WARREN & INGRAM
[2015] FamCA 534
•10 July 2015
FAMILY COURT OF AUSTRALIA
| WARREN & INGRAM | [2015] FamCA 534 |
| FAMILY LAW – CHILDREN – Best interests of the children – Where there are competing proposals as to who the children live with and spend time with – Where there is a benefit of a meaningful relationship with both parents – Where protecting the children from harm is a significant consideration – Where it is alleged that the father perpetrated sexual abuse – Where there are issues of family violence – Where there are issues of alcohol misuse – Where the additional considerations of the children’s views, parental capacity, attitudes to the children and responsibilities of parenthood are significant – Where determined that sole parental responsibility is in the best interests of the children. |
| Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61C, 61DA, 65DAC |
| G & C [2006] FamCA 994 Gronow v Gronow (1979) 144 CLR 513; FLC 90-716; 5 Fam LR 719; Johnson and Page [2007] FamCA 1235 |
| APPLICANT: | Ms Warren |
| RESPONDENT: | Mr Ingram |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Osborne |
| FILE NUMBER: | DUC | 265 | of | 2013 |
| DATE DELIVERED: | 10 July 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 30 & 31 March, 1 & 2 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Mobile Legal Services |
| COUNSEL FOR THE RESPONDENT: | Mr Dalzell |
| SOLICITOR FOR THE RESPONDENT: | Kelly Hardie Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Obradovic |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | North & Badgery Solicitors |
Orders
The father have sole parental responsibility for the children B born … 2001, C born … 2002 and D born … 2004 (“the children”).
The children live with the father.
The children spend time with the mother as agreed between the parents and failing agreement as follows:-
(a)For the entirety of the Queensland school holidays at the conclusion of Term 1 and Term 3 with such time to commence at 12 noon on the first day of the school holiday period and to conclude at 12 noon on the second to last day of the holiday period;
(b)For 10 days of the Queensland school holidays at the conclusion of Term 2 with such time to commence at 12 noon on the first day of the holiday period and to conclude at 12 noon on the eleventh day of the holiday period.
(c)For three weeks of the Queensland Christmas school holiday period, being the first three weeks in odd numbered years, and the last three weeks in all even numbered years.
(d)On the provision of 14 days’ notice in writing, including via email or text message, on up to two weekends during each school term with such time to occur in the Brisbane area and to commence after school on Friday afternoon and to conclude at the commencement of school on Monday, or other start/finish times as are agreed by the parties.
The parents will both be entitled to attend all events involving the children including:
(a)Sporting fixtures
(b)Extra-curricular activities that allow for parental attendance
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days and teacher interviews, canteen duties and social functions.
Changeover for school holidays is to be at an agreed halfway point between E Town and Brisbane, and failing agreement at F Town McDonalds at the commencement and conclusion time, unless the parties have agreed to fly the children from Brisbane and G Town and if that is the arrangement the mother is responsible for booking and paying for the flights for the trip from Brisbane to G Town and the father is responsible for booking and paying for the flights from G Town to Brisbane.
Changeover for mid-term weekend time will be at the children’s school.
Each parent shall be at liberty to communicate with the children by phone, email, skype or other method of electronic communication when the children are not in his or her respective care at all reasonable times to suit the children’s routine and the children shall be at liberty to communicate with either parent at any time that they should express a wish to do so.
The children shall be at liberty to communicate with members of the paternal or maternal extended families by phone, email, skype or other method of electronic communication at any time that they should express a wish to do so.
When the children are communicating on the telephone with their parent, the parent with whom the children are living or spending time shall ensure that the children have privacy when communicating with the other parent.
The parents are restrained from allowing the children to have any contact whatsoever with either Mr H or Mr J.
The children will attend Suburb I State School and when relevant Suburb I State High School.
Each parent is to refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and each party is to do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
Each parent is restrained from consuming alcohol to excess (“excess” being defined as more than one standard drink per hour) while the children are in their care and for a period of not less than 12 hours prior to the children coming into their care.
Within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school, the father is to do all acts and things necessary and give all authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the mother copies of all of each child’s school reports, merit cards and any written material pertaining to each child’s academic and extra-curricular activities.
This Order shall be sufficient authority for both parents to obtain all the information, including reports, newsletters, photos (at their own costs) from the children’s school.
The mother and father shall keep the other parent informed at all times of their residential address, home and mobile contact telephone numbers and email address and advise the other parent of any changes within 48 hours of such change.
During any period referred to in these orders, in the event of one of the children being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioners, medical centre or hospital.
All outstanding applications and cross-applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warren & Ingram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 265 of 2013
| Ms Warren |
Applicant
And
| Mr Ingram |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Ingram (“the father”) and Ms Warren (“the mother”) have three children as a result of their 14 year relationship - B, who is 14, C, who is 12 and D who is 10.
As a result of events that occurred after the parents separated in mid-2013, the children have also been separated. B and C live with their father in Brisbane and D lives with her mother over 700 km away in E Town.
The mother is seeking orders that the children live with her in E Town and spend time with their father as agreed to by the parents. The father seeks orders that would see the children live with him in Brisbane and spend defined time with their mother. Both parents propose that they should equally share parental responsibility for the children.
The Independent Children’s Lawyer (ICL) supports the father’s orders as to residence and proposed slightly different orders for time with the mother and that the father have sole parental responsibility for the children. In the course of the hearing other possible parenting arrangements were contemplated.
My task is to determine whether the parties’ proposals or some other parenting orders are in the best interests of the children.
Background
The father, who is 34, and mother, who is 33, commenced a relationship in December 1999, but did not marry. They initially met in E Town and lived together in Brisbane from about March 2000 for most of their relationship. The mother was originally from G Town in New South Wales, and as I understand it, identifies as Aboriginal.
The relationship between the parents was characterised by excessive drinking by both of them. Associated with this excessive drinking were a number of incidents of conflict and family violence.
In March 2000, shortly before the parents moved to Brisbane, there was a violent incident involving the father and members of his extended family.
The parents’ first child, B was born in 2001.
There was a violent incident in January 2002 when the mother was seven months pregnant with the second child, in which the father assaulted the mother.
The parents’ second son C was born in 2002. The third child, a daughter D, was born in 2004.
It appears that there was another incident of family violence in 2010, although the allegations made by each of the parents are far from clear. The issue of family violence is dealt with later in these Reasons.
Due to the difficulties between the parents throughout the relationship, from time to time the mother moved out with the children and resided in other parts of Brisbane (for varying periods of time up to a few months) away from the father. Otherwise the family generally lived together with the paternal grandmother in her Brisbane home.
In November 2011, at the end of the school year, the family relocated to G Town as the mother wished to be closer to her family. In early 2012, the father obtained a job with a mining company in another town in western New South Wales and for four months worked on a “six day on and six day off” roster.
In mid-2012, the father commenced working in Western Australia on a “fly in/fly out” basis for alternating two week periods.
As I understand it, the parties considered that they were separated from about June 2013 but both remained living in the family home in G Town with the children.
On 11 July 2013 the father returned to the G Town home after a period of work in Western Australia and found that his belongings and those of B and C had been packed. The parents had previously discussed a plan for the father to move to Brisbane with the two boys and the father contends that agreement had been reached for this to occur. Although there is dispute concerning the details of this event, there is no dispute that the father took all three children the following day to live with him in his mother’s home in Brisbane, despite the fact that agreement had not been reached for him to take D.
After the father and children arrived in Brisbane, the father’s working arrangement remained the same, and the paternal grandmother cared for the children during each of the two week periods the father was absent. The children recommenced at the schools they were attending prior to the family’s move to G Town and apparently generally settled back into their previous lives.
The mother commenced proceedings in relation to all three children by filing an application for a recovery order and associated orders on 17 July 2013. The application was filed in the Local Court and then transferred to the Federal Circuit Court. The children initially remained living with the father under interim orders and on 19 November 2013 further interim orders were made that the children live with the mother from 15 December 2013.
The father did not initially comply with the orders made on 19 November 2013, and raised issues concerning a risk of harm in the mother’s home associated with a maternal uncle and great uncle (“the maternal uncles”) inappropriately touching and making sexual comments towards the children. Further court orders were made on 24 December 2013 restraining the mother from allowing the children to come into contact with the maternal uncles and requiring that the father return the children to their mother.
