Waters and Desilva
[2014] FCCA 1220
•11 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATERS & DESILVA | [2014] FCCA 1220 |
| Catchwords: FAMILY LAW – Discretionary parenting orders – change of residence application – issues of family violence – issues relating to clinical assessment of child’s anxiety and attachment to Father – peripatetic lifestyle of Father – consideration of issues relating to Aboriginal culture – both parents Aboriginal – regular periods of reconciliation between parents – best interest considerations. |
| Legislation: Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA |
| Collu & Rinaldo [2010] FamCAFC 53 Jones v Dunkel (1959) 101 CLR 298 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Morgan v Miles (2008) 38 Fam LR 275 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe (2013) 48 Fam LR 298 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 |
| Applicant: | MR WATERS |
| Respondent: | MS DESILVA |
| File Number: | CAC 483 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 14 November & 6 December 2013 |
| Date of Last Submission: | 19 December 2013 |
| Delivered at: | Canberra |
| Delivered on: | 11 June 2014 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Longman Hill Solicitors, Orange |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | Legal Aid Office, Canberra |
ORDERS
The Mother have sole parental responsibility for the child, X (born (omitted) 2003);
The Mother is to keep the Father informed any major, long-term issues and major, relevant matters concerning the child;
The child live with the Mother, commencing on 5 July 2014;
The child attend (omitted) Primary School in (omitted), ACT;
That the child spend time with the Father as follows:
(a)For the first half of the terms 1, 2, & 3 holidays each year;
(b)For one half of the Christmas school holidays each year being the second half of the 2013/14 holidays and the first half of the 2014/15 holidays and alternating each year thereafter;
(c)For one weekend in (omitted) each term at times agreed between the parents;
(d)For up to 5 weekends a term in Canberra providing the Father gives the Mother 7 days’ notice;
That for the purposes of Orders 5a and 5b, the Father will collect the child from an agreed location in Canberra at the commencement of his time with the child and the Mother will collect the child from (omitted) at the conclusion of the time;
That for the purposes of Order 5c the Mother will deliver the child to, and collect the child from, the Father in (omitted);
That the Father is restrained from retaining the child in (omitted) at any time the child is meant to be attending school;
The matter is now finalised and will be immediately removed from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Waters & Desilva is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 483 of 2013
| MR WATERS |
Applicant
And
| MS DESILVA |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter that concerns almost 11 year old X, who is the son of Aboriginal parents. To a significant degree, and at various times, during the course of the parents’ relationship (which almost spans their son’s age) X has lived between the households of both parents, and has also been cared for, on his Father’s side, to a significant degree by his wider family. More recently X has lived with his Father.
Unfortunately, the resources of the Court, and the labours of the lawyers, and indeed the parties themselves, may ultimately come to nought in this matter because, as the Family Report writer opined or wondered, the fluidity of the living arrangement for X and his parents over the years gives little confidence that any order made will be given effect to by anyone involved, or at least, any orders will only have transitory effect, at best.
Indeed, in the course of her extensive report, the report writer (Ms C) said, at [73]:
… the parties have separated and reconciled so many times that I have no confidence the current separation will last especially in view of Mr Waters’ offer to reconcile again. It might well be that this court dispute and report are a waste of time given, I suspect the parties are well able to make their own arrangements and persist in doing so, with intermittent recourse to the legal system.
Background
The parents live in (omitted) and Canberra; the distance between those localities is approximately 190 kilometres, a drive of some 2½ hours or thereabouts.
In the course of their oral evidence, both parents accepted that the combination of being in close proximity to each other, and the presence of alcohol, was not a good combination.[1] Alcohol has featured, to varying degrees, in the lives of each of the parents.
[1] See Transcript (14th November 2013) pp.46 & 71. Hereafter such references will simply be “T” followed by the page number
The parties have reconciled, or sought to do so, on numerous occasions. Indeed, the report writer confirmed that, notwithstanding that Mr Waters was now in a new relationship, in the course of her interviews he offered [again][2] to reconcile with Ms Desilva.[3] Notwithstanding these furtive or somewhat futile attempts, it was also generally agreed that the parties regularly argue. To speak rather colloquially, the parties know how to ‘push each other’s buttons.’ That said, both parties acknowledge that X has a good and close relationship with the other parent, and that they are more than content for the child to spend time – including significant time – with the other parent.[4] Further, according to the report writer, the parents acknowledge that each of them is a good parent to X.[5]
[2] See the family report, Exhibit I, at [59].
[3] In his oral evidence, Mr Waters said that he finally separated from Ms Desilva in December 2012. See T 27.
[4] See, for example, T 80.
[5] See the family report at [45].
It is/was accepted by the Mother that, in Aboriginal families, it is quite common for children to live with other or extended family members, and to do so for not insignificant periods of time.[6] It was common ground that X had lived with the Father’s extended family for periods of time. The Mother’s concern was not with such arrangements but rather with the Father’s [alleged] lack of responsibility for his son.
[6] See T 67.
In no disrespectful way, the evidence of the parties helped me very little. This was because both parents were, in large part, somewhat (and at times, extraordinarily) vague in their account of events or circumstances, and in the Father’s case in particular, his recollection of many basic facts (even very recent ones) was more often than not, non-existent. The Mother, too, confirmed that her memory was “not too good.”[7] In saying this, I do not suggest that there was any attempt to conceal relevant matters. Rather, the life-style of the Father in particular, is such that time and stability of relationship, and of residence, seems to be not much of a priority.
