Walkeman and Manfredi
[2009] FMCAfam 727
•15 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAKEMAN & MANFREDI | [2009] FMCAfam 727 |
| FAMILY LAW – Parenting – interim arrangements for three young children – whether mother can cope with the eldest child – whether any consideration should be given to splitting siblings – whether mother’s capacity to care for the children is impaired by drug use, transience and unsuitable associations. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Applicant: | MR WAKEMAN |
| Respondent: | MS MANFREDI |
| File Number: | NCC 378 of 2009 |
| Judgment of: | Terry FM |
| Hearing date: | 7 July 2009 |
| Date of Last Submission: | 7 July 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 15 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batley |
| Solicitors for the Applicant: | Cheney & Wilson |
| Counsel for the Respondent: | Mr Graham |
| Solicitors for the Respondent: | O'Hearn & Bilinsky |
ORDERS
UNTIL FURTHER ORDER:
That all previous parenting orders concerning [X] born in 2004, [Y] born in 2006 and [Z] born in 2007 are discharged.
That the mother and father have equal shared parental responsibility for the children.
That the children live with the mother.
That the father deliver [X] or cause him to be delivered to the mother at Property W by no later than 4pm on Friday 17 July 2009.
That the father spend time with the children:
(i)for four nights in each eighteen nights during school terms to coincide with the father’s four rostered days off and to commence on the father’s first rostered day off after 31 July 2009, with the father to notify the mother in writing or by text message within seven days of the date of these orders of the day after 31 July 2009 on which he will be collecting the children;
(ii)for half of each school holiday period commencing with the holidays at the conclusion of Term 3 2009 being the second half of the school holidays in 2009 and the first half of the school holidays in 2010;
(iii)at such alternate or additional times as may be agreed between the parties.
That the mother shall deliver the children to the father at [P] at the start of the children spending time with the father and the father shall deliver the children to the mother at Property W at the conclusion of that period.
That each parent may communicate with the children by telephone at reasonable times when they are with the other parent.
That within two days of being requested to do so by the father’s solicitors or the Independent Children’s Lawyer if an Independent Children’s Lawyer has been appointed, such request to be made no more than once each month the mother undergo chain-of-custody urinalysis drug screening and provide the results to the father’s solicitors and the Independent Children’s Lawyer as the case may be.
That the mother is restrained and an injunction is granted restraining her from allowing the children to come into contact with or remain in the presence of Mr H or Mr M and in particular the mother is restrained from permitting Mr H or Mr M to enter into or remain in her home while the children are living with the mother.
That each party shall promptly notify the other if any of the children while in their care require treatment at a hospital or are diagnosed as suffering from a serious medical condition and each parent may visit the children in hospital.
That each parent shall inform the other and keep them informed of their residential address and mobile and landline telephone numbers and inform the other within forty eight hours of any change to those details.
That neither parent denigrate the other parent to or in the presence of the children.
That the mother shall attend for parentage testing pursuant to the orders made on 3 February 2009 on 16 July 2009.
AND IT IS ORDERED:
That pursuant to section 68L of the Family Law Act 1975 (as amended) the children [X] born in 2004, [Y] born in 2006 and [Z] born in 2007 be separately represented and that such representation be arranged by the Legal Aid Commission of New South Wales AND that to expedite the appointment of the Independent Children’s Lawyer within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.
That pursuant to section 62G(2) of the Family Law Act 1975 a family consultant or suitably qualified person provide to the court a report on such matters as are relevant to these proceedings in respect of the care, welfare and development of the children [X] born in 2004, [Y] born in 2006 and [Z] born in 2007 with such report to be released to the parties by 15 October 2009.
That the matter is adjourned to a date to be advised before Federal Magistrate Coakes following the release of the Family Report for further directions.
IT IS NOTED that publication of this judgment under the pseudonym Wakeman & Manfredi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 378 of 2009
| MR WAKEMAN |
Applicant
And
| MS MANFREDI |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Wakeman and Ms Manfredi separated in about August 2008. Since separation they have been repeatedly involved in conflict over parenting arrangements for their children, [X], almost five, [Y], three and [Z] who is one year and ten months old.
Interim parenting orders were made by consent in the Local Court at Toronto on 10 February 2009. These orders provide for the children to live with the mother and spend time with the father.
On 1 June 2009 the father filed an application in a case in this court (to which the proceedings had been transferred) seeking interim orders different to those made on 10 February 2009. He proposed that the children live with him and spend supervised time with the mother. He proposed that the maternal grandmother or maternal great grandmother be the supervisors.
Although the father’s application was for an order that all three children live with him, it was implicitly his case that if nothing else, [X] should live with him.