The father returned the children to their mother on 8 January 2014 during the summer school holidays in compliance with the further orders. At that stage the mother was in a relationship with another person in G Town.
Shortly after returning to live with the mother, in January 2014 C and B were interviewed by a Joint Investigative and Response Team (JIRT), a joint police and Community Services agency responsible for investigating allegations of child abuse, in relation to the complaints against the maternal uncles. Community Services records of the JIRT interviews indicate that both C and B disclosed that their [great] uncle Mr J had upset and distressed them by grabbing their genitals and poking them at their anus through their clothing and that their uncle Mr H had exposed his penis and waved it at them on a few occasions when there were no other adults present. The incidents were said to have occurred in 2011 and 2012 when the family were living in G Town. The records also indicate that both boys were upset that their mother and their uncles made light of the incidents despite their protests and were upset and distressed that their uncles were not asked to stop. It is recorded that police also spoke with the uncles who seemed to be embarrassed by the complaints and agreed that they had behaved in a silly way and would not do so again.
B and C did not settle well living with their mother in G Town and after two weeks, B who was then 12 decided to return to live with his father in Brisbane. The mother also found it difficult to cope with B and agreed it would be a good idea for the father to assume B’s care.
In March 2014 the mother commenced a relationship with her current partner, Mr K. C was introduced to Mr K on 14 March and D met him for the first time the following weekend.
On 27 March 2014 the mother sent an email to the father, which included the following “I [Ms Warren] am hereby returning [D] Ingram (sic) to her father’s care. I am acting at this point in time on [D’s] wishes. [D] wants to return to live with her father. [Mr Warren] and I have reached an agreement outside of court, will return to [Mr Winter’s] care on 29 March on a temporary basis until the end of the April school holidays…”. D and C stayed with their father and B in Brisbane during the April school holidays that occurred at around this time.
In May 2014 the mother took D to live with her and Mr K at E Town without previously discussing this plan with the father. It had been originally intended by the mother that B also move to E Town but B refused to do this and decided to return to live with his father in Brisbane. This decision was agreed to by both parents. C and B have continued to live with their father from this time.
The mother has remained living in E Town with Mr K and D in a house also occupied by Mr K’s father.
C and B have spent holiday time with their mother and D in E Town and elsewhere during the school holidays since this time.
On 10 July 2014 the family members were interviewed for the purposes of a family report. In the course of the interview the mother told the family consultant that when she was six or seven, D had complained that the father had touched her on the vagina. The father denies that he has ever harmed any of his children and specifically denies that he sexually abused D. The father told the family consultant that he was very angry that the mother would make such an allegation which he maintains was made for the first time in this assessment. The circumstances of this complaint are a matter of significant dispute between the parties and are dealt with later in these Reasons.
On 12 November 2014 the orders that provided for D to spend time with her father were suspended as a result of the mother’s allegations and subsequent investigation into this incident of alleged abuse.
The father had not spent any time with D since Easter 2014 as at the date of the proceedings, though each of the parents spent time with all of the children during the proceedings, by agreement between them. The orders were amended to permit this to occur.
On 4 March 2015, just prior to the hearing, an application was brought by police on behalf of the mother for an Apprehended Violence Order (AVO) to be made against the father for the mother’s protection in which it was alleged that the father has been harassing the mother through repeated telephone calls and text messages. The father opposed the application, and at the time of the final hearing the AVO proceedings had been adjourned to May 2015 (after the hearing was complete) with no interim orders having been made.
C and B resided with their father in Brisbane at the paternal grandmother’s home at the time of the hearing. The father was unemployed and was looking for work in the Brisbane area. He had significant involvement in the care of his sons.
D resided with her mother and Mr K in a home rented by Mr K’s father in E Town at the time of the hearing. The mother was unemployed and Mr K was described as soon to start an opal mining business in E Town.
Disputed Facts
The sexual abuse allegation against the father
The mother contends that the father sexually abused D when she was a child. She also initially contended that he poses an unacceptable risk of harm to D on this basis if she were to live with him, though she appeared to withdraw this suggestion in the course of the proceedings. The father denies that he has sexually harmed D or that there is any unacceptable risk of harm to her if she lives with him.
In her trial affidavit, the mother first raises this allegation in the context of attending the assessment interview with the family consultant in July 2014. She says that the day before the interview (9 July 2014), as C and B were spending time with her over the holidays she took all three children by car from her home in E Town to G Town for the interviews. She says that in the course of the car journey the following occurred
[B] and [C] started talking about paedophiles. I asked them to stop, because I did not feel their conversation appropriate. [B] then said “dad only patted [D] on the bum any way, that is not a paedophile”. [D] got very emotional and burst into tears, telling both boys that “dad pulled down my pants and touched my fat cat” (“fat cat” is the name we use for genitalia). I told them “enough, no more” in a loud voice. There was silence for a while and then we turned on some music.
The mother said that the following day when she spoke to the family consultant she “told the lady what’s happen (sic) in the car I (sic) the way to [G Town] and told her what [Mr Ingram] had done to [D]. She said that she would make a mandatory report that she had to due to her job.”
The mother gave a statement to police on 4 August 2014. On the same date D was interviewed by officers of JIRT in relation to the allegations.
The Family Report was released on 14 August 2014.
The mother says that the police stayed in contact with her over the next few months in relation to the matter and then advised her that the case was being transferred to Queensland. No other details concerning the alleged conduct itself, the original complaint or the outcome of the investigation are contained in the mother’s affidavits.
In the statement given to police on 4 August 2014 the mother says that in around June 2011[when [D] was seven] and the family were living with the paternal grandmother in Brisbane, there was an incident following a night when the father had been heavily intoxicated. The mother says that she had moved the children’s mattresses into the parents’ bedroom and that she and D fell asleep in the parent’s bed. The mother said that she woke when the father got into bed and began grabbing and groping at her. She moved closer to D and told the father to “stop” and pushed his hand away. She said then she got out of the bed and got on the mattresses on the floor with the other children. Sometime later, about dawn, D got into bed with her and the two boys. D woke her up and said “mum, dad just touched my fat cat”. The mother went on to say the following :
…fat cat is a word we used when [D] was little for vagina. I said, “what do you mean?” She said. “He patted me on the bum, pulled my pants down and touched my fat cat”. I believed her. I have always taught my kids that people shouldn’t be touching them there, and that they are to tell me if anything like that happens. I jumped up. [Mr Ingram] was in bed and appeared to be asleep. I touched him to wake him up. I might have even hit him to be honest. When he woke up I think he was still intoxicated. I said words to the effect of “[D] said you touched her!” He said. “I thought it was you. When I knew it wasn’t you. I stopped”.
The mother said that she went upstairs and saw the paternal grandmother at the kitchen table and said “he touched [D]!” She described herself as upset and very angry and said that the father “pleaded with [her] that he thought it had been [her] and he stopped straightaway once he knew it wasn’t.” She then said that she and D “slept together [after the incident]” and that she had “only just now” started to get D into her own bed again.
The father does not give an alternate version of this incident in his trial affidavit and as earlier indicated says that the mother first raised this allegation of sexual abuse in July 2014 in the course of the family report interviews. The father denies the alleged conduct. So far as the investigation of the complaint by police is concerned, the father says that he was advised by New South Wales police that they were transferring the matter to Queensland authorities (on the basis that the alleged conduct occurred in that State) in late 2014. He says that he contacted the Queensland authorities and was interviewed on 19 February 2015. He was told after the interview that no action would be taken by police.
Under cross-examination, the mother was unclear about when the alleged incident had occurred, but said that it happened when D was five or six years old. The mother agreed that she did not report the incident to anyone at the time. The mother also agreed that after the incident she allowed D to spend time with the father alone. She said that she did so because she was required to do so under a court order. The mother also agreed that she sent an email to the father on the 27 March 2014 in which she stated that she was returning D to her father’s care. She also said that she wrote the words “I believe that [D] will be well cared for” but asserted that she was “coached” at the time to write that by the father.
