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Carmody & Garner [2013] FCCA 49 (17 April 2013)
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Carmody & Garner [2013] FCCA 49 (17 April 2013)
Last Updated: 3 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
Catchwords: FAMILY LAW – Final
arrangements for child aged 13 – child has special needs – high
level of conflict between parties
– allegations father has exposed child
to neglect and family violence – child has not spent time with father
since he
allegedly assaulted child – police charges laid against father
but charges dismissed – father has not participated effectively
in
proceedings but has attended court regularly – father withdrew from
proceedings at final hearing stage – weight to
be given to family report
– best interests – should parties share parental
responsibility. |
|
Delivered on:
|
17 April 2013
|
REPRESENTATION
Counsel for the
Applicant: |
In person
|
Counsel for the Respondent: |
Mr Noble
|
Solicitors for the Respondent: |
Sills Lewis
|
|
Counsel for the Independent Children’s Lawyer:
|
Ms DuBarry
|
|
Solicitors for the Independent Children’s Lawyer:
|
Legal Services Commission of South Australia
|
ORDERS
(1) The child [X] born [in] 1999 (hereinafter referred
to as “the child”) live with the mother.
(2) The mother have sole parental responsibility for the child.
(3) The child spend time with the father subject to the child’s wishes.
(4) In the event that the child is hospitalised, due to a serious accident or
illness, the mother is to use her best endeavours to
advise the father, as soon
as she practically can, of the circumstances of the child’s accident or
illness and the location
of the hospital where the child has been admitted as a
result of such serious accident or illness.
(5) In the event that the mother learns of the father’s permanent postal
address, she is directed to provide such address to
the principal of the
child’s school, who is authorised by this order to provide to the father
copies of the child’s end
of semester school reports, as they are
produced, provided that the father pays any costs arising in relation to such
provision.
(6) The parties are restrained and an injunction issues restraining each of them
from changing the child’s surname unless the
parties agree to such change
in writing.
(7) The mother provide the principal of the child’s school with a copy of
these reasons for judgment together with a copy of
the family report of Ms N
dated 23 October 2012.
(8) The order for the appointment of the independent children’s lawyer
herein be discharged.
(9) All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the
pseudonym Carmody & Garner is approved pursuant to s.121(9)(g)
of the Family Law Act 1975 (Cth).
|
FEDERAL CIRCUIT COURT OF AUSTRALIA
AT ADELAIDE
|
ADC 1188 of
2009
Applicant
And
Respondent
REASONS FOR JUDGMENT
Introduction
- Ms
Carmody “the mother” and Mr Garner “the father” are the
parents of [X] born [in] 1999. These proceedings
deal with final arrangements
for [X]’s care.
- The
parties concerned have been in dispute, with one another, over [X]’s
parenting, for a considerable period of time. The mother
originally commenced
proceedings, in this court, in March of 2009.
- In
conjunction with these initial proceedings, an order was made for [X] to be
independently represented in the case and for a family
report to be prepared as
a matter of urgency. As things have turned out, there have now been three such
reports. That is an indication
of the complexity of [X]’s family
circumstances, over a number of years.
- [X]’s
representative is Ms Rebecca Reed, an experienced family lawyer, currently in
the employ of the Legal Services Commission
of South Australia. Ms Reed is to be
regarded as a party to the proceedings, of equal importance in them as the
mother and father.
- [X]
is a child with special needs. In the past, Ms Reed has obtained a number of
medical reports, in respect of [X], which have been
tendered into evidence. In
the early stage of proceedings, Ms Reed arranged for two family assessment
reports to be prepared by
Ms B, a psychologist, in June and January of 2010.
- These
reports led to the parties reaching a consensual arrangement for [X]’s
care, on a final basis, in early 2010. This arrangement
has broken down, giving
rise to this second set of proceedings.
- [X]
has an intellectual disability. In addition, he was diagnosed with attention
deficit disorder at age four and epilepsy at age
six. Prior to February 2009,
[X] had experienced recurrent seizures, as many as two per week, which had
resulted in frequent admissions
to the Women’s & Children’s
Hospital.
- At
present, [X] lives with his mother. There are currently no formal arrangements
in place for [X] to spend time with his father
or interact with him in any way
whatsoever. It has not always been so.
- On
18 February 2010, with the agreement of the independent children’s lawyer,
final consent orders were made in respect of [X]’s
care. Pursuant to
those orders, the parties held equal shared parental responsibility for [X], who
was to live with his father and
spend time with his mother regularly, on
alternate weekends and for half of each school holiday period.
- These
orders were in line with recommendations made by Ms B in the second of her
family assessment reports. In addition, the orders
bore the notation that there
were no current domestic violence restraint orders pertaining to the parties and
a charge of criminal
assault against the father, in respect of Ms Carmody, had
been dismissed in January 2010.
- The
relationship between the parties began in 1994 and lasted approximately ten
years. They separated when [X] was aged around five
years. It is an
understatement to say relations between the parties are currently strained.
- During
the parties’ relationship, they each maintained separate households. They
have never been married. After they separated,
they continued to live in close
proximity to one another in [W], in suburban Adelaide. Between the date of their
separation and early
2009, [X] lived mostly with Ms Carmody and saw Mr Garner
for variable periods of time.
- On
26 February 2009, [X] ran to Mr Garner’s home and thereafter refused to
return to Ms Carmody’s residence. Ms Carmody
attempted to retrieve [X]
and an unpleasant altercation ensued. Later Mr Garner was charged with
assaulting Ms Carmody.
