Warren and Warren
[2013] FCCA 419
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARREN & WARREN | [2013] FCCA 419 |
| Catchwords: FAMILY LAW – Interim arrangements for parenting of three children aged 12 and twins aged 7 – nature of interim hearing – parties separated for period approaching 2½ years – children have lived in equal time regime moving between the parents’ respective homes on a week about basis – prior to September 2012 neither party has sought the court’s intervention to formalise arrangement – parents live in small community in rural South Australia – mother has recently amended her application in order to relocate children to larger provincial town approximately 180 kilometres away from children’s present place of residence – father opposes relocation – concurrently with application to relocate mother alleges father’s parenting of children is poor, neglectful and un-insightful – mother seeks to end equal time regime on this basis – assessment of risk – mother asserts children are left unsupervised and are at risk of harm from farm machinery and agricultural chemicals – best interests – presumption of equal shared parental responsibility – reasonable practicality. |
| Legislation: Family Law Act 1975, ss.4AB; 60CC; 61DA; 65DAA |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Goode & Goode (2006) FLC 93-286 MRR v GR [2010] HCA4 JG & BG (1994) 18 Fam LR 255 C & S [1998] FamCA 66 |
| Applicant: | MS WARREN |
| Respondent: | MR WARREN |
| File Number: | ADC 997 of 2012 |
| Judgment of: | Judge Brown |
| Hearing date: | 27 May 2013 |
| Date of Last Submission: | 27 May 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 31 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Andersons Solicitors |
| Counsel for the Respondent: | Ms Grey |
| Solicitors for the Respondent: | Mahony's Lawyers |
ORDERS UNTIL FURTHER OR OTHER ORDER
The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2000 and [Y] and [Z] both born [in] 2005.
During school term times the children live on a week about basis with each of their parents, moving between their respective homes, on each Monday.
During the mid-year school holiday and the third term school holiday in 2013 the children live with each parent for half of each school holiday period the halves to be agreed between the parties and failing agreement with the father for the first such half and the mother for the second.
The children spend time with each of their parents as follows:
(a)on the twin’s birthday ([date omitted]) with the father from midday until 6:00pm and from 1:00pm to 5:00pm with the mother, unless the parties agree otherwise; and
(b)on Father’s Day, if not already in the father’s care, from 9:00am until 1:00pm and 1:00pm to 5:00pm with the mother.
Wherever possible the children be exchanged between the parties at their school and if school is not in session, at the [M] store.
The father is restrained and an injunction issue restraining him from:
(a)bringing the children into contact with tractors or heavy farm machinery without adult supervision;
(b)denigrating or abusing the mother in the presence or hearing of the children or permitting any other person so to do;
(c)discussing these proceedings with the children or in their presence or in their hearing; and
(d)allowing the children to travel in any motor vehicle without them being mechanically restrained in such vehicle by means of an approved seatbelt.
Each party be at liberty to attend at the child’s school for all events that are routinely attended by parents significant to the care, welfare and development of pupils at the school, including parent/teacher interviews, sports days and concerts.
The mother and father shall inform the other parent as soon as reasonably practical of any significant health issue or significant illness or accident suffered by the child. This order authorises any treating medical practitioner to release information concerning the child’s medical condition to the other parent.
The mother and father shall keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors who treat the child and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the child.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child/children of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 October 2013.
The Family Report to deal with the following matters:
(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Child Dispute Co-ordinator.
The matter is fixed for final hearing before Judge Brown on 3, 4 and 5 December 2013 at 10:00am in Mt Gambier NOTING 3 days allowed.
On or before 5 November 2013 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.
The applicant file and serve all affidavit evidence she proposes to rely on and an updated statement of her financial circumstances at trial on or before close of Registry filing on 5 November 2013.
The respondent file and serve all affidavit evidence he proposes to rely on and an updated statement of his financial circumstances at trial on or before close of Registry filing on 19 November 2013.
Mr N of [omitted] value the two properties concerned comprised and described in Certificate of Title Volume [1] and Volume [2] and their respective plant and equipment, at the parties’ joint expense, within 60 days of the date of these orders.
The amended application filed 24 May 2013 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Warren & Warren) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 997 of 2012
| MS WARREN |
Applicant
And
| MR WARREN |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Warren “the mother” and Mr Warren “the father”. They are the parents of [X] born [in] 2000 and twins [Y] and [Z] born [in] 2005. The proceedings relate to care arrangements for the children, pending final hearing, which has been scheduled to take place in Mt Gambier in early December 2013.
The proceedings have been hotly contested. The mother asserts that the children are at significant risk of coming to harm, whilst they are in the father’s care, because he is a lackadaisical and un-insightful parent.
Further, she asserts that any shared parenting regime for the children is impracticable because of the parties’ inability to communicate effectively with one another and additionally calculated to be against the children’s best interests, because of Mr Warren’s compromised parental capacity.
The father does not agree. He assets that the mother wishes to bring an informal but longstanding shared parenting regime to an end to serve her own personal interests, particularly her desire to live with the children and her partner Mr W in [G], which is approximately 180kms from where both parties currently live at [M], near [omitted] in the [omitted] region of South Australia.
Background
By way of background, the parties were married, in [omitted], on [omitted] 1999. They were divorced, by order of this court, on 1 May 2012, on the mother’s application. She gave the date of the parties’ final separation as 15 January 2011.
In her application for divorce, the mother specified that the children lived on a week about shared care arrangement, with each party responsible for financially supporting the children. The children’s health is noted to be good and each is indicated as attending the [M] School.
The mother commenced these proceedings on 12 September 2012. She seeks orders in respect of both arrangements for the parties’ three children and the division of their matrimonial property. The major component of the parties’ marital estate consists of two farming properties, near [M] and the plant and equipment associated with running them.
The father has four other children from a previous marriage. They are [A] aged 24; [B] aged 23; [C] aged 21; and [D] aged 14. As far as I know, all these four children continue to live in the [M] area and regularly interact with [X], [Y] and [Z].
The mother’s position is that, during the parties’ marriage, the father was engaged in full-time farming activities, whilst she was primarily responsible for the care of the parties’ blended family of seven.
The mother concedes that there has been a shared care arrangement for [X], [Y] and [Z] since the parties separated. However, it is her position that she only agreed to this arrangement against her better judgment and as a result of the father’s coercion. In her initial affidavit, she deposes as follows:
“Following separation the husband insisted that we enter into a week about shared car arrangement with the children. Whilst I did not feel that this was the best option for the children as it did not represent the level of care provided during the relationship, I acquiesced to the husband’s demands.”[1]
[1] See mother’s affidavit filed 12 September 2012 at paragraph 15
On the parties’ separation, the mother moved into rented accommodation, in [M], approximately 10 kilometres away from where the father lives in the former family home, which is reasonably adjacent to the farm which he continues to operate. Ms Warren lives with her current partner, Mr W.