On 15 June 2009 the mother filed a response. She sought a continuation of the 10 February 2009 interim consent orders.
During the proceedings in the Local Court at Toronto the mother raised an issue about whether the father was the biological father of [Y] and [Z]. An order for paternity testing was made by consent. The mother has failed to comply with the order and the paternity issue remains unresolved.
Background
The mother and father met in 2000 and commenced living together in 2001. They moved to Orange in 2002 after the father obtained employment near Orange.
When the parties met the mother was using drugs, including marijuana and amphetamines. It was the mother’s case that she ceased using drugs completely in 2001, after her health deteriorated and she was hospitalised for two weeks.
When the parties met the father was also using drugs. It was his case that he had not used any drugs for many years. The father is subject to random drug testing at his work.
The parties’ first child [X] was born in October 2004.
The mother said that she and the father separated in December 2004 and that she moved with [X] to a farm at [T]. The mother said that she took [X] back to Orange regularly to spend time with the father and that the father also visited the farm to see [X].
The father said that he and the mother did not separate at all and that they visited the farm together on occasions while continuing (I infer) to live in Orange.[1]
[1] Father’s affidavit sworn on 2 February 2009 paragraphs 13 14 & 15
Whatever the truth about their living arrangements, the parties continued a sexual relationship. In about August 2005 the mother discovered that she was pregnant. The mother said that she informed the father about the pregnancy but told him that she had also had a sexual relationship with another man and was not sure if the baby was the father’s. The father appeared to deny that any such conversation occurred.[2]
[2] Father’s affidavit sworn 2 February 2009 paragraph 18
The parties second child [Y] was born in May 2006. The father attended the birth. The father is not named as the father on [Y]’s birth certificate and (while [X] has the surname Wakeman), [Y] has the surname Manfredi. The father said that he agreed to being named as [Y]’s father. He said that when he found out at a later date that the mother had not named him as the father on the birth certificate he asked the mother about it and she made excuses which were related to receipt of Centrelink Benefits.
It was the mother’s case that after [Y]’s birth the parties continued to be separated and that she continued to facilitate the father spending time with [X] by travelling to Orange (with both [X] and [Y]).
It was the mother’s case that during this period she and the father had arguments and that the father was verbally and sometimes physically abusive to her.
In January 2007 the mother discovered that she was again pregnant. She said that she informed the father that there was a slight chance that the baby might not be his.
In March 2007 the mother was at the father’s home in Orange with [X] and [Y] when an incident occurred. The mother said that she told the father she was leaving. She and the father argued. The father put his fist through a wall and the mother ran from the house carrying [Y]. The father tried to persuade the mother to come back inside. He picked [X] up and held him in the bedroom. The mother gave the following evidence of what then occurred:
“29. Next I heard a loud bang, it sounded like a gun shot. I also heard a sound that I thought was falling wood. Mr Wakeman came out of the bedroom and said words to the effect, “I shot [X].” I dropped to my knees and could not speak. Mr Wakeman then said words to the effect, “Ha Ha, got ya.”
30. [X] then ran out of the bedroom and said, “Mummy, daddy shot a gun, mummy look.”
31. I grabbed [X] and ran outside and ran up the street to Ms A’s house. Ms A called the police. The police blocked off the street.
32. Mr Wakeman was later charged and convicted of 3 firearms offences. He shot a high powered .308 rifle. He was placed on three concurrent good behaviour bonds for 18 months. He also lost his gun licence for 10 years. There was a large hole left in the roof of the house from the gun shot.”[3]
[3] Mother’s Affidavit sworn 27 January 2009
The father did not deny the mother’s description of what occurred. Police records confirm that on 17 April 2007 the father was convicted of possessing a loaded firearm endangering life, firing a firearm in a manner likely to injure persons and not keeping a firearm safely.
The mother said that soon after the firearm incident the father commenced taking medication for depression and anxiety and that his behaviour changed. Medical records produced in answer to subpoena indicated that in March 2007 the father sought assistance for “anger and bad moods” and was diagnosed with depression, prescribed Zoloft and referred to counselling.
The mother and father were living together when [Z] was born prematurely in September 2007. It was the mother’s case that they had reconciled only a few weeks before.
It was the mother’s case that in July 2008 she and the father separated under one roof.
The mother described an incident which she said occurred in about August 2008 when the father yelled at [Z] and pushed him down hard in his cot, saying “just cry you cunt of a kid, just cry.” The mother said that she and the father argued and the father punched her and put his hand around her throat.
The mother left Orange with the children shortly after this incident. She initially went to her grandmother’s home in [W], and subsequently to [N] where she commenced living in a unit owned by her mother and step-father. The father seemed to date the separation as having occurred when the mother left Orange.