Under cross-examination by the ICL the mother very reluctantly agreed that she was aware that the sexual abuse allegation had not been substantiated. It also came to light that the mother had been told this by the JIRT officer after D was first interviewed.
The mother also agreed that she had called Community Services after D’s JIRT interview and told an officer of that the Department that the parenting report [family report] had been released and that there were concerns about her parenting and that D may be required to reside with her father. She also agreed that she had told the officer that she wanted to get an injunction to stop D having contact with the father. While the mother agreed that that officer told her that the Department had “no child protection concerns” about D, she did not understand this to mean that there were no concerns about the father and thought that was a reference to a lack of concern about her parenting.
Further, the mother agreed that she took D back the JIRT officer saying that the D wanted to “ tell the truth” and asked for her to be interviewed again. The mother agreed that she was also told after the second interview that the allegation was again not substantiated. She said that her understanding was that D made a clear disclosure to JIRT on the second occasion that “her father had touched her in the private area” and that D had thought this occurred when she was three. The mother later said that she did not learn that the outcome of the investigation was that the complaint was not substantiated until January 2015.
When shown her police statement and cross-examined upon it, the mother seemed to express some uncertainty about when the event had occurred and said that she thought it had occurred in 2009 or 2010, not in 2011 as stated in her statement.
The mother said that after D made the initial complaint, she was not satisfied with the father’s explanation about the incident and considered that it was a risk for D to be in the father’s presence. She agreed, however, that she stayed living with the father and for many years he shared in the care of the children. The mother offered no explanation as to why she had not raised the issue in any affidavit prior to the family interview.
The mother said that she was shocked when B and C discussed this incident [related to D’s abuse] in July 2014, so many years after it had occurred. The mother said she did not ask the children what they were talking about and she had never spoken to either of her sons to ascertain the source of their knowledge about the father’s conduct.
The mother also confirmed that she had never sought that the time between the father and D be supervised and was not seeking that in these proceedings. She was quite happy to agree that D could spend half of the school holidays with the father. Ultimately the mother said that she did not believe that D was at risk from the father, so long as he was not drinking and that the risk only arose if he were intoxicated.
The father said under cross-examination that he did not recall any incident similar to that described by the mother as ever occurring. He agreed that there were times that all the children and their mother slept in the same room when he was severely intoxicated and that he may have got into the bed when severely intoxicated.
The father said that there was a conversation “at a much later stage” [than the alleged date of the incident] when he and the mother were separating in which the mother alleged that he had “touched [D]”. The father said that although he denied touching D he told the mother that “if that ever had happened I was – I just never touched her intentionally. I might have just accidentally brushed against her”. The father said in the same conversation the mother said she’d “destroy” him. The father said that the mother had no legitimate concerns about D’s safety in his care and that the mother had told him that she knew that the concerns were “not true”. He was not challenged about any of this evidence
Analysis of “sexual abuse” allegation
When parenting matters involve an allegation that a child has been sexually abused, the issue for the court to determine is whether there is an unacceptable risk of harm to the child should the proposed orders be made. In my view, having regard to the authorities concerning the inter-relationship between being satisfied that the alleged harmful acts occurred and a finding of unacceptable risk[1], it is appropriate to approach the matter by first determining whether I am satisfied that the conduct alleged to be “sexual abuse” did occur.
[1] see Johnson and Page [2007] FamCA 1235 at [64]-[82].
When allegations of sexual abuse are raised, the applicable standard of proof is that set out in M v M[2]. In that case the High Court said [at 76]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
[2] [1988] HCA 68; 166 CLR 69; 12 Fam LR 606
In Johnson & Page[3] the Full Court agreed that reference to the Evidence Act1995 rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[3] [2007] FamCA 1235 at [72]
In determining whether I can find that the father touched D on her genital area as alleged by the mother I make the following observations:
First, if the mother is to be accepted on her evidence, she believed D’s complaint at the time it was made, she did not accept the father’s explanation that it was accidental and she considered that D was at risk from the time the incident occurred. In my view, consistently and regularly allowing D to be cared for by her father after the incident, failing to complain to anyone about it and returning D to live with her father in March 2014 is inconsistent with this belief about the risk posed by the father.
Further, I do not accept the mother’s explanation that the only reason she permitted D to be cared for by the father was because she was required by court orders to do so. According to the mother, the incident occurred when the family were living together in Brisbane, that is, prior to November 2011. The father continued to share in the care of D while the parties were still in a relationship up until July 2013 and orders were made for the first time for the children to live with the mother in November 2013. In March 2014 when these orders were in place the mother voluntarily returned D to the father for at least several weeks.
I reject the mother’s evidence that the email she wrote in March 2014 in which she stated that she had no concerns about the father’s care was written by her under the father’s coercion. This was asserted by the mother for the first time under cross-examination, and was not put to the father. It is also inconsistent with the balance of the email, which makes it clear that the mother was satisfied with the father caring for D while she made her own personal arrangements to relocate to E Town.
The mother’s evidence that she continued to consider that D was at risk with her father is also inconsistent with her not having sought to have D’s time with the father supervised in this application, or at any time in the past and her statements under cross-examination that she’d have no difficulty with D spending half her school holidays with the father.
Further, a number of details of the mother’s version are internally inconsistent or inconsistent with other uncontested evidence. For example, her assertion that she had not told anyone about the father’s misconduct is inconsistent with her own police statement that she told the paternal grandmother about the incident immediately after it occurred. The paternal grandmother was not cross-examined to the effect that the mother made this complaint to her at the time.
The mother’s statement to police is also, in my view, misleading as it suggests that following the incident D was concerned when in the father’s presence and that the mother experienced difficulties with D’s anxiety as a result of the incident, such as having difficulty in settling D each night in her own bed. There is no evidence to suggest that D suffered any anxiety or sleep difficulties at any time and the email of March 2014 says that she was returning D to her father’s care “acting on D’s wishes”.
It also appears that D has little or no memory of any such incident and any memory she may have is in my view unreliable given the circumstances in which it was recalled. In the first JIRT interview D said that there was an incident in which her father touched her genitals, that occurred many years before when she was little and the family were “living in [G Town]”, whereas the mother’s allegation is that the incident occurred when the family were living in Brisbane.
The second JIRT interview came about through significant insistence on the mother’s part after the Family Report had been released and the mother was concerned about perceived criticism of her own parenting and that orders may be made that D live with the father. In the second interview, D disclosed that her father had touched her on the bottom and vagina when they lived at the grandmother’s home in Suburb I, but she thought she would have been about three at the time. She also said she was unsure if the touching occurred on her clothing or on her skin, but then suggested it would have been on the outside of her clothing, but she could not recall whether she was wearing underwear or a nappy at the time. D’s disclosure in her second interview differs significantly from her first interview in relation to when the incident was said to have occurred and with the mother’s varying versions that the incident occurred when D was five, six or seven years old.
In addition to the uncertainty and inconsistencies in the version given in each of D’s interviews, I approach a 10 year old child’s recollections of an event that was said to have occurred when she was three with great caution and am concerned that D may have been influenced by her mother in making such a disclosure. This is especially so when it is remembered that the second interview came about with the mother saying that D now “wanted to tell the truth” in circumstances when the mother was attempting to stop the father having contact with D.
The father said there had not been any conversation between himself and the mother concerning the allegations at around any of the times that the alleged incident was said to have occurred. He also denied saying in any conversation that he had touched D in the genital area believing that she was the mother. He further said that the mother had made an unspecified allegation that he had touched D when the parties were separating and in the same conversation the mother said that she would “destroy” him. He also said that the mother had told him she knew the allegation wasn’t true. He was not challenged on any of this evidence.
In these circumstances, I cannot make a positive finding that the father at any time touched D in the genital area.
However, as earlier noted, the question to be determined is whether there is an unacceptable risk of harm to the children, or D in particular, if she lives with the father. Although I am not positively satisfied that the father did intentionally or accidentally touch D on the genitals as alleged, I cannot exclude the possibility that she was touched by her father as alleged. The father accepts that when the mother alleged during separation that he had “touched” D he said he might have brushed against her. He also agreed that there were occasions when the children had slept in the same room as the parents when he was severely intoxicated and that he may have got into bed on these occasions. While this means that some risk to D exists, the issue to be determined is the magnitude of that risk.
