dad’s uncle before he passed away in 1987 then dad since. I represent my father on major issues relevant to indigenous cultural conservation, Native Title, protection, maintenance and continuation of our culture for a long time. It is envisaged I will take on the role […] in the future.
I have taken into account that the mother is self represented and prepared all of her own material. I am mindful that this fact may have created for her some disadvantages, and I have sought to be particularly careful when assessing her evidence (and submissions) to bear that in mind. (I have in mind, for example what the High Court said in Neil v Nott ((1994) 68 ALJR 509 at 510) that: “… a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”).
That said, self-representation can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation. In his Atkin Lecture in 2002 “The Misnomer of Family Law”[1] Mr Justice Wilson (UK) made the following observations:
… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience a father. One sees him in action throughout the case, not just when produced by his advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against the barbarity which sometimes infects that exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example whether handovers of the child between them would proceed sensibly, than to study their language including of the body, towards each other in that unenviable situation.
[1] Published at >
Here, I consider that the mother’s self-representation did provide a valuable opportunity for me to assess her and her evidence.
The mother asserted in evidence, and in both oral and written submissions, that the fact that she represented herself had the specific effect of making it appear that material in her affidavit which repeated serious historical criticisms of the father was reflective of her current position when, in fact, that was not her true position. In the context of a case where a central issue is whether the mother’s attitudes have changed, this is important.
The mother’s affidavit of evidence in chief repeats serious allegations made by her against the father including, for example, that the father had tried to drown H and had behaved in a sexually inappropriate manner with her. The mother says that she repeats the allegation only because her affidavit, in both substance and form, replies to the affidavit of evidence in chief of the husband.
I am inclined to believe her. That is, I do not think the contents of the affidavit should per se be taken as a recitation of beliefs held presently by the mother in respect of the father.
However, the picture is made more complex than that by the mother’s evidence in the witness box. When questioned, the mother attributed a Machiavellian purpose to the father. A good example is questions she was asked about paragraph 19(d) of her affidavit which relates a conversation had between the mother and H occurring on 21 April, 2005 in which, according to the mother, H accused her father of hitting her back after a shower after which “… I fall to the ground, I can’t breath (sic), then he smiles and watches me cry, then he walks away…” When asked if she thought the father would inflict pain and then enjoy seeing the children in pain (an allegation, speaking in lay terms, of a form of sadism) the mother replied that she thought he would be capable of that.
Similarly, Exhibit X to the Affidavit of the Father is a letter written by the mother to him dated 17 April, 2005. which records, among other things:
You giving me leeway how absurd, the way you restrict my access to the kids to what suits you and your mood is nothing short of child abuse. Not to mention the way you have behaved by showering with [H] when she was 6 until she was 7, encouraging obscene behaviour of both children to exposing their genitals in a sexual manner, masturbating, the kids actually thought it was funny and they said this weird behaviour “made you happy” that’s what I call child abuse. In fact what I would call you is a borderline paedophile. When I returned from Sydney these goings on: one can only conclude that you was grooming the girls sexually for future exploits. Why did you keep a bottle of oil next to the bed? We know that the kids slept with you a lot. What is or was the big plan before I interrupted you?
It needs to be recorded, of course, that it was exactly these sort of allegations that led to the mother’s contact being supervised by Order made in 2005.
When asked about her current belief systems, the mother said that she thought it was “probably a mind game” the father was playing with her. In response to questions about paragraph 12(l) (which asserts that the children said they were scared of their father on 12 November, 2005) the mother said: “I think the children believe the threat of violence [from their father] is still there”.
The mother asserts that the period since the end of 2005 has not seen accusations, questioning of the children and the like. She says, in that respect, that she had no involvement in a complaint made by her mother to the Department of Human Services in January, 2007, saying she had not spoken to the Department since 2005. She says her mother has made a number of complaints about the father, not prompted by her, and says she has tried to talk her mother out of doing so but has been unable to persuade her to that effect. I was not convinced by what the mother had to say in that respect. It may be strictly true that she has neither prompted nor encouraged her mother’s contact with the Department after 2005, but I think it highly unlikely that it occurred without her knowledge and, at least tacit, approval. Even if that is not so, the shared view of the father by both women (each of whom, on the mother’s case will continue to have an important ‘voice in the girls’ lives) is troubling.
It should be observed, however, that there has, in fact, been a significant diminution in the type of conduct engaged in by the mother which marked the pre-2005 period. The father speaks of only two incidents – one on Boxing Day, 2005 and the Departmental complaint just referred to – in the period after early December, 2005. Of course, I am aware that, as a result of suspension of contact and supervision thereafter, the opportunity for interaction of that type dramatically subsided. Nevertheless, there are, for example, no allegations of written communications of the type earlier described since that time.
