FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMEDLEY & SNOWDEN | [2014] FCCA 762 |
| Catchwords: FAMILY LAW – Parenting – eight year old boy – mother wishing to relocate with boy to Darwin – father wishing boy to remain in Melbourne – mother with schizoaffective disorder – father user of marijuana for 30 years – father in poor health - allegations of violence. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751 Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597 Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111; McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4 |
| Applicant: | MR SMEDLEY |
| Respondent: | MS SNOWDEN |
| File Number: | MLC 6487 of 2013 |
| Judgment of: | Judge Riley |
| Hearing dates: | 12, 13 & 14 March 2014 |
| Date of last submission: | 21 March 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkinson |
| Solicitors for the Applicant: | Bowlen Dunstan Pty Ltd |
| Counsel for the Respondent: | Ms Goldthorp |
| Solicitors for the Respondent: | Lampe Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Buchanan |
| Independent Children’s Lawyer: | Mark Finn |
ORDERS
All previous parenting orders be discharged.
The mother have sole parental responsibility for X born (omitted) 2005 (“X”).
X live with his mother.
The mother be restrained from relocating X’s residence more than 30kms from the (omitted) Post Office.
X spend time with his father as follows:
(a)until the father has complied with orders 11, 12 and 13:
(i)from after school each alternate Friday to 7pm on Sunday; and
(ii)from after school to 7pm each Wednesday;
(b)upon the father complying with orders 11, 12 and 13:
(i)during school terms from after school each alternate Thursday to before school Monday; and
(ii)from after school each alternate Thursday to before school Friday;
(iii)for half of all Victorian school holidays as agreed between the parents and in default of agreement, the first half of such holidays commencing in the April 2015 school holidays;
(iv)from 2pm Christmas Eve to 2pm Christmas Day in 2014 and each alternate year thereafter;
(v)from 2pm Christmas Day to 2pm Boxing Day in 2015 and each alternate year thereafter;
(vi)at Easter (when Easter does not fall during school holidays) commencing 2015 for one half of the Easter period as agreed between the parents and in default of agreement for the second half;
(vii)on X’s birthday from after school to 7pm on a school day and 10am to 3pm on a weekend if X is not otherwise spending time with his father;
(viii)from 6pm Saturday to before school Monday during the Father’s Day weekend; and
(ix)such further or other times as agreed between the parents.
X’s time with his father be suspended from 6pm Saturday to before school Monday during the Mother’s Day weekend.
X communicate with his father by telephone each Tuesday and alternate Fridays (when X is not spending time with his father) between 6.30pm and 7pm.
X communicate with his mother by telephone on each Tuesday and Friday when X spends holiday time with his father between 6.30pm and 7pm.
Changeover at school times occur at school and otherwise occur at Subway (omitted) or such other venue as is agreed between the parents.
The mother be at liberty to take X to Darwin each year for up to four weeks provided the mother facilitates telephone or Skype communication between X and his father twice a week between 6.30pm and 7pm and provides make up time to the father.
The father enrol in and complete a Family Violence Intervention Course at Uniting Care (omitted) as soon as practicable and provide evidence of completion of the course to the mother’s solicitor.
The father enrol in and complete a parenting course at Relationships Australia, (omitted), directed to the care of mid primary school aged boys and provide evidence of completion of the course to the mother’s solicitor.
The father:
(a)engage in positive change counselling with Ms A at the (omitted) Health Service, or such other counsellor as recommended by Ms A;
(b)provide to such counsellor copies of the reports of Ms E dated 11 September 2013 and Ms B dated 17 November 2013 and these orders and reasons for judgment;
(c)follow all recommendations of such counsellor; and
(d)provide evidence of the satisfactory completion of the course of counselling to the mother’s solicitor.
For four years, the mother or her solicitor be at liberty, not more than once per month, to request the father in writing to perform supervised urine drug screens if the mother has reason to believe that the father is using illicit drugs.
The father, within 48 hours of a written request from the mother or her solicitor, complete a supervised urine drug screen and provide the results of the screen to the mother’s solicitor as soon as practicable.
If the father fails to comply with a request for a supervised urine drug screen within 48 hours, X’s time with the father be immediately suspended until further order of the court.
If the father provides a positive supervised urine drug screen, X’s time with his father be immediately suspended until further order of the court.
The mother continue to attend upon (omitted) Care Service and continue to comply with all recommended treatment and recommendations of the service.
The father and mother be restrained from:
(a)using any form of physical discipline on X;
(b)using abusive language towards X;
(c)denigrating the other parent or any members of the other parent’s family in the presence or hearing of X or allowing any other person to do so; and
(d)removing X from his current school until he completes grade 6 unless the parents agree otherwise in writing.
The father be restrained from using or being affected by any illicit drugs when X is spending time with him.
The father be restrained from:
(a)using any illicit drugs; and
(b)storing any items used in administering illicit drugs,
at his place of residence.
Both parents keep each other informed of his or her residential address, landline and mobile numbers.
IT IS NOTED that publication of this judgment under the pseudonym Smedley & Snowden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6487 of 2013
| MR SMEDLEY |
Applicant
And
| MS SNOWDEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of X, born (omitted) 2005 (“X”). X is now nine years old. His mother wishes to relocate with X to Darwin. His father would like X to remain in Melbourne.
X’s parents began a relationship in 2004 in Darwin. At that time, the mother was 21 years old and the father was 40 years old. The mother is of (country omitted) background. X was born about one year after the relationship commenced. The parents did not marry. In 2006, the family moved to Melbourne where they have remained.
The parents separated on 13 March 2013. Since separation, X has lived with his mother. He did not see his father from the time of separation until the family report interviews in October 2013, except for a short visit after school on about 28 March 2013.
The mother suffers from schizoaffective disorder. That is schizophrenia with an additional mood disorder often constituted by depression.
The mother had to be admitted to a psychiatric hospital in Darwin when she was pregnant with X, and had one further psychiatric admission while she was in Darwin and has had two since she has come to Melbourne. The mother’s condition is now well controlled with medication and support but she does occasionally suffer from auditory hallucinations for about half an hour at a time.
The mother worked as a (occupation omitted) in an (employer omitted) until these proceedings began. She then left her job to qualify for legal aid. Her former employer has said that she would be welcome to come back to work full-time or part-time. Before her resignation there was talk of a promotion.
The father suffers from Crohn’s disease and depression. He is a qualified (occupation omitted) but was on a disability pension in the last two years of the relationship and still is. The father admits to spending up to eight hours a day playing video games.
The father also admits to having used marijuana for 30 years but claims that he has taken breaks of months or years at different times. He also claims that he has not used marijuana since going on a “bender” between his father’s death and his funeral in September 2013. He has produced two apparently clean drug screens in recent months, one on 29 November 2013 and the other on 7 February 2014.
Five reports have been made to the Department of Human Services (“DHS”) about the family. The essence of those reports, in the words of Ms E, who conducted interviews on 11 September 2013 under s.11F of the Family Law Act 1975 (“the Act”), is that:
·The relationship between the parents presents “…a high level of stress for Ms Snowden” and Mr Smedley was designated as a major stressor and described as “…controlling” …
·There are persistent allegations of family violence with Mr Smedley as perpetrator and the abuse is directed at both Ms Snowden and X. X has been a witness to physical violence from Mr Smedley to Ms Snowden and he has been a direct recipient of physical chastisement from his father;
·X has also been verbally abused and subject to denigration … .