Having regard to the nature of the allegation, which appears ultimately to be that the touching was accidental, it is unlikely in my view to be repeated.
The risk of any touching also seems to have been associated the father’s excessive drinking, the level of which, during the relationship, is a matter of significant concern. Although the father did seem at times reluctant to describe himself as having a drinking problem at that time there is evidence to suggest that his drinking has significantly reduced. The father asserted to the family consultant that he had “practically stopped drinking”. In that interview the father acknowledged that he used to drink quite heavily but since he had the children in his care he didn’t have time to drink and was not missing it. He also confirmed under cross-examination that he had significantly reduced his drinking. The mother also told the family consultant that while the father was a big drinker in the past she was not clear about his current behaviour. When asked about his father’s drinking B told the family consultant that “Dad doesn’t drink much at all” and D said “he doesn’t drink as much now”.
Given the nature of the complaint and the evidence that supports the father’s reduction in drinking, I am of the view that there is not an unacceptable risk of harm to D if she were to live with her father as proposed by his orders on this basis.
Family violence
The mother contends that the father was violent to her throughout the relationship, and that the children were from time to time exposed to this violence. In her Notice of Child Abuse, Family Violence or Risk of Family Violence she says that “[C] and [D] were subject to [Mr Ingram] forcing himself on me” and said that all children saw the father hit her. In the various affidavits relied on by the mother she makes general allegations about the father’s violence and also refers to one specific incident.
The mother says that at around the time C was born she “noticed” that the father would drink to excess and abuse her “verbally, physically and emotionally”. In one affidavit she says that she was assaulted by the father several months before C was born but gives no other details of the incident. The mother makes no reference to any other incident of violence prior to separation even though it became clear in the course of the hearing that that there was at least one other occasion where the father had struck her and on another occasion the father was involved in a violent altercation with family members when intoxicated and she was present.
Neither party referred to this last mentioned incident which occurred in March 2000 in their respective affidavits. According to police records, in this incident the father was extremely intoxicated, and in the course of an argument and struggle, the father’s grandmother was pushed to the ground and his mother was knocked over and sustained a fracture to her arm. The father was hit over the head by a family member and restrained until he was admitted to hospital for alcohol poisoning and dehydration.[4] Under cross-examination the father agreed that he was severely intoxicated during this incident and that the injuries to his mother occurred in the course of a struggle, but denied that he pushed her over. The paternal grandmother was also cross-examined about this incident and said she remembered most of it. She seemed initially reluctant to agree that the father was intoxicated although she did say that her other son had hit the father over the head “to slow him down a bit” and ultimately said that the father was “really drunk”.
[4] Exhibit 13
In his affidavit the father refers to one incident during the relationship when he assaulted the mother when she was pregnant with C. The father describes this as an incident in which he hit the mother across the face. He says that these actions in which he lost control are “unacceptable” and that they were in response to becoming aware of the mother’s infidelity. The father agreed under cross-examination that he had struck the mother two to four times with an open hand during this struggle. Police records describe a complaint by the mother that the father, when intoxicated, punched her several times to the face with a closed fist, attempted to smother her with a pillow, stomped on her head and struck her once in the stomach. When police attended, a struggle ensued with the father. In an interview with police, the father admitted that he had struck the mother two or three times. The father was charged but no conviction was recorded for the offences of assaulting and obstructing a police officer and assaulting the mother occasioning actual bodily harm to her.[5] I am satisfied that this was a significant incident of violence perpetrated by the father against the mother, which must have been frightening and distressing to her. It is an appalling incident which is made more serious in my view by the fact that the mother was pregnant at the time.
[5] Exhibit 12
Although it also came to light through cross-examination by the ICL that there was a second incident where the father struck the mother, this is also not referred to in either of the parent’s affidavits. In the interview with the family consultant however, each of the parents alleged that they were subject to physical and verbal violence perpetrated by the other during the relationship, and the father admitted striking the mother on two occasions.
The mother told the family consultant that she had been subject to violence and abuse by the father during the relationship but described it as “mental[ly] more than physical[ly]” and said it was associated with the father being drunk. The examples she gave to the family consultant of this abuse were of the father threatening to harm family members such as her grandmother which she found distressing. The mother said she was concerned that the children would learn to become verbally abusive or threatening if in the father’s care. When asked about family violence by the family consultant, the father acknowledged that he had hit the mother on two occasions, both of which he said were regrettable and related to the mother’s infidelity. The father also alleged that the mother was extremely violent to him throughout the whole relationship.
There seems to be no dispute between the parents that there was a second incident in which the mother was struck by the father in around 2010. Although neither parent referred to the incident in their respective affidavits some evidence about it was revealed under cross-examination of the father by the ICL. The father said that this incident started when the mother attacked him and he hit her in self-defence. He said he was unable to walk away as he was “pinned” and the mother was “on top, laying into [him]”. The mother was not cross-examined about this incident, nor does she address allegations of violence said to have been perpetrated by her in her evidence.
The mother also generally contends that the father was controlling. The main incident relied upon by her in this regard relates to a “contract” the father prepared in relation to her conduct in around March 2013, shortly before the parents finally separated.
It is common ground that the preparation of the contract arose after an incident of the mother’s infidelity with a person named Mr L who was a close friend of the father. The father said under cross-examination that when he became aware of her infidelity he did a Google search and “the idea of a contract came up” as an option to “resolve difficulties”. When shown a document annexed to mother’s affidavit headed “[Ms Warren’s] contract after an affair to [Mr Ingram] (commitment to [Mr Ingram])” he agreed that he prepared it but that said that it was an incomplete document and denied wanting the mother to sign it. His attention was drawn to items such as “to have no contact under any circumstances and get rid of anything to do with [Mr L] and his family and friends”, “to use Facebook professionally” and “to never go to parties…never on your own” which he denied were controlling. The mother described the preparation of the contract by the father as controlling and manipulative and refused to sign it.
The father also agreed that he placed an application on the mother’s phone to record her text messages and phone calls at around the same time in the context of the mother’s infidelity. He said that he did so to determine “what was going on” and to “find out why he was being lied to” and because “money was missing”.
I am satisfied that the father has engaged in behaviour aimed at controlling the mother through the preparation of the contract concerning her behaviour. I am also satisfied that in downloading the application to monitor the mother’s communications the father behaved in a manner that was controlling and unacceptable. There is no evidence however that the father generally behaved towards the mother in a controlling manner. Rather it appears to me his actions were a rather inept and inappropriate way of responding to the issue of the mother’s infidelity. I also note that the only clear incident of violence towards the mother also arose in the context of the mother’s infidelity. The father’s behaviour demonstrates limited personal skills and a significant inability in the father to respond appropriately to a difficult issue in their relationship.
Shortly before the commencement of the hearing, in March 2015 an application was brought by police on behalf of the mother for an Apprehended Violence Order (AVO) against the father for the mother’s protection. The father was opposing the application and the matter had been adjourned to a date after the hearing was completed but no interim orders were made. The only reference to the AVO, or reasons for which it was sought, is the following paragraphs in the mother’s affidavit:
Calls and texts from [Mr Ingram] then got out of control. He was calling and texting me repeatedly at all hours of the day and night.
On 4th March, went to the police to apply for an AVO, to limit [Mr Ingram]’s attempts at contacting me.
The mother was cross-examined about information she provided to police in support of the AVO in which she complained about harassment through continuous phone calls and unwanted text messages by the father. In this application it is stated that the messages sent to her were not threatening in any way and it seemed that the number and frequency of the messages was the underlying cause for complaint. The mother was seeking orders that included that the father not contact her by any means except through her partner, Mr K, in the case of an emergency with the children.
The mother agreed that she told police that she sought the AVO as she had fears that the father would continue to harass her and that there was no reason for the father to contact her. The mother’s attention was also drawn to the part of the application which stated that there were no family law orders. The mother agreed under cross-examination that it was not true when she told police that the father had no reason to contact her and agreed that he did need to contact her. The mother initially denied telling police that no family law orders were in place but subsequently agreed that she would have said that. She denied seeking the AVO in support for her family law matter.