The mother was asked at some length about paragraph 10 of her affidavit which repeats allegations made by H that she was:
waking up drowning in the shower … my bottom was on the drain blocking the water going out, it filled up where I was asleep in the shower. I started drowning mummy I couldn’t breath I was coughing water going up my nose and my mouth I thought I was going to drown…
The mother said in the witness box that H volunteered that information. When asked whether she (the mother) thought that she (H) might be describing a dream, the mother said that she had asked H that and she (H) said it wasn’t a dream. The mother said that this “happens every morning”.
Some incongruities were put to the mother. First, she had left the children in the care of the father in 2002 when she went to Sydney to study. Second, the events themselves seem incongruous and unlikely. Third, there was a possibility that H was describing a dream. The mother maintained her position, saying “I don’t believe [H] would have made it up” and that there was only a “10 per cent chance” that what [H] was saying was incorrect. I repeat: the mother is neither unintelligent nor unsophisticated nor uneducated.
It seems to me unarguable that, to accuse one’s former partner and the co-parent of one’s children of “borderline paedophilia”; of behaviour that can be seen as sadistic if accepted as literally true and of attempting to drown that person’s own child are accusations of extraordinary seriousness.
Yet, I had the feeling that there was a sense of “rote” about the accusations and the conclusions drawn from them, at odds with their inherent seriousness.
It suits the mother’s overall picture of the husband. It not only suits her case against him to believe the worst of him, it also suits her psychologically. That is, there is, it seems to me, “psychological gain” for the mother in saying she believes those things. In simple terms, it makes her feel better. It fits with the sense of grievance against the husband articulated by her on a number of fronts: that he continues to live with the children in aboriginal housing; that he used the mother to inveigle his way into the aboriginal community and that he continues to make his living from the aboriginal community.
That is not to suggest there is anything “fake” about the mother’s feelings – they are, I assess, genuine. Dr S was of the view that the mother was not suffering from a personality disorder. As such, what Dr S has been treating is a belief system and an underlying sense of anger. It seems to me likely, as Dr T suggests, that there may be many reasons for, and layers of, that anger unconnected with the father.
Ultimately, I have come to the conclusion that, in asserting both a desire to change her earlier attitudes and behaviours, and her self-assessment that she has improved in that respect, the mother is both honest and genuine.
That is, though, different from a conclusion that the mother has the present, or likely future, capacity to do so effectively. Part of the difficulty is that, as counsel for the father, Mr Hamwood, argues, the depth, range and doggedness of the mother’s historical antipathy towards the father is very significant. I will return to this issue later in these Reasons.
Other Evidence
(a) The School
Reports from F School in June and December 2007 report L as being a "cooperative, friendly and cheerful member of … class who is happy to work independently and to ask for assistance when needed". Although there are some issues with respect to specific areas of the curriculum her teacher summarises: "[L] is a valued member of our class who is working towards making the expectation for learning in her age group".
More recently, the teacher reports that "[L] is a student who needs encouragement and supervision to bring out the best in her. She has grown in self-confidence this year and has been very appreciative of any extra help given to her. She is a polite and friendly student and I enjoyed having her in my class this year. [L] is a creative girl who should progress happily to Year 4".
H has experienced some difficulties at school and was, in the middle of last year, referred for assessment by her learning support team (LST). A report in respect of that assessment refers to H being "enthusiastic although at times her responses seemed somewhat immature and inappropriate for her age". That assessment concludes:-
In reviewing the ABAS forms that were completed by [H’s] father and teachers it is obvious that [H’s] functioning skills and her abilities to adapt her functioning skills to her environment are limited. This data suggests that [H] is a young girl at risk due to her lack of skills in some social situations. It would appear [H’s] strong oral communication skills may in fact lead people to believe that she has more knowledge and more ability to cope than in fact she does have at present. Given her difficulties to date in handling the separation of her parents and what seems to her competing cultures [H] will continue to need considerable support and resources as she approaches puberty.
F School itself reports H in the middle of last year as being "a very polite girl who is courteous to those around her. She is enjoying being the Playground Leader where she is assisting younger students in the playground". The report in June 2007 goes on "if she were more focused [H] would achieve much more … She requires a greater effort in PE to help develop her motor skills."
In December 2007 the school reports that H has "continued to display great manners and is polite to others". They report that "she enjoys telling a yarn to the class where she exhibits strong oral language skills". They conclude "overall, if [H] can stay on task in class she will produce and complete work of a high quality".
(b) H’s counsellor
H was referred by F School to the school's counsellor, Ms D. She has seen H essentially every week since mid-February 2008. Her notes were in evidence (Exhibit ICL3). She was not called as a witness
Ms D writes that her counselling has "mainly focused on [H’s] social status at school and discussed upcoming worries for her in general".
The notes reveal issues with respect to racial slurs and difficulties in forming friendships. She observed that the children changed schools to F School during 2006 and that their former school, C School, was a school within an Aboriginal community and the change to their new school involved, therefore, a significant change of school environment for both girls.