DHS reported to the court by letter dated 6 November 2013 that it had:
no significant concerns in regards to X’s immediate safety while currently in the care of his mother.
During the relationship, the mother alleged that the father may have sexually abused X. However, X has made no disclosures along those lines. Neither the mother nor the independent children’s lawyer pursued this issue before the court.
Ms E conducted s.11F interviews on 11 September 2013. At that time, X had not seen his father for about six months. X refused to see his father at the s.11F interviews, notwithstanding an offer by Ms E to arrange for a uniformed security guard to be present in the interview room. Ms E considered that X was displaying signs of genuine fear and did not allow a meeting to occur between X and his father.
The mother told Ms E that the father had been physically, verbally and emotionally abusive during the relationship towards her and X. X told Ms E about an array of reasons for not wanting to see his father. They basically amounted to his father having conducted a reign of terror in the family home. Ms E was completely persuaded by the mother’s and X’s presentations and recommended that:
a)X spend no time with his father;
b)the father communicate with X only by letters and cards; and
c)the mother be permitted to relocate to Darwin.
On 11 September 2013, the court ordered the father to undertake a men’s behavioural change program, ordered an urgent family report and ordered that, until further order:
a)the father send X no more than two cards or letters each week; and
b)the mother be restrained from relocating to Darwin.
On 10 October 2013, X and his parents attended family report interviews with Ms B. On this occasion, X was tearful, saying to his mother that he did not wish to see his father. However, as soon as the mother left the room, X was “immediately relaxed and responsive to his father”: [61] of the family report.
Ms B recommended that:
a)X and his mother continue to live in Melbourne;
b)X live with primarily with his mother;
c)X spend time with his father gradually increasing to Thursday after school to Monday before school in alternate weeks as well as Thursday overnight in the other week; and
d)in the event that the mother did relocate to Darwin, that X live with his father.
The matter returned to court on 9 December 2013 for final hearing. However, by consent, the listing was treated as an interim hearing. By that time, the Department of Human Services had reported that it had no concerns for X’s welfare in the care of the mother.
On 9 December 2013, orders were made by consent for X to have gradually increasing time with his father. It started with two hours three times a week and built up to each Wednesday from after school to 7pm and each alternate weekend from 9.30am Saturday to 7pm Sunday. That has occurred without any reported incident.
Orders were also made on 9 December 2013 for X to continue seeing a therapeutic psychologist.
It was also ordered on 9 December 2013 that the father and the mother complete a post-separation parenting program. The mother did so. However, as at the date of trial on 12 March 2014, the father had not undertaken such a program. He told the court that he had expected the court to give him notice of the details (although the order did not say that and the father was legally represented.) The father said that if his lawyer or the independent children’s lawyer gave him a recommendation for a course, he would comply with the order to attend a post-separation parenting program.
The father said at trial on 12 March 2014 that he had not complied with the order made on 11 September 2013 to attend a men’s behavioural change program. The father said that the managers of a couple of courses that were available straight away told him that he would not fit in with their program because their clients were particularly violent. The father said that he eventually settled on a (omitted) course. He was told that (omitted) would contact him in November but they did not do so. He said that he contacted (omitted) at the end of November and was told that there would be nothing available until the end of March 2014, possibly April 2014. He said that, in the last two weeks, he had been told that (omitted) may have no spaces available until May 2014. The father did not produce any letters or other documents to support his claims about his failure to comply with the order that he undertake a men’s behavioural change program.
In her report dated 17 November 2013, Ms B recommended that the father undertake counselling to address any unresolved issues and also undertake drug and alcohol counselling. Prior to trial, the father did undertake a course of drug and alcohol counselling. However, he said that he had been to a couple of sessions of general counselling, but stopped because he felt they were going over old ground.
At trial, the father and the independent children’s lawyer adopted the recommendations of Ms B. The mother continued with her wish to relocate with X to Darwin and proposed that X spend about half of the school holidays with his father.
The principal issues for court to determine are:
a)whether X’s claims about his father terrorising the family have any truth or whether they were entirely fabricated at the mother’s behest;
b)whether the mother’s psychiatric condition can be adequately managed in Darwin; and
c)whether it is in X’s best interests to be permitted to relocate with his mother to Darwin.
The s.11F memo
In her memorandum under s.11F of the Act, Ms E recorded X’s concerns about his father as follows:
·X described a life in which his father “…is really into the computer and would spend most of his day playing computer games” and that although he took X to school when his mother was working they did not share many activities together other than going to the Park. Ms Snowden is reported as providing the school lunch.
·X represented his father as verbally abusive, screaming in his ear, belittling and name-calling who dominated the household. X noted that he could please his father by being completing (sic) obedient and by sitting and watching his father play computer games. It was necessary to obey his father otherwise he would “…curse and swear”.
·X recalled his father as verbally abusive to his mother and he saw his father threaten to shoot his mother with an imaginary gun.
·X described himself as often wearing his headphones so he could not hear his father yelling and he described his father as “…horrible to mum” and X has observed that when his father “…did something bad he blamed mum.”
·X spoke about “…my memories in dad” and recounted multiple incidents of physical violence towards himself including punching which occurred when his mother was at work; slapping his face if he argued with his father and being repeatedly and painfully poked in the chest when his father was making a point. Mr Smedley is reported as threatening X he will “…pull down my pants and hold me by my jockeys and take me into the street for people to see me.”
·X spoke about repeated incidents when he had been frightened or crying and his father would abuse him and tell him “…to man up”. X is frightened of heights and expressed fear and could not walk alongside the windows on level five of this building and he claims his father pushed him against windows on a high floor at the (omitted) Hospital “…to man up and make me less scared”, which terrified him. On another occasion Mr Smedley stood outside X’s bedroom with a knife and stickers on his eyes to scare X as if it were a game but X had a genuine fear that his father might have hurt him
·X spoke about his mother protecting him and he understood the concept.
·“…To man up” X would be sent alone to the Park by his father where he would make friends with strangers; when he was crying or “…when I puked” he was told to “…toughen up”.
·X reported that he was not allowed to spend much time with his mother that “…my father would get jealous” and she was not allowed to read to him at night. X stated he was required to sleep in his father’s bed to “…keep him happy.”
·X is aware of his father’s daily use of marijuana and described the process of his father making joints in detail describing it as “…gross”. X has observed that when his father would go and smoke his behaviour calmed a little which corresponds to Mr Smedley’s view that smoking relaxes him.
·X was required by his father to denigrate his mother and “…he forced me to put up my rude finger to her.”
·X does have a secret he has been forbidden by his father to tell his mother: X has been threatened if he tells his mother his father will “…maybe kill me”. The secret is that Mr Smedley is “…going to take me away from mum” and X reported that one day his father came by his school and told X he would take him out of school. X is fearful his father will take him away from his mother and “…maybe kill me” and he reports having nightmares about this.
·X stated he is scared of his father and claims to be frightened his father will take him away and stated “…I hate him; I will never forget my memories”. X was adamant there is absolutely nothing he misses about his father despite his being able to recall having some pleasant times with his father.
·X was adamant that he did not wish to see his father; he was fearful of his father taking him away and even if security was present in the Child-Care Room X refused to see his father.