Following the mother’s relocation the father began travelling from Orange to Newcastle on his rostered days off to spend time with the children. The mother insisted on being present when the father saw the children, fearing that the father may not return them if she allowed him to spend time with them on his own.
The parties came into conflict from time to time about the arrangements for the father to spend time with the children. The father alleged that during an argument on 4 October 2008 the mother broke his nose. He provided no details about this incident. In November 2008 the father retained [X] (or perhaps [X] and [Y], it is difficult to reconcile the evidence of each party about this incident) for a couple of days without the mother’s consent but he subsequently returned him/them to the mother.
The father repartnered in November 2008. His partner Ms K operates a small business in Orange.
On 20 January 2009 the mother agreed to meet the father in a park so that the father could spend time with the children. Unbeknown to the mother, the father, his partner and the paternal grandmother planned to take the children from the mother that day if the opportunity arose. They were successful in carrying out their plan, absconding with the children from the park.
The mother asked the father to return the children but he refused. On 28 January 2009 the mother filed an application in the Local Court at Toronto seeking a recovery order. She also sought an order for paternity testing in respect of the two younger children [Y] and [Z].
The father filed a response and an affidavit in support. In the affidavit he outlined numerous concerns about the mother including a concern that she was still using illegal drugs. However on 10 February 2009 the father consented to interim orders that the children live with the mother and spend time with the him on four out of each eighteen days in accordance with his shift roster.
On 26 February 2009, the mother was assaulted by Mr M whom she had met in January 2009. The mother informed the father about the assault very soon after it happened. An Apprehended Violence Order was taken out on the mother’s behalf.
It was the father’s case that the mother was in a relationship with Mr M at the time of the assault. The mother denied that she had ever been in a relationship with Mr M.
The parenting arrangements for the children in February and March 2009 were more or less in accordance with the consent orders.
On 3 April 2009 the mother asked the father if he would collect the children a little earlier than the orders envisaged. The father was adamant that the mother asked him to take the children because she was not coping. The mother said that she asked the father to take the children because she was ill.
On 3 April 2009 the mother and father reached an agreement that the father would have the children in his care from 3 April 2009 until
15 April 2009. The paternal grandmother who lives in the Newcastle area collected the children from the mother in [N] that evening and drove them to Orange the next day. Interestingly the paternal grandmother’s evidence was that the father rang her and asked her to pick up the children as the mother “could not cope and was not well.”[4]
[4] Affidavit of Ms W filed 23 June 2009 paragraph 56
It was the mother’s case that she asked the father to keep the children for a further day or two after 15 April 2009 to help her out as she was required to give evidence in a court case involving Mr M. The father in fact kept the children until 3 May 2009. The parties gave conflicting evidence about why this occurred. Certainly it was the mother’s case that she tried to arrange the return of the children much earlier than that.
It was eventually agreed that the mother would collect the children from the father at McDonalds at Edgeworth on 3 May 2009.
The father brought the children to McDonalds as agreed. The mother had no trouble collecting [Y] and [Z]. The mother said that [Y] and [Z] were excited to see her. Ms K said that [Y] and [Z] went to the mother “without a problem”[5] and the father said something similar.
[5] Affidavit of Ms K filed 22 June 2009 paragraph 16 Father’s affidavit filed 27 May 2009 paragraph 16
[X] was not returned to the mother and the parties gave conflicting evidence about why this occurred. The father said among other things that [X] did not want to go to the mother and that the mother agreed to leave [X] with him. The mother said among other things that the father got [X] out of the car and asked him if he wanted to stay with Daddy or go with Mummy, and that [X] said “Daddy.” It was the mother’s case that the father did nothing to encourage [X] to make the transition to her care.
In the end the father drove away with [X]. Ms K commented that she believed that [X] was “relieved when we finally drove away.”[6] This is easy to accept. The tension and conflict between the adults must have been highly upsetting for all the children involved.
[6] Affidavit of Ms K filed 22 June 2009 paragraph 16
The mother’s solicitor wrote to the father’s solicitor requesting the return of [X] but the father refused to return the child and subsequently filed his application in a case. The mother has not seen [X] since 3 May 2009 and the father has not seen [Y] or [Z]. The three boys have spent no time together.
It was the father’s case that the children should live with him and spend supervised time with the mother. He said that there were many reasons to be seriously concerned about the mother’s capacity to parent the children.
He alleged that the mother still used drugs and that her drug use affected her personality and her capacity to properly care for and supervise the children.
