White & White & Anor
[2012] FamCA 804
•20 September 2012
FAMILY COURT OF AUSTRALIA
| WHITE & WHITE AND ANOR | [2012] FamCA 804 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Competing parenting orders sought by father, mother and maternal grandmother – Meaningful relationship – Need to protect children from harm – Relocation – Mother and father live in Queensland – Maternal grandmother lives in Victoria – Parental responsibility – Determination children’s best interests met by father having sole parental responsibility for the children’s health and education and otherwise mother and father have equal shared parental responsibility for major long-term issues – Children’s living arrangements – Children’s best interests – Reasonable practicability – Children’s best interests met by living with father and spending time with mother and maternal grandmother – This arrangement also reasonably practicable |
| Evidence Act 1995 (Cth) s 140 |
| AMS v AIF (1999) CLR 160 B and B (1993) FLC 92-357 Briginshaw v Briginshaw (1938) 60 CLR 336 Collu & Rinaldo [2010] FamCAFC 53 D & F [2001] FamCA 382 D & N [2007] FamCA 57 D v SV (2003) FLC 93-137 Goode & Goode (2006) FLC 93-286 Hepburn & Noble (2010) FLC 93-438 Hilton v Allen (1940) 63 CLR 691 Johnson & Page (2007) FLC 93-344 Lindsay & Baker (2007) FLC 93-347 M and M (1988) 166 CLR 69 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Napier and Hepburn (2006) FLC 93-303 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 R and R: Children’s wishes (2000) FLC 93-110 R v R (Children’s wishes) (2002) FLC 93-108 Re W (Sex abuse: standard of proof) (2004) FLC 93-192 Reifek v McElroy (1965) 112 CLR 517 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC115 Taylor v Barker (2007) FLC 93-345 WK v SR (1997) FLC 92-787 |
| APPLICANT: | Mr White |
| FIRST RESPONDENT: | Ms White |
| SECOND RESPONDENT: | Ms Gallop |
| FILE NUMBER: | BRC | 1142 | of | 2009 |
| DATE DELIVERED: | 20 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 6, 7 and 8 June 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Wardle |
| SOLICITORS FOR THE APPLICANT: | Richard Gray & Associates |
| THE FIRST RESPONDENT: | In person |
| THE SECOND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Walker-Munro |
| THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blayney Legal Aid Queensland |
Orders
IT IS ORDERED
In the terms of the minute of orders Annexure A (prepared by the independent children’s lawyer).
AND IT IS FURTHER ORDERED
The independent children’s lawyer not be discharged until 20 March 2013.
AND IT IS FURTHER ORDERED
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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
NOTATIONS
The orders in Annexure A are final parenting orders.
However as the independent children’s lawyer will not be discharged until 20 March 2013 if between the date of the orders and that date any urgent circumstance should arise in relation to the children’s safety the independent children’s lawyer may apply on short notice for urgent relisting of the matter before the Honourable Justice O’Reilly, or if she not be available, before another judge.
IT IS NOTED that publication of this judgment under the pseudonym White & White and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
ANNEXURE A
CHILDREN TO LIVE WITH THE FATHER
The children [D] born […] December 2002, [M] born […] November 2003 and [D] born […] January 2005 live with the father.
PARENTAL RESPONSIBILITY
The father shall have sole parental responsibility for all long term decisions in relation to the health and education of the children and otherwise the parents shall have equal shared parental responsibility.
In exercising sole parental responsibility in relation to long term decisions pertaining to the health and education of the children, the father shall consult with the mother, in writing, in relation to any decision to be made and consider any response provided by the mother, in writing, within fourteen (14) days of her receiving notice of the decision to be made. The father shall then advise the mother, in writing, of the decision that he has made.
For the purposes of order 3 and other communication, both parents shall establish a pass worded email address which shall be utilised solely for the purpose of communication in relation to the children.
CHILDREN’S TIME WITH THE MOTHER
Prior to the children spending time with the mother, the family report writer, Ms [T], shall explain the orders to the children and the father shall facilitate the children’s attendance on Ms [T] as directed by her.
The mother shall spend time with the children at all times as may be agreed between the parents in writing but failing agreement as follows:
(a)4 weekly visits on a Saturday or a Sunday, for a period of 2 hours, supervised at the [H] Contact Centre; then
(b)4 fortnightly visits, on a Saturday or a Sunday, for a period of 2 hours with the mother to spend supervised time with the children for half an hour at the [H] Contact Centre at the commencement of time, then the mother be at liberty to take the children out of the Contact Centre for a period of 2 hours, unsupervised, and then the mother return with the children to the [H] Contact Centre for a further period of half an hour supervised time; then
(c)4 fortnightly visits, on a Saturday or a Sunday, with the mother to spend supervised time with the children for half an hour at the [H] Contact Centre at the commencement of time, then the mother be at liberty to take the children out of the Contact Centre for a period of 4 hours and then the mother return with the children to the [H] Contact Centre for a further period of half an hour supervised time;
(d)Thereafter on each alternate Saturday or Sunday from 9:00am to 5:00pm, unsupervised, with handovers to take place at the [H] Contact Centre;
(e)The costs of the contact centre to be shared equally between the parents;
(f)If a parent does not attend without giving notice to the other then the parent defaulting in notice will be responsible for the cost.
If the mother does not intend to spend time with the children in accordance with the arrangements in order 6, she is to provide the father and the [H] Contact Centre with 24 hours notice, or as much notice as is practicable in the circumstances, of her intention to not attend.
The mother must attend at the Contact Centre on each of the 4 occasions referred to in orders 6 (a), (b) and (c), consecutively, before time proceeds to the next stage.
COMMUNICATION WITH THE MOTHER
The mother shall be able to telephone the children, up to 3 times per week, at any reasonable time and the father shall facilitate the call and provide the children with privacy for the call.
The father shall facilitate any reasonable request by the children to telephone the mother and shall provide privacy for the calls.
UPON THE MATERNAL GRANDMOTHER’S UNDERTAKING FILED 8 JUNE 2012, CHILDREN’S TIME AND COMMUNICATION WITH THE MATERNAL GRANDMOTHER
Upon the giving of 2 weeks notice in writing to the mother, the father and the H Contact Centre, the children shall spend time with the maternal grandmother for a period of 1 day, on 4 occasions per year, no more than once per school term and the time to be spent as follows:
(a)on the first occasion, supervised at the H Contact Centre for a period of 2 hours, on a Saturday or a Sunday when the children are not spending time with the mother; then
(b)on the second occasion, supervised at the H Contact Centre, on a Saturday or a Sunday when the children are not spending time with the mother , for a half hour period at the commencement of time, then the maternal grandmother be at liberty to take the children out of the Contact Centre for a period of 4 hours and then the maternal grandmother return with the children to the H Contact Centre for a further period of half an hour supervised time;
(c)thereafter, on a Saturday or a Sunday when the children are not spending time with the mother from 9.00 am to 5.00 pm with handover to take place at the H Contact Centre; and
(d)the costs of the contact centre to be paid by the maternal grandmother.
The maternal grandmother be able to telephone the children as follows:
(a)on the last Sunday of each month at 6.00 pm;
(b)on each child’s birthday, at any reasonable time; and
(c)on Christmas Day and Easter Sunday at any reasonable time.
The parent who has the children in their care at the time of the calls shall facilitate the calls and provide the children with privacy for same.
The maternal grandmother be at liberty to send the children birthday, Christmas and Easter cards and gifts and both parents shall facilitate the children receiving these.