There is apparently a difficult and conflicted relationship between the father and Mr W. Part of the difficulty arising from the fact that Mr W was charged with indecent assault, of the daughter of a neighbour of his. Mr Warren has indicated that he has concerns about the safety of his children, so far as Mr W is concerned. Mr W has vigorously contested this charge, which was ultimately dismissed, in February of 2012, apparently following a fully contested hearing.[2]
[2] Ibid at paragraph 19
Against this background, the police, on the mother’s behalf, applied for an intervention order against the father. It was alleged that Mr Warren behaved aggressively towards Mr W. The father and [C] were cautioned by police about what they had said about him. An intervention order was made, against Mr Warren, on 8 May 2012.
In her initiating application, the mother alleged that the father was a poor and neglectful housekeeper; failed to properly attend to the children’s hygiene needs, particularly in terms of washing the children’s sheets regularly; and did not provide any routine for the children’s bedtimes and meals. [X] has apparently provided the mother with photographs of the living conditions, at Mr Warren’s home, which reveal some significant level of untidiness.
The mother also asserts that the father leaves the children to fend for themselves, after school, whilst he is at work on the farm, which is some distance away from the former family home. Finally, the mother asserts that the children are not properly fed, whilst in the father’s care and [X] is inappropriately providing a significant level of parenting for her younger brother and sister, which is inappropriate given her own tender years.
Ms Warren has qualifications as a [omitted]. At present, she is employed, in an administrative capacity by [omitted]. She receives a weekly income of $1,592.24 per week. Mr Warren is a primary producer. He has indicated that his income is approximately $750.00 per week. [A] and [B] are involved in a [omitted] business. The father has some involvement in driving for this business.
The father’s evidence is that he was significantly involved with caring for the children, during the parties’ marriage, particularly whilst the mother was engaged in the paid workforce. He denies that he coerced the mother into an unwilling agreement in respect of the care arrangements for the children, post separation. He refutes any suggestion that the children are frightened of him or have indicated that they are uncomfortable with the shared care arrangement.
The father denies that he has neglected the children’s hygiene or failed to change their bed sheets regularly. He denies that his home is generally messy or that there is no routine, regarding meals and bedtime, in his household. He asserts that the photographs provided by the mother are selective and self serving.
In March of 2012, the mother asserts that she took [X] to see a psychologist, Ms R, in [G]. During this consultation, the mother asserts that [X] told Ms R that she was embarrassed about her father’s household, because it smelt. As a consequence, she wanted to live with her mother because she was distressed at the prospect of her friends visiting her at her father’s house.
The father is critical that this intervention was arranged without prior reference to him. He is sceptical about what [X] is alleged to have said to Ms R. He also refutes criticisms raised against him that he has exposed the children to excessive or dangerous sunburn, whilst in his care. It is his position that the children sustained minor sunburn, whilst on a boating trip with him, which was exacerbated by friction with their life jackets. It is his case that he provided the children with sunscreen, as was appropriate.
I provide this summary, not because I am able to resolve the very many factual disputes between the parties, at this interim stage, but rather to indicate the polarised nature of the parties’ respective positions and the currently conflicted nature of their parental relationship. As matters presently stand, the children must move regularly between two households, which are highly suspicious of one another.
On 23 October 2012, Federal Magistrate Simpson (as he then was) referred the parties to a child dispute conference, scheduled for 19 November 2012. To the family consultant concerned, Ms K, the parties expressed their respective concerns about the current care arrangements for the children. The mother’s position, at the conference, can be summarised as follows:
·Mr Warren inadequately supervised the children, often leaving them at home alone;
·Mr Warren provided inadequate food for the children;
·Mr Warren’s house was unhygienic;
·Mr Warren neglected the children’s education;
·[X] was adamant that she did not want to live with her father, only wanting to see him on alternate weekends;
On the other hand, the father’s concerns can be summarised as follows:
·Ms Warren did not support his close and loving relationship with the children;
·Notwithstanding the acquittal of Mr W, he remained concerned about his two daughters living in the same household as him;
·Ms Warren had encouraged [X] to take photographs of his household, which did not depict the reality of his house, but had the consequence of embroiling the child in the parental dispute between the parties.
The parties were not able to reach any agreement about future arrangements for the care of the three children. Against this background, which I have categorised as difficult and polarised, Ms K recommended that a family assessment be prepared. The parties agree that such a report should be prepared in conjunction with the final hearing scheduled for December of this year. They disagree as to how it should be provided.
The mother’s preference is that it be a private report, funded by the parties themselves. In this regard, she proposes that Mr B prepare a family assessment report, at a cost of $2,400.00, which the parties should share equally.
The father’s preference is that the report should be prepared by a family consultant associated with the court pursuant to section 62G of the Act. It is his position that his financial circumstances are currently straitened and it will be difficult for him to provide his half of the anticipated cost of a report prepared by Mr B.
There are other procedural disputes between the parties. A recent financial mediation conference failed to resolve the property issues in dispute between the parties. The mother’s position is that one of the reasons for the unsuccessful nature of the conference was that the father has failed to apply himself properly to the court processes by resisting having the farming properties in question and the related plant independently valued.
On 7 February 2013, it was ordered that, in the absence of agreement, the parties were to jointly instruct a valuer, at their mutual expense, to value all items of property, both real and personal, 21 days prior to the date scheduled for the conciliation conference, which was 22 May 2013.
It is common ground between the parties that this order was not adhered to. It is the mother’s position that this omission is solely attributable to the father’s conduct.
It is also significant that on 7 May 2013, when the matter came on before the court in Mt Gambier, for directions, the parties agreed not to agitate the current shared parenting regime, although an interim order was made restraining each of them from abusing or denigrating the other in the presence of the children or from discussing the progress and contents of the case currently before the court with them.
The current application
The mother commenced the current round of proceedings, by way of an application in a case, which she filed on 26 March 2013. She seeks orders that she should have sole parental responsibility for the children, who should live with her and spend time with their father on alternate weekends, and for half of each school holiday period.
Ms Warren also seeks a number of specific injunctions, in conjunction with these orders, which are directed towards addressing issues of concern to her, relating to the safety of the children, whilst they are in the father’s care. These orders can be summarised as follows:
·An injunction restraining the children being unsupervised whilst in the father’s care;
·An injunction preventing the children riding on either a tractor or heavy farm machinery, whilst in their father’s care;
·An injunction preventing the father conveying the children unrestrained in any motor vehicle, whilst in his care;
·An order directing that the father remove all used drums of chemicals from his house and farming property.
Of some moment, so far as the ongoing conduct of the matter is concerned, concurrently with these various applications, the mother has also made application to relocate the children’s place of residence from [M] to [G], at the start of the 2014 school year. She seeks orders that would permit her to enrol the children, at a private school, in [G], from the commencement of the 2014 school year.
This application came before the court on 15 April 2013. The hearing having been expedited at the request of the mother’s solicitors.