He said that he was concerned about her association (and perhaps relationship) with Mr H, her step-uncle who has a long list of convictions. He alleged that the mother was still in contact with Mr M. He alleged that the mother had said on a number of occasions that she could not cope with the children and that she was unable to handle [X] in particular.
The mother’s case was more focussed on the fact that she had been the children’s primary carer, but she made many allegations about the father. She said that he had been physically and verbally abusive to her during the relationship, she described the incident with the high powered firearm and she said that she believed that the father was undermining her relationship with [X].
Matters in dispute
There are innumerable matters in dispute, including the following:-
a)the extent to which the parties actually lived together under one roof between December 2004 and September 2007;
b)whether the father is the biological father of [Y] and [Z];
c)the nature and extent of violence between the parties;
d)whether there is any reason to be concerned about the father’s mental health;
e)whether Ms K has any mental health issues;
f)whether the mother is using illegal drugs;
g)whether the mother was in a relationship with Mr M earlier this year and whether she continues to see him;
h)whether the mother is or has been in a relationship with her step-uncle Mr H;
i)whether the mother has stable accommodation;
j)whether the mother can cope with [X];
k)whether the mother is consistent in her desire and ability to parent all three children on a regular basis.
It is impossible for me to make a finding about the extent of the parties cohabitation between 2004 and 2007. Cross-examination of the parties at a final hearing may cast some light on this.
The issue of [Y] and [Z]’s paternity will only be resolved by the mother complying with the parentage testing orders.
The mother made a number of detailed allegations about violence by the father during the relationship. She also alleged that he was verbally abusive, calling her names such as “bitch” and “slut” and that [X] copied his father in calling her these names.
I cannot make any findings about the nature and extent of violence by the father during the relationship. He in turn claimed that the mother broke his nose in 2008. I can make no finding about this.
The father was convicted in 2007 of discharging a high powered firearm in the home after an argument with the mother. This incident is very concerning. Medical records suggest that the father sought treatment in March 2007 for “anger and bad moods” and was diagnosed as suffering from depression and anxiety. In October 2008 the father was again diagnosed with depression and prescribed Zoloft and counselling was recommended.
I do not know whether the information contained in the documents produced by the father’s medical practitioner presents a complete or accurate picture. It is impossible for me to make any findings about the current state of the father’s mental health.
The mother made allegations about Ms K. It is impossible to know whether there is any truth in these allegations, but I do note that the mother provided no foundation for her claims about Ms K.
It was the father’s case that the mother was still using illegal drugs. He said that soon after the mother moved to [W] she attempted to obtain speed from one of his friends and that on another occasion she produced a plastic bag and told him that it contained ‘ice’. He said that a friend informed him that the mother was sick and that he (the friend) had found a syringe in the sink. The father said that he went to the mother’s house upon receipt of this information and found the mother vomiting. He also claimed to have observed the mother under the influence of drugs, although he provided no foundation for this conclusion.
The father filed an affidavit from a friend, Mr W, who claimed that the mother had rung him looking for speed, but this evidence is untested.
The mother denied any illegal drug use after 2001, and said that she ceased using drugs by going “cold turkey”. She had no ongoing therapy or counselling in relation to drug use. Illegal drug use is sometimes referred to as a chronic relapsing condition. It is of concern that Mr H with whom the mother has been residing has among his numerous convictions a 2004 conviction for possessing a prohibited drug and a conviction on 16 December 2008 for possessing/attempting to possess a prescribed restricted substance.
The mother obtained one drug screening test on 28 January 2009, which was negative,[7] but did not obtain any other tests between that date and the date of the interim hearing.
[7] Mother’s Affidavit 9 June 2009 Exhibit H
While I cannot be satisfied that the mother is continuing to use illegal drugs, I certainly cannot be satisfied that she is not.
The mother denied that she and Mr M were ever in a relationship.
The apprehended violence application made on the mother’s behalf contained a statement that “the protected person (or one of them) has or has had an intimate personal relationship with the defendant.” I am not satisfied that I simply conclude from this statement that the mother is being untruthful about her relationship with Mr M because I do not know who provided the information which appears in the application.
There is no particularly compelling evidence that the mother is continuing to see Mr M, but I cannot resolve the issue in these interim proceedings.
The mother denied that she had ever been in a relationship with her step uncle. The evidence to support this claim by the father is not especially compelling but I have no means of resolving this issue on an interim basis.
The mother maintained that she lived in the [N] unit. The affidavits of the paternal grandmother in particular sought to create an impression that the mother had no settled accommodation. There is certainly evidence that the mother has spent nights elsewhere with the children on occasions but the paternal grandmother picked the children up from the unit on 3 April 2009 and said that two of the children were at the unit on another occasion when the grandmother conducted surveillance. I can make no further findings about the stability of the mother’s accommodation.