Under cross-examination from the ICL the mother agreed that there was no evidence from her that she had current fears concerning the father and she agreed that making a complaint to police and seeking an AVO was not conducive to a good relationship with the father. She did confirm however that she intended proceeding with the application for AVO.
The text message interchange between the father and mother was admitted into evidence[6]. In my view, the messages sent by the father are extremely persistent and possibly could amount harassment, especially as the mother on numerous occasions sent messages in return telling the father to leave her alone and stop sending messages. However, none of the messages are abusive or threatening. They essentially restate in a particularly persistent manner the father’s complaints about the mother’s conduct relating to matters which occurred during the relationship.
[6] Exhibit 10
In my view, it could be considered that the text messages sent by the father may constitute harassment of the mother, and it is unfortunate that the father communicated with the mother in this manner. However, I am not satisfied that this action falls within the definition of “family violence” in the Family Law Act 1975 (Cth) (“the Act”).[7] The text messages sent by the father were not threatening nor were they behaviour that coerced or controlled any person or caused the mother to be fearful. The mother did not suggest that she felt controlled, coerced or fearful or that the messages were intimidating.
[7]Section 4AB(1) “For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Overall, in relation to family violence I find that the father has on least one occasion perpetrated a serious assault against the mother and has on another occasion acted in a violent and aggressive manner to other family members when intoxicated. It also seems likely that both parents engaged in violent and aggressive conduct in another incident as the mother did not take issue with the father’s evidence that he was acting in self-defence on that occasion when he struck the mother. However, I cannot make any definite finding as to what occurred in that incident.
In relation to family violence generally I am of the view that aggressive and violent behaviour especially when associated with alcohol misuse has been to some extent normalised in this family, including by members of the extended family. For example, the incident in March 2000 involved a number of members of the paternal family in a physical struggle and striking one another and resulted in police and ambulance officers attending and the father being admitted and treated for alcohol poisoning and various family members being injured. In police records related to this incident[8], it is recorded that all family members were reluctant to provide the police with a statement and did not want police involvement and despite the seriousness of the allegations, no family members said they had any immediate concerns or fears for their safety from the father. Further, although the father describes his actions in assaulting the mother in 2002 as regrettable he appears to nonetheless minimise their seriousness by connecting those actions to the mother’s infidelity. So far as the incident in 2010 is concerned, although the father says that the mother attacked him, he did not refer it in his trial affidavit and even though he agreed that he struck the mother during this incident, albeit in self-defence, the mother does not refer to it in her affidavit.
[8] Exhibit 13.
Although I make some positive findings in relation to family violence during the relationship, there is no evidence to suggest that there have been any incidents of family violence between the parents since final separation.
The Law & Discussion
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The objects are to ensure that the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that 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.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
According to s 60CA of the Act, in making parenting orders I must regard the best interests B, C and D as the paramount consideration.
Section 60CC sets out the primary considerations and additional considerations I must consider in determining what is in these three children’s best interests.
Primary considerations
The primary considerations as applied to B, C and D (under s 60CC(2)) are:-
a)The benefit to each of them having a meaningful relationship with both of their parents; and
b)The need to protect each of them from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
As these proceedings commenced after 7 June 2012, in applying these considerations, greater weight is to be given to the need to protect the children from harm (s 60CC(2)(b)).
The benefit a meaningful relationship with both parents
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court in McCall & Clark[9] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[10] and has also agreed with the reasoning of Bennett J in G & C[11]. Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
[9] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
[10] (2007) Fam LR 518
[11] [2006] FamCA 994
Bennett J discussed the terminology in G & C (supra) and said “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
Given the involvement that each of the parents has had in the children’s lives and the nature of the relationship between each of the children and each of the parents, I am of the view that each of the children will be advantaged by having a significant relationship with both parents.
Under the orders proposed by the father and the ICL’s proposals agreed to by him, the children will all live with their father and spend time with their mother during the school holidays and on up to two weekends each school term in Brisbane. The orders also provide for liberal communication by phone, email and Skype or other electronic means between the mother and the children. Under the father’s proposal the children would receive the benefit of a meaningful relationship with both parents.
Under the mother’s proposed orders the children will live with her and spend time with the father as agreed between the parties. Superficially, this may be seen to be a parenting arrangement that will result in the children enjoying a meaningful relationship with each parent. However, given the history of events that have occurred since the children were last ordered to live with the mother, I am of the view that B and C will most likely actively resist living with their mother if orders are made to this effect and will “vote with their feet” and return to the care of their father. The mother’s persistence with her application, according to the family consultant, has already caused B in particular to feel angry towards her. Attempting through court orders to require that the two older boys remain living with their mother, in my view, is also likely to damage that relationship with her.
The mother’s proposal also does not include an order for defined time between the father and the children. Although the parents had been co-operative regarding time in the past, there have also been difficulties reaching agreement particularly in relation to D, especially since the mother made the allegations of sexual abuse. In these circumstances I have some concerns that the mother’s proposal will not necessarily lead to the children having the benefit of a meaningful relationship with both parents.
In the course of the proceedings it became apparent that a parenting arrangement that may best promote the children having a meaningful relationship with both of their parents would be one whereby on of the parents moves closer to the other parent. It was common ground that there was no practical impediment preventing the mother moving to the Brisbane area as she was unemployed at the time of the hearing, was capable of working in Brisbane and lived in a rented home. If she were to move, then each of the children would be able to spend more time with both parents, regardless of where they lived. Although this suggestion was directly put to the mother on a number of occasions in the course of the hearing, she steadfastly said that she would not move to be closer to her children to enable them to all live in Brisbane and questioned why “[she] should have to be the one who makes all the sacrifices”. It was suggested to the mother that the Court may find that the children could spend more time with their father if they were to live with her in Brisbane and that the boys would be less likely to resist an order to live with her if she were to live in Brisbane. The mother said that “[her] life is in E Town now” and even though the children are also her “life” she would not move closer to the father. When asked about whether he would move closer to the mother, the father was reluctant but said he would “possibly” do so.
In my view, a parenting arrangement in which both parents lived near one another would most appropriately respond to this consideration of the children having the benefit of a meaningful relationship with both parents. I am also of the view that the most practical and child focused arrangement would be for both parents to live in the Brisbane area and it is most unfortunate that the mother made it clear that she would not even consider such an arrangement.
Protecting the children from harm
This consideration is directed to a specific form of harm, that is physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Abuse
The first issue in this regard is harm from sexual abuse. For the reasons given earlier, I am not of the view that there is an unacceptable risk of harm to the children on the basis of sexual abuse if they were to live with the father in accordance with his proposed orders or if they were to spend time with him as proposed by the mother.
In the Notice of Child Abuse, Family Violence or Risk of Violence the mother also alleges that B, C and D were “all subject to violence” and that “[B] was subject to fly spray in the eyes, computer laptop (sic) slammed down on his hands”. However, the mother does not provide evidence to support these allegations in any of her affidavits.
There is also the issue of the children’s experience of inappropriate sexual behaviour towards them by the maternal uncles. This issue is dealt with later in these Reasons, when considering the mother’s capacity, rather than under this consideration as this conduct may not necessarily fall within the definition of abuse,[12] resulting in the children suffering from psychological harm.
[12] Section 4 of the Act states that abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neglect
Each of the parents raises concerns about the other parent’s level of alcohol use and it appears that each suggests that the children may be harmed by inadequate supervision associated with this level of alcohol use. The level of alcohol use of both of the parents at times has been very concerning, and real issues of adequate supervision may arise. However, this issue is dealt with later in these Reasons, as in my view, the allegations may not give rise to the need to protect the children from psychological harm from being subjected to neglect as contemplated by this consideration.
Family violence
For the reasons given earlier, I am satisfied that each of the parents has engaged in family violence during the relationship, though I have made specific positive findings in relation to the father’s violent conduct only. While I have some concerns in relation to an acceptance or normalisation of violence within this family, especially where it is associated with alcohol misuse, there is no evidence that the parents’ relationship since separation has been characterised by family violence or that there is an ongoing risk that the children will be harmed from to exposure to family violence between the parents in the future.