Mr Warren had not as yet responded formally to it. The application had apparently been served on his solicitors, in Mt Gambier.
On 15 April, I was informed by Ms Grey, the father’s solicitor that she was concerned that Mr Warren was not responding to her telephone calls and written correspondence. She went so far as to suggest that she was worried that something untoward may have happened at the father’s household or out on the farm. On this basis, the proceedings were adjourned to the following Friday.
On 19 April 2013, from recollection, Ms Grey told me that she had still not heard from Mr Warren. In those circumstances, it was her position that she had no alternative but to withdraw from the proceedings. At this stage, the solicitors acting for the mother were not able to provide to me any definitive proof that the mother’s application had been brought to the attention of the father, although Ms Grey had told me that she had posted the applicable material to Mr Warren in [M].
In those circumstances, I was loathe to deal with the mother’s application on an undefended or ex parte basis. Accordingly, I determined to adjourn the proceedings but put the father on notice that if he did not formally respond to the mother’s application, it was likely to be dealt with, in his absence, on the next occasion.
On this occasion, I was also told that both parties had gone away on holiday. In those circumstances, it appeared to me that the mother’s welfare concerns about the children were not particularly pressing. As matters transpired, the circumstances surrounding the holiday period are also controversial so far as the parties are concerned.
The matter returned to court on 20 May 2013. The father had still not filed any responding material. He sought a further adjournment of the proceedings, which was opposed by the mother. I formed the view that the father had not fully cooperated with the court’s processes but felt it was necessary to adjourn the proceedings, both to do justice to the parties themselves and ensure the best interests of the children were served. However, I ordered that the father pay the mother’s costs thrown away, which were fixed in the sum of $1,500.00.
The case was then adjourned until 27 May 2013. The father filed a response and affidavit in support on 21 May 2013. It is his position, on an interim basis, that the parties should have equal shared parental responsibility for the children concerned and they should continue to live, week about, with each of their parents. He seeks an injunction restraining the mother from moving the children’s residence, when they are living with her, from within a radius of 50km of [omitted].
In support of her application, the mother relies on the following documents:
i)Two affidavits of herself filed on 26 March and 1 May 2013 respectively;
ii)An affidavit of her mother, Mrs H filed 8 April 2013;
iii)An affidavit of her father, Mr H filed 6 April 2013.
The father relies on the following document:
i) An affidavit of himself filed on 21 May 2013.
The nature of interim proceedings
Interim hearings have to take place in a shortened form. There is no time available for the cross-examination of the parties concerned. The proper forum for the resolution of disputes of fact is the final hearing.
In addition, at the interim stage, decisions invariably have to be made against a background of urgency and controversy. So it is in this case. As a consequence, the evidence available to the court is often limited and hastily prepared. Again, so it is in this case.
In cases involving arrangements for children, the most significant piece of evidence, which is not usually to hand at the interim stage, is a detailed and independent assessment of the needs of the children concerned and the nature of their relationship with each of their parents. At the final hearing stage, such family reports play a crucial role in the determination of cases.
Although these proceedings have been on foot since September of 2012, there has not as yet been time for a family report to be prepared. This has been because the parties initially were ostensibly content to allow a comparatively longstanding status quo, arising in respect of the care of the children, to remain extant. In addition, at least initially, the main focus was on financial matters. Given the complexity arising in this case, I will order that a family report be prepared, in anticipation of a final hearing.
However, notwithstanding the limited and provisional nature of the evidence available to the court, at this interim stage, a decision must be made between the competing claims of the parties concerned. In an ordered society, governed by the rule of law, there must be a mechanism for resolving disputes between citizens, including between those citizens who are parents and fall into disputation about arrangements for their children.
If there was not such a system, chaos would prevail and the strong would take advantage of the weak. In seeking an adjudication from the court, the parties concerned are bound by its decision.
However, in resolving any such parenting dispute, the court is not primarily concerned with the rights of the actual disputants. It must regard the interests of the persons most fundamentally affected by its decision – the children concerned – as the paramount or most important consideration.
Necessarily, the final hearing is a longer one than the interim hearing, enabling the court to make any necessary findings of fact – essentially deciding what evidence it accepts on the balance of probabilities, following its assessment of the truthfulness or reliability of the relevant witnesses.
Given the limited nature of the evidence available at the interim stage and the absence of cross examination, it is very often impossible for the court to resolve disputed issues of fact. Again, notwithstanding this obvious practical difficulty, the court must still remain focussed on the best interests of the children affected by its decision and look to matters which are incontrovertible and assess the nature of the evidence available in respect of issues which are in dispute.
In this case, there are many issues in dispute between the parties. I will attempt to set out the matters in dispute now. In the legal context, the most significant dispute between the parties concerns the allocation of parental responsibility for [X], [Y] and [Z]. The mother contends that she should have sole parental responsibility for the children, at this interim stage, whereas the father seeks the conferral of equal shared parental responsibility on the parents concerned.
The mother’s case
The mother complains that the father has allowed the children unsupervised use of a tractor, on the farm. This arises because of what [Z] has told her. [Z] reports that she “went on the tractor with [D] and then [Y] … we played [the] up and down game.”
As previously indicated, [D] is the father’s fifteen year old son from his earlier marriage. [Z] apparently advised the mother that the father was driving a freight truck to [G] at the time. In these circumstances, the mother complains that the children have been left unsupervised, by an appropriate adult, in a potentially dangerous situation.
The mother further alleges that the father’s farm is unsafe for children because of the presence of herbicide and pesticide chemicals on the farm and empty containers previously used to store such chemicals.
The mother alleges that she learnt that the father had been charged by Safework SA for inappropriate storage of chemicals on the farm, when she received a text message from the father accusing her of dobbing him in to the relevant authorities in respect of chemicals on the farm.
It is the mother’s position that the chemical drums are easily accessible and she fears that one of the children may be accidentally poisoned through exposure to one of the drums. It is her understanding that the children frequently visit the farm.
It is the mother’s case that the father works with [A] and [B], his adult sons, in a freight delivery business. She alleges that [X] has told her how much fun she has had, in the company of the father, whilst he has been delivering parcels in the freight vehicle. From what [X] has told her, the mother believes that she has been travelling in the van section of the vehicle, where the freight is stored. Necessarily, she has not been wearing a seatbelt.
In these circumstances, the mother is critical of the father on the basis that he has exposed the children to a significant risk of serious injury or even death, in the event that the vehicle in question is involved in an accident.
The mother also asserts that the children have been left at home unsupervised on numerous occasions. Mr and Mrs H, the children’s grandparents depose as to two occasions, when they have attended at the father’s home and discovered the children to be unsupervised.
The first such occasion was in December 2012, when Mr and Mrs H were contacted, by telephone, by [X] at about 10.30am. [X] apparently wanted help to collect her bathers from her mother’s house. She said her father had gone to work at the farm at about 10am that morning.