It was the father’s case that the mother had told him on a number of occasions that she could not cope with the children. The father (and his partner Ms K) said for example that on 1 2 & 3 April 2009 the mother telephoned the father and asked him to come and get the children as she could not handle them.
The mother said that she told the father on 3 April 2009 that she was in pain and could hardly move from what turned out to be a pelvic infection. The maternal grandmother’s evidence lends some support to the mother’s claim that on this occasion at least she in fact asked for help from the father because she was ill.
I cannot make any findings about whether the mother has said to the father in the past and if so how often that she could not cope with the children. It is not beyond the bounds of possibility that the mother did say this in regard to [X]. [X] had behavioural problems prior to separation and the mother may have found him challenging from time to time.
Whether comments by the mother about [X] or the other children however justify the children being removed from her primary care, or whether they simply indicate that she would benefit from support from the father and others, is another matter entirely.
Matters not in dispute
The following matters are not in dispute:
a)absent some short periods when the children lived with the father in 2009, and absent the period between May 2009 to the present when [X] has lived with the father, the mother has always been the children’s primary caregiver;
b)absent the period from 3 May 2009 to the present the children have always lived together;
c)Mr H is not a suitable person to be in contact with the children.
Mr H has an extensive criminal record[8] for a range of offences committed between 1990 and December 2008, including shoplifting, drink driving, robbery, breaking and entering, being armed with a knife in a public place, assault, possession of a prohibited drug and being in possession of a restricted substance (unnamed). The mother said that he had schizophrenia which was controlled by medication.
[8] Exhibit A
It was the mother’s case that she had been required to share the [N] unit with Mr H because her step-father had given him permission to live there. The mother said that in the future she would ensure that the children did not come into contact with Mr H.
The parties current circumstances
The father is 30 and is a [tradesman]. He works at [C] near Orange. His shift roster requires him to work 5 days on, 5 days off, 4 nights on and 4 nights (days) off.
The father re-partnered with Ms K in November 2008. The father and [X] live with Ms K and her two children aged 14 and 10 in a five bedroom house on acreage near Orange.
The mother is 26 and is engaged in home duties. She said that she lived in a three-bedroom unit in [N] owned by her mother and step-father and that she hoped to get her own accommodation in due course.
The mother said that she was seeing (but not living with) Mr T, a [occupation omitted] who lives at West [W]. The father did not raise any issues about Mr T in these proceedings.
The children’s best interests
I must treat the children’s best interests as the paramount consideration in determining appropriate parenting orders. Sections 60CC(2), (3) & (4) of the Family Law Act set out the considerations to which I must have regard in determining the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
“a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
I am satisfied that the children will benefit from having a meaningful relationship with both of their parents.
The mother alleged that the father had been violent to her in the past. She alleged that in September 2008 the father abused [Z]. The firearm incident in March 2007 is deeply concerning. However there was no evidence that the father is currently in a relationship involving family violence. Since the orders of 10 February 2009 the mother has allowed the children to spend time regularly with the father and she did not suggest that he had abused or neglected them or exposed them to family violence during the time they were in his care.
There is no evidence on which I could find that the children are likely at the present time to be exposed to abuse, neglect or family violence in the care of the father.
It was implicit in the father’s case that the mother might neglect the children as a result of drug use, but this was speculation by the father. There was no evidence of any actual past neglect.
The mother was assaulted by Mr M in February 2009 and an apprehended violence order was subsequently taken out to protect her. The father is suspicious that the mother continues to see Mr M. The mother denied this, and there was no compelling evidence that she was continuing to see Mr M.
On the state of the evidence I cannot find that the children are likely to be exposed to abuse, neglect or family violence in the care of the mother.
I must consider any views expressed by the children, and any factors (such as the children’s maturity and level of understanding) that the court thinks is relevant to the weight it should give to the children’s views.
The father said that on 3 May 2009 and on other occasions [X] had expressed a wish not to return to the mother’s care.
[X] and [Y] and [Z] have been caught up in conflict about their parenting arrangements for the last ten months, conflict which has spread out to engage their respective extended families.
The evidence of the paternal grandmother and later the father and his partner about events which happened on 3 May 2009 provides a good illustration of why it is unsafe to place weight on the utterances of young children who are caught up in a high conflict situation is the following. Prior to the children being taken to McDonalds to be returned to their mother they were at the paternal grandmother’s home. Her evidence was that both [Y] and [X] said that they did not want to go back to their mother and said that they hated their mother. She alleged that they hid at her house so that they would not have to be returned. At the changeover however, while there was difficulty with [X], the father and his partner conceded that [Y] went to his mother without a problem.