- From
the date of this incident, [X] continued to live with Mr Garner. Ms Carmody was
concerned that Mr Garner was influencing the
child against her. Given
[X]’s special needs, it is her case that [X] is particularly susceptible
to such influence, particularly
in connection with gifts and treats.
- It
is also her position that Mr Garner has behaved in a violent fashion towards her
in the past and the alleged assault of February
2009 was the most recent of many
to which she had been subjected at
Mr Garner’s hand.
- Ms
Carmody is deaf, as a result of adult onset hearing loss. She also suffers from
tunnel vision. She was born with spina bifida
and has scoliosis of the back.
As a consequence of her disability, she is in receipt of a government pension.
- Mr
Garner has had a limited education, leaving school at year 8 level. He is now
fifty three years of age. He is not currently employed
but worked [omitted],
for approximately twenty years. He has had other casual employment. Currently
he too receives a government
pension, as a consequence of his status as carer
for an adult son, from a previous relationship, who suffers from a
disability.
- Prior
to 2009, it seems to be the case that Ms Carmody found [X]’s behaviour at
times to be challenging. She described him
as being regularly violent at
school. She also reported that [X] had threatened her with a knife. [X] had
been prescribed dexamphetamine
in respect of his behavioural problems.
- In
the context of her first report, Ms B interviewed [X]. [X] presented as being
strongly aligned with his father. He also refuted
any suggestion that Mr Garner
had assaulted Ms Carmody in his presence. In her report, Ms B provided the
following evaluation:
- “Interactions
between Mr Garner and the subject child were spontaneous and positive in their
presentation indicating a positive
attachment. Ms Carmody’s interactions
demonstrated a lesser attachment by the child.
- The
frequent running from Ms Carmody’s to Mr Garner is an indicator of where
the child wished to reside. This view was supported
in the assessment
interviews. There was no reason for the assessor to believe he had been coerced
by Mr Garner but statements were
made by the child that Ms Carmody had placed
pressure to achieve a positive outcome for herself.
- Child’s
maturity and age is considered to worthy of some weight. His expressed desire to
reside with Mr Garner needs to be
considered in light of concerns raised
regarding Ms Carmody’s parenting capacity.
- While Ms
Carmody held positive regard for the child and spoke in an endearing manner, her
approach was fundamentally adult centred
rather than child focused. She
expressed concerns that she was a victim to the child’s violent outbursts
and the impact such
events were having on her. Ms Carmody disciplined the
subject child by removing privileges but this mostly escalated the
situation.”
- Ms
B’s first report was ordered to be prepared as a matter of urgency. It
arose against the background of [X] decamping from
his mother’s household,
where he had predominantly lived for a lengthy period of time. It was also
clear, at this stage, that
[X] was a child with very significant special needs.
- Ms
B’s initial recommendation led to a formalisation of the arrangement
whereby [X] lived with his father predominantly.
Ms Carmody apparently
accepting that it was not likely to be helpful to force [X], against his
strongly stated views, to return to
live in her household.
- It
remained her view that Mr Garner was influencing [X] against her. It was her
position that [X] was very susceptible to such influence
because of his
intellectual disability. She has consistently categorised Mr Garner as a
violent person, who lacks the skills to
parent a child of [X]’s age and
background adequately.
- In
her second and updating report, Ms B recommended that the situation whereby [X]
live predominantly with his father continue. She
also recommended that [X]
spend significant periods of time with his mother. This was workable because
the parties were still living
a few blocks apart from one another. This was the
background to the consent orders of early 2010.
- The
mother commenced the current round of proceedings on 12 December 2011. She
seeks orders that [X] should live with her and she
should have sole parental
responsibility for him. Her application was precipitated by a further
altercation, between the parties
and which also involved [X]. It occurred in
August of 2011.
- Ms
Carmody deposed that she had visited [X], at Mr Garner’s home, on 29
August 2011, to collect some of the child’s clothing.
It was also her
position that she took this opportunity to raise her concerns with Mr Garner
that [X] had not been attending school
regularly.
- It
is her case that Mr Garner became angry with her and threatened to punch her.
During this altercation, [X] intervened, telling
his father to “leave
my mother alone”. Thereupon she deposes Mr Garner punched and kicked
[X], causing the child bruising to his torso.
- Following
this incident, Mr Garner was charged with a species of assault on [X] by police.
He pleaded not guilty to the charge in
question, which was ultimately dismissed
in the [omitted] Magistrates’ Court. It seems [X] was not able to give
evidence.
- Originally,
it was a condition of Mr Garner’s bail that he not approach either the
mother or [X]. Necessarily, this rendered
the earlier consent order inoperative.
Against this background, particularly the serious nature of the alleged assault
on [X], on
10 January 2012, I suspended the earlier court order and made an
interim order that [X] live with his mother.
- In
support of her application, Ms Carmody has raised other concerns, regarding the
period of time [X] was in the predominant care
of his father. In summary, she
alleges as follows:
- The father left
[X] to fend for himself and prepare his own meals and attend to his own hygiene;
- The father did
not ensure [X] attended school. She asserted that between 28 February 2011 and
9 August 2011, [X] failed to attend
school on at least sixty occasions;
- [X] had been
assaulted by his father physically on a number of occasions prior to 29 August
2011.
- Essentially,
the mother asserted that the father had subjected [X] to serious neglect and
abuse and had exposed him to a serious level
of family violence. She also
asserted that [X] had not been properly fed by his father, who preferred to
attend to his own social
interests. Given [X]’s level of disability, it
is her position that is it is self apparent that he is not in a position to
obtain his own meals or attend to his own hygiene.