[7] T 75.
I accept unreservedly that both parents love their son very much. I also accept, as do the parents and as recorded by the family consultant, that X feels rather torn between his parents and frets for the other parent when he is away from him or her. This seems especially to be the case in relation to being away from his Mother.[8] The Mother also accepted that X has a special bond with his Father, although when this was explored, she said that X indicated that he felt quite protective of his Father, almost as if the relationship between them was somewhat inverted, with X being the protector of his Father.[9]
[8] See, among other places, T 57.
[9] See, for example, the discussion at T 80-81.
In the circumstances of the case, and the general state of the evidence, to a significant degree the evidence of the experienced family consultant, Ms C, takes on an even more central role.
After setting out the orders sought by each of the parties, these reasons summarise (a) the evidence of the parties, and (b) of the oral evidence of the family consultant. The reasons then consider the Family Report (Exhibit I), before examining the evidence in the light of the Part VII of the Family Law Act 1975 (“the Act”).
Orders Sought
The Orders sought by the Applicant Father are as follows:
1.That the parties have equal shared parental responsibility for the child, X, born (omitted) 2003.
2.That the child live with the Father.
3.The child spend time with the Mother as follows:
a.For the first half of the terms 1, 2, & 3 holidays each year;
b.For one half of the Christmas school holidays each year being the second half of the 2013/14 holidays and the first half of the 2014/15 holidays and alternating each year thereafter;
c.Weekends and overnight in (omitted) upon giving the Father reasonable notice;
d.That for the purposes of Orders 3a and 3b, the Mother shall collect the child from the Father’s residence at the commencement of her time with the child and the father shall collect the child from McDonalds (omitted) at the conclusion of the time;
e.That for the purposes of Order 3c the Mother shall collect the child from, and deliver the child to, the Father’s residence in (omitted);
f.That the mother is restrained from consume alcohol within 12 hours of spending time with the child.
The Orders sought by the Respondent Mother are as follows:
1.That the child X, born (omitted) 2003, live with the Mother.
2.That the Mother have sole parental responsibility for the child.
3.That the child attend (omitted) Primary School in (omitted) ACT.
4.That the child spend time with the Father as follows:
g.For the first half of the terms 1, 2, & 3 holidays each year.
h.For one half of the Christmas school holidays each year being the second half of the 2013/14 holidays and the first half of the 2014/15 holidays and alternating each year thereafter.
i.For one weekend in (omitted) each term at times agreed between the parents.
j.For up to 5 weekends a term in Canberra providing the father gives the Mother 7 days’ notice.
5.That for the purposes of Orders 4a and 4b, the Father will collect the child from an agreed location in Canberra at the commencement of his time with the child and the mother will collect the child from (omitted) at the conclusion of the time.
6.That for the purposes of Order 4c the mother will deliver the child to, and collect the child from, the Father in (omitted).
7.That the Father is restrained from retaining the child in (omitted) at any time the child is meant to be attending school.
The Father’s Evidence
I have already mentioned that Mr Waters had a very poor recollection of many matters asked of him. For example, he could not remember or recall anything about (a) where he was living in the first part of 2013 (Canberra or (omitted)), (b) where he was living in 2012, (c) when he lost his job as a (omitted), and (d) who started a particular and serious fight between himself and Ms Desilva when he received a significant cut to his face with a broken glass.[10]
[10] See T 22, 23, 26, 30, & 41.
Particularly in relation to the care of X, Mr Waters was questioned about his son’s school attendance. This was in the context of certain tendered school reports, which covered a number of terms and localities (Canberra and (omitted)), and which became Exhibit G. Those reports show, for example, that when in Kindergarten, X missed 43 days of school in the first half of the year. At this time, Mr Waters (and X) were living in Canberra. Although Mr Waters was living with Ms Desilva at the time, he confirmed that he was X’s primary carer.[11] Also at this time, Mr Waters confirmed that he and X were moving between Canberra and (omitted) at this time. The life-style of Father and son might be described as an ambulatory or somewhat peripatetic existence.
[11] T 26.
In the second half of 2012, the school records from the ACT show that X missed 41 out of 100 school days. Mr Waters, as I have noted, confirmed that he and X were living between Canberra and (omitted) at this time.[12]
[12] T 27.
It needs hardly to be observed, by way of general comment, that (a) it is important for children to have a stable home environment, (b) it is important for children to have a stable school environment, and (c) it is important for children to have predictability and certainty in their lives more generally.
In 2013, X was living in (omitted) with his Father. In the first three terms in 2013, X had missed 19 days of school. Mr Waters suggested that these missed school days were somehow related to or caused by the current litigation between his parents.[13] Mr Waters also said that X had been ‘a bit sick’ during the year.
[13] T 28.
The tendered school reports indicated, and it was put to Mr Waters directly, that X’s literacy progress had been hampered by his poor attendance at school, and in the current (2013) report, it recorded that X “cannot yet write a simple sentence using appropriate punctuation.” Mr Waters said that he acknowledged that the responsibility for X’s poor school record (attendance and development) was his.[14] And upon reviewing X’s school reports since 2010 until 2013, Mr Waters conceded that his son’s ‘effort’ and ‘behaviour’ had regressed, or had ‘gone down.’[15]
[14] See T 51 & 52.
