West and Marley

[2011] FamCA 383

FAMILY COURT OF AUSTRALIA

WEST & MARLEY [2011] FamCA 383

FAMILY LAW - CHILDREN – High conflict case - with whom a child should live – with whom a child should communicate – allegations of alcohol and drug abuse – allegations of sexual abuse - allegations of violence asserted by both parents – allegation by mother that father is alienating the children from her – whether the father has enmeshed the children in the proceedings - interim change of residency – interim order that father spend time with the children.

Family Law Act 1975 (Cth) ss 60CC(2), (3), (4), 61C, 61DA, 64D(2) and 65DAA

Goode & Goode (2006) 93-286
MRR v GR [2010] HCA 4

APPLICANT: Ms West

RESPONDENT: Mr Marley

INDEPENDENT CHILDREN’S LAWYER: Mr G. Pohlmann

FILE NUMBER: TVC 411 of 2010

DATE DELIVERED:  26 May  2011 (orders made 18 May 2011)

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Benjamin J

HEARING DATE: 18 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms B J Hartigan

SOLICITOR FOR THE APPLICANT: J Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pohlmann

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McKay’s Solicitors

Orders

UNTIL FURTHER ORDER

1. All prior parenting orders in relation to B born November 1997, N born October 1999 and C born August 2001 (“the children”) be discharged.

2. The mother and father have parental responsibility for the children in accordance with s61C of the Family Law Act 1975 (Cth).

3. The children live with the mother.

4. The father spend time with and communicate with the children between 9:00am Saturday, 11 June, 2011 to 4:00pm Sunday 12 June, 2011 and from 9:00am Saturday, 9 July, 2011 to 4:00pm on Sunday, 10 July, 2011 with changeover to take place at the Town 1 Store.

5. On and from Friday 29 July, 2011 the children spend alternate weekends with their father from after school Friday to before school on Monday each alternate weekend and in the event that Monday is a Pupil Free Day or Public Holiday, then the father’s time with the children will conclude at the start of school on the following Tuesday morning;

6. The children spend the second week of the September/October school holidays with the father commencing Saturday, 24 September, 2011 and concluding at 4:00pm on Saturday, 1 October,  2011;

7. The children spend time with the father during the Christmas holiday period from 2:00pm Christmas Day until 2:00pm Boxing Day and from 9:00am on 31 December, 2011 until 4:00pm on Friday, 20 January, 2012.

8. The children spend time with the father from after school Friday 27 January, 2012 to be before school Friday 3 February, 2012 and each alternate week thereafter with changeover to take place at school on Friday but otherwise changeover to take place at the Town 1 Store.

9. After 29 July 2011, each parent shall have telephone contact with the children on each alternate Tuesday when the children are not in their care between 6:30pm and 7:00pm with the non resident parent to initiate the telephone call and the parent with whom the children are residing to ensure that the telephone is on and the children are available to receive such calls and that the children are afforded privacy during those telephone calls.

10. Neither parent to denigrate the other parent or members of the other parent’s family to or in the presence of the children.

11. Each parent to use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent’s family to or in the presence of the children.

12. Neither parent to discuss these proceedings with or in the presence of the children nor show to the children or any one of them, any document connected with these proceedings.

13. Each parent shall abstain from consuming any illicit drugs or any alcohol whilst the children are in their respective care.

14. The parents will recommence the use of a communication book for communicating information in relation to the children with that book to  travel between the parents in a separate bag.

15. All children attend counselling and participate in the children’s programme offered by Relationships Australia with the children to continue with such counselling or courses as may be recommended by the counsellor at Relationships Australia from time to time.

1. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

   IT IS DIRECTED

2. This case be assigned to the list of cases awaiting determination and designated as Magellan.

3. The further hearing of all extant applications is adjourned before Registrar Kane at Brisbane at 12.00pm on 25 May 2011.  The parties have leave to attend by telephone.

4. The relevant child welfare authority is requested to prepare a report as to the allegations made by Ms L contained in her affidavit filed in the Federal Magistrates Court on 22 December 2010.

   IT IS NOTED

5. This matter is to be listed for hearing in Mackay or Brisbane, the venue to be determined by the Magellan Judge.

   IT IS CERTIFIED

6. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend for the mother and the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym West & Marley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER:  TVC 411 of 2010

Ms West

Applicant

And

Mr Marley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Ms West and Mr Marley have three children, their son B aged 13;  their daughters N aged 11, and C, aged 9.