The essence of the counselling appears from the notes to have been directed towards the establishment of friendship links within the school for H. Little was said by H to the counsellor about her parents save that, in the midst of discussing friendship issues on 12 March 2008, the notes record:-
Then started sharing life story and telling me some things. Quite [?] concentrated. Seemed tired after a while. Quite bright when came in then talked about similarly with […] and how sad it was that she ([H]) could only see her mum on Saturday. This under supervision. [H] says mum feels caged. "I wish I could see my mum more". "Didn't want to leave". "See her next week". Said that "friend for life". "All is good".
(c) Dr T
In his report annexed to an affidavit filed 27 August 2007 Dr T opined:-
“46. It does appear there are a number of issues and aspects for the Court to currently consider. In my view some progress may have been made by [the mother] in areas I felt needed to be addressed in my previous report. However it does appear that she continues to raise and present a number of concerns in ways she has done in the past. She does not appear to have let go or importantly, found ways to not allow these concerns to affect her.
47. I am mindful, that in Dr [S’s] view, and as well in some of her presentations to me that [the mother] is perhaps making some progress in managing her anger. I do accept that it could be an important component of her therapy and progress if [the mother] could have additional time with her daughters. However I do not believe that significant changes should be made immediately and without further demonstration of ongoing progress. In my opinion, [the mother] continues to allow many issues, with regard to her daughters, their care, and [the father] to affect her and her thinking.”
That report was based on interviews occurring in May 2007. Further interviews were conducted by Dr T approximately 12 months later, in April 2008. In an updated report dated 1 May 2008 Dr T opined:-
35. While there are not the level or degree of concern and aspects of conflict raised by each of the parents toward the other in this current review, there are nonetheless there are (sic) some concerns which continue to be raised about one and another. …
36. [The mother] during individual interview did not display the range and breadth of historical issues and concerns which she has raised with me in the past about [the father]. She did touch on and speak about some historical matters, but did nonetheless focus on ongoing concerns and aspects which she has with regard to [the father’s] care of their two daughters. She is also particularly of the view that the girls require more time with her and should therefore reside with her at this time. She acknowledges the girls should have a relationship with their father and that he can contribute resources and skills for the girls. She said however the girls are better placed with her and need her as their mother more at this time and in the immediate future than they require time with [the father]. There were, in the context of that discussion with me, some referral to some past matters and injustices made by [the mother] towards [the father].
Significantly, as it seems to me, Dr T was of the view:-
41. It is of some concern that there continue to be some aspects, in my opinion, of [the mother’s] patterns of thought or negativity towards [the father]. She does appear at times to be quite focused on aspects of the girls' home life including supervision, performance or preparation for school and their care, hygiene and diet. Neither of the girls on observation appears to be unhealthy or evidencing features of any significant physical distress, for example due to nits or hygiene concerns that could be related to their pets that are in the family home. It is difficult to assess some of the other content raised by [the mother] although it appears that she is at lengths to an extent to indicate that she is working, is busy, and is able to be financially independent and provide for the girls. As I have noted it is difficult to specifically address and assess those comments.
(d) Dr S
Dr S saw the mother approximately monthly for therapy commencing early in 2007. Dr S records the mother as being, initially, somewhat resentful because she had been sent to so many people in the past. However, it seems that a good therapeutic relationship developed and the mother continued seeing Dr S (noting that it was about a six-hour round-trip for the mother to see Dr S at her rooms in […]).
Dr S was asked by counsel for the Independent Children's Lawyer, Mr Burridge, what therapeutic signs there were that anger of the type manifested by the mother was being managed successfully. Dr S replied that, generally, the mother reported less outbursts (noting of course that she relied predominately upon the mother’s description in that respect) and that the mother was handling situations more constructively.
Dr S said that there had been a "vast change" [her words] in the presentation of the mother during the progress of her therapy.
When Dr S was asked whether anger issues could not be successfully treated, Dr S responded that that was "rarely" the case if there was no underlying personality disorder. She was of the view that there was no underlying personality disorder in the case of the mother.
Importantly, though, as pointed out by Mr Hamwood’s cross-examination, Dr S had not seen the mother with the primary catalyst for her anger, the father. Dr S - in my view, sensibly, acknowledged that, but said that she had the impression that change had occurred in the mother over many months, albeit that she was relying primarily upon the mother's self-reporting and information from the children's lawyer about how things were going.
Contrary to that which was put by Mr Hamwood, Dr S indicated that the therapy engaged in with the mother did deal with underlying belief systems (as opposed to superficial symptomology). Dr S said that goal setting, which was an important part of the therapy, inevitably had to touch on underlying belief systems.