- [X]
has not interacted with his father since August of 2011. It is the
mother’s position that [X] has expressed no desire to
see his father and
contrary to what happened in the past, has stopped running off to Mr
Garner’s house, when there has been
some disagreement between him and his
mother.
- Mr
Garner has represented himself throughout this second round of proceedings. He
has attended court punctually at each mention of
the matter. However, he has
not complied with directions for the filing of answering material.
- Given
his background, I appreciate that it is very difficult for
Mr Garner to
engage with the formal processes of the court. It is likely that he finds it
difficult to express himself in writing.
In addition, for reasons that are not
entirely clear to me, despite my requests that he obtain legal representation,
he has steadfastly
refused to do so.
- The
only documents Mr Garner has filed in the proceedings were filed on
16 March 2012. It seems to be the case that he has photocopied
the
mother’s application and where the word “mother”
appears in it, he has replaced it with the word “father”.
His affidavit in support of this response is handwritten and is largely
composed of the statement “not true” in reference to the
numbered paragraphs of the mother’s affidavit.
- Against
this background, I ordered that Ms Reed be reappointed, as the independent
children’s lawyer and that a further family
assessment report be prepared
to examine [X]’s current situation, particularly what his views were in
respect of the possibility
of re-engaging with his father. For obvious reasons,
it seemed appropriate that there be some independent and expert appraisal of
the
allegations that [X] had been subjected to serious neglect, whilst in his
father’s care.
- Throughout
the proceedings to date, Mr Garner has consistently stated his view that Ms
Carmody is manipulating [X] against him and
he himself has not behaved
inappropriately towards [X]. He has told me that he thinks Ms Carmody has
concocted her claims of abuse
of neglect to advance her claims to regain [X] and
to blacken his reputation.
- Against
this background, it is self apparent that there was little, if any, scope for
the parties themselves to agree on ongoing arrangements
for [X]’s care.
The level of mistrust and hostility between them is extreme. Accordingly, the
matter was fixed for final hearing
on 8 and 9 April 2013.
- Ms
Carmody has filed an affidavit in support of her application for final orders.
Mr Garner has not. The family report was prepared
by Ms N. Arrangements were
made for her to attend court on 8 April to provide evidence and to be
cross-examined, if appropriate,
at the final hearing stage.
- Mr
Garner attended at court on 8 April. I asked him if he had read Ms N’
report. He replied “no comment”. When pressed further about
whether he had any view about He further stated that he was “not
interested” in the case.
- Given
his regular attendance at court, I indicated to Mr Garner that this was not my
impression of him. I said that it seemed to
me that he was very interested in
everything to do with [X]. In response to this, he said that “she can
have him”. He also indicated that he was pursuing some other matter,
presumably regarding Ms Carmody and [X] with his “barrister”.
- Although
Mr Garner was somewhat agitated, he was neither threatening nor impolite to me.
I asked him if he had any questions of Ms
N. He said “no”.
In this context, I told him that, in the absence of cross-examination, I was
likely to accept Ms N’ recommendations, particularly
given that he had not
filed any fresh affidavit material.
- Following
this interchange, my recollection is that Mr Garner left the court room. He did
not subsequently return. Against this background,
counsel for the mother, Mr
Noble, supported by counsel for the independent children’s lawyer, Ms
DuBarry applied to have the
matter finalised on an undefended basis.
- I
acceded to this request but determined that, given the complexity of [X]’s
family situation, I would hear some evidence from
Ms N. She was asked questions
by both Mr Noble and Ms DuBarry. In addition I asked her some questions myself.
The mother’s application
- The
mother seeks the following orders, as outlined in her counsel’s case
outline document, prepared on her behalf:
- “1. That
[X] born [in] 1999 live with the mother.
- 2. That the
mother have the sole parental care of [X].
- 3. That [X]
spend such time with the father as [X] may wish.
- 4. The
father is restrained from:
- approaching
within 500 metres of the residence of the mother;
- approaching
the mother of said child at any time in the street;
- approaching
the said child at any school or other function which the child may be
attending;
- 5. Such
other orders as may seem applicable when the evidence is concluded in this
matter and in particular when Ms N’s evidence
has been heard and her
recommendations fully considered.”
- Ms
DuBarry opposes any order deposing parental responsibility for [X] solely in Ms
Carmody’s care. In addition, it was her case
that there was no reason,
related to [X]’s best interests, requiring the extensive injunctions
sought by the mother.
- In
support of her application, the mother relies on a further affidavit of herself
filed on 22 February 2013. This affidavit, together
with the family report of Ms
N, dated 23 October 2012, constitute the major aspects of the evidence before
me. In addition, as earlier
indicated, Ms N gave some further oral evidence.
The mother’s case
- Ms
Carmody was born [in] 1961. She alleges that Mr Garner is a frequent and heavy
drinker. It is her case that, during the parties’
ten year relationship,
he was frequently physically violent towards her.
- Against
this background, when [X] was aged approximately five years of age, she decided
that she would no longer continue her relationship
with Mr Garner and thereafter
she stopped going to his home. [X] continued to live mainly with her. It is her
case that she is the
most consistent figure in his life.
- Currently,
it is Ms Carmody’s position that Mr Garner no longer lives in [W]. She
does not know where he is living currently
as he refuses to disclose his address
to her. From her perspective, this is a further reason why it is impractical
for her and Mr
Garner to share parental responsibility for [X].