2. The parties were engaged in proceedings in the Federal Magistrates Court in respect of the parenting arrangements for the children.  Interim consent orders were made in June 2010, which were amended in November 2010.  Those consent orders essentially provided that the children live primarily with the father and spend half of the school holidays and alternate weekends with the mother. 

3. In mid-April 2011, the mother filed an application in a case in the Federal Magistrates Court seeking a substantial change to that arrangement, asserting that the father was engaging in behaviour which would alienate the children from her.  The matter was listed for hearing before a Federal Magistrate on Tuesday, 16 May 2011, and the Federal Magistrate transferred the matter to the Family Court on that day.  The application of the mother was heard by me on 17 May 2011. 

4. The mother was represented by counsel, an Independent Children's Lawyer had been appointed, and the father was self-represented. 

5. The mother sought orders in the form of orders suggested by the Independent Children's Lawyer.  Those orders are as made by me at the conclusion of the interim hearing, with the exception that they did not deal with the question of parental responsibility. 

6. The father initially sought an order that the children live primarily with him and that they see their mother on a less regular basis and such time be supervised.  When asked at the commencement of the interim hearing, he said he was seeking orders which reflected the status quo. 

Background 

1. The father is aged 50, the mother aged 45, and they commenced cohabitation in 1992.  There are three children of their relationship, to whom I have referred earlier.  The mother had been previously married, and she has two children of that relationship, Ms L, aged 25;  and Mr L, aged 23.

2. The father has been in a previous relationship and has three children of that relationship; D, M, and S.  These children were not an issue or the subject of any significant debate during the interim hearing. 

3. The date of separation is an issue of fact in dispute between the parties.  The father asserts that the parties separated in October 2007, and the mother asserts that separation occurred on 26 November 2009.  The mother sets out in an earlier affidavit that the parties had separated earlier but had reconciled.  The determination of the date of separation, the circumstances of separation are not matters to which I have any need to make a finding in these interim proceedings. 

4. In March 2010, temporary protection orders were made in a State Court for the protection of each party against the other.  In April 2010 proceedings were commenced by the mother in the Federal Magistrates Court in Mackay.  The mother relied upon an affidavit and also sought property orders.  The father filed a response, an affidavit and a notice of child abuse.  In the notice of child abuse, which was before me, the father asserted that the mother had caused damage to a car, was a user of drugs (and this was in the presence of the children) and had humiliated the children.  He also asserted the mother acted violently or aggressively to him on 26 February 2010.

5. In June 2010, interim consent orders were made that the children live primarily with the father and spend time with the mother.  The proceedings then continued, an Independent Children's Lawyer was appointed and a family report ordered. 

6. In terms of the interim proceedings, the mother relied upon her affidavits filed 14 April 2010, 15 April 2011 and 17 May 2011.  In addition, she relied upon an affidavit of Sharelle Renee O’Brien (her solicitor).  The mother also relied upon the material which was tendered or read into evidence by the Independent Children's Lawyer. 

7. The Independent Children's Lawyer relied upon an affidavit prepared by Ms S filed 22 March 2011 and in particular her report which was attached to that affidavit, an affidavit of Ms H[1] of the Prosecution Corps at Mackay, an affidavit of the Independent Children's Lawyer filed 12 May 2011, a transcript of proceedings before Willis FM on 28 February 2011 and a transcript of submissions and evidence before Willis FM on 27 April 2011.  The Independent Children's Lawyer provided the Court with a copy of the orders which he sought, which were substantially in accordance with the orders subsequently made by me.  He relied upon those orders. 

   [1] Filed the 11 May 2011.

8. The father relied upon his affidavits filed 20 May 2010, 22 February 2011 and 13 May 2011. 

9. In addition, the father said that he had served an affidavit on the Independent Children's Lawyer on 16 May 2011 and that he had sent that affidavit for filing, although he had not received a sealed copy.  There was some issue as to whether a copy of that affidavit had been provided to the mother’s legal representatives.  I gave the father leave to read that affidavit on to evidence, and he did so.  During the course of that part of the father’s evidence, the Independent Children's Lawyer confirmed that he had that affidavit and asked that the father read the whole of the paragraphs into evidence, including paragraph 5, which the father then did.

10. As the mother had sought to rely on a further affidavit when the matter was before me in the afternoon on the previous day, 16 May 2011, I had directed that the father be forwarded a copy of that affidavit, a copy of section 60CC and a copy of the relevant provisions of Goode & Goode (2006) 93-286 by the Independent Children’s Lawyer , and I gave the father leave to give evidence in reply to that affidavit.  The father gave evidence in reply to the mother’s affidavit. 