Dr S was of the view that the mother's relationship with her remained a good one. When asked why the therapy had ceased, Dr S responded that the referral, which allowed the mother to see Dr S on Medicare referral, had permitted only a specific number of visits within a specific time frame.
Dr S was of the view that upon expiry of the initial 12 month period (i.e. February 2008) the mother could receive a further referral for an additional 12 months of therapy with Dr S from her general practitioner. The mother indicated in effect, that if the court “thought it would help” she would again engage in therapy with Dr S, which such therapy she considered to be helpful to her in the past.
ISSUES AND CONSIDERATIONS – DISCUSSION AND FINDINGS
(a) Primary Considerations: Risk vs Relationship
By reason of the findings earlier summarised by me (in particular my acceptance of the father’s evidence) I do not consider he presents a risk to the girls in any form.
Further, I think it highly likely that the mother has misinterpreted or placed a wrong emphasis on statements by the children.
I do not accept the assertions as to deficiencies in the father’s parenting made by the mother.
The mother described the problems she has had in the past with her inability to control her anger and her unbridled antipathy to the father as “irrelevant”. In fairness, I think she used that expression loosely. I think a fairer summary of her position is that it is irrelevant now because of the process of change she has effected, particularly since undergoing therapy with Dr S.
The father is sceptical. He asserts, in effect, that the past is the best indicator of the future and, as he asserts, the mother’s longstanding, and at times irrational and deep-seated hatred and anger is, if the children spend significant amounts of unsupervised time with their mother, likely to re-emerge unabated with consequent significant potential harm to the children.
The father argues that I should find that the only thing that has really changed is the nature of the various complaints that are made by the mother toward the father. That is, he argues, no fundamental change has taken place; rather only the stage upon which grievances are acted out.
I find that if the mother was, as it were, left entirely to her own devices, there is significant risk that she would revert to comments and behaviours forming such an integral part of the past. In that respect, I think that the mother's antipathy is multilayered and complex and may well find a new focus if left completely alone.
However, having assessed there is a risk of that behaviour, the nature and extent of that risk can in my view, be ameliorated by a number of factors.
First, it seems to me that the risk must significantly increase with the amount of time that the children are away from their father with the concomitant reduction in their experience of his parenting.
Secondly, if as both the mother and Dr S have indicated is possible, and as I consider desirable, Dr S was to recommence a process of therapy with the mother, I consider that the "vast change" in the mother's behaviour observed by Dr S, an experienced clinician, is likely to be the subject of further work and further improvement - even if that further improvement will come with occasional imperfections and outbursts.
Thirdly, since the mother's behaviour reached what, it seems fairly clear, was its zenith some two-and-a-half years ago, the children have experienced the daily parenting of their father, as they have grown and matured, protected from any such behaviour and anger by their mother directed towards their primary carer.
Fourthly, as the father himself acknowledges, the children have grown and matured during that two-and-a-half years and are now, as it were, two-and-a-half years older and wiser than they were when the mother's behaviour was at its worst. Whilst I agree with the father that there is some time yet to go before the children are old enough to determine, for all practical purposes, the nature and extent of their relationship with their mother, I consider that they are old enough and mature enough to withstand occasional moments of anger or inappropriateness which might escape the safeguards and protective measures otherwise in place.
Finally, although I do not in any sense suggest that orders for suspension and, thereafter, supervision, of time, were designed to, or did in fact, "punish" the mother for her inappropriate and likely harmful behaviour towards the children, nevertheless this intelligent and educated woman must surely now know that an inability by her to control any residual anger and antipathy towards the father is highly likely to significantly impact upon her future relationship wit both of her girls.
As against that assessment of the nature and extent of any risk, it seems to me plain that the relationship currently enjoyed by the girls with their mother, confined within a contact centre for some two-and-a-half years, could not be described as "meaningful" within the meaning of the section. Indeed, the father, both in his affidavit and in oral evidence, effectively concedes as much.
It seems to me that the children’s best interests are met by attempting to fashion orders which provide the opportunity for the mother to have a more meaningful relationship with her daughters but which nevertheless take account of what I assess to be the residual risk associated with her care.
(b) Views of the Children
Each of the parents acknowledges the importance of the children being heard in the context of these proceedings. In her written submissions the mother asserts that H shows a need for a mother-figure in her life and that "the children wish to spend more time with the mother".
The father asserts in his affidavit of evidence in chief that whilst it is "far from ideal for the children to spend time with the Mother at the Contact Centre, the children appear to be quite happy with the arrangement …". Further, the father proposes that "I do not believe that the children would be happy to have unsupervised visits with the Mother. The children still appear to me to be very apprehensive of the Mother and do not appear inclined to want to spend time with her outside the security of the Contact Centre".
I am by no means sure that the father's oral evidence was as strong as that. It seems to me that the father is caught in the dilemma to which I have made reference earlier in these reasons. My strong impression was that the father feels intuitively, that the children need to spend more time with their mother and want to do so, but his concern for their welfare prevents him from fully acknowledging that.