·X spoke about his whole life changing since his father had left the household, it was now a ten out of ten, time at home and he now sang and danced and had friends over. X explained “…it is different with mum she is all good and she protected me from dad.”
·X is very keen to go to Darwin he feels he needs “…to escape from dad and if I live in the same suburb I will never forget what he has done”.
Ms E concluded that:
·X is a child who has been witness to and had experienced family violence and threats that have left him terrorised. The Smedley-Snowden household was oriented around pleasing Mr Smedley a person who it appears could not be appeased who was abusive, dominating and controlling. Mr Smedley’s denial of this conduct especially in the face of X’s reports suggests that he has little insight into the impact of his behaviour on others.
·It is a consideration that Mr Smedley may have selected as a partner someone as vulnerable as Ms Snowden as it allowed him to exert control.
The family report
Ms B recorded the following from her interview with X:
100.As noted above, X presents as healthy and well cared for, with a sturdy stature. X was friendly and confidently talked with me. When I asked about the interview for the 11F report, X said playfully, ‘I made the lady laugh!’
101.X spoke enthusiastically about school and said ‘I love learning, I love everything about school!’ He named ‘lots’ of Best Friends.
102.For positives about his mother, X said ‘she plays with me’.
103.For positives about his father, X said ‘the only nice thing was to go to the park and explore the creek when I was seven’. X went on however, saying ‘he will drive us to school though. But one time when the car was gone, me and my Mum and my auntie had to take the bus’.
104.For negatives about his mother, X said ‘she gets angry with her Mum sometimes, that’s my Second Grandma. My First Grandma is in Melbourne and she’s nice, but she gave birth to a Naughty Son!’ X agreed that this ‘Son’ is his father, Mr Smedley.
105.When I asked what is ‘naughty’ about his father, X said ‘he’ll swear at me. He calls me big, fat lazy cunt. I don’t do anything to make him swear, but all of a sudden he gets angry’. X said that ‘pretty much everything, except for driving us’ is negative about his father.
106.X went on, saying ‘I don’t want to see him. I saw him once at his house when Grandad died, I was eight.’
107.If he lived with his mother and saw his father whenever he wanted, X said ‘I’ll be brave and see him once a month, but only visiting in the day’. X then excitedly said, ‘soon, I’m going to move to Darwin after the final hearing. Mum and Auntie Ms R tell me, and they get excited’.
108.If he lived with his father and saw his mother whenever he wanted, X said ‘I wouldn’t accept that because Dad would get angry at me and start hitting me in the chest and face and arms’. As X said this, he was smiling.
109.If he did not see his father at all, X said ‘I’d feel happy’.
110.If he did not see his mother at all, X said ‘I would disagree, because I love Mum better than Dad’.
111.X said to tell the judge, ‘I don’t want to see Dad, but I could be with him once a month’.
Ms B recorded the following observations:
118.When I indicated to Ms Snowden that Mr Smedley had arrived and I would bring him to the observation, X began to cry, saying ‘I don’t want him to come in. I don’t want to see him…’ Ms Snowden attempted to verbally soothe X, but did not initiate physical contact. X seemed to relax when I spoke quietly with him.
…
121.When Mr Smedley entered the observation room, X was kneeling at the small table, examining the Uno cards. Ms Snowden stood to leave and Mr Smedley stood quietly. When Ms Snowden closed the door, Mr Smedley said ‘Dude!! How are you?’ Mr Smedley moved across to X, who said ‘OK’ and smiled directly at him. X then began to chat happily with Mr Smedley about his hair and t-shirt.
122.Mr Smedley sat cross-legged on the floor and X sat down facing him. Mr Smedley said ‘you’ve grown and your hair is shorter!’ X smiled directly at Mr Smedley and excitedly told him about his hair and clothes.
123.Mr Smedley said ‘Grandma is here, I don’t know if you’ll get to see her…’ at which X excitedly said ‘Grandma!’
124.Mr Smedley found the game of (omitted) and suggested playing. As they packed away the Monopoly, X said ‘when you played Monopoly with me, I lost. I played with Mum and I kept on winning!’ X smiled directly at Mr Smedley who also smiled warmly.
125.As the balancing game of (omitted) was assembled, Mr Smedley playfully asked ‘how do you play it?’ at which X said ‘I have no idea … look, it’s an alien invasion!’ at which Mr Smedley laughed and said ‘I like a good alien invasion, don’t you? How about (omitted), like him?’ X laughed and said ‘yeah!’
126.As they explored the game, X sang to himself, saying ‘It’s impossible now… it’s impossible!’
127.As the observation proceeded, the atmosphere was warm and focussed. When X sniffled, Mr Smedley said ‘if you need a tissue, just go right ahead, Mate, OK?’ at which X said ‘I know where they are…’ reaching for the box of tissues.
128.The atmosphere was convivial and when Mr Smedley recounted a familiar story about ‘the man with the fork in his head’, X playfully said ‘yes, I know!’ and he and Mr Smedley laughed warmly together.
129.Mr Smedley said, “when Grandma and I were coming here today, we heard that song, ‘it’s a nice day for a white wedding…’” and X smiled. Mr Smedley then asked ‘so how have you been keeping Mate?’ at which X said ‘good’. Mr Smedley asked ‘happy?’ and X said ‘yeah, I keep watching that video when Mum was carrying the fish and you were talking to Mum and the girls….’
130.Mr Smedley replied ‘oh, OK. You know what I’m watching? That one with you and I when you interviewed me for your (omitted) class…’ X enthusiastically replied ‘Oh yeah!’ As the game proceeded, Mr Smedley and X talked and laughed together about the game and X told Mr Smedley about friends and school.
131.When I suggested finishing, X said ‘I like this game!’ and Mr Smedley said ‘Ok, a couple more games, we’ll see if we can collapse it…’ The counters eventually tipped over and Mr Smedley and X laughed. They co-operatively packed up.
132.As Mr Smedley and X prepared to return to the waiting area, X said ‘hug!’ Mr Smedley said ‘I’ll hug you in the waiting room’, but X said ‘no, hug now!’ at which he initiated an affectionate hug and kiss. When X saw his paternal grandmother in the waiting area, he moved across to her and greeted her warmly.
133.In the observation, Mr Smedley demonstrated competent parenting of X. He was responsive and warmly engaged with him in activities, following his lead and guiding with distraction, verbal instruction and encouragement. X was focussed on his father and responded positively to the verbal commentary, playful warmth and physical proximity. X demonstrates a secure attachment to his father, but some anxiety about aspects of the relationship, particularly in relation to Ms Snowden’s possible response.
Consideration of the claims made by X against his father
There is no doubt that X has overheard his mother and members of her family say some extremely derogatory things about X’s father on many occasions. While there was some attempt by the mother and her family members to say that X would not have overheard what they said about his father because X was in another room or not in the house when those conversations occurred, I find those claims to be inconsistent and implausible.
One of the more significant derogatory remarks occurred on the day of separation. The maternal grandmother, the maternal aunt, Ms R, and her infant son, A, had arrived in Melbourne a couple of weeks earlier. One evening, X said that he did not need an education to get a good job because his father would give him money. Ms R said his father did not have any money to give because he does not have a job. A major argument ensued, during which Ms R told the father he was just a “fucking sperm donor”.