SPECIAL OCCASIONS
Providing the mother has been spending time with the children, pursuant to order 6(d), for more than 4 consecutive occasions, then the mother shall spend time with the children from 2:00pm Christmas Eve until 2:00pm Christmas Day in even numbered years and from 2:00pm Christmas Day until 2:00pm Boxing Day in odd numbered years.
In the event that the mother has not spent more than 4 consecutive occasions pursuant to order 6 (d), then the mother shall spend time with the children on Christmas Day from 12 midday to 6.00 pm, or as otherwise agreed between the mother and the father in writing.
On the children’s birthdays, if a child’s birthday falls on a school day, then the mother shall spend time with the children from the conclusion of the school day until 6:00 pm on that day. In the event that a child’s birthday falls on the weekend then the mother shall spend time with the children from 12:00 pm midday until 6:00 pm on that day.
On Mother’s Day the children shall spend time with the mother from 9:00 am until 5:00 pm if the children are not otherwise spending time with the mother.
On Father’s Day the children shall spend time with the father on that day from 9:00 am until 5:00 pm if the children are not otherwise in the father’s care.
Handovers shall take place at a [H] Contact Centre save as for as follows:
(a)If a child’s birthday falls on a school day then the mother shall collect the children from school and return the children to the father’s residence.
(b)The father shall deliver the children to the mother’s residence at the commencement of the mother’s time on Christmas Eve or Christmas Day and the mother shall return the children to the father’s residence at the end of those times.
(c)For the purposes of handover, neither parent shall enter the other’s house and both parents shall communicate with each other respectfully and use their best endeavours to ensure that any other person present does so.
SPECIFIC ISSUES
Neither party shall be under the influence of alcohol or illegal substances when the children are in their care, and shall remove the children from the presence of any person who is under the influence of alcohol or illegal substances.
In the event a child or children become seriously ill or injured whilst in the care of a parent, that parent shall immediately notify the other parent of the injury or illness. In the event the child/children are prescribed medication, or any form of medical treatment which is required to continue into a period when the other party will be caring for the child/children, any medication or treatment is to be sent along with the child/children together with a description of the condition for which it is required and the appropriate dosage or method of treatment.
Each party be entitled to receive at their own request and expense any and all information in relation to the health, education and welfare of the children including but not limited to details of any illness suffered by the children and treatment required, school reports, newsletters, notifications of parent teacher interviews, photograph order forms and details of any disciplinary matters. This order shall constitute an authority to each of the children’s medical practitioners, allied health professionals and schools to provide the information referred to in this order.
For the purposes of order 23 the father shall ensure that he at all times keeps the mother advised, in writing, of the name and contact details of all medical practitioners and allied health professionals treating the children.
Each parent inform the other and keep them informed of any changes to their contact telephone numbers and addresses within 48 hours of that change occurring.
Neither parent or the maternal grandmother shall denigrate the other or that parent’s family or friends in the presence or hearing of the children and shall remove the children from the presence of any person who is doing so.
The father and the maternal grandmother shall not speak of the mother’s mental illness in a derogatory fashion in the presence or hearing of the children.
Neither parent or the maternal grandmother shall question the children in relation to the household of the other parent.
Neither parent or the maternal grandmother shall discuss with the children, these or any other legal proceedings involving the parties.
COUNSELLING
The mother shall forthwith enrol in thereafter complete a Triple PPP parenting course and provide the independent children’s lawyer with evidence of completion of same.
The mother shall continue to attend upon her treating mental health professionals as directed by them and shall comply with their recommendations in relation to therapy and prescribed medications.
The father shall forthwith attend upon his general practitioner for the purpose of obtaining a mental health plan in order to access a treating psychologist to assist him with, but not limited to, issues surrounding the sexual abuse allegations pertaining to [D] and [M].
The children shall continue to attend upon Bravehearts for counselling at a frequency recommended by their counsellors at Bravehearts. Such counselling shall be non-reportable.
The father shall ensure that the children attend at a Kidz Club Program at the [Hospital M], to assist them in gaining understanding of their mother’s mental health condition.
The mother provide to the independent children’s lawyer the details of her treating psychiatrist or other mental health professional and provide the independent children’s lawyer with authority to contact her treating psychiatrist or mental health professional in order to obtain information in relation to her attendance upon her mental health professionals and her compliance with treatment recommendations including her compliance with any medication.
INDEPENDENT CHILDREN’S LAWYER
The independent children’s lawyer be discharged on a date six (6) months from the date of these orders.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC1142 of 2009
| Mr White |
Applicant
And
| Ms White |
First Respondent
And
Ms Gallop
Second Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern D born in December 2002, nine years, M born in November 2003, eight years and U born in January 2005, seven years (the children).
The children’s parents Mr White (the father) and Ms White (the mother), and also the children’s maternal grandmother Ms Gallop (the maternal grandmother) have competing applications concerning parenting orders for the children.
The proceedings were commenced by the father on 4 February 2010 in the Federal Magistrates Court.
On 17 February 2010 Howard FM ordered that an independent children’s lawyer be appointed.
On 9 March 2011 Howard FM ordered the transfer of the proceedings to this Court.
The parties’ proposals
Before the commencement of the trial, the independent children’s lawyer, with Ms Walker-Munro of Counsel, for the independent children’s lawyer, had prepared draft final orders which the independent children’s lawyer proposed including that the father have sole parental responsibility for the children’s health and education, subject to consultation with the mother; and otherwise that the father and the mother have equal shared parental responsibility for the children; and that in relation to the children’s living arrangements the children live with the father, spend specified time with the mother, including supervised and unsupervised time; and also that they spend time with the maternal grandmother, both supervised and unsupervised, but subject to some conditions; and several other orders relating to special occasions; telephone communication with the mother and the maternal grandmother; specific issues orders including as to alcohol and illegal substances; information; attendance by the children’s parents upon mental health practitioners; and other matters.
By the conclusion of the trial, the draft orders proposed by the independent children’s lawyer were modified in some minor respects which presently I need not mention.
At the outset of the trial, and also at its conclusion, Ms Wardle of Counsel, for the father, stated agreement by the father with the final orders proposed by the independent children’s lawyer, which, as I said, ultimately were modified in some minor respects.
The mother proposed that the children live with her and that there be final orders in the terms of pars 10-29 of her response; in the alternative that the children live with the father, in which case her proposed pars 10-29 be “reversed” as between the mother and the father; but that in any event the children should not live with the maternal grandmother; however, if the Court should order such then there be orders in terms of pars 2-9 of her response in relation to the children spending time with the mother and the father.
The maternal grandmother proposed that the children live with her; that she have sole parental responsibility for the children; and that the children spend time with and communicate with the father and the mother as may be agreed but failing agreement as may be determined by the Court; or in the alternative (if the children should live with the father or the mother), there be equal shared parental responsibility for the children between her, the father and the mother; and that the children spend time with and communicate with her as may be agreed with the father and the mother, but failing agreement as set out in her amended response, which included other proposed orders as to information, communication and the like.
Relocation proposal by the maternal grandmother
The father, the mother and the children live in Queensland.
The maternal grandmother lives in Victoria.
Thus, the maternal grandmother’s proposal involves a relocation of the children from Queensland to Victoria.
I will refer in due course to the authorities concerning the relocation of children.
Parent/grandparent issue
The proposal of the maternal grandmother involves also consideration of the “parent v grandparent” authorities, to which I will refer in due course.
Notices of Child Abuse or Family Violence
On 20 January 2011, when the proceedings were still in the Federal Magistrates Court, the father filed a Notice of Child Abuse or Family Violence alleging at Part E that:
1.On 17 January 2011 the child [D] disclosed to the paternal grandmother [Ms A White] that the maternal grandmother’s boyfriend known as [Mr R] has entered the bedrooms of the younger children [M] and [U] and touched them.