The second incident occurred on 21 March 2013, at about 8:30pm, when [X] again contacted Mr and Mrs H, via the telephone. She advised them that the children were at home alone, as their father was doing the freight run. In these circumstances Mr and Mrs H arranged to collect the children and take them to their home in [omitted].
Mr Warren arrived at the property at around 9:15pm. There was thereafter an unpleasant incident, involving Mr Warren, the mother and the maternal grandparents. The police were called and Mr Warren was issued with a trespass notice.
The mother complains that she received a telephone call from [Z], at approximately 7:41pm, on 4 February 2013. [Z] reported that she had a toothache and wanted some panadol. In these circumstances, the mother asked to speak to [X], who advised that she and [Z] were home alone, as Mr Warren was on the farm with [Y]. In the same conversation, [X] also complained that she had made two minute noodles for her and [Z]’s dinner.
It is the mother’s position that the children are frequently left at home unsupervised. It is also the mother’s case that [X] is reluctant to telephone her, when the father is at home, because she ([X]) fears that her father will be angry with her, if she contacts her mother.
The mother also complains that the father denigrates her to the children. He has referred to her as a “fucking dragon” and said, in response to [X]’s query about swimming lessons “I don’t give a fuck about swimming lessons.”
The mother also complains that the father has discussed the criminal charge, against Mr W, with [X]. She asserts that the father has told [X] that Mr W has “sex charges against him [involving] a 12 year old girl called [L].” Neither the mother nor Mr W know a person known as [L] and from the mother’s perspective, it is unhealthy for [X] to be exposed to discussion about this sort of adult issue.
The mother also asserts that Mr Warren has damaged [Z]’s bicycle helmet by kicking it. However, Ms Warren does not put this complaint into any particular context.
The incident of 21 March 2013, which culminated in the police involvement at the maternal grandparents’ home, was the final straw so far as the mother was concerned. She instituted her current application a few days later. It is her position that [X], in particular, was distressed by the incident. As is clear, it took the father approximately two months to respond formally to the application.
Following the institution of the application, there have been further incidents of conflict between the parties. Given Mr and Ms Warren live in a small rural community and the children move frequently between them, it seems inevitable that they must frequently run into one another in and around [M].
On 11 April 2013, the mother deposes that she was walking with the three children, near the [M] Store, when the father drove past. [X] indicated that she wanted to speak with her father. A request to which the mother apparently demurred. On her return, [X] indicated that her father wanted to take her to Adelaide for the weekend and she wanted to go.
The mother was suspicious. Later, the mother learnt from [X] that the proposed destination was Queensland, which shocked and perplexed the mother, given that the trip involved travelling such a significant distance; did not involve the younger children; and had apparently not been long considered.
Ms Warren was also concerned that the trip was planned to coincide with a week when the children would ordinarily have been in her care. With extreme reluctance and to avoid disappointing [X], the mother agreed to the trip in question, which resulted in [X] missing a day of school and her [sport omitted] qualifying match.
The mother had requested that [X] ring her when she arrived in Queensland. When [X] did contact her mother, she was perplexed to learn that [X] was in fact in Perth, rather than Queensland. She is extremely critical of the father for deceiving her in respect of the issue. This matter is the subject of the mother’s more recent affidavit filed on 1 May 2013.
As previously indicated, the mother’s application was originally listed on 15 April 2013 and then adjourned, whilst uncertainty existed about the situation of the father, until 19 April. On this occasion, I was surprised to be informed that the father was in fact on holiday, as was the mother, who had apparently previously arranged her own trip interstate with her partner, Mr W. The absence of both parties from the state was a major catalyst in the proceedings being adjourned until 20 May 2013.
The father’s case
Mr Warren has been a farmer for much of his life. It is his position that [X], [Z] and [Y] were brought up on the farm and, as such, have been exposed to the plant and equipment necessary for farming and have an innate knowledge of its dangers.
In this context, he points to the fact that none of the children has ever been injured by farm machinery and [X], in particular, has been trained in using farm machinery safely, as has [D].
The father has deposed that he would not allow any of the children, germane to these proceedings, to operate a tractor without being under the supervision of either [D] or his other sons, [A] and [B] or indeed himself. He deposes as follows:
“Given that the children have all grown up in a farming environment I had no difficulty with them driving the tractor. Again, there has been no occasion on which any of the children have been injured on farm machinery whilst in my care.
I agree with the applicant in saying that tractors are dangerous. This is why I have taught the children properly about how to operate tractors and other machinery.[3]
[3] See father’s affidavit filed 21 May 2013 at paragraph 12-13
The husband denies that he has any herbicide or pesticides stored on his farm property. He asserts that it is his son, [A], who was contacted by Safework SA, in respect of chemicals stored on a farm leased by him.
Again, the father makes much of his extensive experience of farming and asserts that he is well aware of the inherent dangers in farming chemicals and is well aware of the legal requirements regarding their storage.
For her part, the mother makes much of her assertion regarding the provenance of the text message, allegedly received by her from the father, the existence of which the father does not specifically deny. It is her case that, in this context, the father’s denial of improper storage of chemicals is suspect. From my perspective, on the basis of the evidence available to me, I am not able to resolve this issue definitively, at this interim stage.
The father acknowledges that two of the children have travelled in the rear of the freight van, whilst he had been dropping off two parcels in [M], on a Saturday morning. He characterises the incident as being a “one off” event, which will not be repeated. In this context, the father deposes as follows:
“…I agree that I do a little work for two of my other children, [A] and [B]. However, I deny that I work for [A] and [B] on Tuesdays, Thursdays and Saturdays. I work only on Thursdays, and only during the footy season. I agree that two of the children have travelled in the rear of the van to drop off two parcels in [M] on a Saturday morning.
This happened on only one occasion as it was a one off favour for my sons, and I accept that in the event of an accident the children may have been at risk. One this occasion though, I had no other option. I would not do this again. I deny any assertion …that such a thing is a regular occurrence. I would not purposely put the children at risk. In addition, [M] is a very small town with very little traffic.”[4]
[4] Ibid at paragraph 21
Counsel for the mother places much emphasis on this admission of fault by Mr Warren. It is her submission that the fact the father would knowingly put the infant children at risk, on even one occasion, is evidence of a significant lack of parental insight on his part. She does not agree that this element of risk could be remedied by an appropriately directed court injunction.
The father specifically denies that he has ever denigrated the mother to [X] or any of the other children. He further denies that he damaged [Z]’s bicycle helmet.
The father denies that he spoke to [X] concerning Mr W’s involvement with “[L]”. He does however acknowledge that he spoke to [X] about Mr W, in the context of the latter being charged with “sex offences to do with a young girl”.
The father’s evidence is that the conversation came about because [X] asked him why he did not like Mr W. Mr Warren deposes that he would not have had said anything about the matter, if [X] had not raised Mr W with him.