[15] T 56.
Further, in an ‘aide-memoire’ prepared from annexure A to the Mother’s affidavit of 23rd May 2013, and material produced under subpoena by the NSW Department of Education, the solicitor for Ms Desilva summarised (as far as those records allowed) X’s attendance record at school. According to that aide-memoire,
(a)2009: ACT records show 43 absences from school (seemingly for terms 1 and 2); terms 3 (in (omitted)) show zero absences; for term 4, X was enrolled in school in (omitted) between 31st August and 4th September, but 52 absences, according to ACT records, noting that the child was living in (omitted) with his Father;
(b)2010: ACT records show 23 absences for the first semester; ACT records for term 3 show 21 absences, but seemingly the child was residing in (omitted);
(c)2011: for three terms the child was schooled in (omitted) and one term in Canberra. In total, there were 20 absences from school;
(d)2012: for the first semester, ACT records show 34 absences recorded, and 41 absences in the second semester; it would appear that there were 7 absences recorded from (omitted);
(e)2013: records from (omitted) indicate that for the first three terms, there were 19 absences from school.
Again to state the obvious: the Court should be, and is, very concerned at X’s lack of regular attendance at school, and likewise his correspondingly poor performance at school as recorded in his reports put before the Court. In many ways, as noted later in these reasons, in a case such as this, where there are many variables, the matter of X’s quite poor schooling record (in both attendance and performance) assumes, in my view, perhaps the most critical factor among the many considerations in Part VII of the Act to be addressed. And all this is in circumstances where the Father said in his oral evidence that he ensured that X went to school, did his homework and “pretty much did everything” for his son.[16]
[16] T 24 & 25.
The following matters might be noted more summarily from Mr Waters’ evidence.
First, contrary to what was in his affidavit, the Father confirmed that the Mother had lived, without change, in Canberra since December 2008. He also confirmed that his assertion that the Mother had been evicted was incorrect.[17] He also said that he sent her money “on numerous occasions.”
[17] T 29-30.
Secondly, by contrast to the Mother’s stable residence since 2008, Mr Waters confirmed that he had changed residences perhaps five times during the same period. His new partner was waiting to get another, larger house, into which she and Mr Waters would move.[18] He also agreed with the proposition that he had been moving regularly between Canberra and (omitted) for the last five years.
[18] T 32.
Thirdly, Mr Waters confirmed that the Mother had said to him that if he wanted X to live with him, he needed to get or to make a stable home for him.[19]
[19] T 33.
Fourthly, Mr Waters said that he did not have a problem with alcohol.[20]
[20] Among a number of places, see the general discussion at T 34 – 37.
Fifthly, the Father’s new partner did not provide any affidavit for the trial. Mr Waters confirmed that she used to smoke marijuana daily, but stopped when she became pregnant. Nor did his Mother and Grandmother provide evidence for the trial.[21] This is of some significance where there is no issue that X regularly lived (or lives from time to time) with one or both of these ladies, who also assist otherwise with his care.
[21] T 36-37.
Sixthly, Mr Waters agreed that there was a significant history of domestic violence between the parents over the 10 years of the relationship.[22]
[22] T 39.
Seventhly, Mr Waters said that Ms Desilva was charged but not convicted in relation to the incident where she assaulted him with a glass. He confirmed that he was drunk at the time of the incident.[23] Police records show that he was too intoxicated to make a statement; Mr Waters said that he could not and did not make a statement because he was getting his face “stitched.”[24]
[23] Various police records (from NSW Police and the AFP) were tendered. They became exhibits C, D, F & H.
[24] T 42-43. There was a further discussion with Mr Waters in his oral evidence in relation to further encounters with the police that involved him being intoxicated. I need not retail them further here. See T 46 ff.
Eighthly, Mr Waters agreed that X feels torn between his parents, and likewise he acknowledged that he misses his siblings, most of whom live with Ms Desilva.[25]
[25] T 57.
Ninthly, Mr Waters said that his biggest concern about X living with his Mother was her “drinking.” He also acknowledged that he told Ms C that Ms Desilva was a good Mother, and that he had no concerns about her capacity to care for their son.[26] He said, further, that he was content for X to spend any time he wished with his Mother. This was in the context of a discussion about Mr Waters not providing the Court with any orders as to what he considered the appropriate time that X should spend with his Mother. In the course of this discussion, Mr Waters suggested that it would be enough for X to spend time with her for one weekend per month and some [unspecified] time in the school holidays. This was later amended in re-examination to two weekends per month.[27]
[26] T 58.
[27] T 59 & 61.
Towards the end of his cross-examination, Mr Waters agreed with the suggestion that his primary focus was his fear of losing X.[28] I confess that I was not sure that Mr Waters fully appreciated the import of either the question or his answer. That said, he also confirmed (as I have already noted) that he suggested to Ms C that he reconcile with Ms Desilva in circumstances where he was in another relationship at the time. He also said that he was closer to X than was Ms Desilva.[29]
[28] T 60.
[29] T 61.