Seemingly, it was on the basis of the filing of this Notice of Child Abuse or Family Violence that Howard FM on 9 March 2011 transferred the proceedings to this Court.
On 18 April 2012, the mother filed a Notice of Child Abuse or Family Violence alleging at Part E:
1.[D] is at risk of relapsing and becoming violent due to his father giving him a pocket knife as a gift. Namely a swiss army knife.
[D] becomes aggressive when provoked and needs to be discouraged from acting out and becoming violent not handed a knife. He was onlt (sic) suspended 12 moths ago for stabbing his teacher with a ruler.
2.I am concerned with the lack of contact I have had in recent months [the father] has encouraged violence and being psychologically abusive towards the children.
3.I am concerned [the father] is encouraging [D] to display inappropriate violence for a boy of nine years old.
4.During my easter visitation [D] was verbally abusive towards myself, the father did nothing to discourage such verbal attacks rather opting to throw in his own denigrating remarks from time to time.
5.[M] was discouraged from answering my questioning on how school was going by been (sic) told to be quiet as she was giving it away.
6.Apart from breaching the current order by denigrating me to and in front of the children [the father] also encouraged the children to be verbally abusive and show little regard for the courts due processes.
At Part F, as to alleged risk of abuse, the mother specified:
1.Psychological damage to all three children for [D] being allowed to have a knife after he stabbed his teacher only 12 months ago with an articulated weapon.
2.Psychological detrement (sic) of the mother been (sic) cut out of their lives again for reporting the knife to the ICL. whom is to be made aware of issues.
3.Psychological harm being caused by encouraging the children to verbally abuse the other parent.
At Part H, as to alleged risk of family violence, the mother specified:
1.The children are at real risk of psychological scarring if this behaviour is left undealt with.
2.The three children are at risk of having their mother [Ms White] cut out of their lives again and feeling real abandonment.
Other abuse issues and allegations of unacceptable risk
As will be seen, the allegations of each of the parties, against each of the other parties, is that there is or will be unacceptable risk of harm to the children if the children should live with them.
I will deal with these allegations and counter allegations when dealing with the s 60CC matters below.
Relevant background facts
The mother is 33 years, the father 42 years and the maternal grandmother 56 years.
The mother and the father, it would appear, met in early 2001, cohabited shortly after they met, married in November 2002, separated and reconciled on many occasions, but separated finally during 2009.
According to the material, they are not divorced.
Presently, the mother lives at Town G, a semi rural and peaceful area near Brisbane, the father at Suburb N in Brisbane and the maternal grandmother in Southern Victoria.
The mother is unemployed.
The father, at the time of the trial, was unemployed, by choice, to be free to be the children’s full time parent and carer. His usual employment for many years has been as a truck driver, and in other capacities, with the C family business (the C family being people I will further mention below). As will be seen, the children commenced to live with the father in early 2011, by order made on 9 February 2011, after which the father continued with his employment until May 2011, but ceased then to be available to parent the children full time as he was not able to manage an employment role in addition to the full time care of the children.
The maternal grandmother works as a part time cleaner in Victoria.
None of the parties presently is partnered, however, the maternal grandmother has a friend, Mr R, to whom reference later will be made.
The maternal grandmother’s former husband, Mr Gallop, to whom reference also later will be made, has a de facto partner and fiancé Ms V, to whom reference also later will be made.
After the mother and the father separated, the children lived with each of them in a “week about” arrangement, until late January 2010 when the mother relocated herself and the children to live with the maternal grandmother in Victoria. The children lived then with the maternal grandmother and the mother until about May 2010, when the mother moved out of the maternal grandmother’s home, such that the children then lived with the maternal grandmother until December 2010. During that time, the children saw the father only once, when attending upon family report interviews in Melbourne in June 2010. From about July/August 2010 until 18 December 2010, the children lived with the maternal grandmother and did not see either the mother or the father. On 18 December 2010 the father collected the children from the maternal grandmother for the Christmas holiday period. During that time, the children made certain disclosures to the paternal grandmother, Ms A White, and to Ms C, to which I will later refer, resulting in the children staying with the father in Brisbane and an order made on 9 February 2011 that on the interim basis until trial the children continue to live with the father.
Thus, at the time of the trial, the children were living with the father, and had done so since December 2010, by interim order, with the children spending time with the mother as arranged between the mother and the father from time to time, and with the maternal grandmother on the supervised basis at the H Contact Centre, in Brisbane, in September and October 2011.
A more detailed analysis of these matters is comprised in ex 13, to which I would refer without setting out.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
· and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
· 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
· 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
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children; and
· children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
· the benefit to the child of having a meaningful relationship with both of the child’s parents; and
· the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the 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 for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
· the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
· if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
· days that fall on weekends and holidays; and
· days that do not fall on weekends and holidays;
and:
· allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
· allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
· how far apart the parents live from each other; and
· the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
· the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
· the impact that an arrangement of that kind would have on the child; and
· such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to relocation proposals
High Court
In AMS v AIF (1999) 199 CLR 160 Hayne J made clear that an important probably essential step in the inquiry as to which parent should have custody of a child (to be read now as to with which parent a child should live) is to identify where the custodial parent intends to live, that being a decision for the parent not the Court; and that the question is not whether a parent has shown a good enough reason for wanting to move, which focuses attention on the parent, but which is better for the child, which focuses on the child, that question requiring attention to what benefits the child would have and what detriments the child would suffer from living with one parent in place A compared with the other parent in place B:
216. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.
…
218.To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of the inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin… (emphasis added)
In the same case, Kirby J set out nine “general propositions” [141] or “general principles” [151] which he derived from the authorities [141] – [151], the third of which he discussed as follows:
144.Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule. (footnotes omitted, emphasis added)
In MRR v GR (2010) 240 CLR 461, the High Court said, in relation to s65DAA(1):
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
…
19.The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child's best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand. (bold emphasis and italics added)
Full Court
A relocation proposal needs to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the s60CC matters and also in the context of s65DAA: Taylor v Barker (2007) FLC 93-345 at [60]. In McCall & Clark (2009) FLC 93-405 at [57]-[62] the Full Court referred to this necessity at [59]; and to the following analysis in Sealey & Archer [2008] FamCAFC 142 at [60]:
66.Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
67.In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings. On the contrary, the majority in Taylor & Barker said (emphasis added):
60. …It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA…
62. … [G]iven that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests. (original emphasis)
Their Honours continued, in McCall & Clark (above):
61. No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.
62. In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters. For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.
In Starr & Duggan [2009] FamCAFC 115 the Full Court at [33] –[37] referred to the “interplay” between the paramountcy principle and the “framework” of the legislation emphasising that inevitably there will be dual consideration of some matters in particular because the consideration of the s 60CC factors “does not take place in a vacuum” but in the context of the competing proposals. The Full Court said further, despite Taylor & Barker at [81]-[83], which seemed to set out a formulaic approach, that such is not intended, as not mandated, such that:
38.…[I]t is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In Hepburn & Noble (2010) FLC 93-438 at [100] and [103] the Full Court re-affirmed these matters.
In Collu & Rinaldo [2010] FamCAFC 53, the Full Court at [374]-[382] emphasised the need, in relation to reasonable practicability, to undertake an analysis of the reasonable practicability of each of the proposals of the parties: [376], giving close attention to the matters in s65DAA(5).