The mother conceded that X heard that comment because he was in the room when it was uttered. It clearly had an impact on him because he later asked his mother what the term meant. She told him he did not need to know, it should not have been said and Ms R had been angry.
The repeated derogatory comments by the mother and her family about the father have no doubt led X to believe that his maternal family has very little regard for the father. I also consider that during the many months when X spent no time with his father, X aligned himself with his mother and her view of the father. The consequence was that, if asked, X would say that he did not wish to see the father.
The parents agreed that there were some occasions between March and October 2013 when an arrangement had been made for X to spend time with his father. However, the mother cancelled these arrangements at short notice, saying that X was unwell or did not want to see his father. On her own evidence, she said nothing to X to encourage him to spend time with his father.
However, the fact that the mother discouraged a relationship between X and his father does not necessarily mean that all of the complaints X made about his father to Ms E and Ms B were entirely fabricated. It is possible that the mother discouraged a relationship between X and his father because the father was an abuser, as the mother claims.
The possibility that the father was an abuser is rendered somewhat unlikely by the warmth of X’s interaction with the father during the family report observations. However, as Ms E told the court, children can be very forgiving. Moreover, there is other evidence that supports the claims that the father was an abuser.
The father admitted in oral evidence that he had let X go to the park alone for the first time when he was six years old. It seems that this occurred when the mother was at work. The father claimed that X asked if he could go to the park alone. The father said that he was hesitant but eventually agreed. The father claimed that he actually surreptitiously followed X to the park, 250 metres behind. The father claimed that he watched X befriend the “dog people”, who were nice middle class, mostly elderly people who were walking their dogs. The father said that, when X got home the father pretended that he had just left the house to go and meet him. The father said that, as X got older, (he is now eight years old) he was allowed to go to the park on his own. He would stay for 20 minutes talking to the “dog people” and then the father would go and bring him home for dinner.
I consider the father’s claim to have surreptitiously followed X 250 metres behind to be completely implausible. Two hundred and fifty metres is too far to provide any reasonable level of supervision or to protect a six-year-old from the likes of (omitted). That is especially so as the father has health difficulties which cause him to tire after a minimal amount of physical activity.
Moreover, making X think he was alone in the park would not have given X any sense of being protected. On the contrary, he would have felt insecure and vulnerable.
The very fact that the father came to the trial thinking that the claim that he surreptitiously followed X to the park 250 metres behind was an answer to X’s expressed fear of being sent alone to the park at the age of six highlights how little insight the father has into X’s feelings.
It should also be noted that the father was not taken by surprise by X’s allegation of being sent to the park alone. The father had six months between the s.11F interview and the trial to work out his response to that allegation.
I consider that the father deliberately lied about this matter. I do not accept that he followed X to the park at all on the first occasion. Consequently, I do not consider the father to be a witness of truth.
On the father’s own admission, he allowed X to go to the park alone on numerous occasions between the ages of six and eight years old, as X alleged. That is wholly inadequate supervision of a young child. It is not known whether the father did this because he was too busy playing video games or smoking marijuana or for some other reason. If X did ask to go to the park alone, it was presumably because the father had refused to go with him, or do anything else with him of a child focussed nature.
The father also admitted in oral evidence that on one occasion he had repeatedly poked X in the chest to emphasise a point. The father claimed that he had not poked X with any force. However, that claim does not accord with X’s claim that the father poked him in the chest painfully. If the incident had been as benign as the father claimed, I do not consider that X would have bothered to mention it to Ms E, even with the added complication of X’s alignment with his mother.
As I do not accept that the father is a witness of truth, I do not accept his explanation about jabbing X in the chest. I consider that, as X indicated to Ms E, poking X in the chest painfully was something that the father did whenever he wished to emphasise a point.
In relation to the incident at the window of the (omitted) Hospital, Ms E explained in her cross-examination that, when she attempted to walk X from the child care facility on the fifth floor of this court to her office on the same floor, she and X needed to walk past a row of windows. X became terrified. Ms E needed to put herself between X and the windows to enable him to walk down the hallway. Ms E had no doubt that X was genuinely terrified of being near the windows.
In his oral evidence, the father said that he had taken X to the (omitted) Hospital to visit his grandfather. While there, the father claimed that X had wanted to climb up on a two foot high ledge to look out the window. The father claimed that he had held X while he climbed up. The father claimed that X had seen a truck go past and said, “There’s a fruck”, which made everyone laugh.
The father suggested that X’s terror of windows arose because the father mentioned during the visit at the (omitted) Hospital that he had once seen a hospital window fall out and kill a passer by.
As I do not accept that the father is a witness of truth and as he demonstrated during the trial a serious lack of insight into X’s feelings, I do not accept the father’s explanation of this event. I consider that X told the truth to Ms E about the father pushing X against the window at the (omitted) Hospital and telling him to “man up”.
The claims made by the mother and X about the father’s violence and abuse are confirmed by reports to DHS made during the relationship. These reports indicate that the allegations of violence and abuse are not merely a post-separation fabrication.
The father also conceded to the psychiatrist, Dr G, that he had engaged in corporal punishment of X in the form of smacking with light force. The father claimed that he had done so fewer than 10 times. However, as I do not accept that the father is a witness of truth, I do not accept this claim either. I consider that the father used corporal punishment on X routinely.
All in all, I consider that each of the claims made by X against his father in the s.11F memo and the family report is substantially true. While the father claimed that X had been coached, it was not put to the mother specifically that she had coached X about any particular allegations. Rather, it was put to the mother generally that she and her family did not like the father and X knew that. The mother’s response to this was that she and her family did not like the father because he was an abuser and a drug addict.
It is clear that the mother and her family did not think well of the father and X knew that. It seems that X became aligned with his mother who then influenced him against his father. However, it does not seem to me that X’s knowledge of his mother’s dim view of his father could have generated the claims that X made against his father because they are so numerous, so detailed, so varied and were stated so convincingly. Moreover, they were supported by contemporaneous reports to DHS.
The mother’s psychiatric needs
The mother was examined by an independent psychiatrist, Dr G, on 5 March 2014. In a report of the same date Dr G said:
Ms Snowden is a 31-year-old woman who describes a long history of Schizoaffective Disorder, characterised by intermittent combinations of psychotic and affective (depressive) symptoms. It appears that her earlier pattern of recurrent relapses, which were probably in part due to poor compliance with treatments, has changed significantly since being on a new combination of medications. She appears to be receiving comprehensive multidisciplinary psychiatric services.
Ms Snowden acknowledges significant childhood losses. Furthermore, her improved relationship during adulthood with her mother has still at times been marked by unrealistic expectations on her mother’s part, with regard to Ms Snowden’s need for psychiatric treatments.
…
Taking into account that this examiner can only accept the available history at face value, there appears to be insufficient evidence to suggest that ongoing part time care by Ms Snowden of her son, X, is contraindicated for psychiatric reasons. Psychiatric disorder does not currently appear to be a major factor with regard to her ability in being an appropriate care-giver in terms of custodial parenting or access.
However, it is noted that Ms Snowden’s mental stability is not only the result of her own considerable efforts, but also due to significant input from a multidisciplinary psychiatric treatment team, the prescription of multiple antipsychotic medications, and support from her family and psychiatric rehabilitation programs.