From the mother’s perspective, this disclosure by the father demonstrates a significant lack of insight into the responsibilities of being a parent, particularly the need to shield a child of [X]’s age from adult issues of a sensitive nature.
The father denies that he is “often not at home” when the children are in his care. However, by necessary implication, he concedes that at times the children are left unsupervised from time to time. In this context, he asserts that the farm is metres away from his home and he is therefore generally available for the children.[5]
[5] Ibid at paragraph 35
The father has deposed that he has no recollection of any incident involving [X] and her bathers, as referred to in the affidavit of Mr and Mrs H. At any event, it is his position that he would not have been concerned at the prospect of leaving [X] alone at home, whilst he did some work on the farm, given she is aged around twelve years.
However, it is Mr Warren’s evidence that he does not leave the children home alone, on a regular basis. He acknowledges that on one occasion, he did leave [X] unattended, whilst he went to his son [A]’s home, with [Y] and [Z]. [A]’s home is apparently some 500 metres away from where the father lives. He refutes any suggestion that [X] would have been frightened.[6]
[6] This incident is described in paragraphs 47-49 of the mother’s March affidavit. The reference is to [X], however she is described as aged seven. The father, in response, also refers to [X]. It seems that the mother has mistakenly referred to [X], in her affidavit, when she means [Z]. I do not think much turns on the particular incident.
Mr Warren asserts that he has no knowledge of the children disclosing to their mother that they are scared of being at his house. To the contrary, it is his experience that the children tell him that they like being with him.
It is also an integral component of the father’s case that [X], [Y] and [Z] are able to interact regularly with their older half siblings, who live nearby, whilst they are in the care of their father. In this context, Mr Warren categorises [A] and [B] as responsible adults, who assist him with supervising the children, particularly in respect of taking them to extramural activities.
The father’s position is that the mother has opportunistically raised her criticisms against him in an attempt to buttress her application to relocate the children’s principle place of residence away from the [M] area to [G]. He is an advocate of the benefits of the children attending comparatively small schools, in the rural location in which they have grown up. In this context, he deposes as follows:
“The applicant and I have had a week about arrangement for almost 2½ years since separation in or about January 2011. It is not in the children’s best interests to change this arrangement. The children have good relationships with the applicant and me, and these arrangements (along with the current time arrangement) should be maintained and fostered.”[7]
[7] Ibid at paragraph 47
In respect of the episode of 21 March 2013 which, from the mother’s perspective, was the catalyst of these proceedings, the father denies that there was anything untoward in the situation.
It is his case that, during the evening of 21 March 2013, [Y] and [Z] were at [sports omitted] training respectively, under the supervision of their brothers, [A] and [B]. They were to have dinner, at the clubrooms, once training had concluded.
He concedes that during this evening he was away driving the freight vehicle and was expecting to be home around 9:00pm. At just after 8:00pm, [X] telephoned him and asked how long it would be, until he would be home. By necessary implication, [X] was not subject to direct adult supervision at the time.
In this context, Mr Warren states: “…I do not know why [X] would have telephoned the applicant maternal grandparents several times in less than one hour, and not telephone myself or one of my sons, [A] or [B].”[8]
[8] Ibid at paragraph 59
Counsel for the mother seizes on this statement and asserts that it is symptomatic of the father’s lack of parental insight and demonstrates that he is insensitive to the emotional needs of [X], in particular. It being her submission that it is axiomatic that [X] did not telephone her father because she had no confidence in him.
Mr Warren concedes that there was an unpleasant incident between him and particularly Mr H and Mr W, later on in the evening of 21 March 2013. However, it is his position that it was those associated with the mother who escalated the confrontational nature of the interaction arising rather than him. He asserts that Mr H made a provocative comment to him and Mr W was swearing.
Again, in the context of these interim proceedings, I am not in a position to ascertain what happened between the parties, or what its emotional consequences were for [X]. It was however clearly an unfortunate incident, which could have been handled better.
So far as the reference of the matter to Families SA is concerned,
Mr Warren states that he has not been contacted by the relevant authorities in respect of the matter.
The father acknowledges that he contacted [X] on 11 April 2013 regarding her having a holiday with him. However, he denies inviting her to Adelaide. Rather he asserts that he left the destination a secret, so it would be more of a surprise for [X]. He indicated that he left it up to her to decide if she wished to miss the [sport omitted] try-outs on the following Monday.
From the mother’s perspective, it is an extraordinary lapse of parenting that Mr Warren would consider, let alone implement, the child travelling interstate with him to a destination not disclosed to her. In this context, Mr Warren deposes as follows:
“I agree now that it would have been better to inform the applicant of my plans before asking [X]. I say that I was only thinking of [X] at the time and giving her a big surprise.”[9]
From the mother’s perspective, the naivety of this statement is “breathtaking”.
[9] Ibid at paragraph 89
The father’s perspective on the issue is that he does not inquire of the mother nor demand to know what she does, with the children, during their time with her. It is his view that it is a matter of trust so far as what happens so far as the children’s time with the other parent is concerned. Essentially, Mr Warren advocates the prolongation of a regime of parallel parenting for [X], [Y] and [Z], which he asserts has been in place for a period approaching two and a half years.
The legal principles applicable
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remains the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, family violence.”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[10] In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[11] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[12]
[10] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
[11] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[12] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Because of the emphasis the applicable legislation places on children maintaining a meaningful level of relationship with both their parents and the desirability of parents sharing responsibilities and duties arising from the parenting of their children, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child concerned [section 61DA].
This presumption relates to the allocation of parental responsibility, not to the allocation or duration of time, which a child spends with each of his or her parents. Such matters are dealt with by section 65DAA.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should “spend” equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
In the case of Goode & Goode,[13] the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[13] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
As indicated in the summary of Goode & Goode issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[14]
[14] See MRR v GR [2010] HCA4 at paragraphs 13 and 15
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The key amendments are designed to “prioritise the safety of children in parenting matters”.[15]
[15] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
Interestingly, the legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·An assault;
·Stalking;
·Repeated derogatory taunts;
·Preventing a family member from making or keeping connections with his or her family, friends or culture.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, the legislation provides a list of non-exhaustive examples of situations in which a child may have been exposed to family violence.
This is not a case, which appears to turn on issues concerning family violence. However, it is the mother’s position, resolutely refuted by the husband, that [X] has been subjected to derogatory taunts directed at her mother. In addition, it is asserted that [X] was exposed to some species of family violence, during the unfortunate events of 21 March 2013.