The circumstance that the father’s primary case is that the children live in Central Queensland, and the mother’s evidence that if there should be an order that the children live with the father in Central Queensland she would not move to Rockhampton, makes pertinent also the following in Collu, in particular in relation to the sentence “The Mother would follow the child”:
378.In this case, the trial Judge also made orders that provided for the possibility that the Mother would not remain in Dubai and would return to Sydney. In our view, it was clear that the Mother would return to Sydney if an order was made that the child reside in Sydney as proposed by the Father. The Mother would follow the child. Thus, there also had to be consideration of the circumstances of the Mother living in Sydney. This, in turn, would have required analysis of a number of matters which we have already touched upon, such as the Mother’s opportunities for paid employment, accommodation and daily assistance with the care of the child. Again, we are reminded of what was submitted on behalf of the Father about the necessity for the Mother to engage in paid employment. In our view, her Honour did not undertake this analysis. (emphasis added)
Earlier, in D v SV (2003) FLC 93-137, the Full Court made clear that an applicant for relocation is not required to “justify” a proposed relocation [64]; and that it is essential that a trial judge give consideration to how the best interests of the children could be advanced in a particular case which, whilst not confined to competing proposals of the parties, nonetheless cannot be “manufactured” in the absence of relevant evidence, in the sense that due account must be taken of the fact that proceedings in the Family Court are conducted in the framework of an adversarial procedure familiar to the common law [pars 17-21].
In that case, the Full Court discussed “intrastate movement”, and said at [37]:
37.…Where the move is over a relatively short distance such as this one, we would caution against the making of orders that restrict the residence parent’s freedom of movement. The inquiry should be directed more at alternative contact or shared residence arrangements.
Nonetheless, all of the relevant statutory matters must be considered in relation to all of the proposals of the parties.
Principles relating to parent/grandparent
In respect of cases concerning grandparents, in D & F [2001] FamCA 382, the Full Court (Ellis, Kay and Warnick JJ), examined the application of the principles and cases by Purdy J in that case at first instance, under Purdy J’s heading at first instance “Grandmother v Parent”. See the Full Court’s discussion at pars 28-31 and 45‑57. It is useful to set out pars 30, 31, 55, 56 and 57:
30.His Honour indicated that in Re Hodak Lindenmayer J set out the principle in terms which Purdy J saw as being entirely consistent with Gronow v Gronow (1979) 144 CLR 513, namely that the fact that one party was a mother would merely be an important factor to be considered but did not involve any particular principle.
31.His Honour saw Rice v Miller (above) as indicating the fact that one of the parties is the natural parent is a factor to be taken into account but does not bring into play any particular principle.
…
55.We would agree with the observations of Stephen J in Gronow v Gronow (above) that there is danger in looking too closely to the sociological and psychological writings to determine the foundation of the observation that parenthood is a significant factor in determining with whom children should live. It is precisely this non-demonstrable important factor which was heavily relied upon by Purdy J.
56.There is a clear need in each case to understand the ramifications of applying the factor of parenthood. The factor may have little weight if the child has had no relationship whatsoever with the parent. It may be of little significance where the parent poses a real risk to the child’s welfare. It may also not be a decisive factor in cases where other factors overwhelmingly outweigh it, but it may be very significant in a dispute between a capable parent and a more capable grandparent, and determinative in a dispute between a capable parent and an outstanding neighbour, foster parent, sibling or other person with a proper interest in caring for the child.
57.As the Full Court observed in Rice v Miller (above) at FLC 80,240:
“…the fact of parenthood is to be regarded as an important and significant factor…” ”.
In D & N [2007] FamCA 57 the Full Court (Kay, May and Boland JJ) dealt with a submission (see at par 55) that Rice v Miller (above) had been “statutorily overturned” by the parental responsibility provisions of s 61C. The Court was urged (see at par 56) to decide that “the current line of cases” (including Hodak (above), B & B (Family Law Reform Act 1995) (1997) FLC 92-755, Rice v Miller (above) and Re Evelyn (1998) FLC 92-807) was incorrect.
In dealing with that submission, their Honours referred (at par 59), with apparent approval, to D & F, par 56, set out above and (at par 60) concluded that the trial Judge correctly had applied “settled principles” in that case, firmly rejecting the submission as having no basis:
60.In our view, the trial Judge correctly applied settled principles in the present case. Whilst it might seem that he preferred the grandparents he did so because of the evidence before him including balancing the potential parenting capacities of each party and in our view based on the expert evidence it was entirely clear that he should do so. In view of the very clear provisions of the Family Law Act and the cases to which we have referred we do not see any basis in this argument.
D & N was decided on 13 February 2007, after the commencement of the amendments which took effect on 1 July 2006. However, the case was heard on 11 May 2006, before those amendments took effect. Thus, it is plain the Full Court was not considering the subject matter of the submission in light of the amendments which took effect on 1 July 2006. Despite this, even before those amendments took effect, there was a provision in the Act similar to what is now s 60CA (formerly s 65E) providing that in parenting cases the Court must regard the best interests of the child as the paramount consideration.
In my view, there is nothing in the amendments which took effect on 1 July 2006 to displace the principles in the line of cases referred to by the Full Court in D & F and in D & N in relation to the factor of parenthood, which the Full Court in D & N referred to as “settled principles” (at [60]), especially having regard to s 60B(1) and (2) of the Act, which deal with the objects of the Act and the principles underlying it. In particular, the provisions of s 60B(1) and (2), as they now appear, to the extent that they deal with parents, are themselves in the context of the best interests of the child, and the more general provisions in Part VII dealing with parents are subject also to s 60CA.
The statements of principle in the line of cases referred to by the Full Court in D & F and in D & N, in my view, are not inconsistent with the amending provisions, reading the Act as a whole.
Principles relating to allegations of and findings relating to allegations of sexual abuse
In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
1.In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
2.Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
Approach to the analysis of evidence relating to sexual abuse disclosures
In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred …
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of sexual abuse
In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. …
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
The evidence
The father relied on evidence of himself, Ms A White, his mother, and Ms C and Mr C, friends.
The mother relied on evidence of herself, and of Mr Z.
The maternal grandmother relied on evidence of herself, Ms V, her former husband Mr Gallop’s fiancé, and partner since May 2008, and Mr R, a friend.
The independent children’s lawyer relied on evidence of Dr B, psychiatrist, who assessed both the father and the maternal grandmother, Dr A psychiatrist, who assessed the mother, and Ms T, social worker, Legal Aid Queensland, who prepared a family report dated 9 March 2012.
The independent children’s lawyer and the parties referred to 3 earlier family reports by Ms W, social worker, dated 25 March 2009, 14 July 2010 and 29 January 2011, but principally for historical reference.
The parties relied also on 16 documentary exhibits, ex 1 being an extensive folder of documents prepared by the independent children’s lawyer from documents produced pursuant to various subpoenae, and other documents tendered during the trial by the parties.
It is not necessary that I refer in detail to all of the evidence. Largely, I will deal with the evidence that I consider to be the most relevant and helpful when dealing with the statutory matters which I must consider.
It ought not be inferred, if the evidence of a particular witness or part of the evidence of any witness is not referred to, that I have not had proper regard to all of the evidence.
The statutory matters
The children’s best interests
I turn now to the statutory matters concerning the children’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
Ms T reported that the children are attached to and have a sound relationship with the father, and enjoy living with him as their “Dad”, the children reporting to her that he provides them with good food, helps them with their homework and that they do “fun” things together. Prospectively, there is and would be benefit thus to the children in having a relationship with the father.
Ms T’s report of interviews with the children includes that they have a somewhat negative view of the mother, and do not like that she took them to Victoria, to the maternal grandmother’s home, in January 2010. Ms T said however that the children do need a “safe” relationship with the mother, such being a reference to mental health issues concerning the mother, to which I will later refer. Prospectively, there is and would be benefit to the children in having a meaningful relationship with the mother, despite their presently negative views expressed to Ms T, subject to safety and some aspects of the mother’s conduct, for example in early 2012, to which I will refer below.