In relation to each of these matters I took them individually and collectively to be examples of certain deficiencies in Mr Waters’ understanding of what he was being asked at the time, but also, they showed too a wider lack of self-awareness and a not insignificant focus on himself. I have no doubt that he loves and cares for X as best he can, but there is a certain lackadaisical, or less than diligent, approach to many basic life-skills that clearly impact negatively on X.
Evidence of Ms Desilva
The Mother’s evidence may be summarised as follows.
Ms Desilva agreed that between 2008 and 2012, X was “always with his Father”, and that during this general period, it was common for Mr Waters, and the child, to live at the home of Mr Waters' Grandmother. In this regard, the issue was, according to Ms Desilva, not the residence at which X lived (or the care provided by the other members of the wider family) but the [alleged] lack of care provided by Mr Waters.[30]
[30] T 66-67.
Ms Desilva confirmed that she had never complained to the police about domestic violence from Mr Waters directed to her.[31] She also confirmed that there was an occasion when she had smashed X's TV. She sought to explain that there were many instances where she asked or directed Mr Waters to leave the residence but he refused to do so. This, in turn, led to further arguments between the parents, which seem, in the past, to have embroiled the child to some degree.[32]
[31] T 70.
[32] T 71.
Ms Desilva agreed that she had, at times, been engaged in fights, which appear to have been primarily in (omitted). She said, however, that such things were in the past. She also confirmed that she smacked one of her [teenage] daughters and that was reported to police in November 2012. She denied that she had punched her Mother; she said that she might have slapped and pushed her in the face.[33]
[33] T 73.
Ms Desilva said that she drank perhaps one bottle of bourbon and coke per month, usually in one night, and usually with a couple of friends.[34] Her evidence here was not completely clear.
[34] T 76. See also at T 82-83.
On another matter, she confirmed that her communication with Mr Waters was not too good; she thought that a communication book might assist them. She said, nonetheless, that Mr Waters had never refused her time with X whenever she requested it.[35]
[35] T 80.
Of some significance, Ms Desilva confirmed that X had said to her that he wanted to live with his Dad. She explained further (elaborating on what was set out in her trial affidavit where X is recorded as saying that he “feels slack for Dad”) that this comment should be understood as the child feeling a responsibility to care for his Father. At the same time, Ms Desilva acknowledged that the child has a close bond with his Father.[36] She also acknowledged that X felt protective towards his Father, and vice versa.
[36] T 80-81.
Ms Desilva acknowledged that X has some learning difficulties, and she had learnt that his school in (omitted) had a special needs teacher who was assisting him.[37] She said that her main concern was to ensure that X had a stable home environment. She also said that she wanted to ensure that X was in a local environment that provided him with greater opportunities, which she said was in Canberra.
[37] T 84.
And in response to questions about the need for him to remain connected to his Aboriginal heritage, Ms Desilva said that there was community in Canberra, but his primary community was the family of his siblings.[38] In short, she said that, even though some of her children had moved back and forwards between Canberra and (omitted), most were either with her or coming back to live with her, and that her home was more stable than that of Mr Waters.[39]
[38] T 84-85. See also the discussion of Aboriginal relatives, and other members of that community, in (omitted) at T 91.
[39] T 89.
Evidence of the Family Consultant
The Regulation 7 Report (Exhibit I): I note the following from this report of Ms C.
At [12] and [13] of the Report (in relation to her interview with Mr Waters), Ms C said:
[12] Another reason Mr Waters wanted X to stay with him was because he had been going well at school and was being given extra help there. Because of the on and off nature of his parents’ relationship, Mr Waters explained X had missed a lot of school in the past because he always wanted to return to (omitted) with him. During periods of reconciliation, Mr Waters said X had been to school in Canberra where his mother lived.
[13] In Mr Waters’ opinion, X would be better off living with him because he would go to school more frequently. Mr Waters described X as a “Daddy’s boy” who liked to sleep in his bed. He said he was trying to move X into his own bed.
Then at [22] and [23], the report writer noted (the “Ms H” referred to is Mr Waters’ current partner):
[22] Mr Waters said X got on well with his new partner who gave him a lot of attention. Mr Waters described X as a “genuinely nice kid”. In the event X was naughty, Mr Waters said he would send him to his room or raise his voice to him. He would not smack him. Mr Waters said X was doing well at school.
[23] According to Mr Waters, Ms H was more accepting of him drinking than Ms Desilva had been. He said Ms Desilva had not allowed him to do anything and did not trust him. He said there was no violence between him and Ms H although they had some little arguments.
Arising from her interview with Ms Desilva, Ms C noted, at [29] and [30] (emphasis added):
[29] Earlier this year, Ms Desilva explained she kept X in her care because she thought this was what he wanted her to do. She was in (omitted) two weekends in a row prior to this and noticed something was wrong with X. He then told her he did not want to go back to his father’s and wanted to live with her because of the fighting at his father’s. Ms Desilva said she tried to discuss this with Mr Waters to no avail. She recollected X even rang his grandmother up and told her he did not want to go back to reside with his father. Ms Desilva argued Mr Waters did not listen to X.
[30] Because X had to go to school, Ms Desilva enrolled X in school here. Now Ms Desilva said she just wanted whatever X wanted. She said she only took action because at the time X had said he did not want to return to his father’s and commented that she could understand why. When I told Ms Desilva that now X was saying he wanted to stay with his father, Ms Desilva calmly accepted this saying it was “OK” so long as she could see him.