The Evidence 

The Mother

1. In her first affidavit, the mother noted the children were living with the father and had done so since February 2010.  The mother asserted she was trying to make arrangements to see the children but said that it was not occurring.  She complained in her affidavit that the children were exposed to conflict between the parents and that the father had told the children they needed to choose between one parent or the other.  The mother asserted that the father was aggressive to her and the children.  She said that during the relationship the care of the children was shared between her and the father.  The mother alleged significant issues of family violence and controlling and coercive behaviour.  She said that the father was verbally and emotionally abusive to her children from her previous relationship. 

2. The mother conceded that she was involved in illegal drugs until 2007 but said that she has taken steps since then to deal with that issue. 

3. In her affidavit filed April 2011, the mother said that she undertook the random drug testing and in February 2011 had a hair follicle test, all of which were clear. She admits using cannabis once in the second half of 2010, and that she regretted that use. She asserted that the father has engaged in a course of conduct to alienate the children from her because she was no longer willing to be controlled by him.  She goes on to say that since the orders were made in June 2010, the children had become distant from her and sets out a number of incidents in terms of the children’s behaviour at school and in relation to their behaviour to her.  The mother also complains that the father has not engaged the children in counselling, which she says was envisaged by the parties.  She sets out the behaviour of the children, which she asserts, shows that they are content to be with her and engage with her when the father is not present, but when he is present, that they are withdrawn from her. 

4. The mother complains that the children are sleeping in a bed with the father and says that the longer the children spend with the father, until a final hearing, the greater risks there are to them.  The mother relies upon the material set out in the family report[2]. 

   [2] Filed 22 March 2011.

5. It’s not in issue that the father and mother are involved in civil proceedings in the Magistrates Court in Mackay in relation to a motor vehicle.  It’s also not in issue that affidavits have been prepared by the father and signed by their two eldest children in respect of those proceedings which I will discuss later in these reasons.  In her third affidavit, the mother says that she went to the Magistrates Court Mackay on … May 2011 and saw the father and their two eldest children outside the Court.  She says the children did not interact with her when the father was present but did interact with her when the father was not present.  She said the father argued (in the sense of a legal argument) with the Magistrate that the children should be allowed to give evidence.  She opposed the children giving evidence, and the Magistrate ruled the children ought not to give evidence. 

6. The final affidavit which the mother relied upon was that of her former solicitor, Sharell O’Brien[3] who annexes copies of the affidavits by B and by N in respect of those proceedings.  It is apposite for me to make these comments about those affidavits at this stage.  They are asserted by the father to be the words of a 13 year old and an 11 year old child.  The words seem to be more of adult language and are strongly supportive of the father’s case.  I am deeply troubled that the father has engaged with the children to put into evidence such affidavits and then pursue those in terms of the civil proceedings. 

   [3] Field the 27 April 2011.

The Father

1. The father was questioned by the Federal Magistrate in respect of those affidavits when he gave evidence on 27 April 2011, and he said:- [4]

   The children wrote them … I helped them.

   [4] At Page 16 lines 19 to 20 of the Transcript of Proceedings dated 27 April 2011.

2. He goes on to say:-[5]

   Well, the children wrote affidavits in relation to the vehicle that we used for transport to school that actually belonged to - was going to belong to [B]…

   The father went on to say that the affidavits were written at the recommendation of “a girl called [Ms H’s first name]” from the prosecution office of Queensland Police.  At this point, I note that an affidavit[6] was provided by prosecutor Ms H, who directly contradicted that which was said by the father. 

   [5] Ibid at lines 24 to 26.

   [6] Filed the 11 May 2011

3. The father then goes on to provide further evidence about these affidavits, which in itself is troubling, and it is worthwhile to reiterate what was said on page 20 of the transcript:-[7]

   [7]Transcript of Proceedings dated 27 April 2011 page 20 at lines 5 to 31.

   HER HONOUR:   I don’t understand how [B], aged 10, would give any – shed any light on who actually paid funds or in whose name it was registered or any of those things.  Can you explain that to me? 

   [THE FATHER]:   [B] didn’t have to give any evidence in relation to who paid for it or ... evidence that he was asked to give was the fact the vehicle was used and maintained by me. 

   HER HONOUR:   Who asked him to give evidence?