More specifically, the main thrust of the mother’s case is that [X], [Z] and [Y] have been exposed to neglect, whilst in their father’s care. Neglect is not a concept formally defined in the Act. Its meaning must be gleaned, I think, from an examination of the objects which underpin Part VII of the Act, which is the part which deals with the arrangements of the care of children. These principles include the following:
(c) Ensuring the children receive adequate and proper parenting to help them achieve their full potential and;
(d) Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Counsel for the mother did not make any submissions regarding the specific application of the legislation to the situation surrounding the children as her client asserts it to be. However, by necessary implication, it appears to be her case that the presumption arising pursuant to section 61DA is rebutted on the basis that the court should consider that there are reasonable grounds for it to believe that the children have been exposed to family violence or, as a consequence of the father’s allegedly neglectful parenting, it would not be in the children’s best interests for it to be applied.
In the alternative, even if the presumption is applied, it is impliedly
Ms Warren’s position that it would not be in the children’s best interests for there to be either an equal time arrangement or a substantial and significant time arrangement because of the self apparent deficits in the parties’ parenting relationship, which render either such regime essentially unworkable or impracticable within the parameters stipulated by section 65DAA(5).
Similarly, counsel for the father did not make any submissions regarding the application of these legal principles to the current case. However, it is self apparently his position that the presumption of equal shared parental responsibility should be applied, by the court, to ongoing arrangements for [X], [Y] and [Z]’s care.
Thereafter it is mandated that the court should continue the equal time arrangement because it is not ruled out by any proper consideration of the children’s best interests or matters related to practicality, given that the parties have been equally sharing responsibility for the care of the children for nearly two and a half years and they live in ready proximity to one another in [M].
Consideration of section 60CC factors
Although I am not in a position to make definitive findings about the issue, at this stage, it seems neither improbable nor imprudent for me to conclude that the parties have different parenting styles and bring different skills and attributes to the care of [X], [Y] and [Z]. It also seems that the personal politics of their separation are difficult and conflicted.
Where the father would see himself as laid-back and informal in his parenting, but still effective; the mother would see him as lackadaisical and incompetent. On the other hand, where the mother would see herself as solicitous and protective of the children; the father would see her as being neurotic, intrusive and manipulative, particularly in her attempts to insert herself in his household and control or dictate his parenting of the children.
As the evidence currently stands, I am not in a position to conclude, one way or the other, whether [X] has or has not been exposed to denigratory comments about her mother and Mr W. In addition, at this stage, there is no independent expert evidence to delineate the possible psychological sequellae of such alleged exposure, if indeed any such exist for [X].
It is however clear to me that optimal conditions do not exist for the co-parenting of the three children. It is self apparent that the parties’ current relationship is both competitive and mistrustful. Necessarily, this state of affairs must have implications for the psychological wellbeing of the children concerned, who must be torn by their emotional loyalty to each parent.
It is also probable that [X], in particular, has been exposed to some species of family violence, arising out of the confrontation which occurred on 21 March 2013. However, again, I am not in a position to conclude that one side of her family was more responsible for this unfortunate incident than the other. In addition, although this issue and the matter of the denigration alleged must be considered serious, these matters, in my view, do not fall within the most serious category of family violence.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[16] Not all incidents of family violence will be necessarily damaging for a child.
[16] See JG & BG (1994) 18 Fam LR 255 at 261
Obviously, family violence is not homogenous in its qualities and its assessment must depend on the context in which it arises. In my view, the parenting relationship between the parties concerned in this case is not one which is characterised by coercion or control. That is not to say, the relationship is not without significant aspects of dysfunction.
Abuse is defined in the Act and is a concept relating primarily to assault, including a sexual assault on a child. Thankfully, this is not a case in which either party asserts that the other has abused any of the children in this sense.
Accordingly, in considering the second of the primary considerations, which the legislature has directed be given priority, it is necessary for the court to examine whether any or all of the children have been subjected to, or exposed to, neglect, whilst in the father’s care. It is my understanding that this is the main thrust of the mother’s case.
In this context, to my mind, it is significant that the parties have been sharing the care of the children, on a week about basis, for a period approaching two and a half years. During this period, the children have regularly spent extended periods of time at the father’s farm. In addition, the farm environment was well known to the mother, prior to the parties’ separation. In this context, I accept that [X], [Y] and [Z] are farm kids and, as such, are familiar with the workings of a farm.
As such, it cannot be said that the father has catapulted the children into a foreign situation or environment, so far as the farm is concerned. [X], [Z] and [Y] grew up on the farm. It would seem in close proximity to their older half-siblings, who continue to live close by. To my mind, this is also significant.
Fundamentally, at this stage, this is a case centred on the assessment of risk. It is the mother’s case that, for the court to promulgate the existing equal time arrangement, will result in an appreciable risk that the children will come to some form of physical harm, as a result of Mr Warren’s neglectful parenting.
It is her case that it is a proportionate response, to the degree of risk arising, that the father’s time with the children be curtailed to weekends and a raft of injunctions made, which will put in place safeguards for the children concerned. In the words of her counsel, this will reduce the “window” of opportunity, in which harm may befall the children.
I agree that the task for the court, on the basis of the limited evidence currently available, is to make some assessment of the degree of risk arising to the three children concerned, from the father’s alleged conduct.
If some species of risk is found to exist, it is then incumbent on the court to shape orders, which are commensurate with the degree of risk involved and with due regard to the best interests of the children concerned, including their entitlement to maintain a meaningful level of relationship with both of their parents.
The exercise involves both an estimation of the magnitude of the risk involved and how the risk can be best managed, in all the idiosyncratic circumstances of the particular case involved. In addition, there may be adverse emotional consequences, for children, of severing or reducing an otherwise worthwhile parental relationship by unduly restricting a parent’s time with the children concerned. This risk must also be balanced against any potential risk arising to the children from potentially neglectful parenting.
Necessarily, individuals assess risk in different and idiosyncratic ways. Risk is not a difficult or arcane subject in itself. It is a normal incident of life for individuals to make an appraisal of whether a particular course of conduct involves some degree of risk, be it investing in the stock market or crossing the road.
Risk means the chance or possibility of danger, injury or other adverse consequence. There is at least the possibility of risk occurring from riding a bicycle, along a busy thoroughfare. Some are prepared to assume such a risk, others are not. The risk would be intensified by riding at night. More individuals would perhaps rule out this type of conduct on the basis of risk assessment.
Fewer still would undertake the ride if the bicycle in question was not equipped with lights. All but the most foolhardy would regard it as anything but an unacceptable risk to ride the same bicycle, in the dark, without lights, against the flow of traffic. It is a question of degree in each case.
In this case, I cannot definitively rule out the possibility that the children will come to some form of harm, whilst in their father’s care, at the farm. I accept that danger lurks in such an environment, not the least because of the existence of powerful machinery and agricultural chemicals there. Similarly, the children may come to some harm, whilst in their mother’s care. They may trip on a skate board or fall from a swing. The potential for accidents to occur exists everywhere.
Yet the majority of parents would not exclude their children from swings, or skateboards or trampolines and bicycles, provided appropriate precautions are taken. The risk of potentially risky activities must be balanced against the benefits which will come to the children of being exposed to the excitement of childhood, which at least in part, may assist them to become self reliant as they grow older. There may be consequence of being unduly protective of a child.