- It
is Ms Carmody’s case that, prior to the incident of 2009, she was
concerned that Mr Garner was lackadaisical in respect of
the provision of
[X]’s medication to him. This medication included not only behavioural
drugs, but also anti-seizure medication,
relating to his epilepsy. Her evidence
is that it was very difficult, if not impossible, for the parties to discuss
rationally and
calmly issues to do with the administration of medication to [X]
and the general management of his health.
- As
previously indicated, it is her case that [X] was significantly neglected, when
he came into his father’s predominant care.
It is her case that she
reluctantly agreed to the earlier court orders and found it difficult to obtain
legal aid to change them,
notwithstanding her concerns that [X] was being
subjected to significant neglect by his father.
- It
is Ms Carmody’s case that she and [X] live in a comfortable three bedroom
Housing Trust home where [X] has his own bedroom.
He is currently attending [H]
School, where he is in a special class. His recent report indicates that he is
doing well at school
currently.
- It
is Ms Carmody’s evidence that [X] is happy and well settled in her care
and has no wish to see his father. She describes
[X] as a more mature child
than he was at the time of Ms B’s various reports. It is Ms
Carmody’s case that [X] is now
more than capable of articulating his
views.
- In
essence, Ms Carmody deposes that [X] lives in a happy and well tended home with
her, where he is well looked after. It is also
her case that, due to the
parties’ lengthy and violent history with one another, it is both
impossible and certainly impracticable
for them to exercise joint parental
responsibility for [X].
- It
is also her case that she remains fearful of Mr Garner, whom she characterises
as a violent and unstable person. Against this background,
it is her case that
it is clearly in [X]’s best interests to make the final orders sought by
her.
The report of Ms N
- Ms
N impressed me as a sensitive and sensible expert witness. In her report, she
has made the following recommendations:
- ¬ The
parties share parental responsibility.
- ¬ The
child live with the mother.
- ¬ The
child spend time with the father subject to the child’s wishes.
- ¬ Any
future handovers take place at a Police Station.
- ¬ The
father be restrained from attending [X]’s school.
- ¬ The
father be provided with all relevant school Reports.
- ¬ The
child’s current school be provided a copy of this Family Report and be
invited to monitor the child’s needs.
- ¬ The
parties use a Communication Book if/when any shared communication is
needed.
- ¬ The
mother comply with facilitating the child’s WCH and other medical
appointments until the age of 18 years.
- ¬ The
mother liaise with Disability SA.
- ¬ [X]
be restrained from changing his last name until at least the age of 18 years
unless both parties agree.
- Mr
Garner took part in the family report process. He denied the allegations
against him to Ms N, who described him as being “focussed” on
his intention to sue Ms Carmody for “slander, false allegations and
defamation”.
- In
addition, Ms N reported that Mr Garner stated that “he would not attend
a trial “stuff them”, and that “if I want to see him ([X])
I’ll go get him,
she (Ms Carmody) broke the Court Order 11 times,
I’ll do the same”. He stated that he would take [X] from Ms Carmody
and take him straight to a Police Station “to check for bruises”.
- Although
these statements are capable of being interpreted as being threatening, Ms N did
not take them as such. She agreed with
my characterisation of them as being the
comments of a person who was “disempowered”. Ms N said she
did not feel frightened of
Mr Garner. She did not doubt his love and
affection for [X].
- In
interview with Ms N, both Mr Garner and Ms Carmody confirmed that they did not
communicate in any way with one another.
Ms Carmody complained that Mr
Garner did not listen to her point of view. As outlined above, it was clearly Ms
N’s impression
that
Mr Garner remains antagonistic towards and
suspicious of
Ms Carmody.
- Ms
N summarised her interview with [X], in her report, as follows:
- “[X]
presented as a delightful, friendly and happy 12 year old boy who willingly
and confidently engaged in discussion about his thoughts
and feelings. Whilst
his developmental delay was evident he was articulate in expressing his views
and appeared to be expressing
an honest account of these. His disclosures were
made in age appropriate language, did not appear rehearsed and were provided
with
detail in a logical narrative. [X] appeared happy about his recent weight
loss and presented as a healthy, well groomed and polite
young man.
- [X]
reported that he was 13 years old and in Year 6 at [H] School. He stated that
he liked “maths, science, mentals and everything
about school”. [X]
stated that when he lived with his father he did not go to school frequently
because “dad didn’t
let me because he’s always at work and he
always gets home when my taxi was there”. He added “and I had to
cook
tea all by myself and it was very hard”. In later discussion [X]
reiterated that he felt that he had to “mind myself”
and that it was
“very hard” when living in his father’s care.
- [X] stated
that both his mother and father argued with each other however his father
started the arguments. He stated that “the
day when mum came over”
(referring to the day [X] was allegedly assaulted) his mother “only came
to get some clothes”
however his “dad tried to bash my mum...I got
in front to stop him but he bashed me instead, and he kicked me and hurt
me”.
[X] said that his father then locked him inside the house but that
when he got out he “ran to my mum’s” and told
her all the
things he did not like about living with his father. [X] stated that he had
been assaulted by his father “once
(before) when he punched me and I had
all bruises on me” however [X] denied that his mother or any other person
had assaulted
him in the past.