   [THE FATHER]:   Me, your Honour.

   HER HONOUR:   Is that what you asked him to say?

   [THE FATHER]:   No.  I asked him to tell – give evidence in relation to the vehicle. 

   HER HONOUR:   Well, how would he know what that even meant?

   [THE FATHER]:   He’s a very understanding boy.  He understood clearly, and there was no problem whatsoever.

   HER HONOUR:   Really?

   [THE FATHER]:   And I think if you – you know, there’s nothing derogatory said about – about the mother, and it was very careful by him and myself not to put anything like that in.

   HER HONOUR:   Really. 

4. Her Honour then noted some comments in the affidavit of B, and I likewise note the following paragraphs asserted to be evidence of this 13 year old child.  In the affidavit of B allegedly sworn 13 April 2011, he says:-[8]

   13. When mum left in October 2007, we were never a family again.  Mum used to come up to visit about once a week, she was usually too tired or drunk, and just fell asleep on the lounge floor. 

   18. In January 2010, mum stole about $20,000 worth of shares from dad, my sisters and I.  This made dad very sad, and I was there when he again asked mum to return the shares and the Daihatsu. 

   19. Mum refused to return the shares and the Daihatsu, she just walked away. 

   20. In February 2010, dad took the Daihatsu back up to the farm.  That night mum came to the farm and tried to wreck the Daihatsu.  She kicked and kneed the Daihatsu seven or eight times, causing a lot of damage.  She just went crazy, swearing, screaming and making threats. 

   [8] Exhibit SRO1 of the affidavit of Sharell Renee O’Brien filed the 27 April 2011.

5. The assertion by the father that there was nothing derogatory in that affidavit does not ring true. 

6. Her Honour asked further questions of the father and raised with him her serious concerns about the children going into the courtroom and giving evidence against their mother.  The father’s response to these questions was opaque and troubling.  On any reading of the material, it was clear that her Honour was concerned about the father having the children give evidence against their mother in a civil proceeding.

7. Notwithstanding that concern and those events, the father took the children to the Magistrates Court and endeavoured to have their evidence adduced before the Magistrate.  That is deeply troubling. 

8. The father has tried to explain the circumstances and context of that approach.  No doubt he will have an opportunity to do so at the final hearing.  But even on his evidence at this stage it is of concern, particularly in the light of the material from the mother, the prosecution lawyer and the substance of the affidavits. 

9. The Independent Children's Lawyer relied upon the report of the family consultant.  I have read that report and have regard to the whole of it.  The family consultant was concerned about the father’s responses during the course of her interview with him.  She comments at paragraph 67 of the report that:-[9]

   … I found throughout the interview that [the father] was not forthcoming in his responses.  It was my observation that he was evasive and somewhat suspicious in his reaction to my questions.

   [9] Family report filed 22 March 2011.

1. This seems, at some levels, consistent with the difficulties that the Federal Magistrate had with her questions of the father.  There was an issue raised by the family consultant about the father driving nine kilometres with the mother on the bonnet of his car.  There are different versions of the evidence in respect of this and no doubt this will be a feature in the final hearing. 

2. Throughout the report, the family consultant observed the views of the children.  They were strongly identified with the father and expressed views in respect of where they should spend their time.  I was conscious of those views, although it needs to be read in accordance with paragraph 103 of her report, where the family consultant says:-[10]

   … I was not impressed that any of the children expressed independent views that were indicative of their own wishes or preferences.  In fact, there was such a consistency across the children that coaching by [the father] cannot be dismissed as the source of these views.  It is reasonable to assert that [the father] is motivated by his anger towards [the mother], especially in regard to their unresolved property matters. 

   She goes on to make further comments through paragraphs 104 to 108 of her report.

   [10] Ibid.

3. The family consultant recommends that the children spend an extended period of time with the mother to re-establish their relationships and sets out a course in that regard.  The orders sought by the independent children's lawyer reflect that course. 

RELEVANT LEGAL PRICINPALS TO BE APPLIED

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.

2. The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done 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.

3. The principles set out in s 60B(2) that underlie those objects are that, except when it 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).

4. Each parent of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so-called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[11] for the child, subject to section 61DA..

   [11] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”

5. If the presumption is not rebutted and it is in the child’s best interests, a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under s 61DA(2), but a Court determines that it is in a child’s best interests for an order for equal shared parental responsibility, it should be made.