The mother also suggests that the relationship between herself and Mr K is violence free, partly on the basis, as I understand it, that he has not been violent in previous personal relationships. Although the mother painted a picture of a positive relationship between her partner Mr K and his most recent former partner, she agreed under cross-examination that there had been AVOs made against Mr K for the protection of this former partner in relation to domestic violence. She also agreed that the complaints that Mr K’s former partner had made against Mr K were similar to the complaints she makes against the father. These matters were not contained in any of the mother’s affidavits.
Under cross-examination, the mother’s partner Mr K agreed that an AVO had been made in 2004 to protect a former partner. When asked about the circumstances in which it was made he said he thought there was “a bit of an argument” and “a scuffle” but said that he could not recall anything more as it happened a long time ago. When further cross-examined about the details of the incident from the police records Mr K said that he could recall pushing his former partner and that she had some cuts on her thumb. He said that he was charged with assault in relation to the incident and pleaded guilty to that charge, but had not included any of it in his affidavit as it was in the past and was something he didn’t want to remember. Mr K said that the mother knew about the incident because she had seen papers at the courthouse.
Police records in relation to this incident[13] indicate that Mr K’s former partner complained in September 2004 about physical abuse in the relationship over the past six years. She said in relation to this specific incident that following an argument about her whereabouts, Mr K yelled and swore at her in their home, grabbed hold of her by both arms, picked her up and threw her across the floor and when she attempted to leave he grabbed her by the arms and threw her out the door onto the ground. The records say that police observed scratch marks and redness to her upper arm, she was tearful and distressed and Mr K was arrested in relation to the incident.
[13] Exhibit 5
Police records were also tendered in relation to an alleged incident on 20 March 2014 when it is recorded that the victim, who had been in a de facto relationship with Mr K, complained about ongoing issues with Mr K since she had entered into a new relationship. She complained about Mr K sending her text messages at increasing frequency and threatening to harm her new boyfriend. Police records also indicate that Mr K was served with an AVO to protect this former partner on 26 March 2014 which was in place for 12 months.
Mr K’s criminal history records a conviction for the assault offence in September 2004 and another assault matter in 1996.
In my view, there is some risk to the children if they were to live with their mother that arises due to the evidence concerning the mother’s partner. Although Mr K says the mother was aware of the matters involving former partners, the mother did not refer to these matters in her affidavit and in my view appears to minimise the possibility of family violence in her relationship with Mr K to which the children may be exposed if they were to live with her. However, there is insufficient evidence for me to positively find that there is an unacceptable risk of harm to them on this basis.
Additional considerations
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
The children’s views
B who was 13 when interviewed told the family consultant that he much preferred living with his father than with his mother. The family consultant said in oral evidence that B had strong views about his father and the social capital he had in the area in which he lived. B also told the family consultant that he had enjoyed a recent holiday with his mother when they went camping.
C, who was 12 when interviewed, told the family consultant that he was happy staying with his dad and did not like changing schools. He said that he did not want to live in E Town with his mother. The family consultant felt that C was particularly concerned about the environment in E Town.
D who was 10 when interviewed was clear about wanting to live with her mother and presented to the family consultant as a little regretful that her brothers did not want to live with her and her mother in E Town.
The family consultant’s view is that D’s reasons for the preference to live with her mother appeared to be more superficial than the reasons B or C gave for wanting to live with their father. The family consultant felt that this was not unexpected for a child of the D’s age. For this reason I attach some weight to D’s views, though her views will not be determinative in this matter where issues of parental capacity and exposure to least risk are more significant factors.
So far as B and C are concerned, given their age and level of maturity, I do attach significant weight to their views. I also have regard for B’s strongly expressed view that he deliberately behaved in an unmanageable manner when he was required to live with his mother so that he would be returned to his father. It is the opinion of the family consultant that B is likely to behave in the same way if the mother’s proposed orders are made and if he were non-compliant, he may place himself in danger.
The nature of the children’s relationship with each parent and other significant persons
The family consultant’s evidence, which was not challenged under cross-examination was that D had a close bond with both parents as well as her brothers and paternal grandmother.
It was submitted on behalf of the mother that I should attach particular significance to the attachment between D and her mother on account of the mother being a “female role model” for D. No questions were asked of the family report writer that related to the role of gender in relation to D’s relationships. I am not able to find that D’s relationship to her mother is stronger than to her father on the basis of gender. I note that there has been a long line of authority firmly rejecting the suggested preferred role of the mother for young female children.[14]
[14]See In the Marriage of Raby (1976) FLC 90-104 at 75,486; 2 Fam LR 11,348 at 11,360; Gronow v Gronow (1979) 144 CLR 513; FLC 90-716; 5 Fam LR 719
The family consultant observed a warm interaction between D and her father and saw no apprehension on D’s behalf. The family consultant described B and C as having “an affinity with their father” and all three children were observed to interact positively with their father.
Although the mother alleges that the children have been “alienated” against her by the father, there is clear uncontradicted evidence that the boys enjoy spending time with her during the holidays under the current arrangement. Further, all of the children were observed by the family consultant to interact positively with the mother when assessed.
The mother’s evidence of rejecting a proposal that she relocate to Brisbane was put to the family consultant. The family consultant said that this indicated that the mother’s relationship with her partner is probably more important to her and she agreed that it indicated that she was putting her own needs above those of the children.
The children all appeared to the family consultant to have a close relationship with each other. B described missing D “heaps” and D expressed that she would like to have “that little family of five that we used to have”, though she acknowledged that that was not possible.
The family consultant also noted the close relationship between the children and their paternal grandmother. The paternal grandmother spoke warmly of the children when giving evidence in the proceedings and there is no dispute that she has had some significant involvement in their care as they have lived in her household for many years. While D has not recently lived with the grandmother and there was little evidence about this relationship, D was also observed by the family consultant to readily run to kiss and hug her grandmother.
There is no evidence concerning the nature of the relationship between the children and the mother’s partner, Mr K as unfortunately the mother did not make arrangements for Mr K to attend the assessment with the family consultant. It is clear that although Mr K has spent limited time with B and C, he felt it was appropriate to be involved in disciplining B. Given that the mother’s children under her proposal are to live in his house, he said he would do it again. Although Mr K presented himself as keen to be part of the children’s lives, he also made it clear under cross-examination that he would not move from E Town to be closer to the children, even if the mother decided to do so. He expressed this view even though he was not working at the time of the hearing and his own child from a previous relationship also lives in Queensland. I cannot find in these circumstances that Mr K presents as having a close relationship to the children or a commitment to be involved in their care together with the mother in the future.
Participation in long-term decision making, spending time with and/or communicating with the children
Prior to separation, it appears that each of the parents made cooperative decisions in relation to the major issues in the children’s lives. To some extent this continued for some time after separation. For example, after the boys were returned to live with the mother, the mother did request that the father take the boys back into his care. The family consultant also noted that in her opinion at the time of her report, the parents had been capable of making significant decisions together.
However, there have also been a number of occasions where each of the parents has unilaterally made significant decisions in relation to the children. For example, the father removed D along with her brothers to Brisbane to live with him in July 2013, even though he knew the mother had not agreed to this. More recently, the mother moved D to live with her and her new partner in E Town without discussing the arrangement previously with the father.
Even though the children have lived in various arrangements and have been separated from one of their parents, each of the parents has generally been committed to spending time with and communicating with the children. To their credit, the parents have also continued to make considerable effort to ensure that the siblings spend time together, in apparent recognition of the importance of that relationship.
Participation in joint decision making and good communication between the parents has however significantly changed since the mother made the allegations of sexual abuse. For example, the mother did not discuss D’s academic difficulties in G Town and E Town with the father, who said that she told him that as she had sole parental responsibility for D it was “none of [his] business”. The mother was not however given sole parental responsibility of D until November 2014 and yet the academic difficulties had arisen well before that date.