Section 60CC(2)(a) is expressed only in relation to the benefit to children of having a meaningful relationship with both of the children’s parents. However, in this particular case as the paternal grandmother is also an applicant for the children to reside with her, it is appropriate that I address the question of the benefit to the children of having a meaningful relationship with the maternal grandmother. Ms T recorded comments by D and M very adverse to the maternal grandmother, to the effect that they do not like the maternal grandmother, and do not wish even to see her, however, nonetheless recommended that the children should spend time with her for up to 4 visits in each year, supervised, and that the children should have telephone communication with her.
It is plain, on all of the material, that presently the children do not have a “meaningful” relationship with the maternal grandmother. On present indications it is doubtful whether a significant relationship between her and the children can be re-established or sustained. Presently thus it is difficult to make an observation as to the benefit to the children of a meaningful relationship with the maternal grandmother prospectively.
There was little evidence as to any relationship between the children and the maternal grandfather, Mr Gallop.
There was little of evidence also as to the children’s relationship with the parental grandmother, Ms A White. There was such focus during the trial on other issues that this was not greatly explored. It is the case however that during the time that the children have lived with the father, from December 2010 continuing until the time of the trial, such has been at the paternal grandmother’s home. Further, because of disclosures which were made to the paternal grandmother, to which I will shortly refer, it appears that the children trust the paternal grandmother such that it is in their best interests to have the opportunity for the development of a meaningful relationship with her prospectively.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
The mother
It is convenient to commence with the mother who, unfortunately, has suffered a long history of psychiatric illness.
The mother, at the trial, endeavoured to persuade me that she was in “remission” in relation to her diagnosed psychiatric illnesses, so that she does not pose a risk to the children.
Dr A, psychiatrist, who assessed the mother as a single expert witness, referred to the circumstance, by reference to extrinsic materials, that the mother at various times has been diagnosed with Adjustment Disorder and Major Depression, Schizophrenia and Borderline Personality Disorder.
Dr A referred to a number of admissions of the mother to psychiatric hospitals in Queensland, and her “attempted suicide on a number of occasions”, said by him in his report dated 16 August 2010 to be “most recently March/April 2010”.
He described her presentation as being “consistent with a diagnosis of Borderline Personality Disorder”, but said in his report that at the time of assessment she showed no signs of Schizophrenia or Mood Disorder; referred to her current medication and said “Therefore it is possible that her underlying acute psychiatric conditions are well controlled by medication rather than its remission”.
The mother, at the trial, as a self represented litigant, and despite her endeavour to persuade me that she was in “remission”, gave frank and candid evidence as to recent suicide attempts (that is, since the date of Dr A’s assessment and report) and is I think to be commended for her candour and bravery in so doing. The mother said that on 28 December 2011 “I put a belt around my neck and tried to strangle myself”, but then went to her general practitioner to seek help, but he was “called away”. So she “went home”, and on 29 December 2011 “tried again”, but then thought “I am being ridiculous”, and called a friend to obtain a “Justices Order”, so that she could have involuntary admission to a hospital as a psychiatric patient. The mother thus was admitted to the hospital on 29 December 2011 and detained until 1 January 2012: ex 1, pp 140ff. The 2 attempts are described in ex 1, p 140, which record also that the mother had said that she “will attempt suicide again”.
The mother thus was further admitted to the hospital on 17 January 2012, and was detained for 4 days: ex 11. See also ex 1, pp 193ff, recording that on 17 January 2012 the mother was suffering “auditory hallucinations” and exhibiting “emotional distress”: ex 1, p 193; p 211; and recording also that the mother was experiencing “conflicting voices” and that at that time she had “ongoing self harm thoughts”, including the mother reporting at that stage that she had thoughts of self immolation in a motor vehicle with gas: ex 1, p 206.
Exhibit 1 discloses a further suicide attempt on 14 March 2012, when the mother again was admitted to the hospital with the primary diagnosis of “anti-psychotic poisoning”, the mother having consumed an overdose of Haloperidol “48 hours ago”: ex 1, pp 215-221, showing that the mother had consumed apparently “40 x 5mg Haloperidol tablets at once”, but “did not know why she did it”. The mother, it would appear, again was detained for 3-4 days in the hospital.
As to this occasion, the mother said in her oral evidence that whilst she took the overdose, she had not intended to do so, but “I contemplated slitting my throat”.
When the mother’s recent suicide attempts were put to Dr A (who, as I have mentioned, prepared a report dated 16 August 2010, referring to the most recent suicide attempt by the mother then as being March/April 2010), and he was given the details of the mother’s more recent suicide attempts and hospitalisations, he said that it appeared to him that the mother had undergone “recent deterioration” in her mental health, and that her three admissions to the hospital “in rapid succession”, with three to four day periods of detention, rather than “discharge on the same day”, was of concern. Dr A added that “if someone is thinking of killing themselves, their ability to care for her children is compromised”. (original speech)
Dr A agreed with Ms Wardle of Counsel, for the father, that Borderline Personality Disorder is difficult to treat, and said that whilst the “co-morbid” conditions can be treated (eg depression) usually Borderline Personality Disorder itself cannot be treated, and that he would not be very “over optimistic” of the mother’s Borderline Personality Disorder ultimately becoming symptom free.
The mother said “I have never attempted suicide with the children in my care”, and further that she is very lonely, and struggles to fill her days, and that if the children were in her care, in her belief, she would be able adequately to care for them because she would have “something to do”, and a reason, in effect, not to make any further suicide attempts.
Taking into account all of the psychiatric history of the mother, and Dr A’s psychiatric report and his oral evidence in relation to the mother’s recent suicide attempts, and 3 hospitalisations, despite the mother’s evidence that if the children were with her she would not further attempt suicide, it seems to me that nonetheless there is a need to protect the children, based on Dr A’s evidence, which I accept, that “if someone is thinking of killing themselves, their ability to care for her children is compromised”.
There is no evidence of any propensity of the mother directly to harm the children.
However, the mother’s recent suicide attempts, whilst not having any evidentiary effect of a propensity to kill or harm herself in front of the children, or to harm the children while with her, nonetheless presents a considerable concern in relation to protection of the children, at least in the sense of any uncompromised ability to care for them.
Further, on all of the evidence, heard over the three days of trial, it seems that the mother may have little insight into her diagnosed psychiatric conditions and how they may affect her conduct and behaviour from time to time, and indeed her decisions from time to time, and based on Dr A’s evidence there is I think at least the need for caution when considering the children’s best interests concerning their primary placement.
I would hasten to observe, in the context of unacceptable risk, as discussed above, that it was not suggested by Dr A that the children should never be in the mother’s unsupervised care, or that, necessarily, there is by reason of her illness any risk of physical harm by her to the children.
The effect of the evidence however is that safe options for the children need to be carefully assessed so that, as put by Ms T, the children can have a “safe” relationship with the mother.
I would conclude thus that the level or degree of any identified risk of harm to the children from, at least, spending unsupervised time with the mother, does not outweigh the possible benefit to them of, at least, spending unsupervised time with her so that, on all of the evidence, I am unable to conclude that there is an unacceptable risk of harm to the children from, at least, spending unsupervised time with the mother.
The father
The father in the past has had difficulty with anger management and alcohol abuse.
The relationship between the mother and the father was characterised by violence, and mutual allegations of violence. These usefully are summarised by the independent children’s lawyer in ex 14. See, in particular, the second page, for example, the mother alleging that the father physically abused her by pushing her around the house and into walls, as well as verbal abuse by the father.