The High Court has stipulated that the test to be applied to the assessment of such risks is the “unacceptable risk test”. The test being expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of coming to some form of emotional or physical harm as a result of abuse and by necessary implication neglect.
In my view, the duty of the court is to quantify the degree of risk arising, in this case, in a rational and objective manner and determine whether a particular risk of harm, befalling the children is, in all the circumstances prevailing, unacceptable. As the test is objective, it must depend to some extent on community standards regarding parenting.
In this day and age, which is characterised by government campaigns regarding road safety issues, it constitutes an unacceptable risk, for a child, to travel unrestrained in a motor vehicle, regardless of whether the setting is a rural one or an urban one. In response to the road toll, the legislature, in each Australian state, has created criminal sanctions for drivers who permit children (or indeed adults) to travel in such a manner.
In these circumstances, the father is to be criticised for his conduct in allowing the children to travel in the rear of the freight van. However, at this juncture, I am unable to conclude whether the incident in question was an isolated one, as the father contends, or part of a concerted course of conduct, as the mother implies. In my view, it is a proportionate response to the degree of risk involved to make an injunction forbidding the father from engaging in such conduct in the future.
It is likely that there would be differing views, in the community, regarding the appropriateness of a parent leaving a twelve year old unsupervised in a residential setting. In addition, there are also likely to be divergent views about the appropriateness of such an older sibling supervising younger brothers and sisters.
In this particular case, the fact remains that no harm has actually befallen any of the children concerned. It is the father’s evidence that, if he has left the children alone, this has been objectively reasonable because he has either not been far away or his absence has not been prolonged.
There are fundamental disagreements between the parties about this issue of supervision. The mother’s information about the issue has come from [X]. I have no way of assessing how accurate [X]’s reportage is likely to be. In particular, the father has provided a reasonable explanation, in respect of, at least, the panadol incident.
He asserts that he travelled into [omitted], at the time, to obtain a pain killing medication, which could be topically applied to [Z]’s gum. He planned not to be away for a long period of time and [Y] went with him, whilst [Z] and [X] remained at home. From his perspective he was balancing the emergency of the situation appropriately arising from his desire to obtain appropriate medication for [Z].
In respect of the children’s exposure to the potentially dangerous conditions on the farm, to my mind, it is germane that the mother was prepared to consent, at least ostensibly, to the children spending significant time in this environment, in the period immediately following the parties’ separation, which is now a significant period of time ago.
In addition, the environment of the farm was one with which she was intimately familiar. As such, she is likely to have been well able to assess the dangers arising from it and those dangers are likely to have been more potent, when the children were younger and less aware of potential hazards.
The mother’s concerns about the potential exposure of the children, to chemicals, at the farm, come to her second hand. The concerns rely on conjecture on her part, in the sense that she does not allege any specific incident, in which the children have come into direct contact with agricultural chemicals in the farm setting. Rather she fears such a possibility, given what she understands of the actions of Worksafe SA in respect of the father’s farm, which he, at any rate, denies.
Again, in any event, it seems likely that the presence of such chemicals are inherent to modern farming practices and the mother is likely to have had some knowledge of them, when she acquiesced to the shared parenting regime post separation. In these circumstances, it might be said that her objection to the chemicals arises opportunistically.
In respect of the children’s exposure to the tractor, the parties are likely to have different views about the degree of risk arising. From the father’s perspective, it is appropriate for the children to ride on the tractor, provided [D] or an older sibling is present. In addition, it is his position that [X] has been trained to be safety conscious. From his perspective, the children riding on the tractor is part and parcel of rural life.
The mother does not agree. I suspect many individuals would share her concern. I also suspect that many others would sympathise with the father’s position and regard it acceptable for children, to be on the tractor, provided there was some form of supervision present, albeit a teenage child.
At the end of the day, I accept that farms are necessarily potentially hazardous places for children. We live in an age of mechanised or industrial agriculture. As such, farms are place where large machines are regularly used. However farms also provide an interesting and challenging environment for a child to grow up in. Many children, in this country, grow up on farms. A balance must be struck between necessity and risk.
The children concerned in this case have always lived on their father’s farm. As such they know it well and have been instructed in where dangers lie. They will continue to visit the farm, regardless of the outcome of this case. If the mother is successful, their visits will be curtailed but the risk to the children, as she delineates it, will still remain, albeit the children’s exposure to it will be reduced. I am concerned that the post separation antipathy between the parties, exacerbated by the current litigation, may have influenced the mother’s assessment of the risk arising in this case.
I have to the conclusion that the degree of risk, delineated by the mother, in respect of the father’s care of the children, is not one, which is unacceptable for the court to endorse, at this interim and provisional stage.
In my view, a proportionate response to the potential degree of risk arising is for the court to make injunctions, underlying to the father, the care to be taken in respect of such potentially dangerous farm equipment, such as tractors and agricultural chemicals.
At this stage, it seems likely that the children have a meaningful level of relationship with each of their parents. This is implicit given that the parties have shared care arrangements, for the children, for an extended period of time since their separation.
In this context, it seems more likely than not that the children will benefit from maintaining a meaningful level of relationship with their father. In my view, this militates against the court changing the current regime, particularly whilst controversies remain regarding its efficacy.
The views of the children are also controversial. In my view, I must be careful not to give undue weight to the mother’s opinion of [X]’s wishes in the matter, given the high level of animosity between the parties concerned. The appropriate mechanism to examine the children’s views is a family report, which I anticipate will be available for the final hearing of the matter scheduled for December.
It also seems to be the case that the children have a warm relationship with their older adult half-siblings, on their father’s side. In addition, I accept that they have a close relationship with their maternal grandparents. These relationships have been maintained during the past two and a half years of shared care. In this context, the mother’s proposal to move the children to [G] is significant.
However, at this juncture, I am not dealing with the difficult issue of relocation. For obvious reasons, given the structure of the Family Law Act, cases involving one parent moving away from the other parent concerned, with infant children, pose particular difficulties for the court and the individuals affected by any proposed move.
Such cases throw up competing principles, which are difficult to reconcile. On the one hand, one of the purposes of the Family Law legislation is to provide former partners with mechanisms to enable them to lead separate lives from one another in future and make arrangements for the care of their children, in the now changed circumstances following the end of the marital or de facto relationship between them. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. It has been said that relocation cases need careful analysis.[17] At the interim stage, there is insufficient time for such careful analysis.
[17] See C & S [1998] FamCA 66
The issue of the mother’s application to move the children’s place of principle residence is one which will be determined at final hearing. It is inappropriate for it to be dealt with pre-emptively. In my view, it is not an issue which is relevant to the interim determination of what living and care arrangements will best serve the children’s interests, in the period prior to the ultimate resolution of the relocation issue.