Then, following a period when Ms C sought to resolve the matter by discussion with both parents, she observed, at [45]:
Ms Desilva advised Mr Waters that the only reason she had taken action earlier this year was because X asked her to. Mr Waters commented that he knew Ms Desilva was a good mother and she knew that he was a good father. Ms Desilva commented that she was concerned about Mr. Waters’ unhealthy relationship basing this on what she had heard from X. Mr Waters responded that his partner was nice to their son…
Then at [53], Ms C (in my view, importantly) recorded (emphasis added):[40]
When I asked Mr Waters what was his concern if X was to live with his mother, he responded that he would miss him. He pointed out that while Ms Desilva had other children, X was his only son. Ms Desilva said that X should be with his brothers and sisters particularly as he got older. Ms Desilva said the siblings needed each other more as they got older.
[40] In the following paragraph [54], Ms C noted that Mr Waters “acknowledged [the] importance of brothers and sisters [to X] but said he was important too.”
In relation to her interview of X, Ms C noted the following.
First, the child was relaxed with both parents (see [61]). Secondly, when seen with his Mother, Ms Desilva told X that she just wanted to know “what he wanted to do”.[41]
[41] See [63].
Thirdly, at [64], Ms C noted:
When seen alone, X told me he had to come to see me “Because my Mum and Dad are fighting over me”. After I explained my role, X told me he wanted to live with his father and spend the holidays with his mother. X said he missed his mother when he was at his father’s. X said he had been with his father all his life and sometimes with his mother. He said that earlier this year he lived with his mother for a little while which was “good”.
Fourthly, at [65] and [66], X said (emphasis added):
[65] According to X he was recently returned to his father because “Dad won”. Despite having told me he wanted to live with his father, X told me he was not very pleased about being returned to him. When I asked him to explain he said “I changed my mind when Dad took me”. X sounded very hesitant and uncertain and had trouble explaining himself here. He said when he was with his mother, he wanted to be with her but when he went back to his father, he wanted to be with him.
[66] In response to my query as to why he considered he would be better off living with his father, X said “Because he’s been with me for nine years”. X said no-one had really told him why he was to see me and that his father had told him he was coming “to pick Mum or Dad” but did not tell him what to say. X said he did not really know what was better at his father’s than his mother’s.
One of my concerns in this matter is highlighted by this comment from X. It might be taken as indicating a relationship of dependence by Mr Waters on his son. Such a possible conclusion is also supported by comments of the Father noted earlier that X still sleeps with him, and the Father’s comment to Ms C that if X lived with his Mother, he (the Father) would miss his son. While this is an understandable and perfectly natural comment, in the wider context of the litigation itself, it could easily be understood as indicating the Father’s main concern or focus on his own interests rather than putting the child’s interests as the primary consideration.
At [68] of the Report, Ms C recorded that:
X told me he worried about whether he would be sent to live with someone else and not be allowed to live with either of his parents. He explained he feared being sent into care because his parents kept fighting. X knew of children who had gone into foster care although he said he had never been in care himself. He said he had not witnessed any physical violence at his father’s recently and said his father did not really drink too much alcohol. X said his father sometimes argued with Ms H.
Then at [70], in a very concerning comment, Ms C said (emphasis added):[42]
X’s test results are at Attachment 1. They are concerning and support my clinical impressions that X is an anxious child with emotional problems in response to stressful situations at home.
[42] Apart from the statistical analysis provided by Ms C, the conclusion in Attachment 1 largely replicates the summary provided in [70].
Turning then to Ms C’s evaluation, the first matters to note are set out in [73] and [74], as follows (emphasis added):
[73] Indeed the parties have separated and reconciled so many times that I have no confidence the current separation will last especially in view of Mr Waters’ offer to reconcile again. It might well be that this court dispute and report are a waste of time given, I suspect the parties are well able to make their own arrangements and persist in doing so, with intermittent recourse to the legal system.
[74] Not surprisingly given his life experiences to date especially his exposure to domestic violence, X presented as an anxious child. It is undoubtedly very unsettling and worrying for a child to fear he might be removed from either of his parents and placed in care. Little weight should be placed on X’s variable wishes. He is a very insecure boy, anxious to please both of his parents.
The comments in [74] concerning X are particularly troubling.
In relation to Mr Waters, at [75] and [76], Ms C commented:
[75] Mr Waters did not impress as able to put his son’s needs before his own. He wanted X in his care because he would miss him and paid little heed to why X himself would be better off with him, apart from saying he could ensure he regularly attended school. There was little in the history to support this. Mr Waters’ argued that X liked to sleep with him presumably to support how much X loved him. This could rather be indicative of an insecure attachment.
[76] I was also concerned about the extent of Mr Waters’ alcohol consumption and about the stability and nature of his current relationship. Indeed Mr Waters was still not offering his son a stable place to live. Since separating in December, according to his affidavit, Mr Waters has lived with his grandmother in (omitted) as well as more recently with a new partner. He proposed moving again.
For my part, I have little reason to dispute Ms C’s observations and comments. Indeed, subject to what is said later in these reasons, I would formally adopt them.