Notes from the contact centre (Exhibit ICL1) generally record a close loving and appropriate relationship between the mother and the children and include comments such as, for example, "mother provided good limit setting", "both girls and whole family chatty and relaxed", "both girls were affectionate towards [the mother], leaning their heads against her shoulder", "the family laughed a lot together". The entry for 12 April 2008 records "bonding demonstrated by [L] nestling into mother's side whilst watching video and sitting on lounge, affectionate stroking of [L’s] head. Mother engaged with both daughters equally."
Reference has already been made to the school counsellor's notes which record H saying how sad it was that she could only see her mother on Saturdays and which include H saying "I wish I could see my mum more".
The reports of Dr T, in both July 2007 and 2008, each record the children expressing similar views. Dr T records in the first report:-
32. …I asked [H] how she felt about [time spent with the mother at the contact centre] and she said "I don't know, I don't know how I feel. She picked it so I guess it's okay." … [H] told me that her mother "thinks the centre is like a jail sometimes she feels a bit cranky about the people there because everyone is just watching her and sometimes she feels a bit mad about all that".
In direct response to a question asked by Dr T:-
I asked [H] what it was that she would like to do with the contact and she replied "yeah well if it was up to me I would like to see her a bit more and I would also like to be able to go to her place now and then". I asked [H] how often and she replied, "I don't know, maybe for the weekend maybe every second weekend like I used to that would be good, but I don't really understand it cause she had the chance to go off the centre but she said no so I don't really know".
In his most recent report, Dr T records:
38. In meeting with both the girls individually, each has spoken independently of a desire to spend more time with their mother. This is, in my view, perhaps not unusual given their increased age, ongoing development and more specifically the history of their experience with their mother in recent times, that being primarily supervised contact at an access centre. In my view it is not unreasonable that the girls are requesting more time with their mother as it is an appropriate desire on the part of children to spend and have access to and time to spend with each of their parents regardless of marital and residential arrangements. Both girls do appear to be somewhat ambivalent in my view with regard to the specificity of the contact arrangements and indeed with regard to residential arrangements.
In respect of the capacity of the children to express views, Dr T said:-
… in my view both girls while obviously are mature and developmentally aware, they still evidence aspects of naivety and immaturity. Neither girl for example can articulate what they would wish to do with their mother and why they wish to spend time with her and perhaps more importantly neither girl expresses a specific desire for a specific amount of time. [L] indicated that she would like to live with her mother for a week. However when asked whether that would mean she would not live with her father, there was notable hesitancy and perhaps some resiling from her thoughts at that time of residing with her mother and she appeared to be uncertain as to what type of process she wishes to be involved in, in terms of contact and residential arrangements. Similarly, [H] initially did speak about seeing her mother more and also commented about seeing being (sic) able to stay at her mother's house perhaps for a week. [H] appeared to be more aware herself that that did not mean for her residing for her mother for a week (sic) and residing with her mother for a week and residing with her father for a week in a type of shared-care custodial arrangement. It appeared in my view to be more of a desire to see her mother for extended periods of time although not necessarily residing with her on a regular basis.
Whilst contending for what might be seen as restrictive orders with respect to the amount of time the girls spend with their mother, the father, as I indicated earlier, acknowledged both in the witness box and in submissions made on his behalf, that by the time H is about 13 she will determine, in practical terms, her own relationship with her mother and, for that matter, her extended family. He also indicated, in that respect, given that the two girls are close in age and have a close relationship, L was, in effect, likely to follow H’s lead.
It seems to me that the evidence supports the conclusion that the children's views are consistent with them wanting to spend more time with their mother and for that to be in an environment providing greater freedom and providing more interest and stimulation than that which the contact centre provides.
(c) The children's right to enjoy their Aboriginal culture
The father does not dispute the central importance of the children's Aboriginal culture either for the mother or the girls. He does not seek to impede the inculcation of that culture and the process of learning and knowledge inherent in the acquisition of that (although it is noted that the mother alleges his proposals for her time with the girls will do so indirectly).
The father has worked within the Aboriginal community for a long time. He said in evidence that virtually all of his friendships and social relationships are with Aboriginal people. I do not consider, and it seemed to me the father did not suggest, that either such fact equips him culturally, but rather, those facts seek to highlight that there may be less "cultural divide" between the father's household and relationships with the mother's than might otherwise be the case.
I consider that the children's right to enjoy their Aboriginal culture including their right to enjoy that culture with other people who share it, is an important consideration in this case. I am also mindful of the mother’s (in my view appropriate) desire to have the girls share gender specific aspects of that culture.
Whilst the father's orders suggests the mother spend time with the children during NAIDOC week and on "Sorry Day" in my judgment whilst those specific occasions are important, the right to enjoy culture is also something absorbed over time by exposure to, and experience of, aspects of that culture.