There have been two protection orders obtained by the mother against the father, 12 March 2008 and 27 January 2009, each for two years. The father breached the first order by an occasion of physical altercation with the mother, described in ex 8, which led to the issue of the second protection order. The Queensland Police Service incident sheet however (ex 8) refers to the circumstance that in January 2009, the incident which led to the breach occurred when the mother and the father were endeavouring a reconciliation (despite the protection order 12 March 2008), and that when the police attended on 27 January 2009 the mother appeared to be intoxicated but the father was “very reasonable” and explained what had occurred. The father was found nonetheless to be in breach of the first protection order because it contained a “no contact” condition. It appears that on 7 July 2009, the father was convicted of the breach and fined $800.
There was no breach of the second order, which has expired.
The mother has a pending application for a protection order against the father, not yet determined as at the time of the trial (ex 5) where the underlying allegations by the mother are that in February 2012 the father had permitted D to be in possession of a knife, against the background of which, the mother alleges, in February 2011 D had been suspended from school for 20 days for “stabbing” his teacher “multiple times” with a broken ruler; and that subsequently the father had permitted D to be verbally abusive to the mother on the telephone and other matters: see the Notice of Abuse or Family Violence filed 18 April 2012 set out above; and the photograph showing a Swiss Army knife, foldable pliers, mobile telephone and wallet which D accidentally left at the mother’s home on a visit in February 2012: annexure A to the mother’s affidavit filed 18 April 2012. The mother’s affidavit as to this incident includes, somewhat unfortunately I think, her subsequent attendance at a police station to report that D had possession of the items mentioned, and, according to her evidence, which I accept, was told by the police not to return the items to D.
The mother, it appears, alleges that D’s subsequent verbal abuse of her was because of her withholding of the items and that such was the father’s fault.
The father said that the Swiss Army knife and foldable pliers were his, not D’s; that both items were used by him and D as fishing gear; that the father had made plain to D that they were only to be used as such; and that the father had reprimanded D for taking the Swiss Army knife and foldable pliers out of the “fishing gear” tackle box, without permission.
It seems to me that there was no event of violence by the father on this occasion, in relation to D’s taking of the Swiss Army knife and foldable pliers without permission; and that, responsibly, the father reprimanded D as soon as he learned that D, as a young boy, had taken these items into his possession.
The father has undertaken several self improvement courses in relation to anger management, including a Level 2 PPP seminar; a counselling course with Spiritus; and a “Living Without Violence” program ran by Kinections.
The father said that he has had lengthy periods of alcohol abstinence, and as at the date of his trial affidavit, 13 October 2011, said that he then currently had only one to two drinks at a time. In his oral evidence the father said that he does not drink alcohol daily.
Ms A White, the parental grandmother, reported to Ms T, the family report writer, at interview in January or February 2012, that the father “rarely” drinks alcohol: report Ms T, par 209. In her trial affidavit filed 13 October 2011, the paternal grandmother said that she had not seen the father drink alcohol for about 11 months, when he had visited her home and had a “rum and coke”. In her oral evidence the paternal grandmother said she had not seen the father drink alcohol “for a very long time”.
The father said in his trial affidavit that he cooks the children nutritional meals, makes them nutritional school lunches, assists them with their homework and assures they are in bed by no later than 7.30 pm: father’s trial affidavit, pars 147-152.
The children reported to Ms T similarly that the father cares for them and their needs: report Ms T pars 153-4 (D); 165 (M); 170, 172, 173 (U). See also pars 175, 188.
I am satisfied that there have been no recent incidents of family violence by the father to the mother; that the father appropriately has undertaken courses to assist anger management and to avoid family violence; that for several months, indeed more than one year, he has not abused alcohol; and that the children are not neglected in his care but indeed, on the contrary, are well provided for.
In these circumstances, and having regard to the present state of the evidence, I am satisfied and find that there is not any need to protect the children from physical or psychological harm in the father’s care, nor the need to protect the children from being subjected to or exposed to abuse neglect or family violence in the father’s care; and, plainly enough, thus that there is no unacceptable risk of harm to them in the father’s care.
I have mentioned the children’s expressed views against living with or seeing the maternal grandmother.
There is no expert evidence, in particular by any psychologist, of any likely emotional effect on the children of being ordered now to live with the maternal grandmother in Victoria, contrary to their expressed wishes; nor of the effect on them of disrupting their presently settled living arrangements and school environment; nor whether there may be any harmful psychological impact upon them if they should be required, presently, to return to live with the maternal grandmother in Victoria, in the circumstances which I have explained of their present adversity to her.
Practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
If the children should live in or near Brisbane, with the mother or the father, there would be no practical difficulty or expense in relation to the children spending time with and communicating with the other parent.
If the children should live with the maternal grandmother in Victoria, considerable practical difficulty and expense would arise in relation to the children spending time with and communicating with each of their parents, because of distance and the expense of travel.
The parties’ capacities to provide for the children’s needs, including emotional and intellectual needs
The father has demonstrated the capacity to provide for the children’s emotional and educational needs. I would refer in particular to Ms Wardle’s written submissions, par 83, without setting out, as to the father’s care and attention to the children’s needs, including their special needs, to which I will make further reference below.
The mother’s capacity to provide for the children’s needs is compromised by her seeming lack of insight into the children’s perspective, exemplified I think by the events of early 2012, in particular not understanding D’s reasons for not wanting to speak with her on the telephone after she retained the items which he had accidentally left at her home after spending time with her. The mother’s mental health difficulties, as outlined by Dr A, in particular his oral evidence, are of concern.
The maternal grandmother has the capacity to provide for the children’s educational needs, by her proposal that if the children live with her they re-attend the Lutheran School.
However, the maternal grandmother in my view does not have the capacity to provide for the children’s emotional needs, as determined by the children’s own descriptions of their time with her, already sufficiently referred to.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant
All three children suffer from learning difficulties. As mentioned all 3 children presently attend the local State Primary School. Their school work, according to their school reports, is satisfactory: see ex 1, pp 93-131, earlier referred to. Further, unlike in earlier times, during 2012 there have been no behavioural issues at school for D.
The children’s particular difficulties, and special educational needs, helpfully were summarised by the independent children’s lawyer: ex 16, to which I would refer without setting out.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The mother and the father each wish to parent the children and to accept and adopt the responsibilities of parenthood.
The mother however has the difficulties to which I have earlier referred. She lives at Town G, in a peaceful semi-rural setting, a place where she finds she can relax, and which assists her, according to her own evidence, with the symptoms of her mental illness. Whilst the mother has willingness to assume the responsibilities of parenthood, she lacks insight into her capacity to carry out such responsibilities, evidenced by her claim during the trial that she was in “remission” in relation to her mental heath difficulties, compared with Dr A’s evidence that “if someone is thinking of killing themselves, their ability to care for her children is compromised”.
In relation to the father, I would refer, without setting out, to the written submissions of Ms Wardle of Counsel, for the father, at pars 83 and 86.
Although this particular factor does not invite consideration of the maternal grandmother’s attitude to the children, it must be said that she is willing to parent the children and to assume the responsibilities of parenthood in relation to them, by reason of her belief that neither the mother nor the father is able to do so.
Family violence involving the children or a member of the children’s family or family violence order
I have referred earlier to 2 protection orders the mother obtained against the father, his breach of the first order and subsequent making of the second order, both now expired.
An interim order was obtained by the maternal grandmother against the mother in October 2010. Its history since then is uncertain: ex 14.
There is also the mother’s recent application for a protection order against the father, earlier mentioned, arising out of the events in early 2012, earlier referred to. My understanding is that at the interim hearing the learned State Magistrate declined to make a temporary order on the mother’s application. At the time of the trial the matter was set down for final hearing on 14 June 2012.