- [X] stated
that he did not like that his father “always takes me to the street where
the hookers are to see his girlfriend
because she is a hooker”. [X] did
not like that his father “sells drugs, my tablets and cigarettes to get
money”
and that when his father had no money he hocked “all my
games”. [X] added that “it’s very hard because I
can’t
handle staying in the house with no one and I was all alone and he left
me”. [X] explained that his father would
go out “all night”
and did not return home until morning and [X] did not like this. He added that
the food was much
better at his mother’s house because his father
“never cooked” and only provided him with junk food to prepare
for
himself. [X] said that he repeatedly ate “chips and gravy, chips and
bacon, chips and sauce, chips and sauce and more
chips and sauce”. He
said “that’s how I got fat, too fat” and he explained that
since living with his mother
he had “lost 10 pounds so far” which he
was happy about.”
- In
answer to questions from me, Ms N stated that the emphasis, in her
recommendations, was on protecting [X] from being subjected
to further neglect
and abuse. Given [X]’s manner of presentation towards her, she did not
believe that his complaints about
mistreatment, at his father’s hand, were
likely to be as a result of any manipulation or inducement emanating from Ms
Carmody.
In short, Ms N accepted [X]’s account of being mistreated by his
father as being true.
- However,
like me, Ms N does not doubt Mr Garner’s love for and interest in [X]. In
these circumstances, it was her evidence
that the court should do whatever it
could to “leave the door open” for
Mr Garner and [X] to
re-engage with one another, at some time in the future.
- However,
she conceded that it was unlikely that such re-engagement would occur until such
time as Mr Garner developed some level of
insight into his responsibility for
the current situation. Ms N believed that Mr Garner would require extensive
professional and
personal support to develop such insight, which he was unlikely
to be able to access at the present time.
- The
recognition of Mr Garner’s love and interest for [X] provided the
rationale for Ms N to recommend that the parties have
shared parental
responsibility for him. However, she conceded in cross-examination that there
were likely to be significant difficulties
arising from any attempt by Mr Garner
and Ms Carmody to exercise such responsibility, the chief of which being their
longstanding
antipathy for one another and their inability to communicate.
- Notwithstanding
this recommendation regarding the equal allocation of parental responsibility,
Ms N provided the following evaluation
in the case:
- “Concerns
remained as to Mr Garner’s indication that he was unwilling to negotiate
on any level with Ms Carmody’s
lawyers, plus his threat to not attend a
Court trial but intentionally beach any future Orders he was unhappy with by
taking [X]
‘as Ms Carmody did’. Given these concerns it would be
recommended that the Court advise Mr Garner of the serious consequences
he
risked facing by breaching Court Orders and strongly advise him against this.
It would also be recommended that Mr Garner be
prevented from attending
[X]’s school given such threat and [X]’s need to feel safe whilst
attending school. Notwithstanding,
in order to support Mr Garner’s need
to remain updated with information as to [X]’s schooling achievements,
general progress
and concerns it would be recommended that the school provide Mr
Garner a copy of all relevant school Reports.”
- This
statement, when coupled with her evidence regarding her past involvement with Mr
Garner, provided the basis for the injunctions
sought in respect of the father.
Ms Carmody concedes that there has not been any recent incident of conflict
between her and Mr Garner
since [X] came into her care. In addition, she
concedes that
Mr Garner has not attended at [X]’s school since that
time.
- In
summary, Ms N accepted [X]’s account of being subjected to ill treatment
by his father. In these circumstances, it was her
recommendation that
[X]’s best interests would be served by him continuing to live
predominantly with is mother. In addition,
it was her view that the court should
respect [X]’s strongly expressed view not to engage with his father in
future.
- In
all the circumstances of this case, I have no cause to question this opinion,
which accords with my own impression of the evidence.
Whatever orders the court
ultimately makes, the focus must remain on protecting [X] from any future
incidents of neglect and abuse.
The legal principles applicable
- Part
VII of the Family Law Act deals with orders relating to children. Before
making any particular parenting order, the court must regard the best interests
of
any child concerned as the paramount consideration [Family Law Act section
60CA].
- The
matters which the court must take into account, in deciding how a child’s
best interests are to be served, are set out in
the Family Law Act at section
60CC.
- Section
60CC creates two classes of considerations, which apply to the court’s
determination of how a child’s best interests will
be determined in
proceedings before it. They are designated as primary considerations and
additional considerations.
- There
are two primary considerations, which are set out in section 60CC(2)(a) and (b),
namely:
- (a) the
benefit to the child of having a meaningful relationship with both of the
child’s parents; and
- (b) the
need to protect the child from physical or psychological harm from being
subjected to or exposed to abuse, neglect or family
violence.
- Prior
to recent legislative amendments, these considerations were not formally ranked
in regards to one another. They have been referred
to, in a number of the
decisions of the Family Court, as twin pillars, the importance of which depends
on the circumstances of the
case concerned.
- However,
as a result of the insertion of section 60CC(2A) into the Act, the Court is now
directed, in applying the primary considerations, to give greater weight to
section 60CC(2)(b), which is the primary consideration relating to the need to
protect children from physical or psychological harm, from being subjected
to or
exposed to family violence.
- The
rationale for the amendment, which has resulted in section 60CC(2)(a), is to
safeguard children from coming to harm as a result of being exposed to abuse,
neglect or family violence. In the words of
the relevant explanatory
memorandum: “Where child safety is a concern this new provision will
provide the Court with clear legislative guidance that protecting the
child from
harm is the priority consideration.”
- The
evidence is unequivocal that [X] has been exposed to family violence. He
reports it to Ms N. The evidence also indicates, in
my view, that he has been
subject to neglect, particularly educational neglect.
