BARNWELL & HAGUE

[2014] FamCA 862

FAMILY COURT OF AUSTRALIA

BARNWELL & HAGUE [2014] FamCA 862

FAMILY LAW – CHILDREN – Best interests – where the mother left on two separate occasions during the first day of hearing and did not return – sibling relationships – where when the mother is not presently complying with medical advice, taking medication or drawing on the crucial support of her parents, the child is in need of protection – where the presumption of equal shared parental responsibility is rebutted – where the most appropriate course is for the child to change residence and live with the father, the father having at this time a greater capacity to meet his needs and to keep him safe, both physically and psychologically – child to spend supervised time with the mother on a monthly basis 

FAMILY LAW – CHILDREN – Parental responsibility – father to have sole parental responsibility – father obliged to advise the mother of the important decisions he makes for the child and to support him in having communication with the mother by phone

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Barnwell

RESPONDENT: Mr Hague

INDEPENDENT CHILDREN’S LAWYER: Mr Munday

FILE NUMBER: CRC 121 of 2012

DATE DELIVERED: 2 October 2014
Ex-tempore

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Cleary J

HEARING DATE: 2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Selfridge
(Granted leave to withdraw during first day of hearing)

SOLICITOR FOR THE APPLICANT:

Filewood Carty Lawyers

(Granted leave to withdraw during first day of hearing)

COUNSEL FOR THE RESPONDENT: Mr Theodore

SOLICITOR FOR THE RESPONDENT: MBT Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Moin & Associates

(Mr Munday)

Orders

1. That all prior parenting orders in relation to K born … September 2006 (“the child”) are discharged.

2. That the father shall have sole parental responsibility for the child and providing the mother complies with Orders 7 shall advise the mother in writing of long term decisions (including enrolment at school, specialist medical treatment and religious instruction).

3. That the child shall live with the father.

4. That each of the parents shall undertake all Intake and Assessment procedures necessary in order to use the following supervised Contact Services:

   4.1Town B Contact Centre, … Street, Town B QLD (Town B);

   4.2Town C Contact Centre NSW (Town C); Phone (02) … .

5. That the child shall spend time with the mother supervised on a monthly basis, unless otherwise agreed in writing between the parents, as follows:

   5.1      each alternate month in Town B commencing November 2014;  AND

   5.2      each alternate month in Town C commencing in December 2014.

6. The father shall be responsible for the costs of visits for the child and his mother in the Town B Centre AND the mother shall be responsible for the costs of visits for the child and herself in the Town C Centre.

7. The mother shall provide (in writing including by SMS text or email) her contact details to the father including a contact telephone number and shall advise of any changes in a timely way.

8. The father shall provide (in writing including by SMS test or email) his contact details to the mother including a contact telephone number and shall advise of any changes in a timely manner.

9. Provided that the mother complies with Order 7 herein the child shall communicate with the mother as follows:

   9.1The mother shall telephone the child twice per week, Tuesday and Friday, at a time between 5.30 pm and 6.00 pm Queensland time and the father shall facilitate the call by ensuring that the child is available to receive the call and has privacy for the conversation.

   9.2The father shall permit and assist the child to telephone or otherwise make contact with the mother at any reasonable time.

10. Pursuant to s 68B(1)(b) of the Act the mother is restrained from attending the child’s school unless the father has given prior written consent for her attendance to the Principal of that school.

11. That the Independent Children’s Lawyer shall provide:

    11.Two copies of these Orders to the Principal of Town D Primary School  (with the second copy for provision to the School Counsellor);

    11.2A copy of these Orders and Reasons for Judgment to the Secretary, Department of Family and Community Services New South Wales.

    11.3The Independent Children’s Lawyer is thereafter discharged.

12. The Application in a Case filed by the father on 3 September 2014 is dismissed.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these Orders.

THE COURT NOTES:

(A)The father is willing to do whatever is necessary to ensure that the child maintains contact with his older siblings E and F, including but not limited to making arrangements with the maternal grandparents for the three children to be together in the home of the maternal grandparents, the home of the father and/or as otherwise agreed between them.

(B)Ms G, the father’s partner, is willing to bring the child with her at times when she is travelling to the Town C area to visit her family in order for the child to spend time with his maternal family.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Barnwell & Hague has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  CRC 121 of 2012

Ms Barnwell

Applicant

And

Mr Hague

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In this matter there were no appearances for delivery of Reasons; none were required.  I make orders in accordance with a document which will be distributed to the parties for the following reasons. 

2. These are competing applications for parenting orders in relation to one child; K (“the child”) aged eight years.  The applicant is the mother, Ms Barnwell, aged 29.  The respondent is the father, Mr Hague, aged 37.  The mother filed her first application on 9 August 2013, the father responding on 3 September 2013. 

3. The matter was set down for final hearing commencing on 27 August 2014.

4. On behalf of the mother, a brief adjournment to the following day was sought.  Concerns were expressed by her own counsel about the mother’s mental and physical health and capacity to give instructions on that day.  A subpoena was issued to H Aboriginal Health Service to produce the mother’s medical records and arrangements were made for Dr J of that service to give evidence on the second day of hearing.  Dr J has been the mother’s treating doctor.