I do not consider that contact at a contact centre with the addition of contact at family gatherings, NAIDOC week and sorry day provide the same opportunity for that to occur as might be afforded by other orders allowing more expansive time between the girls and their mother.
(d) Nature of relationship and likely effect of any change
I see no credible evidence to suggest that the relationship between the children and their father is anything other than an appropriate, loving and caring relationship. He has been, on any view of it, their primary carer for over six years.
Notwithstanding the attempts by the mother to criticise his parenting across a range of activities, including, for example, the failure to provide a tutor for the girls, the failure to involve them in extracurricular activities, an attempt to relate the scholastic difficulties experienced by the children to which I have earlier made reference directly to the parenting or deficiencies in parenting by the father, and the like, I do not consider that those criticisms are well founded or would result in substantively altering the erstwhile relationship between the children and their father.
During what, on any view of it, must have been extraordinarily difficult circumstances created by the mother's antipathy and hatred towards him, the father has provided a steadfast platform of stability for the girls. Statements by the girls to Dr T in my view reinforce that opinion.
(e) Promotion of Relationship and Difficulties with time
The capacity of the mother to promote a meaningful relationship with the father when the children are in her care has already been extensively discussed.
I have no real concerns, despite the misgivings of the father about the mother’s change in attitude and attempts to change her behaviour, that he will nevertheless promote such relationship as is ordered by this court and will use his best endeavours to make the ordered relationship work for the benefit of the two girls.
As referred to earlier, a Ms M is prepared to supervise time between the mother and the children and Ms M is a supervisor suitable to the father.
Supervision, of course, brings with it a significant impost on the time of those who volunteer to undertake it and Ms M is no different. In particular, she deposes to an ability to supervise the children’s time with the mother on each alternate Saturday from 9 am until 1pm and at any family gathering and, in particular, specified 21st birthday celebrations. She lives approximately seven kilometres from the father’s residence. As from 1 May 2008, she is prepared to commit to only three months of supervision due to an understandable inability to predict what her work and personal circumstances will be after that time.
Otherwise, the parties live in close geographical proximity and there are no practical impediments with respect to the implementation of a time regime.
(f) Capacity
In her written submissions, the mother says:-
I have crossed the bridge I received treatment from Dr [S] in […]. A clinical psychologist. I feel I made remarkable progress and agree to ongoing treatment if asked to resume again for the purpose your honour finds.
I have already earlier referred to my acceptance of the father’s evidence and have made findings to the effect that I have no concerns about the father’s capacity to provide for the children’s physical, emotional and intellectual needs.
To a certain extent, the evidence referred to earlier, and the findings made earlier, with respect to the mother impact necessarily upon her capacity to provide for the children’s needs – in particular, their emotional need to have an appropriate loving perception of, and relationship with, each of their parents unconstrained by one parent attacking the other.
Dr T said in oral evidence that he had concerns that “the mother will become unrestrained in the fullness of time”. He was of the view that the age when the children could deal with any extremity of views expressed by the mother was “early teens”.
Dr T was asked whether H in particular, is of an age where she has the capacity to accept an image of her parents, including her mother, as it were, “warts and all”. Dr T replied that he thought H “had a sense of that” but he wasn’t convinced that “she was necessarily able to handle it”.
Dr T, in attempting to balance the various considerations in his own mind, said that he would like to move time with the mother out of the contact centre but he thought that time should occur nevertheless in relatively short bursts. In that respect, Dr T was concerned that if the mother had wholly unrestricted time with the children for significant periods that she may feel “vindicated” and that this may in turn be a catalyst for future bad behaviour.
Mr Hamwood submits that there is no evidence from which I can infer that it is more than a mere possibility that the mother can change when alone with the children. He points out that the mother herself said she would see it as her obligation to protect the children from the danger the father presents and submits further that the mother is no better equipped now in circumstances when “it matters – that is when she is one on one with the children”.
It will be apparent from what I have said earlier that I think there is significant merit in both Dr T’s views and that submission made on behalf of the father. However, it seems to me to be a question of balancing the risk inherent in the acceptance of those considerations as against what I find to be the need of these children to have a more meaningful relationship with their mother which, in turn, I find requires them to spend time away from contact centre and, ultimately, unsupervised.
Best interests:
Structure of Orders
It will be apparent from the Reasons previously given that I consider the best interests of H and L require me to balance a number of competing considerations.
I do not consider that the girl’s best interests require an order that they live with their mother. Even absent the risk factors present in this case, I cannot persuade myself that considerations such as the children’s Aboriginality and the need for a meaningful relationship with their mother would be sufficient, in the circumstances of this particular case, to order a change from the primary care of their father which has occupied over half of their lives.
I consider that the children are unable to have, and importantly, develop, a meaningful relationship with their mother in circumstances where the time with her continues to occur at, and be supervised by, a contact centre.