Ms Snowden will require lifelong psychiatric treatment. She will undoubtedly relapse into psychosis were she to stop her medications, and she will require further psycho-education so that she is not increasingly tempted as her more prolonged period of wellness continues, to reduce or cease her medications.
In addition, Ms Snowden will require ongoing monitoring by her multidisciplinary psychiatric team.
It would take considerable effort and resources to replicate Ms Snowden’s current level of psychiatric care, were she to return to Darwin. That is not to say it would be impossible. It is difficult to imagine how Ms Snowden’s apparent ongoing improvement, in terms of her mental health, could be any better. It is not difficult however, to imagine that any significant changes in her life could result in deterioration.
An additional concern is regarding Ms Snowden’s mother’s reported unhelpful beliefs about psychiatric illness and treatment. These are not uncommon beliefs, and can interfere significantly with patient motivation, attitudes, and outcomes. It is presumed that were Ms Snowden to return to Darwin, she would have more frequent contact with her mother.
In relation to the mother’s family, Dr G said:
Ms Snowden described a childhood which was “not particularly happy”, because her parents separated when she was aged seven. She then lived with her father and had limited contact with her mother, although in adulthood she had more contact. She described an “okay” relationship with her mother, but “she can be feisty”. She said that her mother lived in Darwin and thought that Ms Snowden was suffering from a psychiatric illness, “because I think negative ... she thinks that if I thought more positive, I could get off the medication”.
She described a good relationship with her father, who lived in Darwin. He was well and also in regular contact by telephone.
Two older sisters and a younger brother were in Darwin. Ms Snowden's younger sister had been living with her over the past 12 months, “to help me ... driving ... getting me out of the house to go to the shops and swimming ... a good companion ... she will stay until this is all over, and then hopefully we go to Darwin”.
However, Ms Snowden reported she was “not very dependent on her ... except for the driving ... and I have bought a learner’s book to drive the car that we bought last year, I paid for it”.
The mother’s treating psychiatrist, Dr W, gave evidence by affidavit and orally. In a report dated 4 March 2014 annexed to her affidavit, Dr W said:
I am the treating psychiatrist for Ms Snowden who has been attending this clinic since 2006.
Ms Snowden is a 31 year old woman with a history of schizophrenia, which commenced after the birth of her son nine years ago in 2004. She attends monthly for review of her mental state and prescription of medication. She is currently living with her sister and nephew and was recently working as a (omitted). She was born in Darwin and lived there until moving to Melbourne in 2005.
The onset of her illness was chiefly after the birth of her son, and initially diagnosed as post partum psychosis. There was a history of depression and an overdose attempt one year prior to her pregnancy. She was admitted to psychiatric hospital on multiple occasions while in Darwin and commenced on depot (injectable) antipsychotic medication, risperidone. While there she attended the (omitted) Centre as an outpatient.
In 2005 she moved to Melbourne and commenced treatment at (omitted) Care Service in December 2006. Initially she was treated on depot risperidone alone, however, due to chronic symptoms, in 2008 she was commenced on the antipsychotic medication Clozapine.
In 2009 she was admitted to hospital on one occasion due to lack of compliance with clozapine and worsening symptoms. In July 2011 she was referred to the (omitted) Mobile Support & Treatment Service to assist in more intensive monitoring of her treatment in the context of variable compliance with clozapine. She was with this service for one year, and then returned back to the (omitted) Care Service. When unwell symptoms have included persecutory delusions, auditory hallucinations, depressed mood, suicide ideas and ideas of reference from the television. Despite these symptoms being worse at times, she was noted to be a warm and attentive mother to her son throughout the period she was treated at this service.
Current treatment includes the fortnightly injection of risperidone consta 62.5mg and clozapine 200mg daily. She attends a doctor’s appointment monthly to obtain the prescription for Clozapine, to monitor her mental state and provide support.
During her most recent review with myself on 19/2/2014 she described experiencing voices for up to half an hour approximately once a month in response to a stress. She denies other symptoms in recent years. She is attempting to give up smoking.
She presented as kempt and with appropriate attire. Her eye contact was good. She had no abnormalities of behaviour. Her affect was warm and reactive, with euthymic mood conveyed. She was anxious about the upcoming court event. Her speech was soft and fluent. There was no formal thought disorder. The content of her thoughts was related to her son, her future hopes and did not include any delusions or other symptoms of illness. She denied current hallucinations. Her attention and cognitive function appeared normal. She had adequate insight into her illness, need for treatment and has been attending appointments regularly.
She has schizophrenia with some residual symptoms, however largely in remission on the current treatment regime. She requires ongoing support and monitoring of her mental state at a clinic which can prescribe clozapine; a specialised psychiatric medication. If she were to relocate to Darwin, she would be referred back to the (omitted) Centre, the equivalent service in Darwin to the service she is currently attending. She would receive the same level of care. A nurse at that clinic would administer her depot medication, and the tablets given monthly, in the same manner she receives treatment here. The name of the psychiatrist would need to be determined at the point of transfer of care, something this clinic would arrange for Ms Snowden. Due to the improvement on her current regime, it is very unlikely the service in Darwin would change the medication. Information about her treatment here would be sent to the (omitted) Centre.
With regards to questions about Northern Territory having an equivalent to the Department of Human Services and organisations such as Child First, of course there are equivalent services, however the details of this would be best provided by these services. I would like to add that in addition to services, Ms Snowden has more extensive family support in Darwin which she anticipates will provide her with increased support in caring for her son.
In oral evidence, Dr W said that she had not contacted the (omitted) Centre and did not know about the precise resources it offered, or whether the mother would actually be within its zone.
Dr W said that mental health resources were fairly consistent across Australia. In relation to the outreach service that the mother accessed in 2009, Dr W said that she was sure that there would be such a service in Darwin but its availability would depend on demand and so on.
Dr G and Dr W gave somewhat different evidence about the ease with which the mother’s psychiatric care could be transferred to Darwin. Dr G said:
It would take considerable effort and resources to replicate
Ms Snowden’s current level of psychiatric care, were she to return to Darwin. That is not to say it would be impossible.
Dr W, on the other hand, indicated that all that the transition could be managed seamlessly with a letter from the current service to the new service. However, Dr W’s view was based on her understanding of generalities rather than any precise knowledge of the actual services that would be available to the mother in Darwin.
It is unfortunate that evidence was not obtained from the (omitted) Centre about the resources that it offers people such as the mother and the availability of those resources. It is also unfortunate that evidence was not obtained that the mother, if she were to return to Darwin, would actually be within the zone of the (omitted) Centre. This last point is an issue because it seems that the mother does not propose to live in Darwin itself, but in the neighbouring city of (omitted). (omitted) is a new satellite city, 21 kilometres from Darwin. One cannot help but fear that, like many new developments, (omitted) may suffer from a lack of support services for its residents.
The mother maintains that she will be supported by her family if she returns to Darwin and that will assist with her psychiatric needs. However, it appears that the mother’s family does not have a good understanding of her psychiatric needs. The maternal grandmother in the past has said that the mother’s psychiatric condition would improve if she thought more positively. That grossly misunderstands the mother’s condition. The maternal grandmother maintained in cross examination that she now knows that the mother needs to take her medication. However, she said the medication consisted of tablets when it is the fortnightly injections that the mother receives that seem to be the critical component of her care.