In respect of [X], there is another issue besides his age and exposure to post separation conflict which suggests that considerable caution should be exercised about placing weight on his utterances from time to time. The records from the Orange Base Paediatric Clinic corroborated the mother’s evidence that prior to separation [X] was displaying behavioural problems and was a challenging child.
A letter on the Orange Base Paediatric Clinic file dated 30 March 2008 said that [X] was a “young man who has always been a handful but his concerns have been escalating in the last eighteen months. He has little attention, can be very impulsive and cannot sit still. He can be aggressive and angry with brief outbursts but then is angelic and quite appropriate moments later.”[9]
[9] Exhibit B
It is regrettable that the father, who knows about [X]’s pre-separation difficulties,[10] has placed so much weight on [X]’s utterances, and is purporting to believe that [X] would not be saying negative things about his mother unless something traumatic had happened to him in the mother’s care.
[10] See for example the father’s Affidavit filed 1 June 2009 paragraph 28
I must consider the nature of the relationship of the children with:
a)each of the children’s parents; and
b)other persons (including grandparents or other relatives of the children).
The mother said that [X], [Y] and [Z] were close and that [Y] and [Z] missed their brother and asked why [X] was not with them.
The father also said that the boys were close and that they should not be parted. Although it is difficult to reconcile the evidence of the father and the mother on this point it was the father’s evidence that in late 2008 he had [X] in his care for a short period. The father said that “After one day I rang Ms Manfredi so that [X] could speak to [Y] and when my mother and I heard [X] and [Y] crying on the phone I decided that I could not separate the boys and I dropped [X] off to [the maternal great-grandmother].”[11]
[11] Father’s affidavit sworn 2 February 2009 paragraph 32(4).
There was no evidence which suggested that the court should be concerned about the mother’s relationship with [Y] and [Z]. The paternal great-grandmother claimed that [Y] (and [X]) said on 3 May 2009 that they hated their mother.[12] The father’s partner however said that [Y] (and [Z]) went to their mother without a problem later that day.
[12] Affidavit of Ms W filed 23 June 2009
The mother conceded that her relationship with [X] had its difficulties. She conceded that [X] became upset at changeovers and that he had said to her “Why don’t you love me, Daddy says you don’t love me?”
[X], [Y] and [Z] all appear happy to spend time with their father.
Ms K has been in the children’s lives since she commenced living with the father in November 2008. Ms K and the father both said that Ms K had a good relationship with the children. There is insufficient evidence presently available to allow me to assess the nature of that relationship.
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
I have reservations about the ability of both parents in this regard but findings will have to await a final hearing.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child have been living.
This is a significant issue in this case.
If I make the orders sought by the mother, [Y] and [Z] will continue to live with her and [X] will return to her care.
[X] and the mother have a problematic relationship and I cannot make any findings about the effect on [X] of such an order. However[X] had a behavioural problem prior to separation and the solution to the difficulties between the mother and [X] may be the mother being assisted to access appropriate support services and the father and mother working together to support [X], rather than [X] being removed from the mother’s primary care.
If I make the order sought by the father, all three children will live with him. I am confident that they will be well cared for on a practical level. The children have however always lived predominantly with the mother. [Y] is three and [Z] is not yet two. [Y] and [Z] in particular may struggle to cope emotionally with a change of residence.
It would be open to me to order that [X] live with the father and that [Y] and [Z] live with the mother. In my view however it is completely undesirable that such young children so close in age who have lived most of their life together should be separated. I am also concerned about the potential for harm to [X] if the focus shifts from dealing with behavioural problems from which he was suffering prior to separation to a too-ready assumption that the mother’s parenting alone is the cause of [X]’s difficulties.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
The father lives in Orange and the mother in the Newcastle area. They live five or six hours drive apart. This situation was brought about by the parents own actions at the time of separation – the mother moving and the father acquiescing in the move. The distance the parties live apart is simply something I must take into account when considering appropriate orders.
I must consider the capacity of each of the parents to provide for the needs of the children, including their emotional and intellectual needs.
It was the father’s case that the mother lacked the capacity to provide for the children’s needs. He said that she was using illegal drugs, lacked stable accommodation, continued to see Mr M, could not cope with the children, frequently left the children with her mother and grandmother and tried to palm them off on others.
I cannot make any findings about the truth or otherwise of any of these allegations in these interim proceedings.
I accept that the father has appropriate accommodation for the children and could provide for their basic needs for food clothing accommodation supervision and schooling on a daily basis.
I have some unresolved concerns however about the father’s mental health. I also cannot be satisfied about the father’s capacity to meet the children’s emotional needs. The mother claimed that the father was deliberately undermining her relationship with [X]. I cannot make any findings about this at present.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks is relevant.