At heart, the mother loves and cares for the girls deeply and they for her. In my view, that relationship needs to find expression in the circumstances of, and with the spontaneity inherent in, a relationship outside of a controlled and somewhat artificial, environment.
I would be of that view independent of any cultural considerations. When I add that consideration to the mix of factors, I consider it all the more important that the children be afforded that opportunity with their mother.
But those matters need in my view to be balanced by a risk, which I find is real, that the mother may revert to behaviour of the type earlier described and the expression of attitudes of the type earlier described. These, if done in a way similar to that engaged in by her in the past, I consider would be highly damaging to the children and their perception of their father as an important loving person in their lives.
A finding of risk, however, in my view brings with it the need to attempt to apply some measure of the nature and extent of the risk. I have attempted to do so earlier in these Reasons and I consider that the risk is ameliorated (but not eliminated) by the considerations earlier expressed.
The children have been seeing their mother within the confines of a contact centre for two and half years. A change to that arrangement represents, in my view, a significant change for the children despite the fact that they are now older and more mature than what they were at the commencement of that time. Accordingly, it seems to me to be in their best interests to allow a short period of time where time with their mother away from the contact centre nevertheless has inherent in it the reassurance of someone else being present. I intend to avail the children of the kind services of Ms M for that purpose.
Ultimately I agree with the parties that it will be the children who, upon reaching a sufficient degree of maturity, will decide the nature and extent of the relationship they have with each of their parents. The children are, as the mother points out, growing and maturing all the time. Ultimately it seems to me that their maturity will be the ultimate protection against the risk which I find is present for them in spending time with their mother.
With that in mind and also bearing in mind my earlier finding that a restriction on the amount of time the children spend with their mother is of itself a factor ameliorating risk, I propose to gradually increase the amount of time that the children spend with their mother away from the contact centre in an unsupervised setting. I propose, for the same reasons to introduce school holiday time into that regime.
It will be plain from what has earlier been said that I consider it important to maintain as much stability for the girls as possible and to maximise continuous time with their father. Accordingly, I do not propose to order time with the mother in the “off” week in each fortnight.
The father described the maternal grandfather as, in effect, one of the finest men he had ever met. He regarded him, however, as a “soft and gentle” man who may not be able to stand up to the mother (and her mother). In the content of the other orders I intend making, however, I think his presence in the first period of school holiday time provided for is a factor ameliorating risk and I have therefore made provision for same.
I propose to order the mother return to counselling with Dr S. Whilst there might be some reluctance expressed about ordering people to undertake counselling, I think it appropriate in the circumstances of this case.
Settlement of Property and Spousal Maintenance
In the mother’s “Amended Application for Final Orders” (which was, in fact, a Response to the father’s Application) the mother sought orders as follows:-
6. That the wife have sole occupation the premises at [W] in the State of NSW.
7. That the application for property settlement be made arbitratory to the wife
8. That the husband pay costs of the wife for proceedings
9. That property settlement be made on an indemnity basis to the wife
10. That the wife be paid 50% superannuation of the husband
11. That the wife be paid 25% of the husband’s business income as spouse maintenance.
Those orders are repeated in the written submissions made by the mother.
The Financial Statement filed by the mother on 18 April 2008 deposes to:- a) the mother having cash assets of $80 b) the mother owning a 1988 Toyota motor vehicle valued at $3500 and c) an interest in a superannuation plan known as “[…]” that has a gross value of “$67.00L”.
That same financial statement deposes to a personal loan with “[…]” but with an amount owing shown as nil. A credit card debt of $46,768.59 is also shown as owing.
That is the totality of the information provided in that document by the mother with respect to the property of the parties or either of them with respect of s 79 of the Act.
That same Financial Statement indicates an average weekly income by the mother from her occupation with B Organisation of $500. I note that, at the time of swearing, the mother had been employed there for 14 days.
The Financial Statement shows personal expenditure in Part G (assuming Item 32 refers to expenditure not otherwise tallied) of about $170 per week. Part N, to the extent that it is completed, shows expenditure of $140 per week comprising $50 for food $10 for households supplies $20 for electricity $20 for telephone and $40 for petrol.
That same part of the Financial Statement indicates expenditure on food for the children of approximately $20 per week which, I assume, is an amount claimed by the mother with respect to food taken by her to the contact centre when she sees the children. The document shows the mother paying $12.25 per week by way of child support.
The father’s Financial Statement filed 7 May 2008 reveals a total average weekly income of $1929 per week with total expenditure of $1848 per week. It reveals child support income of $6.38 per week for the two children (amounting to an assertion by the father that the mother’s asserted payment is in fact a fortnightly payment rather than a weekly payment). The father is employed as a consultant and is self-employed.