The mother’s sister Ms R, with whom she lives, is apparently unaware that the mother has been hearing voices for about half an hour per month. The mother has not told all of her family members about all of her hospital admissions. The mother has not told her sisters that her father “did an act” on her when she was a child. As the mother’s family members are not all aware of all the matters that might affect her mental health, it is difficult to gauge how well they might support her.
The mother said that she intends to live with her sister Ms M in (omitted). However, Ms M did not give evidence. It is unknown whether Ms M is agreeable to the mother living with her, how much Ms M knows of the mother’s psychiatric condition and care needs and how much time Ms M has to assist the mother. It seems that Ms M is an (occupation omitted) who works from home. Her work schedule was not made known to the court with any degree of confidence.
The mother’s sister Ms R, who is presently living with the mother, told the court that she would stay with the mother if she remained in Melbourne, notwithstanding that Ms R has a “soon to be boyfriend” who lives in Queensland.
The authorities
In Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111 at [100], the Full Court of the Family Court said that approach stipulated in A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751 did not survive the amendments made in 2006 to the Act.
In McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92 at [69], the Full Court of the Family Court said that:
However, it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a)whether equal time (or substantial and significant time) with both parents would be in the child’s best interests;
(b)consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5);and then
(c)consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;
In this context the use of the word “consider” in s 65DAA(1)(c) appears to us to have relevance.
In Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597, Murphy J said at [31]:
In my view, it remains the case that, as I said in the earlier decisions referred to:
•A “relocation case” is not a specific subcategory of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
•A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
Of course, the ultimate authority in this area is the High Court’s decision in MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4, where the High Court said at [13] and [15]:
13Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (footnote omitted)
...
15Section 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.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It seems to be common ground that X benefits enormously from having a meaningful relationship with his mother, notwithstanding her psychiatric problems.
Ms B considered that X has a positive and secure relationship with his father: [154] of the family report. For the reasons given above, I consider that the relationship between X and his father was not so benign. Having said that, I also consider that X would benefit from having a meaningful relationship with his father if the father refrained from drug use, refrained from excessive playing of video games, refrained from verbal denigration of X, refrained from physical chastisement of X and engaged with X in child focused activities.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It was not suggested that the mother has ever subjected X to abuse, neglect or family violence. Although the mother has a very serious psychiatric condition, it has been well managed and has not impacted on X. The mother in the past has on occasion experienced some suicidal ideation. She also on one occasion imagined seriously harming X. However, she has never acted on any such thoughts.
The mother exposed X to family violence in the sense that her family engaged in a physical and verbal altercation with the father in the presence of X on the day of separation. The mother and her family have also discussed the father in very derogatory terms in X’s presence or hearing, both during the relationship and since separation.
The father has subjected X to physical violence, including smacking, punching, hitting, slapping and poking in the chest. The father conceded to Ms E that he had been verbally abusive to X. The evidence establishes that the father subjected X to verbal and emotional abuse by, among other things, telling him to “man up”, calling him a “fat, lazy cunt” and threatening to expose him to public humiliation by parading him outside in his underpants.
The father has neglected X by sending him to the park alone at the age of six. The father has also neglected X’s best interests as a young child by allowing him to play video games such as Grand Theft Auto, rather than engaging in age-appropriate activities with him. The father maintains that he only allowed X to play the part of Grand Theft Auto that involves riding around a city on a motorbike. However, given the father’s lack of truthfulness to the court, the veracity of that claim must be doubted.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X told Ms B that if he did not see his father at all he would feel happy and that she could tell the judge that he would be brave and see his father once a month but only during the day.
X is obviously quite young. For that reason alone, determinative weight should not be given to his views. However, in addition, experience has shown that X has coped perfectly well with the gradually increasing time that he has spent with his father since December last year.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
X clearly has a close and loving relationship with his mother, to whom he is securely attached. He presently lives with his mother and her sister, Ms R, and Ms R’s son, A. The relationships between all of them appear to be sound.
Ms B considers that X has a positive and secure relationship with his father. As discussed elsewhere in these reasons, I consider that relationship has developed despite the abuse that the father has perpetrated against X. As Ms E observed, children can be very forgiving. Sadly, just because children are willing to forgive does not necessarily mean that they have escaped unscathed.
X described his paternal grandmother as “nice” and responded warmly to her at the time of the family report interviews.
X has spent relatively little time with the other members of his maternal family, they having lived in Darwin and X having lived in Melbourne for most of his life.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The mother has taken every opportunity to participate in making decisions in relation to X spending time with X and communicating with him. During the relationship, the mother reported and I accept that the father refused to go out as a family with the mother and X.
After separation, the father sought time with X but the mother did not facilitate contact. A few arrangements were made for X to spend time with his father, but the mother would say at the last minute that X was unwell and could not attend. The father eventually commenced these proceedings in August 2013.
Following the s.11F interviews, the father was permitted to send letters and cards to X but he declined to do so. Following the family report interviews, the father has exercised as much time with X as the orders permitted.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father pays no or negligible child support. He is on a disability pension. During the last couple of years of the relationship, the family was supported by the mother. The father was then in receipt of the disability pension. He said, with the mother’s permission, he was free to spend the pension on whatever he wished, usually marijuana. The mother’s family has provided some financial support to the family throughout the relationship.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Any separation of X from his mother is likely to have very deleterious effects on him as he is securely attached to her.
Any separation of X from his father is also likely to have deleterious effects on X given the significance of the paternal relationship.
In relation to the proposed move to Darwin, Ms B said the following:
157.Should the Court provide for X to live with Ms Snowden and she is permitted to live in Darwin while Mr Smedley remains in Melbourne, the issue of the impact on the child’s emotional adjustment particularly at separation from his father and other changes such as school and social network, should be considered.
158.The now seven months of separation from Mr Smedley has been in the context of allegations of family violence by Mr Smedley, allegedly perpetrated on Ms Snowden and X. Despite X’s reports to professionals about alleged abuse by Mr Smedley and his expressions of distress about the prospect of being in his father’s presence, the level of emotional attachment that the child actually demonstrated when Mr Smedley and he were together, indicates that further extended separation may well have long term negative impacts on his development.
159.If Ms Snowden were to relocate to Darwin, the message that X’s relationship with Mr Smedley is negative and damaging and requires geographical distance, may well be reinforced for the child, particularly given Ms Snowden’s apparent inability to demonstrate support for X’s relationship with his father.
160.An additional concern with relocation is the age of the child and the risk to academic and social development. As a child in the middle age of development, X is vulnerable to learning difficulties if social relationships are ruptured. The facilitative environment of X’s current school cannot be over-estimated as a protective factor for his development, particularly given the changes and concomitant anxiety in his family relationships in the past year.
161.In my view, it would be considerably detrimental for X if he were removed from such a facilitative school environment. The benefit to X’s development of living with Ms Snowden in Darwin where she might feel more emotionally supported, would not outweigh the loss of such facilitative systems that appear to be in place for X at school and potentially with Mr Smedley.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If X and the mother continue to live in Melbourne, close to the father, there is unlikely to be any practical difficulty or expense involved in X spending time and communicating with each of his parents.