[X] has behavioural problems which were apparent prior to separation.
The mother emphasised that [Z] had a kidney problem. He is under the care of a paediatrician. There was no evidence however that if [Z] moved to live with the father that the father would be incapable of meeting [Z]’s medical needs.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
Neither parent has demonstrated a good attitude to the duties and responsibilities of parenthood since separation.
As to the mother, in about August 2008 she relocated the children from Orange to the Newcastle area, making it substantially more difficult for the father to spend regular time with the children. After she moved to the Newcastle area she would not agree to the father spending time with the children unless she was present, and she was not especially accommodating about organising even that time.
In February 2009 the mother raised an issue about [Z] and [Y]’s paternity and yet she then did not comply with the order for paternity testing. This creates a concern about whether the mother was bona fide in raising the issue about the children’s paternity.
As to the father, he retained [X] (or possibly [X] and [Y]) in November 2008 for two days without the mother’s agreement and in January 2009, with the assistance of his mother and partner, snatched all three children from the mother after arranging to meet her in a park. He kept the children for about two weeks. They were returned to the mother after the 10 February 2009 consent orders were made.
The parents managed the return of [X] to the mother on 3 May 2009 very badly. As a result of the parents’ actions on that day, [X] has not seen his mother or his two brothers for more than two months and missed Mother’s Day and [Y]’s birthday, and [Y] and [Z] have not seen their father or their brother [X] for two months.
Neither parent has shown any willingness or ability since separation to co-operatively parent the children. It is always regrettable when parents seem more interested in garnering evidence for use against the other parent than in discussing problems and helping to find solutions which benefit the children.
A relevant issue to be considered in respect of the attitude of the parents to the duties and responsibilities of parenthood is the extent to which the father has been paying child support. The mother was critical of the father in this regard and claimed that his lack of payment caused her hardship. I cannot make any findings about this issue on the basis of the very limited evidence available.
I must consider any family violence involving the children or a member of the children’s family.
Each party made allegations that the other had been violent. It was the mother’s case that the father was verbally abusive and occasionally physically violent to her during their relationship. It was the father’s case that the mother broke his nose in October 2008. I cannot make any findings about these allegations on the untested evidence available to me.
The mother was assaulted by Mr M on 26 February 2009. The father alleged that the children were present when this assault occurred and that [X] was also assaulted. The mother denied this. I cannot make any findings about this issue on the current state of the evidence.
There is a family violence order in place between the mother and
Mr M. It is a final order and is in force until 14 April 2010.
Parental Responsibility
Pursuant to section 61DA of the Family Law Act, I am required to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or family violence. The presumption may be rebutted by evidence that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them.
In interim proceedings the presumption applies unless the court considers that it would not be appropriate for it to apply.
Each parent made allegations that the other had been violent. The mother made an allegation that the father had abused [Z]. Nevertheless each parent effectively sought an order for equal shared parental responsibility.
In these interim proceedings I cannot get to the bottom of the numerous disputes between the parents. The parents show a woeful inability to co-operatively parent their children, but each is keenly interested in being a part of their children’s lives. In my view it would be appropriate at this time to make the order sought by the parents that is, an order that they have equal shared parental responsibility for the children.
Conclusion
The parties live a considerable distance apart and it is not reasonably practicable for the children to spend equal time or substantial or significant time with each of the parents. A choice must be made about whether the children should live primarily with the mother or primarily with the father pending a final hearing and a proper determination of all the relevant issues.
During submissions I queried whether the father’s heart was in his application that all three children (rather than just [X]) live with him. On reflection and on a careful consideration of the documents and the submissions, I am satisfied that the father would willingly take all three children. I am also satisfied that the father could provide appropriate accommodation for the children and could provide satisfactorily for them on a day to day basis in terms of feeding them, clothing them and in the case of [X], sending him to school.
I have reservations however about how the two younger children would fare emotionally if they moved to the full time care of the father.
I cannot be completely satisfied about the father’s suitability as the primary carer of the children in the longer term in the light of matters such as the mother’s very detailed allegations about the father’s violence during the relationship, the evidence about the discharge of the high powered firearm in 2007 and the medical records suggesting that the father sought treatment in 2007 as a result of “anger and bad moods” and that he again sought treatment for depression in October 2008 and that “anger” is again mentioned in the doctors notes.
A full investigation may reveal that there is no reason to be uneasy about the father’s mental state or parenting capacity and that the mother’s allegations about his violence are untrue, but I cannot resolve those issues in these interim proceedings.