- The
two primary considerations are stressed by section 60B(1) of the Act, which sets
out the principles and objects of the legislation as it relates to children.
They include the following:
- The
principles, which underpin these objects, are set out in s.60B(2) and are as
follows:
- “(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).”
- Other
criteria, relating to how a Court is directed to consider how the best interests
of any child concerned may be served by any
order which the Court makes, are set
out in section 60CC(3). These criteria are categorised as additional
considerations.
- Pursuant
to section 60CC(3)(m) the court is empowered to have regard to any other fact or
circumstance which it considers relevant. This ensures that the infinite
variety of individual children’s circumstances may be addressed in any
order which the court makes.
- Although
the court is directed to consider many factors, in discharging its duties under
Part VII of the Act, the best interests of the children concerned remain
paramount. The court’s duty is to deliver individual justice,
for the
child affected, in every
case.[1] In this sense,
the court’s inquiry is a “positive one tailored to the best
interests of the particular children and not children in general
...”[2] As
such the various factors, in section 60CC, are inclusive but not exclusive of
one another.[3]
- The
additional considerations include such matters as any views of the child
concerned, subject to the maturity of the child concerned;
the parental insight
of the parties concerned; the capacity of the parents to supply the educational
and emotional needs of any relevant
child.
- I
accept Ms N’s evidence that [X] has a well formed preference to continue
living with his mother and not to spend any time
with his father. It is also
her view that the mother has the superior parental capacity and is much better
place to supply [X]’s
educational and emotional needs.
- There
is a presumption that it is in a child’s best interests for his or her
parents to have equal shared parental responsibility
[see section 61DA]. This
presumption relates to the allocation of parental responsibility, not to the
allocation of time which a child spends with each
of his or her parents.
- The
presumption does not apply if there are reasonable grounds to believe that a
parent has engaged in abuse of the child or family
violence has occurred. The
presumption may also be rebutted if the Court finds that it would not be in the
best interests of the
child for it to be applied.
- Abuse
is defined in the Act and it is a concept relating primarily to assault,
including sexual assault on a child. Both parties
assert that the other has
assaulted the children in this matter. I am not able to resolve those issues
satisfactorily. At this
stage, it appears to me that this must be a case that
is focused more on neglect.
- Neglect
is not a concept formally defined in the Act. Its meaning must be gleaned, I
think, from an examination of the objects which
underpin Part VII of the Act,
which is the part which deals with the arrangements of the care of children.
These principles include the following:
- (c)
Ensuring the 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.
- Clearly,
[X] will not achieve his full potential, either as a child or as an adult, if he
is robbed of the opportunity to attend school
regularly. He will not be able to
read and write adequately. He will not be able to do arithmetic. If he is a
socially and academically
isolated child he may not be able to regulate his
behaviour appropriately. Such deficits may blight his subsequent adult
life.
- The
evidence indicates that [X] did not attend school regularly whilst he was in his
father’s care. Due to his level of disability,
[X] is a vulnerable child.
As such he is perhaps more at risk than other children, in the event that he
becomes disconnected with
the formal education process.
- In
my view, a child not attending school as required, without proper excuse, fits
within the definition of neglect provided by the
Act. As such, I am satisfied
that Mr Garner has exposed [X] to neglect.
- For
self-apparent reasons, a failed education is not conducive to an adult having a
successful later life. These are important matters
to my mind. It is my view
that the duty to ensure a child attends school properly and has a regular
education is one of the most
fundamental responsibilities of being a parent. In
my view the evidence supports the conclusion that Mr Garner failed, in this
aspect
of parental responsibility, for [X].
- I
am told [X] enjoys school, particularly drama and singing. He is doing better,
at school, since coming into his mother’s
care. He also seems to be
attending school as required. It is important for him to have regular school
attendance habits and to
learn social skills through interaction with his peers.
These matters are fundamental to his well being.
- In
addition, on the basis of [X]’s statements to Ms N, there is evidence to
indicate that Mr Garner failed in another significant
aspects relating to [X]
care in turns of his nutrition and hygiene. Whilst in Mr Garner’s care,
[X] put on excess weight,
which has discomforted [X]. He complains that he had
to get his own meals.
- In
my view, on the basis of these disclosures, which did not appear to Ms N to be
anything other than genuine and spontaneous on [X]’s
part, I find that [X]
has been subject to neglect, whilst in his father’s predominant care.
- It
also seems that [X] was exposed to family violence directly at the hands of his
father. On this basis, it would not be in [X]’s
best interests for the
presumption arising under section 61DA to be applied to his care.
- The
principles contained in Part VII are to be to the forefront of the court’s
mind in its overall assessment of the evidence available to it and what orders
should
ultimately be made. The court is urged to ensure that children receive
adequate and proper parenting from their parents and to devise
mechanisms to
achieve such an end.
- As
Cronin J has observed in Bartel & Schmucker (No
3)[4] adequacy and
propriety of parenting are very subjective and must be affected by the
parents’ physical, emotional and financial
capacities and circumstances.
In this context, Cronin J said as follows:
- “An
element of the subjective assessment is to try and work out ways that ensure
that parents, subject to their capabilities,
fulfil all of their duties and
responsibilities and that they jointly share those parenting tasks and agree
about how their children
should be raised so that the children ultimately do
benefit from the guidance and role modelling of their
parents.”
- How
responsibility for the parenting of a child is formally conferred upon a person,
in proceedings conducted under the Family Law Act, is through the making
of a parenting order. Parental responsibility, in relation to a child, means
all the duties, powers, responsibilities
and authority which, by law, parents
have in relation to children [section 61B].