If X relocates to Darwin, there will obviously be very considerable practical difficulties and expenses associated with X maintaining a relationship with both of his parents. The parents in this case are both presently in receipt of Centrelink benefits, although they both have intentions of returning to work once these proceedings are over. Even so, the family is unlikely to be able to afford frequent travel to and from Darwin.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The mother appears to be well able to provide for all of X’s needs including his emotional and intellectual needs, with the exception of being willing to facilitate X’s time with his father, at least in the past.
Ms B considered that, overall, the father is able to provide for X’s welfare, development and safety. Notwithstanding that view, Ms B went on to say at [146] that the father:
must … strengthen this capacity with counselling and education.
Moreover, Ms B did not hear the father’s oral evidence. She showed considerable surprise when told that the father had claimed that he followed X to the park 250 metres behind when X was six years old and thought he was alone. As stated above, that claim demonstrates that the father is not attuned to X’s needs and requires some training in basic parenting skills to be able to meet X’s needs to a reasonable level.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Nothing was put to the court in this regard.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Overall, the mother has demonstrated a good attitude to the responsibilities of parenthood.
The father has not demonstrated a good attitude to the responsibilities of parenthood by, for example, sending X the park alone at the age of six, physically, verbally and emotionally abusing him, allowing him to play video games such as Grand Theft Auto and consuming marijuana in his presence.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
As discussed above, the father has perpetrated family violence against X and his mother.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There is a current intervention order against the father in respect of the mother. It will expire later this year. The order was made by consent without admissions.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Subject to the matters discussed below, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. However, it is not apparent what that order would be.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts and circumstances.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The mother seeks sole parental responsibility for X. The father seeks equal shared parental responsibility for X. The independent children’s lawyer proposes that the mother have sole parental responsibility for X, except when she is hospitalised. When the mother is hospitalised, the independent children’s lawyer proposes that the father have sole parental responsibility for X.
The statutory presumption of equal shared parental responsibility is rebutted in this case by the existence of family violence. Nevertheless, where it is in a child’s best interests, the court could order equal shared parental responsibility, notwithstanding the family violence.
However, in the present case, the family violence has led to the parents having very poor communication. In these circumstances, it would not be in X’s best interests for his parents to have equal shared parental responsibility for him.
It seems to me that it is in X’s best interests that his mother has sole parental responsibility for him. The mother has been X’s primary carer. She has proven herself to be a capable and responsible parent for him.
I do not accept the independent children’s lawyer’s proposal that the father has sole parental responsibility if the mother is hospitalised. It seems to me to be unlikely that the mother will be hospitalised in the future. Even if she were, it would probably only be for a few weeks, as it was in the past. It is difficult to imagine that any major long term decisions would have to be made in such a time frame. Giving the father sole parental responsibility occasionally would generate complications that are not warranted by the circumstances.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… 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:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)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
(c)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
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In the present case, there will not be an order for equal shared parental responsibility. Consequently, it is not strictly necessary for the court to consider whether it is in X’s best interests to spend equal or substantial and significant time with each parent. The court must simply consider what is in X’s best interests.
In my view, it is not in X’s best interests that he relocate to Darwin with his mother. There are a number of reasons for this. Firstly, the mother’s mental health issues are very serious. They are extraordinarily well managed at the moment. It is not clear that they will be so well managed if the mother moves to Darwin. It is not known if the mother will be able to access the (omitted) Centre if she lives in (omitted). It is not known how much support her sister Ms M would be able to give her. It is not clear that the mother’s family even now has a proper understanding of her condition and treatment needs. In these circumstances, there could be a considerable risk to X if he moved to Darwin with his mother and she were to suffer a relapse.
Secondly, on past history, it seems likely that the mother will not have the financial resources or the inclination to support a relationship between X and his father if X moved to Darwin. The mother’s proposal was for X to spend time with his father for half the midyear school holidays and half the summer holidays. That is possibly a reflection of how little money will be available for airfares. In view of the mother’s concerns about X in the father’s care, her proposal for large blocks of time is surprising. I do not consider that it would be in X’s best interests to spend a one week block and a three week block with his father when he otherwise did not see his father all year.
Thirdly, as discussed below, it is in X’s best interests to spend substantial and significant time with his father. That will not be possible if X moves to Darwin, from a practical and financial point of view.
Fourthly, Ms B referred to the risks to X’s social and academic development if he were to be uprooted at this point in his life. Ms B also emphasised that X’s school environment is a protective factor for him, in the context of the difficult year that he has had, and said that the benefit of the protection given to him by his school environment could not be over-emphasised.
Fifthly, to her credit, the mother has said that if X is not permitted to relocate to Darwin, she will not either. This is not a case where the mother will relocate regardless. Consequently, if X stays, the mother will stay. That will give X a good deal of stability in an otherwise turbulent period for him.
Ms B was strongly of the view that X has a good bond with his father and that it would be in X’s best interests to spend substantial and significant time with him. I accept Ms B’s view, for the reasons that she gave, subject to certain reservations, as follows.
The father maintained that he has not used marijuana since his father’s funeral in early September 2013. He produced an apparently clean drug screen on 29 November 2013, even though he said that he had been on a marijuana “bender” in the week before his father’s funeral. The drug screen did not state that it was supervised but the father maintained in oral evidence that it was. Cannabinoids notoriously remain detectable for some months after last consumption. For this reason and because the screen did not state that it was supervised and because I do not accept that the father is a witness of truth, I have grave doubts that the drug screen produced by the father was his own. Consequently, I have doubts about whether the father has been as successful as he claimed in giving up his 30 year marijuana habit.
One of the difficulties with marijuana use is that it can render a person unable to properly care for a child. For example, it could lead a parent to send a six year old child to the park alone. Consequently, I consider that X’s time with his father needs to be subject to supervised drug screens for at least a few years to ensure that X will be safe in the father’s care. The drug screens should expressly state that they were supervised. If the father does not produce a clean supervised drug screen when requested, his time with X should be suspended until further order of the court. While an order of this nature almost invites further legal proceedings, I consider it to be necessary in this case for X’s protection. The father has demonstrated a wholly inappropriate understanding of a parent’s supervisory role.
I am also concerned that the father has not yet completed the courses that he was ordered to undertake. While the family report observations indicate that X and his father have a good bond, that is not enough to achieve reasonable parenting. Ms B recommended that the father needed to strengthen his parenting capacity with counselling and education. It seems to me that the father’s successful completion of such programs are critical for X’s best interests.
The independent lawyer proposed orders that:
a. The father enrol in and complete a Family Violence Intervention Course at Uniting Care (omitted) as soon as practicable and provide evidence of completion of the course to the mother’s solicitor.
b. The father enrol in and complete a parenting course at Relationships Australia, (omitted or such other course as selected by the father and provide evidence of completion of three sessions and completion of the course to the mother’s solicitor.
c. The father:
i. engage in positive change counselling with Ms A at the (omitted) Health Service, or such other counsellor as recommended by Ms A;
ii. provide to such counsellor copies of the reports of Ms E dated 11 September 2013 and Ms B dated 17 November 2013 and these orders and reasons for judgment;
iii. follow all recommendations of such counsellor; and
iv. provide evidence of the completion of three sessions of the course of counselling to the mother’s solicitor.