It is unfortunate that neither of the parties gave evidence of the circumstances that led to the November 2014 orders suspending the father’s time with D and giving sole parental responsibility for her to the mother, though it appears that the basis for these orders was the sexual abuse allegation. It is in my view of significance, that the mother knew as early as September 2014 that JIRT did not regard the allegations as having been substantiated following two interviews. It is not clear why both parties consented to these orders in these circumstances and why neither of the parents took steps to approach the Court and reinstate the father’s time with D after the Queensland authorities indicated that no action would be taken in relation to the complaint regarding sexual abuse.
Obligation to maintain the children
There is no evidence in relation to the financial maintenance of the children though I infer that each of the parents maintains the child or children in their respective care.
The likely effect of a change in circumstances that may come about as a result of the proposed orders
The likely effect of a change in circumstances that would be brought about as a result of the two different parenting regimes proposed is one of the most important considerations in this matter.
If orders were made in the terms sought by the father and supported by the ICL, D would be most impacted by a change in circumstances. Given her strongly stated views that she wishes to remain living with her mother and the strength of her relationship with her mother, undoubtedly she will feel sad and will miss her mother. However, she has expressed a view about wishing for her family to be together again and undoubtedly will benefit from living with her brothers, father and paternal grandmother.
It was submitted on behalf of the mother that I should have particular concerns that if D were to live with her father, the only female role model in her life would be her paternal grandmother. It is submitted that I should have concerns arising from the manner the paternal grandmother gave evidence that suited her son. While I do have some concerns about the paternal grandmother’s evidence and accept that it was particularly favourable towards her son, I have no evidence upon which to find that the paternal grandmother would not be an appropriate female role model.
If orders were made as sought by the mother resulting in B and C coming to live with her in E Town, for the reasons given I am concerned that both boys will be resistant to the orders and that B may place himself in danger. For the reasons previously given I am also of the view that such orders will likely damage the relationship between the boys and their mother. The boys are also closely connected to their father, paternal grandmother and to their school and local area and would likely find a separation a difficult experience.
I have also some concerns about the impact upon B and C due to the role Mr K may play in their lives if the mother’s proposed orders are made. Both the mother and Mr K felt that it was appropriate for Mr K to be involved in the discipline of the boys even though he has had a limited relationship with them and Mr K indicated under cross-examination that he would continue to discipline them. It also became apparent in cross-examination of the mother and Mr K that they have not made any preparation for appropriate housing in the event all of the children come to live with them and the current arrangements are clearly inadequate.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
There is significant practical difficulty and expense involved in the children spending time with the parent with whom they do not live. The parents reside 700km from each other and it appears that the proposals for the children to spend time with the other parent will involve long car trips, though the father proposes that air travel also be involved.
The mother proposes that if all the children live with her then they would spend time with their father as agreed between the parents. Although there is no detail concerning the actual arrangements it appears that the mother envisages that the children will continue to spend time with their father on some weekends during term time and during block time in the holidays and that the practical arrangements would continue in line with the current arrangements.
The father proposes defined time with their mother if the children live with him. In his case outline he sought that this time be one half of all the school holidays, additional time by agreement between the parents and on at least one long weekend (from Thursday to Monday) per term with the mother in E Town and on any occasion when the mother is in Brisbane. Under cross-examination he agreed that if there were no long weekends in a particular term, it would be preferable for the children to spend the entirety of two of three short holidays periods and 10 days of the other short holidays with the mother. He also agreed that the mother spending time with the children in Brisbane for up to two weekends each school term would be in the children’s best interest.
As indicated earlier in these Reasons, in the course of the hearing, consideration was also given to either of the parents moving closer to the other parent in order to reduce the practical difficulty and expense involved in the children spending time with each of their parents. The proposal of the father moving nearer to the mother was raised and he indicated he would possibly move through he was reluctant due to him and his sons being so well settled in Brisbane. It seemed more feasible for the mother to move to the Brisbane area. The boys appear to be more entrenched in Brisbane, whereas it seems that while D was happy living in E Town, she would be content to live with her mother in another location. However, the mother made it clear that she would not be prepared to move to be closer to the children if that also meant she would be closer to the father.
The capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs
It appears that both of the parents have the capacity to meet the children’s basic day-to-day needs.
However, some concerns are raised about the capacity of the mother, in particular in prioritising her own relationship with Mr K above the needs of her children. In my view this is most apparent in the mother’s complete refusal to consider moving to the Brisbane area, especially as she is aware of the strong desire of the boys to remain in Brisbane and their significant ties to the area. She is also aware that her own refusal to move may mean that the Court may not order that all of the children live with her as she seeks. If the children or some of them are to live with their father, her refusal to move means that the children will spend less time with her than if she were to live near them.
In my view, similar observations can be made about the mother’s incapacity to place the children’s needs for stability above her own needs when she moved to E Town in May 2014. Four months after the children had been returned to her in G Town, the mother moved D and expected C to relocate there to live with Mr K. At this stage the mother had only been in a relationship with Mr K for six weeks and the children had only met him on one or two occasions.
There is also evidence concerning D’s particularly poor school performance when living in G Town and E Town. D’s school results in 2013 show that she was at least two years behind in reading and numeracy. The school counselling records from 2014 note that D was absent from school on many occasions especially on Mondays and Fridays and had missed a lot of academic work. The records indicate that the mother gave consent for a cognitive assessment to be carried out on 1 April 2014 but she did not forward a permission note for this to occur and D was subsequently moved to E Town school. Under cross-examination the mother seemed aware that D was having difficulties at school but seemed unable to take steps to address the difficulties.
When D lived with the father for six months in the second half of 2013 he engaged with the school concerning D’s performance, she was assessed and the father followed up with remedial action. Although the father was also questioned about the boys’ absences from school which are concerning, there is no evidence that they are not progressing well academically. Overall I am of the view that the father has the greater capacity to meet the children’s educational needs.
The evidence concerning the parents’ reaction, in particular the reaction of the mother, to complaints about the inappropriate behaviour of the maternal uncles also raises concerns about parental capacity to meet the children’s emotional needs. C and B were clearly quite distressed about the behaviour of their maternal uncles. They felt that at the time the events occurred that their mother had made light of the allegations. The mother agreed under cross-examination that when the father raised this conduct with her at the time she said “it’s just how they [the uncles] are” and “it’s just a joke” and did not think their conduct was inappropriate. When it was put to her that she did not tell the uncles to stop, she responded “neither did [Mr Ingram]”. Although it is of concern that the father also did not take any clear action in relation to the uncles at the time, at least he was aware that their behaviour was inappropriate and subsequently raised this matter as a legitimate concern.
I am of the view that the mother continued to minimise the significance of the uncles’ behaviour and the emotional stress that it caused the children, up to and including in the proceedings. When cross-examined about the issue, the mother gave confusing evidence, but at times spoke of the uncles’ actions as allegations only and referred to conduct they were “supposed to have” engaged in. In this way she seemed to question the veracity of the children’s complaints.
Further, the mother was aware that the father had made complaints about the uncles’ conduct in these proceedings since September 2013 and that on 24 December 2013 an order was made restraining her from allowing the children from coming into contact with them. She subsequently nominated one of them, her brother Mr H, as an emergency contact when enrolling D at E Town school in May 2014. The mother’s attitude and actions allows for the possibility that Mr H may come into contact with D in an emergency and also shows that she continues to doubt the children’s claims, does not accept or understand the impact that this behaviour has had on them and the need to ensure that they feel safe and protected from the uncles.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Both parents’ lifestyle when their relationship was intact was characterised by uncontrolled drinking and some incapacity by both of them to act at all times in the best interests of the children. For example, there seems no doubt that the children were at times exposed to violence and neither parent seemed capable of taking action to protect the boys from the inappropriate conduct of the maternal uncles at the time that conduct was occurring.
In my view, however, it appears that the father’s lifestyle has been more stable since he returned to live in his mother’s home in Brisbane and care for his sons. His drinking has reduced and he is looking for work locally, rather than on a fly in/fly out basis. B and C are well settled in Brisbane and are doing well at school. As previously indicated they seem to enjoy the social capital associated with the place in which they live.