- The
court has authority conferred upon, through the provisions of Part VII of the
Family Law Act, to alter the conferral of parental responsibility on any
parent or parents, which arises by reason of their status as parents of any
child concerned. This is done through the mechanism of a parenting order.
- A
parenting order is an order which deals with such issues as the persons with
whom a child should live; spend time and communicate
with; and the persons, who
should have responsibility for making decisions, both significant and otherwise,
about a child and the
degree of consultation necessary to implement such
decisions [section 64B(2)].
- Pursuant
to section 65C of the Act, a child’s parents; the child him or herself; a
child’s grandparents; or any other person concerned with the
child’s
care, welfare or development; may apply for a parenting order. Accordingly, the
applicants have legislative authority
to seek the orders, which they do.
- In
addition, as a consequence of the provisions of section 65D, the court is
empowered to make whatever parenting order it considers
“proper”. Pursuant to section 64B parental responsibility
can be allocated to two or more persons. Clearly this provision, when
considered in the light of the objects
and principles underlying Part VII,
contained in 60B, is supportive of the concept of parents sharing
parental responsibility and meeting their responsibilities concerning
their children’s care, welfare and development.
- I
acknowledge that Mr Garner is interested in [X]’s care, welfare and
development but it is clear that he has not been involved in these
matters, in any way, since [X] came into Ms Carmody’s exclusive care. He
has not been to [X]’s school to talk
to his teachers; he has not
participated in or observed any of [X]’s extramural activities; he has not
consulted with any [X]’s
medical practitioners.
- As
such, for a significant period of time, he has not discharged any of the duties
or responsibilities relating to the parenting of
[X] nor has he exercised any of
the powers and authority naturally conferred upon him as [X]’s father.
Since August of 2011,
Ms Carmody alone has exercised all necessary authority and
duties to parent [X]. In this sense, it is clear that the parties have
not
shared any of the responsibilities pertaining to [X]’s parenting for some
time.
- I
am satisfied that this situation has come about because, when Mr Garner was
exercising authority for [X], pursuant to the earlier
order, he did so
neglectfully and uninsightfully. Although, it is a regrettable finding to make,
I am satisfied that he did not
behave responsibly in his role as a parent.
- It
is also self apparent that the parties have no capacity to communicate at all
with one another, let alone respectfully or constructively.
In his comments to
Ms N, Mr Garner indicated his intention to sue Ms Carmody for slander. This may
be bluster. But nonetheless, Mr
Garner’s perception is that Ms Carmody is
an enemy, who must be countered.
- To
my mind, this is the context in which the application of parental
responsibility, to the parties in this case, must be considered.
In Bartel
& Schmucker (No 3) Cronin J said as follows regarding the nature of
parental responsibility:
- “Whilst
parental responsibility is vaguely defined, some insight into what is needed
from a parent can be seen in s 65DAC(3) which provides that if both parents have
that responsibility, they are taken to be required to consult about parenting
issues and
make a genuine effort to come to a joint decision. It will again be
remembered that the focus of the objects and principles in this
Act is on joint
parenting.”
[5]
- It
is, to my mind, axiomatic that there is no prospect of Mr Garner and Ms Carmody
engaging in any process of joint parenting of [X],
as the evidence currently
stands. Ms N concedes that this is the case and Mr Garner has demonstrated it
by his parting comment to
the court “she can have him”.
Notwithstanding this state of affairs, both Ms N and the independent
children’s lawyer urge against the door being shut permanently
against Mr
Garner playing some form of active and meaningful role in [X]’s life.
- The
rationale for the proposal, advanced by Ms N, regarding the sharing of parental
responsibility, rests solely on the possible consequence
of Mr Garner perceiving
that he has been permanently excised from discharging any form of role
whatsoever, in the remainder of [X]’s
life and he will therefore be
deterred from re-engaging with [X] at some indeterminate time in the future and
the loss of this opportunity
will be detrimental for [X].
- An
order which provides for shared parental responsibility requires that the
parties to it to consult with one another and make a
genuine effort to come to a
joint decision about major long-term issues to do with the child or children
concerned [section 65DAC].
- Major
long-term issues is defined in section 4 of the Act and includes issues to do
with a child’s education; religious and cultural upbringing; the
child’s health;
the child’s name; and changes to the child’s
living arrangements that would make it significantly more difficult for
the
child concerned to spend time with a parent.
- Pursuant
to section 65DAE, parents (or other relevant persons) do not have to consult on
matters, which are not concerned with long term issues, when the child
is
spending time with one or other of them. This is to ensure that the myriad
decisions, which have no long term significance concerning
a child and which
need to be made on a day to day basis, by both of the child’s parents, can
be made.
- Ms
N agrees with my assessment that the parties cannot jointly exercise parental
responsibility for [X], in any effective or meaningful
sense, because they do
not communicate in any whatsoever. Every interaction between them has the
potential to end in violence. This
unfortunate situation is not likely to change
in the foreseeable future, unless Mr Garner has a significant shift in his
attitude
towards
Ms Carmody.
- Ms
N considers such a shift unlikely to occur unless Mr Garner has extensive
support and counselling. In my view, it is apparent
from his attitude to these
proceedings that Mr Garner is not amenable to receiving such assistance. The
extreme level of mistrust
and hostility between the parties is not likely to
abate any time soon.