In relation to these matters I would refer generally to the helpful summary prepared by the independent children’s lawyer: ex 14.
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 children
There has been a long history of litigation concerning the children. The case is one in which it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Other relevant matters
The children’s disclosures to Ms C and to the parental grandmother concerning Mr R are still under investigation by the Victoria Police Service.
Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent; and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children; and to spend time with and communicate with the children; and has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the children; and spending time with and communicating with the children; and has fulfilled or failed to fulfil the parental obligation to maintain the children.
These matters have been sufficiently canvassed in the s 60CC analysis, save in relation to child support. In this regard, it is common ground that child support has been assessed against the mother at $1 per day, about $30 per month, which the mother pays to the father by way of deduction from her Centrelink payments.
Discussion and conclusions
Parental responsibility
The family violence matters referred to have effect that by reason of s 61DA(2) the presumption in s 61DA(1) that it is in the children’s best interests for the mother and the father to have equal shared parental responsibility for the children does not apply.
However, that does not have the effect that I ought not consider in any event whether an equal shared parental responsibility order may be in the children’s best interests or, as the maternal grandmother seeks, as her alternative proposal, that each of the mother, the father and the maternal grandmother have equal shared parental responsibility for the children.
The nature of the major long-term issues, in particular the children’s health and education, are of particular significance concerning the children’s special needs, already referred to: see again ex 16.
The need for particular attention to the children’s health and education must be assessed against the background of the conflict between the mother and the father, essentially ongoing, as demonstrated by the events of early 2012 earlier referred to.
As between the mother and the father, in relation to these two significant matters, the mother has the mental health difficulties to which I have referred showing lack of insight into the children’s needs in some respects.
These matters in combination have the effect I think that an order for equal shared parental responsibility as between the mother and the father in respect of all of the major long-term issues is, for practical reasons, unlikely to be viable or successful, in particular because of past conflict and apparently ongoing conflict in some respects between the mother and the father, and the need for consultation in relation to decisions and the making of joint decisions where possible: s 65DAC(2) and (3).
In my view, the children’s best interests would be met by the father, more so than the mother, having sole parental responsibility for the children’s health and education, and the mother and the father having equal shared parental responsibility otherwise for the major long-term issues. In particular, apart from the children’s health and education, the remaining long-term issues defined in s 4 (religious and cultural upbringing and the children’s name) are unlikely on the evidence to be controversial; and any changes to the children’s living arrangements that may make it significantly more difficult for the children to spend time with a parent is a matter unlikely to arise, on the evidence, having regard to the present location of each of the parents and the circumstance that neither presently proposes to live outside a reasonable proximity to their present locations. In any event, any proposal by either parent to relocate the children, seemingly, unless the subject of agreement, would require further court proceedings.
Turning back to the important subject matter of the children’s health and education, the evidence shows that the father presently is well managing decisions concerning these matters. I will refer again to ex 16, the written submissions of Ms Wardle of Counsel, at par 83, and the children’s school reports earlier referred to.
I am not persuaded that the children’s best interests would be met by the maternal grandmother having any role in relation to decisions concerning the major long-term issues for the children. There is grave animosity between the mother and the maternal grandmother; and presently, it would appear to me, no need for involvement of the maternal grandmother in relation to parental responsibility, particularly having regard also to the circumstance that the maternal grandmother is ill disposed towards the father, she maintaining the view, despite evidence to the contrary, that he presently has problems with alcohol abuse, such that s 65DAC consultation with the maternal grandmother, by either the mother or the father, is unlikely to be viable or successful.
I have referred earlier to the authorities concerning the role of grandparents in “parent/grandparent” applications, in particular in D & F (above), at [56] and [57].
The independent children’s lawyer proposed that the father should have sole parental responsibility for the children’s health and education, and that otherwise the mother and the father have equal shared parental responsibility for the major long-term issues.
Such an arrangement appears to me to be in the children’s best interests, and I propose to make an order in those terms.
Equal time
The order which I will make for the father to have sole parental responsibility for the children’s health and education, but that the mother and the father have equal shared parental responsibility in respect of the remaining major long-term issues raises the question whether s 65DAA(1) and/or (2) apply, in the sense of whether such an order, relevantly, is one for “equal” shared parental responsibility, it being “equal” only in some respects. On the one hand, parental responsibility is a “bundle” of all of the duties, powers, responsibilities and authority which by law parents have in relation to children. However, the “bundle” may be “divisible” by an order, for example, that one parent be responsible for one or some aspects and the other parent be responsible for one or some or other aspects. Whilst such would amount to “shared” parental responsibility it would not amount to “equal” shared parental responsibility overall. On the other hand, arguably s 65DAA(1) and (2) are attracted, even if there is only “equal” shared parental responsibility in respect of some matters but not all. I need not determine this matter, and it was not argued. The safe course however is for me to treat the matter as if s 65DAA(1) and/or (2) apply, and accordingly I will do so.
Moreover, irrespective of the statute, and the parties’ proposals, I am obliged to consider nonetheless whether an equal time order would be in the children’s best interests: Goode & Goode (2006) FLC 93-286 at [82] (j) and (k).
My treatment of the matter thus as if s 65DAA(1) and/or (2) apply has the effect that first I must consider whether the children spending equal time with each of the parents would be in the children’s best interests and reasonably practicable, and if it is, consider making an order to provide for the children to spend equal time with each of the children’s parents.
In Goode (above) the Full Court said at [64] that the juxtaposition of s 65DAA(1)(a), (b) and (c) suggests a consideration tending to result in or the need to consider “positively” the making of an equal time order. In Korban & Korban [2009] FamCAFC 143, the Full Court explained that in Goode the Court did not intend to put a “gloss” on the plain wording of s65DAA(1) by its use of the word “positively” such that the Court should only make an order for equal time if there are no disqualifying factors: [83]; and that “consider” means to assess whether equal time is in a child’s best interests by weighing factors both positive and negative: [85]; but that the inquiry is a “positive one”, in order “to ascertain whether equal time is in a child’s best interests”: [86]. The Court further observed, as is plain by the legislation, that it is only if the trial judge concludes from the overall assessment that an equal time order should not be made he or she then would move to consider whether substantial and significant time is in a child’s best interests.
Thus first I will consider whether the children spending equal time with each of their parents is in their best interests, and then consider whether such is reasonably practicable.
Is an equal time order in the children’s best interests?
Although the father and the mother managed an equal time week about arrangement from the time of their separation in 2009 until early 2010, there is no present indication that an equal time order would be in the children’s best interests, in particular having regard to the mother’s suicide attempts in 2012, and to Dr A’s expressed concern “if someone is thinking of killing themselves, the mother’s ability to care for her children is compromised”.
Further, Ms T, after careful consideration of all of the matters canvassed in her family report, did not recommend an equal time order: see her recommendations at the conclusion of her report.
Based upon all of the evidence, already canvassed in detail, I would conclude that an equal time order, in relation to the children’s parents, is not in the children’s best interests.
Reasonable practicability
My conclusion that an equal time order is not in the children’s best interests has effect that one of the two criteria in s 65DAA(1) is absent, such that strictly it is not necessary to proceed to consider whether an equal time order would be reasonably practicable. It is desirable however that I do so for the sake of completeness. In MRR v GR (2010) 240 CLR 461 the High Court made clear the necessity to consider specifically and discretely each of the matters in s65DAA(5), to which matters I now turn.
How far apart the parents live from each other
The father and the mother each live in Queensland, the mother at Town G, an area near Brisbane and the father at Suburb N, Brisbane. The mother said in her evidence however that if the children should live with her she would be prepared to move to an area closer to Suburb N.