6. The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.

7. The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with other persons is determined (see s 64B(2)).  This is because, where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances an order for equal or substantial and significant time is appropriate.

8. Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

9. The factors guiding how a court determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two-tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:

   Primary considerations

   (2)        The primary considerations are:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   Additional considerations

   (3)      Additional considerations are:-

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)each of the child’s parents; and

   (ii)other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family, if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

10. A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face-to-face time and communication.

11. In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-

    Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents.[12]

    [12] MRR v GR [2010] HCA 4.

12. The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.

13. In interim matters, of course, the process to adopt is that as set out by the Full Court in Goode & Goode (supra).  Their Honours said at paragraph 82 of their reasons that would involve the following:-

    (a)identifying the competing proposals of the parties;

    (b)identifying the issues in dispute in the interim hearing;

    (c)identifying any agreed or uncontested relevant facts;

    (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

    (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

    (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

    (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Section 60CC Factors

1. In terms of the factors, of which I must have regard, they are set out under section 60CC of the Act.

(a) The benefit to the child of having a meaningful relationship with both of the child's parents

1. Both parents, in one form or another, argue that the children should have the benefit of a relationship with the other parent and that it is meaningful to them.  Each, in their own way, are critical of the other parent but support a relationship.  I am satisfied, on the evidence, that there is a benefit in the children having a meaningful relationship with both parents. 

(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The mother’s case is that the father is controlling and manipulative and is enmeshing the children in the proceedings.  At many levels, that view is supported by the evidence of the prosecutor, the affidavits of the children, the evidence given by the father to the Federal Magistrate in April 2011 and the very powerful and strong recommendations made by the family consultant in her report.

2. Each of the parties allege violence against the other.  The father alleges that the mother has been emotionally abusive to the children, that the mother abuses alcohol, abuses drugs, drink drives, allows friends or acquaintances to take drugs in the presence of the children and has been in long-term drug use.  The mother makes significant allegations of violence against the father, to which I referred to earlier. 

3. Yet despite these concerns, each parent is eventually seeking orders that the children spend significant time with the other parent.  In the family report, the father reports that there had been an allegation of sexual abuse against him by Ms L. 

Section 60CC(3) Factors

(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. From the father’s evidence, the mother’s evidence and the family report, it’s clear that the children have expressed a preference to remain primarily in the care of the father, and these are children who are of relatively mature age and children who have been in the care of the father for a significant period of time, at least since June of 2010.  However, these views have to be assessed in the light of the concerns raised by the family consultant at paragraph 103 of her report. 

(b)      The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

1. Each of the parents has shown a capacity to care for the children, and although each is critical of the other, they do not seek supervised time. 

(c)The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. What is of real concern in this matter is the willingness of the father not to encourage a close and continuing relationship between the children and their mother.  The father asserts that he does so and that the basis of this application is by lies or untruths on the part of the mother.  This does not take into account the views of the family consultant which, although untested, are significant and are supported by untested evidence of the prosecutor and the material provided to me.  I am satisfied on the material before me that there is a real doubt that the father is willing to facilitate and encourage a close and continuing relationship between the children and their mother. 

(d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)      either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The effect of the change that I made will be significant to the children.  They will live primarily with their mother for a period of time, and then the time with the father will increase.  This is the course recommended by the family consultant, and I am satisfied the children will, at least initially, be unhappy with this result.  However, in the light of the evidence that is before me, it has the potential of creating a positive effect in terms of the relationship between the children and their mother. 

(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. This is not a significant feature at this time.

(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. The mother has engaged in the process of drug testing and, whilst not without problems as identified in the family report, appears to be treating that process seriously.  The father asserts the mother can manipulate the test, and that will no doubt be tested on the hearing.  Paragraphs 12, 17, 18, 19, 20 and 21 of the mother’s affidavit, if established, would raise real concerns about the father’s willingness for the children to engage with the mother.

2. Even on his own evidence given before me, the father said the children, when they are with him, were not acknowledged by the mother.  He does say, however, that when the children were not with him, they said they had said “hi” to their mother.  Whilst some care needs to be taken in terms of the context, it is indicative of the children, perhaps, being afraid to engage with the mother when the father is present. 

(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This is/ is not a relevant consideration in these proceedings.

1. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I reiterate what I have said elsewhere in these reasons. The father does not encourage a relationship between the children and the mother and has encouraged and assisted them in giving evidence against the mother in civil proceedings. It reflects poorly in terms of his attitude to his responsibilities as a parent.