The mother’s lifestyle, in my view, continues to be characterised by being based on her own needs, rather than those of her children. The mother has been in at least two relationships since the separation and D has been required to adapt to decisions her mother makes in the context of those relationships. The mother moved D to E Town after only four months in G Town to live with Mr K who D had only met on one or two occasions. D also lives in the house occupied by Mr K’s father about whom nothing is known. In July 2014, when the mother had been in that relationship for around three months, D told the family consultant that she was not going to high school in E Town and that there had been some discussion about her going to high school in Yeppoon in Queensland and attending the same school as Mr K’s daughter from a previous relationship.
The mother and Mr K clearly enjoy outdoor activities and have appropriately included the children in these activities from which they have clearly benefitted. However, D’s school records from G Town indicate that she was frequently absent from school on Mondays and Fridays which suggests that the mother regards extended weekend activities as more important than regular school attendance. Although the mother presents this outdoor lifestyle in a positive light it appears to be also characterised by excessive drinking and a possible lack of supervision for the children.
The boys also appear to have a real aversion to E Town and have concerns about their own safety there. While it is possible that they have been influenced by their father in this regard, the family consultant also felt that their views may be as a result of their experience. B expressed concern about “drinking and partying around my Mum” and said that while he had enjoyed his recent holiday with his mother, he did not enjoy spending time in the mother’s home with [Mr K’s] friends. He told the family consultant that there had been a lot of drinking and that he had witnessed a punch up. He said “it’s not okay”. C told the family consultant that he didn’t like E Town because he knew “it’s dangerous out there and I don’t like it out there”.
Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture
The parties agree that the children are Aboriginal through their maternal family. However, the mother did not give any evidence of her Aboriginality or Aboriginal culture that she and the children enjoy. In these circumstances, I can only infer that to the extent that the maternal family do enjoy an Aboriginal culture, the children will continue to enjoy it in the event that they live with or spend time with the mother under either proposal.
B spoke to the family consultant of an understanding of his Aboriginal identity and heritage which is clearly present notwithstanding that he has in recent years lived with his father, who is non-Aboriginal. I infer that both of the parents will promote the children’s sense of Aboriginal identity.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In my view the father has consistently displayed a positive attitude to each of the children since separation in the sense that he has at all times sought that all of the children live with him. Although he displayed an irresponsible attitude in taking D with him to Brisbane when he had not reached agreement with the mother that this should occur, since this time he has been responsible in raising concerns about the conduct of the maternal uncles and ultimately complying with the court orders for all of the children to be returned to their mother. He also subsequently took on the responsibility of caring for B and C at the mother’s request.
Even though the father’s time with D was suspended from November 2014 up until the time of the proceedings, the father continued to make his sons available to spend time with their sister and mother in the school holidays.
The mother, after securing the return of the children to her care, seemed to quickly conclude that she was unable to manage B and returned him to the father. Her expectation that C and D would adapt to new circumstances in E Town including living in the household with a new partner and his father was not, in my view, child-focussed.
The mother’s nomination of her brother as an emergency contact when D was enrolled in school in E Town was irresponsible, particularly as there was a court order in place restraining the parents from allowing contact with that brother.
Family violence
As previously discussed, in my view, violence and aggressive behaviour was to some extent normalized in the parents’ relationship, particularly in association with alcohol abuse. At the very least, the children were exposed to conflict between the parents during the relationship.
While there is no evidence of physical violence since separation the children may still be exposed to conflict between the parents. B told the family consultant that he hears his parents “scream and fight about money and where we are living and all that” but neither of the other two children refer to this issue.
The circumstances in each of the parent’s current households are not entirely clear. Very little is known about the father’s current relationship, though the father and his new partner are not cohabiting. While the mother claims to have a harmonious relationship with her current partner, Mr K, there are some concerns about family violence in Mr K’s previous relationships.
The order least likely to lead to the institution of further proceedings
In my view, the mother’s proposal has the greater likelihood of leading to further proceedings for two reasons. First, I have no confidence that B and C will cooperate if orders are made for them to live with the mother and she may bring contravention proceedings against the father if the boys vote with their feet and live with their father and he does not return them. The proposal that the child or children’s time with the father be subject to agreement is also fraught with difficulty as agreement may not be reached. The recent history of the matter indicates that difficulty may particularly arise with respect to D’s time with the father if she were to live with the mother.
Any other relevant fact or circumstance
Both parents have had a history of uncontrolled drinking which was associated with the circumstances of family violence. For the reasons given, I am satisfied the father has reduced his alcohol consumption though he may need professional assistance in maintaining this safer level of drinking in the future. The mother’s drinking pattern remains an issue of concern, and it was noted by the family consultant that her alcohol consumption would be considered excessive by Health Department standards. B also stated to the family consultant that the mother “drinks a lot” and the mother’s own evidence that she is not intoxicated when she drinks almost a bottle of wine is concerning.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. In Goode & Goode[15] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[15] (2006) FLC 93-286
In this matter, each of the parents seek an order for equal shared parental responsibility for the children while the ICL seeks that it be allocated to the father alone in circumstances where the ICL supports the father’s proposal that the children live with him.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In this case, the presumption does not apply as there are more than reasonable grounds to believe that the father has engaged in family violence. However, as the parents seek such an order and particularly where the ICL seeks an order that the parent who has perpetrated that violence be allocated sole parental responsibility I must determine which order for parental responsibility is in the children’s best interests, having regard to the considerations referred to.
As the exercise of joint decision making for major decisions is required when parental responsibility is to be equally shared it is essential to determine whether the parent have a capacity to jointly make such decisions.
Although the parents showed some capacity for joint decision making up until the time of the interviews for the Family Report, in my view their capacity to do so after this has been severely compromised. In that interview the mother made serious allegations against the father that he had sexually abused D. She subsequently maintained that she did not believe the explanation she claimed he gave, that the touching was accidental. She then withheld D from the father on this basis, even though she was aware that the two JIRT interviews found that the allegations were unsubstantiated. These actions appear to have had a dramatic impact on the parents’ capacity to make joint decisions.
In the proceedings the mother said that her only real concern arose if the father was intoxicated. However, she did nothing to promote D’s relationship with the father from July 2014 and orders were made in November 2014 suspending the father’s time with D and for the mother to exercise sole parental responsibility for D. It appears that since at least this time the mother has made all decisions relating to D without discussion with the father.
The prospect for future communication between the parents is also poor. Shortly before the hearing, the mother sought an AVO against the father in broad terms including that he not have any contact with her except through her current partner Mr K in the case of an emergency. The mother indicated that she intended proceedings with the AVO.
When the father was cross-examined about the parents’ capacity to communicate with each other he conceded that he and the mother have not had a good record of communication since the allegation of sexual abuse was made. When asked about their capacity to reach agreement on holiday time he agreed that it was in the best interests of the children to have holiday time fixed rather than be the subject of agreement. This evidence concerning the parent’s poor communication and lack of capacity to reach agreement since the mother made the sexual abuse allegation does not in my view auger well for the exercise of shared parental responsibility in the future.
The ICL, who submits that it would be in the children’s best interests for sole parental responsibility to be allocated to the father, also relies in particular on the position the mother adopted in relation to the suggestion that she move closer to Brisbane as a relevant factor as to parental responsibility. The ICL submits that it particularly indicates the lack of capacity in the mother to place the needs of the children over her own needs.
Although it is a big step to preclude a parent from the exercise of parental responsibility, having regard to all of the best interests considerations but placing particular weight on parental capacity and the attitudes towards the responsibilities of parenthood demonstrated by each of the parents, I am of the view that it would be in the best interests of these children for the father to have sole parental responsibility for them.
Conclusion
It is unfortunate for B, C and D that their parents, who each love and care for them have not been able to reach agreement about their future parenting. The proposals of the parents each offer particular advantages to the children and promote each child having the benefit of having a meaningful relationship with both of their parents. However, in my view, an application of the considerations as discussed in these Reasons leads me to conclude that it is in the best interests of these children for orders to be made as proposed by the father. The orders I make are in accordance with both parents’ proposed orders where they are in agreement. Otherwise, the orders are as proposed by the father, subject to some minor variations proposed by the ICL and agreed to by the father.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 July 2015
Legal Associate:
Date: 10 July 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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