In relation to Ms Desilva, Ms C observed, at [77] and [78]:
[77] Ms Desilva on the other hand has as far as I am aware lived in the same house for some years and argued she only allowed X to leave with his father each time under duress. It might be that an order that X lived with her will ensure X gains some stability although I am unsure how able Ms Desilva was to get him to school when she was with Mr Waters.
[78] If X can live with his mother, he will be able to maintain closer relationships with his siblings. These relationships might well be important in later life.
Finally, it is important to record Ms C’s final, and quite positive comment, at [82]: “…The parties’ ability to pleasantly relate to each other boded well for future contact arrangements and changeovers.”
Ms C recommended that X live with his Mother, with monthly weekend and half-holiday ‘contact’ with his Father in (omitted).
Ms C's Oral Evidence
At the time of writing her report in July 2013, Ms C confirmed that she had understood that the Mother’s household was stable, as opposed to some of her children moving back and forth between Canberra and (omitted).[43]
[43] Transcript (6th December 2013) p.13. Hereafter, transcript references will simply be “T” followed by the page number.
In the course of her oral evidence, Ms C said: “… my primary concern in this matter is to get some stability for X, which would include educational placement.”[44] She confirmed further that her focus in terms of “stability” was in relation to parental relationship, rather than in terms of any movement involving X’s siblings.
[44] T 13.
In relation to X’s “views”, among a number of exchanges, the following took place with the solicitor for Mr Waters:[45]
Q. Well, I’m suggesting to you that, if you take it from me, that he repeated that to his mother in the October school holidays, when he was spending time with her; quite outside the court process, quite outside any pressure from the father, and he said it to you twice in the report interview, I’m suggesting to you it’s really a very consistent wish, not a variable one; what do you have to say about that?‑‑‑
A. I found him to be an anxious child, and I was concerned, so I would still, sort of, say that, you know, he was - I’ve also said - described him as “hesitant and uncertain” so I would say his wish was variable, and ideally we would want children to favour living with both parents. The sadness in these cases is that they can’t.
[45] T 14.
Noting in the following exchange that Ms C confirmed that she had done some work in (omitted) and was aware of its sizeable Aboriginal population, the issue of a change in residence for X was explored in the context of his Aboriginal heritage and culture, thus:
Q. Yes. And you would agree that the one time that he really perked up and showed - and starting showing some animation was when he was talking about catching yellow belly in the river, fishing?‑‑‑
A. That’s what I said in my - he became animated then and then he was also very relieved at the end of the interview, when he was able to go - at the end of the time, at the court, when he was able to go with his mother.
Q. So, you realise that (omitted) has a sizeable aboriginal population?‑‑‑
A. Yes, I’ve done some work in (omitted), yes.
Q. And that, you know, catching fish in the (omitted) is something that he and his forebears have been doing since time immemorial?‑‑‑
A. Yes.
Q. And Canberra is a very different place to that, isn’t it?‑‑‑
A. Yes.
Q. Culturally?‑‑‑
A. Yes.
Q. Well, I’m going to put it to you that it would be a bit of a shock to his system to be removed from it and brought to Canberra on a permanent basis without his father; what do you have to say about that?‑‑‑
A. I’m sure he would be able to pursue those activities in - during the time that he did spend with his father. You’ve got monthly, weekend and half holiday contact, and it would be different but his mother is indigenous as well, so I imagine she would be concerned about those issues.
HIS HONOUR: Sorry, Mr Hill, was your question to Ms C primarily predicated upon cultural aspects?
MR HILL: Yes, your Honour, yes.
HIS HONOUR: Yes.
MR HILL: But it would be a pretty big shock to his system to come to Canberra permanently without his father?‑‑‑He’s lived in Canberra before, hasn’t he, if you would just correct me if I’m wrong, with both his parents so, I mean, it’s not that he’s unfamiliar with Canberra. It would certainly be a different environment than (omitted).
In relation to X’s ‘anxiety’ to which Ms C referred in her report, she said:[46]
[46] T 19.
Q. Do you think that X and his anxiety according to you is on, almost a clinical range, and that’s from psychological testing?‑‑‑
A. Yes.
Q. Is his anxiety more or less likely to be ameliorated by living with siblings or would it have no impact whatsoever?‑‑‑
A. I think living with siblings is only one factor, and teenagers, as we all know, may add to your anxiety at times, may assist with your anxiety at times. They can be very challenging in themselves, so I don’t think it’s a key issue.
Q. Right. So it’s not possible to say whether that would ‑ ‑ ‑?‑‑‑
A. No.
Q. ‑ ‑ ‑ assist or not assist?‑‑‑
A. No.
In relation to the Father’s living situation, Ms C said:[47]
[47] T 20.
Q. If I tell you that the father now does have housing of his own would that give you more confidence that the father could provide adequately for X?‑‑‑
A. Yes, it would certainly be beneficial for the - yes, for the father to have his own house.
Q. If I then tell you that the father intends to move again, either into his girlfriend’s house or into another house, but he doesn’t know when or where, would that make you concerned, once again, for the stability of the father’s housing?‑‑‑
A. Yes, yes.
Ms C confirmed that the child loves both his parents, but which also leads to some ambivalence in his choices or ‘views’ as well as to his level of insecurity, the latter being clearly related to his fear of being removed from the care of either of them.[48]
[48] See T 20-21.
In relation to the child’s attendance at school, particularly when he is in the care of his Father, Ms C’s evidence was:[49]
[49] T 22.