Included amongst his expenses is $90 per week by way of rental payment to, I gather, an Aboriginal housing corporation. His weekly expenditure includes payment of a personal loan for legal expenses of $110 per week.
By way of assets, the father’s Financial Statement reveals $44,642.00 in a bank account, a motor vehicle valued at $28,000, interest in his business of $6,000, household contents of $1,500 and a mower and ride on mower valued at $3,000, a total of just over $83,000.
The same document reveals an interest in a superannuation plan being a retirement saving account with the Commonwealth Bank RSA having a gross value of $6,923. No other information is provided in respect of that superannuation account.
Liabilities are shown as $125,000 owing to the father’s sister in respect of legal expenses. He owes slightly more than $2,000 on an Amex card; $45,708 is owing to General Motors by way of a hire purchase agreement in respect of the motor vehicle as well as other liabilities comprising $18,189 by way of HECS payment, $28,390 owing to Centrelink and outstanding GST of $1293.
Part N of the document reveals weekly expenditure of $550 per week for the father and the children.
There is a dispute about the date of separation. The mother asserts the separation occurred in June 2003; the father says February 2002. The father deposes to the fact that, at either time, apart from some items of furniture and household goods of nominal value, neither party had any significant assets. The mother responds by saying this is a “half truth”. I am unclear, though, what is meant by the mother at paragraph 151 of her affidavit. However, the mother admits Exhibit JJ to the father’s affidavit which sets out the assets of the parties at each date of separation. No superannuation interest in shown at either date. That is a position, which in the absence of other orders seems consistent with the father acquiring an interest with a meagre gross value in the time since.
At either date, the parties owed more than they owned.
Similarly the father sets out, at Exhibit NN to his affidavit, a summary of his present assets and liabilities. Similarly the mother admits that document. Again, liabilities exceed assets. In that list of assets is included $95,225 being an amount owed to the husband’s sister for legal fees. As well as $13,000 being outstanding legal fees. Excluding these liabilities continues to show liabilities exceeding assets.
The father deposes that, during the marriage up until the year 2003 he undertook occasional employment but “apart from that [he] was not employed”. He undertook some study until 2002 when he deferred as the mother was living in Sydney and he was caring for the children. In May 2003 he commenced to provide consulting services and “from that time I gradually increased the amount of consulting work...”
The mother denies the evidence just described. She says the husband commenced a consultancy service in 1999 when he worked for an Aboriginal community organisation two days a week. She says he was earning $35 per hour. The mother then makes her own claims with respect to her work as a consultant the effect of which is, I think, that the father owes his start and present position working in Aboriginal community organisations to her.
The father’s superannuation interest is meagre. The father is aged 52, and has three years to go until the minimum retirement age. I have no evidence as to his future employment plans but note, of course, that he has primary care for two young children (including primary financial care); that the children currently attend a private primary school and that the mother pays nominal child support.
In all of the circumstances, I do not consider it just and equitable to make any adjustment to any property of the parties nor to alter responsibility for any liabilities
In all of the circumstances I am not persuaded that it is just and equitable to make any splitting order with respect to the husband’s superannuation, either as sought by the mother or at all.
In respect of the mother’s application for spouse maintenance, I find that on the material filed by her she does not establish a need within the meaning of the Act.
Her income, though modest, exceeds her, admittedly modest, expenditure. She pays nominal child support and has done, it seems, for a period of some six years.
The mother deposes to a number of talents and is clearly an educated, intelligent and resourceful woman capable of remunerative employment.
Currently the mother is employed by B Organisation earning some $500 per week. Her affidavit speaks of other projects in which she is currently employed or has planned, each of which have the furtherance of her cultural heritage as a theme.
As will be plain, I am not sure what the expression “the application for property settlement be made arbitratory to the wife”. To the extent that it constitutes an application for orders I dismiss it.
In a similar vein, the claim by the mother “that property settlement be made on an indemnity basis to the wife” is dismissed.
The wife has established no basis for making an order pursuant to s117(2A) of the Act in respect of costs and I dismiss her application for costs.
On 20 December 2004 Carmody J delivered Reasons for Judgment in respect of a hearing conducted before his Honour on 26 and 27 October 2004 and reopened on 25 November 2004. By order 8, his Honour ordered “the father have sole occupation of the premises at [W]”.
That order is on its face a final order. It seems to me the mother is estopped from relitigating that issue before me.
In the event that this conclusion is erroneous, in any event I note that no basis for the order seeking “that the wife have sole occupation of the premises at [W] in the state of New South Wales” is deposed to by the mother.
Moreover, this is the property in which the father and the children have resided for about the last six years. Consequent upon the parenting orders I will make, the father will have the predominant care of the children.
I also dismiss the mother’s application for that order
I order accordingly.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy
Associate:
Date: 27 June 2008
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Civil Procedure
Legal Concepts
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Injunction
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Estoppel
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Costs
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Jurisdiction
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