A further issue is that if all three children live with the father they will be living in a blended family with Ms K and her two children. Given the father’s shift roster Ms K would have a significant role in the children’s care. There is no objective evidence available to me to allow me to assess how the three boys would adjust to this change.
The father raised numerous concerns about the mother. However in assessing as best I can the potential risk to the children of living with the mother, I bear in mind that the father has known the mother for eight years. He did not bring any court application when the mother first relocated with the children from Orange to the Newcastle area. He outlined serious concerns about the mother in his affidavit sworn on
2 February 2009but on 10 February 2009, when legally represented, he consented to the children returning to her primary care.
On 30 March 2009 he and the mother signed a document which said in part as follows:
“21 April 2009, [X], [Y] and [Z] will be returned to Ms Manfredi from a place to be arranged and time to be arranged.
We will then return to the Court Terms of Settlement from the next access visit, with Ms Manfredi to take [X], [Y] and [Z] to [P] on 28 April 2009.”
The time for the children’s return was subsequently changed to 3 May 2009.
The father was aware prior to signing that document that the mother had been assaulted by Mr M, because the mother frankly told him about it.[13] The incidents the father relied on to raise concerns that the mother may be using illegal drugs all allegedly occurred well prior to this document being signed.
[13] Father’s affidavit filed 1 June 2009 paragraph 5
The only reason [X] was not returned to the mother on 3 May 2009 was because of the significance the father (or perhaps the father and the mother) placed on the words and behaviour of a child of less than five years of age, a child with a history of challenging behaviours and a child who might well have been quite naturally upset at a changeover between his parents after having lived for some weeks with his father.
The evidence suggests that [Y] and [Z] are comfortable with their mother. They are very young children and she has been their primary carer. There appear to be difficulties between the mother and [X], but [X] had behavioural difficulties prior to separation. Removing [X] from the mother may entrench difficulties in the relationship between [X] and the mother. The better solution would be for the father to be supportive of the mother and work with her to find solutions for [X]’s problems.
I am mindful of the fact that I cannot resolve the issue of whether the mother continues to use drugs. However in the absence of any compelling evidence that the children are likely to come to harm with their mother in the immediate few months, it is my view that these children’s best interests would be served by an order that they live with the mother and spend time with the father. The children should not be separated.
I am concerned about the potential for difficulties with the return of [X] to the mother. In my view the most appropriate arrangement would be for the father to deliver [X] to the maternal grandmother’s home in [W]. The parents must be prepared to allow the changeover to occur and to accept that [X] may be distressed. The father must be prepared to walk away and leave the mother to deal with [X]’s distress.
The children need to spend time with their father once [X] returns to the mother. The father said that he wanted more time than was provided for in the orders of 3 April 2009. However if I simply arbitrarily make an order that the children spend alternate weekends with the father, or even one week a month, it might happen that the father is not available to do the driving on the nominated days because he is either working or sleeping after a night shift.
Another difficulty is that [X] has been attending school while with the father. He was not attending school while with the mother, but it may be to [X]’s benefit if he continues to attend school once he is back with his mother. This makes an alternate weekend arrangement preferable. Any other arrangement will see [X] missing school.
It seems to me that the best I can do at present is to make orders for the children’s time with the father in terms of the 10 February 2009 orders, conscious of the fact that if [X] is enrolled in school after he returns to the mother he may miss a small amount of school. In due course the parties may be able to come up with something better.
The parties had been changing the children over at [P] at the commencement of the father’s time and at [W] at the conclusion of that time. The mother sought that the changeover always occur at [W], which would effectively require the father to do all the driving.
I have some sympathy with the mother, who is not earning anything like the father’s income and perhaps has a less reliable car. However there are potential problems with requiring the father to do all the driving, including the possibility that he may do one very long drive and be tired on the drive home with the children. I intend to order that the changeover continue to happen as provided in the 10 February 2009 orders.
I intend to make an order restraining the mother from allowing the children to come into contact with Mr H. The mother said that she did not see Mr M and there is an apprehended violence order in place, but I also intend to order that the mother not bring the children into contact with Mr M.
I intend to order a Family Report but I also intend to request the appointment of an Independent Children’s Lawyer. Feelings between the parties are running high and extended family on both sides have become involved in the dispute. Neither parent seems capable at present of properly focussing on the children’s needs. An Independent Children’s Lawyer could speak to the school [X] had been attending and perhaps his paediatrician, consider whether [X] needs to be further assessed and consider whether there were support services which the mother could and should access. The Independent Children’s Lawyer could also take charge of the random urinalysis which I intend to order that the mother undergo.
For all of the above reasons the orders will be as set out at the beginning of this judgment.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 15 July 2009
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