Q. There are other times when he appears to have attended school consistently in either Canberra or (omitted). If, what the father says is true, that he’s the primary carer of X and X is always with him, would you have concern about the father’s capacity to ensure that the child’s educational needs are met?‑‑‑
A. Yes.
After outlining her extensive experience in relation to Aboriginal culture and matters relating to Aboriginal families, Ms C was asked questions in relation to such culture in Canberra and related matters, thus:[50]
[50] T 23.
Q. Are you able to say whether or not, firstly, an Aboriginal can experience Aboriginal culture in Canberra?‑‑‑
A. I believe they can. I think it’s about the commitment of the carer and the family to promote that.
Q. And do Aboriginals – you may be able to, it’s a general question, but is there a necessity for an Aboriginal person, child or adult, to live primarily in their country?‑‑‑
A. No.
Q. So it’s not uncommon for Aboriginal people to live in places that are not their country?‑‑‑
A. That’s right. No.
Q. By that I mean their place of origin?‑‑‑
A. That’s right. No, it’s certainly not – yes, very common for them not to do so.
Q. And were you able to or did you form any view that Ms Desilva had a commitment to her Aboriginality and culture therewith?‑‑‑
A. I believe she did and, indeed, my understanding is she has family in (omitted) as well who she regularly is in contact with which probably explains the children’s movements, you know, the older children so, yes.
The Legislative Scaffold
In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated in determining orders that are in X’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[51] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[51] (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[52]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[52] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] 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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Mother’s submissions are framed expressly as a ‘relocation’ matter, and therefore (according to the Mother), the judgment of Boland J in Morgan v Miles should also be considered.[53] Given that neither parent seeks to move from their current abode (which fact is acknowledged in the Mother’s written submissions at par.9), respectively in (omitted) (the Father) and Canberra (the Mother), respectfully, in my view, it is not so much a ‘relocation’ matter as a change of residence application. That said, Boland J’s helpful description or admonition that the Court’s task is to undertake a “careful exercise of a structured discretion” (see [55] & [74]), in my view, applies to all parenting cases in any event, given that they (like property orders) ultimately involve the making of discretionary orders.
[53] Morgan v Miles (2008) 38 Fam LR 275.
In the light of (a) the evidence given by the parties, (b) the written (Exhibit I) and oral evidence of Ms C, (c) the helpful written submissions of the parties’ experienced lawyers, I note the following in crafting orders that are in X’s best interests (pursuant to s.60CA) by reference to the ‘scaffold’ or ‘pathway’ prescribed by Part VII of the Act and as summarised by Brown J in Mazorski v Albright. Unless otherwise specified, I should be taken to follow sequentially (without necessarily naming each of them) the order of ‘considerations’ on s.60CC(3).
By way of introduction, I accept the general observation of Mr Waters who stated in his written submissions: “It is a matter where there is not the usual level of entrenched bitterness between the parties.” This is all to the good.
Also by way of general comment or observation, although there was quite some attention in the course of the trial to particular incidents (such as an altercation between the parties which resulted in the Father receiving stitches for a wound to his face said to have been inflicted by the Mother), and accepting that the Act requires the Court to have particular regard to matters of family violence (see s.60CC(2A)), having regard to the wider body of evidence (not least the report of Ms C) and how long ago this particular incident was, in my view, matters of family violence do not figure as prominently in the Court’s deliberations as the Father might otherwise or perhaps wish.
In a slightly similar vein, in my view, the drinking habits of both parties were rather inconclusive, not least because much of it was a ‘he said – she said’ situation. Such a benign view, to a significant degree, might be said to benefit the Father. Such a view would be drawn, for example, from the incident in which he suffered a wound to his face from a glass used by the Mother. According to police records (Exhibit H), both parents were intoxicated at the time of this incident in late December 2012. The same records show that (a) both parents were injured (the Father clearly received a more serious “laceration” than the Mother), (b) the police could not determine who was responsible for the “assault”, and (c) the Father was so intoxicated and aggressive that he could not give an account of the incident to the police.[54]
[54] The same police records show that there has been a history of violence between the parties during their relationship.
In saying all this, it should not be inferred that the Mother has been a complete angel; indeed she has come to the attention of the police not infrequently, although most of the incidents recorded have been over a significant period of time, and but for one incident involving the slapping of her daughter, they are (by and large) now some years past.
Turning then directly to the statutory scaffolding/legislative pathway, as to X’s ‘views’, on the one hand he has indicated to his Mother and to Ms C his desire to live with his Father, but on the other hand, Ms C has assessed him as having clinically indicated anxiety, and that little weight should be given to his views.
It seems not able to be doubted that the child seeks to please both parents. Nor can it be doubted that he loves both parents, and that they love him. Nor is it disputed that X spends regular time with his maternal Grandmother and other members of his paternal family. To a degree, this appears to be in circumstances where the Father (in particular) is more than content to allow the wider family to care for the child. There also seems little contest that most of his siblings live with his Mother.