(j)       Any family violence involving the child or a member of the child’s family

1. In the terms of family violence, there are claims and counter-claims in that respect and I will be making orders to deal with that aspect of the matter.  However, in the context of the approaches adopted by each of the parties and the Independent Children's Lawyer, I am not satisfied, at this time, that the children are at risk to violence in the immediate future, although they have been exposed.  It is likely that they were exposed to violence in the past.  Whether that is violence by the mother or the father will no doubt be a matter to be determined at a final hearing. 

2. The father says I should treat the evidence of the mother as being unreliable.  He pointed out issues where I should make findings.  I have declined to take up that offer.  Her evidence, like his, will be tested on a final hearing.  The father said that the evidence of the family consultant was tainted and unreliable.  He then selectively read from that report.  I make no more formal finding, but there is no material addressed to me by the father which would impeach it to the extent that I would give it no weight for the purpose of these proceedings.

(k)Any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

1. I have referred to the State Court orders earlier in these reasons.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. These are continuing proceedings, which I have placed in the Magellan list.

Parental Responsibility

1. Having regard to all of the section 60CC factors, the first question I have to address is that of parental responsibility. This is a matter where section 61DA(2) applies in that there are reasonable grounds to believe that a parent of a child has engaged in family violence. I am satisfied, on the evidence of both the father and the mother that there are reasonable grounds to believe that a parent of a child has engaged in family violence.

2. Having regard to that, the presumption under section 61DA ought not apply.

3. The parties are in high conflict and have been in high conflict for some time.  It is, in my view, inappropriate for there to be an order for equal shared parental responsibility, in any event, bearing in mind that conflict and the accusation and counter-accusation each parent makes against the other. 

4. I am, however, satisfied that an order that the parties each have parental responsibility as set out in section 61C is likely to operate for the interim until a final hearing, and I propose to make an order to that end.

5. Having considered all of the factors under section 60CC and having regard to the need of these children to have a meaningful relationship with both their parents and to be excluded from emotional abuse (which would include enmeshing the children in proceedings by one parent against the other or in civil proceedings between parents), I am satisfied that orders ought to be made as sought by the Independent Children's Lawyer, and I will do so.

6. Finally, as there is an allegation that an eldest child of the mother had been, possibly, sexually abused by the father, I intend to designate this matter as a Magellan matter and place it in the Magellan list for determination by a Judge (other than myself) in Mackay or Brisbane. 

7. The allegations of the mother as to the change in the children’s behaviour to her since the interim orders were made, is on many levels confirmed by the family reporter and the approach by the husband to engage the children in the civil litigation.

8. It is important that this change be arrested. The family reporter sets out her concerns and the need for an urgent change. While her evidence remains untested it is supported in a number of areas by the evidence of the father himself and other evidence. It is not in the children’s best interest to leave a further determination to the final hearing, it is clear on the evidence that a change was needed without delay otherwise the children’s relationship with the mother may be lost or undermined.

9. Between the date of the consent order and now in relation to the children’s behaviour and how they have been alienated from their mother since then.  The words you used were  “stop the rot”.  The recommendations of the family consultant were;

   1.  It is recommended that [B], [N] and [C] spend an extended period of time with [the mother] as a means of re-establishing their relationships.  An initial period of at least one month but preferably longer of the children living with [the mother] would be a means of commencing the re-establishment of their relationships.

   2.  It is recommended that if (1) is implemented that [the father] has limited contact with [B], [N] and [C] during this time.  It is recommended that the time spent by the children with [the father] be limited to every other weekend.

   3.  It is recommended that the children be allowed to communicate with [the father] on a limited basis during the initial re-establishment of the relationship with [the mother]. It is recommended that telephone calls be made three times a week.

   4.  It is recommended that both parents have regular drug testing to inspire confidence in their ability to abstain from the use of illicit substances as well as demonstrate to the children their commitment to sobriety.

   5.  It is recommended that [the mother] and [the father] continue to share parental responsibility.

   6.  It is recommended that after a period of six months that the children resume spending equal time with [the mother] and [the father].

   7.  It is recommended that both [the mother] and [the father] attend counselling on an individual basis to resolve issues of resentment and animosity that will exert a negative influence on their ability to remain focussed on the best interests of the children.

10. I determine to accept these recommendations on an interim basis, otherwise there is a real fear that the relationship between the mother and the children will be diminished and perhaps destroyed.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 18 May 2011.

Associate:     

Date:   27 May 2011