The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents
Whilst I have mentioned that the parents earlier managed an equal time arrangement initially, however, it was not able to be sustained. Further, the parents’ ongoing conflicted relationship would tend to suggest that the parties do not have this capacity.
The parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for the children spending equal time with each of the parents
The history of the matter, and in particular the events in early 2012 earlier referred to, including the aftermath of those events including the mother’s application for a protection order, whatever its outcome on 14 June 2012 in the State Magistrates Court may have been, would tend to suggest that the parties do not have this capacity.
The impact on the children of an arrangement for the children spending equal time with each of the parents
Even if the mother moved from Town G to an area closer to Suburb N, where the father lives, and the children attend school, the children’s wishes and views, reported to Ms T earlier set out, have effect that such would be unlikely to be a successful arrangement.
Such other matters as the court considers relevant
It would appear that relevant matters are sufficiently covered.
Conclusion as to reasonable practicability
I would conclude that an equal time order is not reasonably practicable having regard to the matters discussed.
Conclusion as to equal time
I have determined that an equal time order is not in the children’s best interests, and not reasonably practicable.
I therefore will not make an equal time order.
Is a substantial and significant time order in the children’s best interests?
Substantial and significant time is defined in s 65DAA(3) and (4), as applying “only if” the time a child spends with a parent includes both days that fall on weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and allows the child to be involved in occasions and events that are of particular significance to the parent although regard may be had to other matters.
None of the parties proposed a substantial and significant time, as defined.
I have referred already to the independent children’s lawyer’s proposal.
It is common ground (as is the case) that such also does not amount to substantial and significant time.
Moreover, for the reasons I have already set out in relation to determining that an equal time order is not in the children’s best interests, similarly I would conclude that a substantial and significant time order is not in the children’s best interests.
Reasonable practicability
I would repeat and rely upon the matters discussed, but in the context, here, of a substantial and significant time order.
Conclusion as to reasonable practicability
I would conclude that substantial and significant time order is not reasonably practicable having regard to the matters discussed.
Conclusion as to substantial and significant time
I have determined that a substantial and significant time order is not in the children’s best interests, and not reasonably practicable.
I therefore will not make a substantial and significant time order.
The remainder of the maternal grandmother’s, mother’s and father’s proposals
In Goode (above) at [82] (i), the Full Court made clear (as is plain in the legislation) that if neither an equal time order nor a substantial and significant time order is considered to be in the best interests of the children, according to the statutory pathway, then the Court is free to make such orders as in the Court’s discretion are in the children’s best interests as a result of the consideration of the s 60CC matters.
It is necessary for me now, thus, to consider the remainder of the proposals, in relation to the children’s best interests.
What living and other arrangements are in the children’s best interests?
It is convenient to commence with consideration of the maternal grandmother’s proposal that the children live with her in Victoria and spend such time with the mother and the father as may be agreed, or failing agreement as may be determined by the Court; and her oral evidence that if the children live with her in Victoria the mother and the father could “visit at any time”; but that nonetheless she would be very willing to facilitate and encourage time between the children and their parents.
In my view, there are several reasons why the maternal grandmother’s proposal is not in the children’s best interests. First, “the effect of change” factor, analysed above, is against such an order, which would involve the children relocating to Victoria, away from their presently secure and happy environment. Secondly, there is the important matter that such would render difficult, I think, the continuation of a meaningful relationship between the children and each of their parents. Thirdly, there would be practical difficulty and expense for the children to see and spend time with their parents. Fourthly, the children do not like the maternal grandmother, and expressed to Ms T that they do not wish to live with her, or indeed, to have anything to do with her. Although, as I have earlier observed, the children are of young ages, such that careful consideration must be given to the weight if any to be attached to the children’s expressed views or wishes, in this particular case what the children expressed to Ms T might be characterised as bordering on hostility towards the maternal grandmother such that the children’s views and wishes, even if they be given little weight, cannot be ignored.
I would determine therefore, and find, that an order that the children live with the maternal grandmother in Victoria presently is not in their best interests.
Although the children do not see it now, as they are too young, I am satisfied that the maternal grandmother has acted in the children’s best interests, in bringing her application. However, that does not convert to a conclusion that, presently, it is in the children’s best interests to live with her, and, indeed, to relocate to Victoria to do so.
As to the maternal grandmother’s alternative proposal (if the children should live with the mother or the father) they spend time with and communicate with her as may be agreed with the mother and the father, but failing agreement as set out in her amended response, namely for half of the gazetted school holiday periods, to be spent in Victoria, one weekend in each school term, seemingly to be spent in Queensland, and telephone communication on each Monday, Wednesday and Friday. In my view the first part of the maternal grandmother’s alternative proposal would provide unnecessary travel for the children, and to a location and environment not consistent with the children’s present animosity towards her, and accordingly would not be in the children’s best interests. The second and third parts of the proposal I think presently are not in the children’s best interests having regard to their present animosity towards the maternal grandmother.
I would determine therefore that the maternal grandmother’s alternative proposal also presently is not in the children’s best interests.
Having regard to all of the evidence, the statutory matters I must consider and the submissions, in my view the orders which presently are in the children’s best interests are those proposed by the independent children’s lawyer, namely that the children live with the father and spend time with the mother and with the maternal grandmother in accordance with draft orders prepared by the independent children’s lawyer on 8 June 2012 and placed with the papers.
In my view, having determined against an equal time order, and against a substantial and significant time order in relation to the time the children should spend with their parents, and against an order that the children should live with the maternal grandmother in Victoria, in essence the final matter for me to consider is whether the children should live primarily with the mother or primarily with the father.
Unfortunately, the mother’s mental health status, and Dr A’s evidence, which I accept, have effect that an order for the children to live primarily with the mother plainly would not be in their best interests.
In contrast, I would conclude not only by matter of mere default, but positively, that for the children to live with the father is presently in their best interests, for all of the reasons canvassed, including that the children are happy with that arrangement, are progressing as well as may be expected at school, and that the father, on all indications, is doing his very best to attend to all of the children’s needs, including their special needs. I am conscious of the maternal grandmother’s allegations of the father’s continued abuse of alcohol. However, I am satisfied, on the present state of the evidence, that he has not abused alcohol now for well over 12 months and accordingly, as earlier determined, does not thus pose a safety threat to the children.
I am mindful of the need, if possible, to make the order least likely to lead to the institution of further proceedings concerning the children. I am satisfied, presently, that the independent children’s lawyer’s proposed orders meet that factor.
If, in the future, the father should revert to alcohol abuse or to violence, then the matter of the children’s best interests, in future proceedings, will have to be reconsidered, including consideration of whether the children’s best interests in such case may be to relocate to live with the maternal grandmother in Victoria, as such case would constitute a material change in circumstances from those presented at the trial.
Reasonable practicability
Strictly, again, it is not necessary to consider reasonable practicability otherwise than in the context of s 65DAA(1) and (2). However, I will do so for the sake of completeness.
The matters already discussed have effect that the independent children’s lawyer’s proposal is reasonably practicable.
Orders
I will order thus by way of final orders in accordance with the independent children’s lawyer’s proposal, with minor editing changes which I have made; and a further change in relation to the order 20(b), which in the original proposal contains an ambiguity in relation to delivery/return of the children on Christmas Day. If I have misinterpreted the intention of the independent children’s lawyer’s proposal in relation to order 20(b), such easily will be amenable to amendment under the slip rule, which readily I would order.
I certify that the preceding 303 (three hundred and three) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 20 September 2012.
Associate:
Date: 20 September 2012
0
15
2