Regarding the matters comprehended by s.60CC(3)(c), (ca), (f) and (i), the evidence indicates that the fluidity of X’s living situation between (omitted) and Canberra, and the semi-regular discord between his parents, have often militated against both parents being involved in the care and welfare of their son. Both parents have spent regular time with him. It remains more impressionistic (but not, thereby, invalid or inappropriate) that Mr Waters has a much less structured existence, even in his own living situation as well as in relation to attention to X’s schooling, than Ms Desilva. In my view, Mr Waters has a much more relaxed approach to life (no bad thing of itself) but which also indicates that he has a life that is almost devoid of goals, both for himself and for X. Fluidity is one thing; basic order and particular attention to the welfare of a child is another.
I have no doubt about Mr Waters’ genuine concern and care for his son. However, in the light of X’s regular absences from school, I have quite some doubt about his attention to such basic and essential matters such as schooling.
Further, as important and significant as the wider family support for Mr Waters and his care of X is, such care is not a substitute for the primary responsibility of a parent to provide for the needs of his or her child. The wider family support should properly be seen as complementary to the parental care.
In my view, as best as the Court can do, on balance Ms Desilva struck me as the person with the greater parental capacity and insight into X’s interests and needs. She was, in my view, more child-focussed. While Mr Waters doubtless has X’s interests at heart, he struck me as someone who also had a not insignificant level of self-interest, somewhat akin to an unspoken question being regularly posed as “what about me” if X lived primarily with his Mother. The self-interest I refer to should not be taken as a harsh or undue criticism of Mr Waters. Rather, it reflects the Court’s assessment, essentially on a comparative basis, of the capacities of the parents, without in any way questioning their love for their son.
Whether X resides with his Mother, or with his Father, I share the concern of Ms C that it is likely that he will continue to oscillate between the households of his parents. He will continue to miss ‘the non-resident parent’ when is he not with him or her. And it can only be somewhat speculative that living with his siblings at his Mother’s residence will more likely keep or anchor him resident with his Mother and not pine too much to be with his Father in (omitted). The converse also applies regarding the lure to be with his siblings in Canberra if he was to reside with his Father. In short: the evidence clearly indicates that there is little in the way of a solid foundation for or in X’s daily life. Routine and order is an important aspect of a child’s life. When in his Father’s care, the evidence suggests that such order and structure is not a prominent feature in the child’s life. For a child of X’s age, his levels of anxiety and insecurity, as noted by Ms C, basic order and reliability are essential.
In addition to these matters, the Court notes that the Father’s new or current partner was not interviewed by Ms C, nor did she put on any affidavit in support of the Father’s application. The Mother’s lawyer submitted that in such circumstances, the Court should draw the appropriate [adverse] inference, pursuant to the principle in Jones v Dunkel.[55] The Court accepts that submission.
[55] Jones v Dunkel (1959) 101 CLR 298.
The Father’s proposed move to a new residence with his partner, her children, and X, only adds to the Court’s concern about the relative lack of solidity and residential foundation necessary for the child.
Given the locality of the parents’ residence, and the distance between (omitted) and Canberra (approximately a 2½ hour drive; a distance of approximately 190 kms), the practical difficulty and expense of spending time with the non-resident parent will remain, whatever the order of the Court and with whom-ever the child primarily resides. While the Father supports the child’s relationship with the Mother, in my view, (a) the Father will not oppose and will encourage it, but he will not necessarily facilitate (or be able to facilitate) the Mother-son relationship (mainly because of logistical issues), and (b) the Mother will more actively support, encourage and facilitate the child’s relationship with the Father.
In the light of Ms C’s evidence, particularly in relation to Aboriginal culture, which I accept, I have no doubt that Ms Desilva (who I note again is Aboriginal herself) will ensure that X will be encouraged to participate in the cultural life of the local Aboriginal community. Moreover, given that the child will regularly spend time with his Father in (omitted), he will remain sufficiently in contact with the Aboriginal community in that part of the world.
In relation to matters of family violence, I note that the parties are separated by significant distance and their relationship (certainly on the Mother’s part) is long ended. The matters of violence between the parties, and in particular the 2010 assault/laceration incident, are now a significant time ago. Accordingly, as between the parties, I do not apprehend that family violence is or is likely to be an on-going issue.
Regarding an incident between the Mother and one of her teenage daughters in 2013, where the Mother smacked the child, the circumstances of that are sufficiently outlined in the police records (Exhibit H) such that, as a consideration in relation to parenting orders in relation to X, in my view, I do not need to attend to it further.
With the qualification already noted by Ms C and endorsed by the Court about the likely compliance with orders, the orders proposed by the Mother are, in my view, the least likely to lead to the institution of further proceedings. The change of residence for the child required by the orders should take place mid-way through the next school holidays.
In relation to parental responsibility, in my view, having regard to the history of the relationship between the parents, the most appropriate order is for the Mother to have sole parental responsibility. She is nonetheless required to discuss and consult with the Father in relation to, and otherwise to keep him informed of, any major, long-term issues concerning the child, and otherwise to keep him informed of major, relevant matters involving their son.
Such an order for sole parental responsibility obviates the need to consider s.65DAA.
Disposition
Having regard to the objects and principles set out in s.60B(1) and (2), and the primary considerations in s.60CC(2), the orders as sought by the Mother, in my view, ensure that X will (a) continue to have a meaningful relationship with his Father, (b) be protected from any risk of abuse, neglect or family violence, and (c) have the stability of residence and life-style that, to some degree, he has been lacking.
The Court so orders.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 12th June 2014
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