- Accordingly,
in the current difficult circumstances which prevail in this case, I do not
think that it is likely to be helpful to
[X] for his parents to share parental
responsibility for him, even for the largely symbolic purposes of trying to
assuage Mr Garner’s
sensibilities or of providing an inducement for him to
change his attitudes in respect of parenting in future. Cronin J said of the
concept of parental responsibility that it:
- “...
is a broad concept as described in s 61B and that task covers many things.
Parents are expected jointly to endeavour to promote their children’s
development by ensuring
they have the greatest potential in adulthood whilst at
the same time enjoying the security of childhood they deserve.”
[6]
- Sadly,
the evidence available to me indicates that Mr Garner has not provided an
environment for [X], which has been conducive to
him enjoying the safety and
security of childhood. The parenting
Mr Garner has provided to [X] was not,
in my view, calculated to assist him to reach his full potential as an adult.
- There
has been nothing joint or consensual about the parties’ parenting of [X]
for a very long time. At least since the mother
commenced these proceedings in
2009, their respective positions have been polarised by conflict and
disputation. [X], by reason of
his special needs, is a vulnerable child. For
these reasons, I have come to the conclusion that it would not be in [X]’s
best
interests for his parents to share parental responsibility for him.
- I
accept that Mr Garner loves [X]. Accordingly he is likely to be concerned if any
misfortune befalls him and want to know about it.
He is also likely to be
interested in what [X] is doing in life and proud of any achievements which he
may accomplish. The question
therefore arises as to what information can be
conveyed to Mr Garner, about [X]’s progress in life and the means by which
such
information is disseminated to him.
- Ms
Carmody has deposed that she remains frightened of Mr Garner, who has been
charged with assaulting her in the past, as he has in
respect of [X]. Although
Ms N herself was not frightened of
Mr Garner and he has always presented
courteously to me, he presents as a man in “with a chip on his
shoulder” who seeks to bring Ms Carmody to account, in some
unspecified way, in the future.
Mr Garner’s behaviour does not always
seem to be predictable, as most recently demonstrated by his withdrawal from
these proceedings.
I can thus understand why Ms Carmody is frightened of Mr
Garner.
- However,
there has been no complaint of actual violence, harassment or other insult
between the parties for some time now. In these
circumstances, I am satisfied
that the injunctions sought by the mother are too far ranging. Nonetheless, the
potential for conflict
to erupt between the parties remains high.
- Accordingly,
it is my view that it would be imprudent for me to make the type of order, which
would otherwise authorise Mr Garner
to attend at [X]’s school for
occasions routinely attended by parents, such as school concerts, parent/teacher
interviews,
sports days and the like or, more importantly, to require the mother
to inform him of these types of events.
- In
any event, Ms Carmody does not know where Mr Garner currently lives. He seems to
wish to keep this issue concealed from her. In
addition, there will be no
concrete orders regulating [X] spending time with his father. In these
circumstances, any order mandating
a communication book is essentially
meaningless. Similarly, it is difficult to see, at this juncture, how the mother
can provide
the father with copies of school report, school photographs and the
like.
- Mr
Garner’s conduct, when he withdrew from the final hearing, saying words to
the effect of “you can have him” to my mind effectively
absolve the mother from having to provide extensive information to Mr Garner
about [X]’s care.
- I
appreciate that, in future, it may well be the case that [X] becomes curious
about his father and will yearn for some contact from
him. For those reasons,
Ms N urged that there be a “chink in the door” for Mr Garner.
The rationale for this proposal is laudable, but the impetus for it must come
from Mr Garner himself.
- I
will however direct that Ms Carmody use her best endeavours to advise the
father, as soon as she practically can, in the event that
[X] is hospitalised
due to a serious accident or illness. I would hope that this type of serious
misfortune, for [X], would transcend
the bitterly conflicted circumstances of
the parties. It is only natural that Mr Garner would want to know if his son was
in harm’s
way.
- In
addition, if Ms Carmody becomes aware of Mr Garner’s postal address, I
will direct that she provide it to the principal of
[X]’s school so that
the principal can forward copies of [X]’s end of semester reports to Mr
Garner, through the authority
of this order, provided that Mr Garner pays any
cost arising. Again, I accept that Mr Garner is likely to be interested in
[X]’s
scholastic performance, at least in general terms.
- Given
[X]’s special circumstances and given the high level of conflict which has
existed between the parties up until this stage,
it is sensible that the
principal of [X]’s school be provided with a copy of these reasons for
judgment and Ms N’ report.
I will make an order to this effect.
- Ms
N’s recommendations that Ms Carmody liaise with Disability SA and
facilitate [X]’s attendance at the Women’s
& Children’s
Hospital are entirely sensible. However, in the circumstances of this case, I
see no need to make the specific
orders, given that I propose making an order
that the mother have sole parental responsibility for [X].
- Finally,
I will make the injunction that the parties be restrained and an injunction
issue restraining each of them from changing
[X]’s surname, unless the
parties otherwise agree in writing.
- For
all these reasons, the orders of the court will be as set out at the
commencement of these reasons for judgment.
I certify that the
preceding one hundred and thirty-one (131) paragraphs are a true copy of the
reasons for judgment of Judge Brown
Date:
17 April 2013
[1] See B v B:
Family Law Reform Act 1995 (1997) FLC
92-755
[2] See B
v B: Family Law Reform Act 1995 (ibid) at
84,220
[3] See
Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
[4] Bartel &
Schmucker (No 3) [2012] FamCA 1094 at
[13]
[5] Ibid at
[18]
[6] Ibid at
[21]
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