The independent children’s lawyer suggested that X’s time with his father be increased immediately and be increased further upon the father completing three sessions of the specified courses. I accept that it is in X’s best interests to spend a little more time with his father at this stage. That is in accordance with Ms B’s recommendation for gradually increased time. However, I do not consider that it is sufficient for the father to complete three sessions of the courses before a further increase in time. The father stopped one counselling program after only a few sessions. He could do so again, if he considered that the course was going over old ground.
It is important for X that the father complete all of the courses specified by the independent children’s lawyer. I do not consider that the father should be given a choice about the parenting course. He has not demonstrated an appropriate understanding of the benefits of such courses.
It seems to me that it is in X’s best interests that there be only a small increase in X’s time with his father until the father has actually provided to the mother evidence of completion of each of the courses. This seems to me to be the only way to ensure that the father actually does them. I appreciate that one of the courses will take 22 weeks, but so be it.
The independent children’s lawyer proposed that X start having half school holidays with his father commencing in September 2014. However, the father may not have finished all of the courses he is required to undertake before that time. I do not consider that it is in X’s best interests to start having half school holidays with the father until he has completed the required courses. It would be too steep an increase in time for X to have half of the summer holidays with his father in 2014/2015. Consequently, it seems to me to be in X’s best interests that the half school holidays start in April 2015.
All in all, I consider that it is very much in X’s best interests for him to remain living in Melbourne, predominantly with his mother. It is in X’s best interests that the mother continues with her current treatment regime. If the father refrains from drug use and undertakes the courses nominated by the independent children’s lawyer, it will be in X’s best interests to spend five nights a fortnight with his father. Until the father undertakes those courses, it is in X’s best interests to have only a small increase in his time with his father. It is in X’s best interests that his time with his father is subject to the father being drug free. There will be orders accordingly and other orders of an uncontentious nature proposed by the independent children’s lawyer.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 15 April 2014
- AGLC
- SMEDLEY & SNOWDEN [2014] FCCA 762
- Case
- [2014] FCCA 762
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were: firstly, whether the mother should have sole parental responsibility for the child; secondly, whether the child should live with the mother; and thirdly, the terms of the child's time with his father, including the father's compliance with specific orders designed to address concerns about his drug use and parenting capacity. The court also had to consider the mother's desire to relocate and the implications of this for the child's relationship with his father.
Judge Riley's reasoning focused on the paramountcy of the child's welfare and best interests. The court determined that the mother should have sole parental responsibility and that the child should live with her, acknowledging her primary caregiving role. However, to mitigate concerns arising from the father's drug use and allegations of violence, the court imposed stringent conditions on the father's time with the child. These conditions included mandatory enrolment in and completion of family violence and parenting courses, engagement in counselling, and regular supervised urine drug screens. The court also placed a geographical restriction on the mother's relocation, limiting it to within 30 kilometres of a specified post office, thereby facilitating the father's ongoing involvement in the child's life.
The court discharged all previous parenting orders and made detailed orders regarding the child's living arrangements, time spent with each parent, communication, and changeovers. Crucially, the father's time with the child was made conditional upon his compliance with specific orders relating to counselling, parenting courses, and drug testing, with immediate suspension of contact for non-compliance or positive drug screens. The mother was permitted to take the child to Darwin for limited periods annually, subject to facilitating communication and make-up time. Both parents were also subject to orders restraining them from using physical discipline, abusive language, or denigrating the other parent in the child's presence.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The mother have sole parental responsibility for X born (omitted) 2005 (“X”).
3.
X live with his mother.
4.
The mother be restrained from relocating X’s residence more than 30kms from the (omitted) Post Office.
5.
X spend time with his father as follows:
(a) until the father has complied with orders 11, 12 and 13:
(i) from after school each alternate Friday to 7pm on Sunday; and
(ii) from after school to 7pm each Wednesday;
(b) upon the father complying with orders 11, 12 and 13:
(i) during school terms from after school each alternate Thursday to before school Monday; and
(ii) from after school each alternate Thursday to before school Friday;
(iii) for half of all Victorian school holidays as agreed between the parents and in default of agreement, the first half of such holidays commencing in the April 2015 school holidays;
(iv) from 2pm Christmas Eve to 2pm Christmas Day in 2014 and each alternate year thereafter;
(v) from 2pm Christmas Day to 2pm Boxing Day in 2015 and each alternate year thereafter;
(vi) at Easter (when Easter does not fall during school holidays) commencing 2015 for one half of the Easter period as agreed between the parents and in default of agreement for the second half;
(vii) on X’s birthday from after school to 7pm on a school day and 10am to 3pm on a weekend if X is not otherwise spending time with his father;
(viii) from 6pm Saturday to before school Monday during the Father’s Day weekend; and
(ix) such further or other times as agreed between the parents.
6.
X’s time with his father be suspended from 6pm Saturday to before school Monday during the Mother’s Day weekend.
7.
X communicate with his father by telephone each Tuesday and alternate Fridays (when X is not spending time with his father) between 6.30pm and 7pm.
8.
X communicate with his mother by telephone on each Tuesday and Friday when X spends holiday time with his father between 6.30pm and 7pm.
9.
Changeover at school times occur at school and otherwise occur at Subway (omitted) or such other venue as is agreed between the parents.
10.
The mother be at liberty to take X to Darwin each year for up to four weeks provided the mother facilitates telephone or Skype communication between X and his father twice a week between 6.30pm and 7pm and provides make up time to the father.
11.
The father enrol in and complete a Family Violence Intervention Course at Uniting Care (omitted) as soon as practicable and provide evidence of completion of the course to the mother’s solicitor.
12.
The father enrol in and complete a parenting course at Relationships Australia, (omitted), directed to the care of mid primary school aged boys and provide evidence of completion of the course to the mother’s solicitor.
13.
The father:
(a) engage in positive change counselling with Ms A at the (omitted) Health Service, or such other counsellor as recommended by Ms A;
(b) provide to such counsellor copies of the reports of Ms E dated 11 September 2013 and Ms B dated 17 November 2013 and these orders and reasons for judgment;
(c) follow all recommendations of such counsellor; and
(d) provide evidence of the satisfactory completion of the course of counselling to the mother’s solicitor.
14.
For four years, the mother or her solicitor be at liberty, not more than once per month, to request the father in writing to perform supervised urine drug screens if the mother has reason to believe that the father is using illicit drugs.
15.
The father, within 48 hours of a written request from the mother or her solicitor, complete a supervised urine drug screen and provide the results of the screen to the mother’s solicitor as soon as practicable.
16.
If the father fails to comply with a request for a supervised urine drug screen within 48 hours, X’s time with the father be immediately suspended until further order of the court.
17.
If the father provides a positive supervised urine drug screen, X’s time with his father be immediately suspended until further order of the court.
18.
The mother continue to attend upon (omitted) Care Service and continue to comply with all recommended treatment and recommendations of the service.
19.
The father and mother be restrained from:
(a) using any form of physical discipline on X;
(b) using abusive language towards X;
(c) denigrating the other parent or any members of the other parent’s family in the presence or hearing of X or allowing any other person to do so; and
(d) removing X from his current school until he completes grade 6 unless the parents agree otherwise in writing.
20.
The father be restrained from using or being affected by any illicit drugs when X is spending time with him.
21.
The father be restrained from:
(a) using any illicit drugs; and
(b) storing any items used in administering illicit drugs,
at his place of residence.
22.
Both parents keep each other informed of his or her residential address, landline and mobile numbers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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