In this context, in my view, it is extremely significant that the current shared care arrangement is a longstanding one. In this context, it is difficult to assess the likely effects of any precipitate change in the children’s current living arrangements. Once again, in my view, this is an issue which is better left to the final hearing stage, where there can be a more exhaustive and comprehensive examination of the evidence available.
The tenor of the mother’s case is that she is highly critical of the father’s parental capacity and his insight into the responsibilities incumbent on being a parent. As I have already observed, the parties are likely to have different temperaments. As such, they are likely to bring different attributes and emphasis to their parenting of [X], [Y] and [Z]. Again, in my view, it is appropriate to leave the definitive assessment of the parties’ parental capacity to the final hearing stage, when there will be an independent and expert assessment of each of them available.
Presumption of equal shared parental responsibility
After considering the various applicable section 60CC factors, I have come to the conclusion that neither factors relating to the children’s best interests nor considerations arising from issues relating to family violence and abuse rebut the presumption of equal shared parental responsibility in this case.
Pursuant to section 61DA(3), the court has a discretion not to apply the presumption, at the interim stage, if circumstances exist, which make it inappropriate for it to be applied. Given the overall structure of Part VII of the Act, I do not think that this discretion should be engaged in this particular case, given the overall circumstances arising, particularly the longstanding nature of the existing shared care regime.
Conclusions
The presumption of equal shared parental responsibility being applicable, the provisions of section 65DAA are engaged. On my provisional assessment of the applicable section 60CC factors, I have come to the conclusion that it would be in [X], [Y] and [Z]’s best interests for them to be parented in an equal time regime.
I reach this conclusion because this is the manner in which they have been parented for a significant period of time – approaching some thirty months – since their parents separated and the mother has not earlier sought to challenge the regime. In addition, it seems more probable than not that the children benefit from an extensive level of engagement with their father and their older half-siblings.
The next question, which arises, is whether it is reasonably practicable to allow this regime to continue, given the obvious difficulties in the parties’ parenting relationship. In this context, it is incumbent on the court to consider the reality of the children’s familial situation.
The parties live close to one another, in a small rural community. Clearly, they do not communicate well, as is evident from the heated nature of these proceedings and the fact that it took the father a significant period of time to respond to them.
The most obvious example of the parties’ inability to communicate arises from the father’s holiday with [X]. The father concedes that he did not tell the mother where he was planning to take [X] because he did not want to spoil the surprise for her. He concedes, post-event, that he could have handled the issue better. This is patently the case.
The mother is suspicious about practically every aspect of the father’s parenting of the children. From his perspective, the father accuses the mother of engaging [X] to spy upon him. Clearly, this is not fertile ground for an empathetic and cooperative shared parenting regime to emerge.
However, the fact remains that between January 2011 and September of 2012, the parties were able to manage an equal time regime without any intervention from the court. Ostensibly at least, they agreed on this regime because they considered it suitable for their children. Again, as recently as February of 2013, the parties agreed not to agitate the shared care regime.
I accept that there are many deficits in the parties’ current capacity to communicate with one another and solve difficulties, which are likely to arise, from a shared parenting regime. However, in the current difficult circumstances of the parties, I believe that I must be careful not to act precipitately, on the basis of untested evidence or apply an unduly utopian standard, to the parties’ post-separation communication skills.
The final hearing is approximately six months away. In those circumstances, I have come to the conclusion that, given how the children have been parented up to this stage, in the period post-separation, it would be neither unreasonable nor impracticable for the shared parenting regime to continue, at least until final hearing and the evaluation of all relevant evidence, particularly the view of any independent expert.
For those reasons, I will allocate 3, 4 and 5 December 2013 as the dates for the final hearing of the parties competing applications for settlement of property and final arrangements for the care of their children. Given Mr Warren’s financial situation, I will order that a family report be prepared pursuant to the provisions of section 62G of the Family Law Act. Concurrently with these orders, I will make the necessary procedural orders to ready the matter for trial.
For the reasons outlined above, I will order that the parties have equal shared parental responsibility for [X], [Y] and [Z], pending trial and during term times that the children should live week about, with each of their parents, moving between their respective homes on each Monday.
There are two holiday periods between now and the date scheduled for the final hearing. In my view, it is appropriate that the children spend half of each school holiday period with each of their parents. The parties should agree the halves, but failing agreement the father should have the first such half and the mother the second.
There are likely to be at least two special occasions, pertaining to the children, in the period leading up to trial. These occasions are respectively the twin’s birthday ([date omitted]) and Father’s Day (1 September).
I have not calculated, in whose care the children will be on each of these occasions. Regardless of this, I will order that the children spend from midday until 6:00pm, on Father’s Day, in their father’s care, if they would not have otherwise been with him. Similarly, on the twin’s birthday, I will order that the children spend equal periods of time with each parent on this occasion. I have in mind 9:00am until 1:00pm with the father and 1:00pm to 5:00pm with the mother, unless the parties agree otherwise.
To my mind, it is preferable that, wherever possible, the children should be exchanged between the parties at their school. If this is not appropriate because school is not in session, at a required handover, I will direct that the parties use the [M] store as the handover point.
As I have already indicated, in my view, it is a proportionate response to the issues of risk raised by the mother that a number of injunctions are made in respect of the father’s further parenting of the children. In this regard, I will restrain the father from bringing the children into contact with tractors or heavy farm machinery without adult supervision; restrain the father from denigrating or abusing the mother in the presence or hearing of the children or permitting any other person so to do; restrain the father from discussing these proceedings with the children or in their presence or in their hearing; and restrain the father from allowing the children to travel in any motor vehicle without them being mechanically restrained in such vehicle by means of an approved seatbelt.
I decline to make any specific order dealing with agricultural chemicals or pesticides on the father’s farm. It is however incumbent upon the father to obey all legislation and directions, issued by the appropriate regulatory authorities, within South Australia, in respect of such chemicals. The father has indicated on oath that he is aware of what the relevant directions are. I will take him at his word in this regard.
I also decline to make a specific order directing the father to personally supervise the children at all times that they are in his care. In my view, such an order is unduly proscriptive and is open to abuse, in the present conflicted circumstances of the parties.
The father should not take this decision as being carte blanche for him to disregard the concerns of the mother. It is his responsibility to take proper steps to ensure that the children are safe, at all times, and are properly supervised.
Finally, there is a pressing need for the farming properties in question and the equipment and machinery relating to them to be properly and professionally valued. The father has, in my view, been given ample time to comply with the court’s direction in this regard or propose some other mechanism to resolve the dispute between the parties regarding the division of their matrimonial property, including the farm and its estate.
In these circumstances, I will make an order that Mr N of [omitted] value the two properties concerned and their respective plant and equipment, at the parties’ joint expense, within 60 days of the date of these orders.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 31 May 2013
Key Legal Topics
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Family Law
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Appeal
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Jurisdiction
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Procedural Fairness
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