5. On 28 August 2014 Dr J gave evidence by telephone that she had been prescribing anti-depressants for the mother (Lexapro) since December 2013 when the mother had presented as suicidal and had taken an overdose of drugs.  Meanwhile, during the hearing, the mother left Brisbane to return to Town C, leaving a message for her solicitor and therefore the Court that she could no longer cope with the court case.  Dr J’s opinion in relation to the mother’s capacity to care for her children was “she would be okay with close support”.

6. The final hearing was adjourned and 5 September 2014 was appointed as a date for an interim hearing pending final hearing.  On 5 September 2014 the matter was instead set down for final hearing again on 30 September and 1 October 2014.  The hearing commenced on the appointed day.

The evidence

1. The parties relied on the following documents:

   a)Transcript of proceedings of 28 August 2014;

   b)Amended Initiating Application of the mother filed 9 August 2013;

   c)Amended Response of the father filed 3 September 2013;

   d)Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the father on 30 November 2012;

   e)Affidavits of the mother filed 4 April 2014 and 2 September 2014;

   f)Affidavits of the father filed 29 October 2013, 22 January 2014, 28 March 2014, 10 April 2014 and 2 September 2014.

   g)Affidavits of Ms G (the father’s partner) filed 29 October 2013 and 22 January 2014;

   h)Family Report by Mr M dated 18 October 2013;  and

   i)Family Report by Ms N dated 10 May 2013.

The Mother

1. On the first day of this hearing the mother revealed through her counsel that her circumstances had changed considerably.  She had on the Friday previously, that is, 26 September 2014, moved out of her parents’ home in Town C to rented accommodation in Town N, between one and one and a half hours’ drive away.  She had a six-month lease and was living in the new home as a single mother with the child and her two younger children from a previous relationship with Mr O.  Those children are P born in February 2010, now aged four years eight months, and Q born in September 2012, now aged two.

2. The mother had moved on to a relationship with Mr R, also known as ….  She denied a continuing relationship with Mr R stating, “I split up with [Mr R] because of domestic violence” and that he continued to live in Town C.  However, it was also the evidence of the mother that Mr R had driven her and the two young children from Town N to Brisbane for this hearing and that he was in a nearby park with P and Q while she was at Court.  The mother also said that Mr R had done the same thing for her in late August 2014 for the first hearing.  I am unsure about the truth of any of the evidence of the mother about Mr R, including the fact that he was present with her children while she was at Court.

3. There have apparently been two pregnancies for the mother in her relationship with Mr R, the most recent one having miscarried in August in the early stages.  It seems likely that the relationship is an ongoing one.  The mother referred to Mr R in her affidavit as the man who introduced her to the drug ice,[1] but in her oral evidence she said, “He’s a good person.  I need a friend”. 

   [1]Affidavit of mother filed 02/09/2014, par 5

4. Significantly, in her affidavit-in-chief the mother revealed that she had not attended her appointment with Dr J made for 3 September 2014.  This was an important appointment arising from the concerns that were identified and about which Dr J gave evidence on 28 August 2014.

5. There was inadequate explanation by the mother for why she failed to attend the appointment.  “I told [Dr J] I was moving to [Town N].”  The move was three weeks after that appointment.  In combination with the evidence by the mother that she was not taking her prescribed medication, the picture which emerged was one of the mother having a reduced capacity to meet the needs of her children.  She had lost the close support of her parents, crucial in Dr J’s evidence.  She was un-medicated for mental illness; namely, depression and anxiety.  Her explanation for that was, “I honestly think I don’t need it.”  The presence of Mr R in her life, if he is, is at best problematic.

6. The mother was at times tearful, belligerent and sarcastic.  The proposition was put to her that in her affidavit[2] she had said, “I am going to access as much support as I can.”  The following day she failed to attend the appointment with Dr J.  The mother’s response to that proposition was, “Must have had a reality check.  Someone must have set me straight”. 

   [2]Affidavit of mother filed 02/09/2014, par 12

7. In cross-examination the mother was questioned about her medical history, including the impact of abuse in her childhood, episodic self-harm and suicidal thoughts and attempts, at least in 2005 and again in 2013.  This was confronting for the mother, in my view not only for the usual reason that exposure in Court of such private matters is painful, but because the mother had deliberately concealed those matters from the court previously.  She acknowledged that concealment.[3]  The mother had also undertaken in that affidavit to comply with prescribed medication. 

   [3]Affidavit of mother filed 02/09/2014, pars 8 & 13

8. At a point in her cross-examination, after perhaps an hour, the mother chose to leave the court room.  There was a short adjournment and some discussion with those at the Bar table of a break for the mother and some evidence from the father.  After time spent by the mother with her counsel she returned to the court room and resumed her cross-examination, which began with traversing the mother’s request made in March 2014 for the father to take the child to live with him.  However, before that began, her counsel was instructed to advise the Court that the mother would not be returning for the second day of hearing.

9. I explained to the mother that if she made that choice she needed to understand that the hearing would continue in her absence.  At approximately 1.20 pm there was a break for lunch.   After that break counsel for the mother advised the Court that the mother had left the Court intending not to return.  Counsel and junior counsel were given leave to withdraw. 

10. Every effort had been made by the mother’s legal advisers to maintain her participation in the proceedings to her best advantage.  The matter thereafter proceeded in the absence of the mother.  The father, his partner and one of the two family consultants, namely Mr L, were cross-examined. 

The father

1. The father gave evidence of having moved from Town B to a smaller town, approximately 40 kilometres away, in order to pursue work which was available to him there as a building management officer.

2. Having completed his training he will be on call for that work.  He has made inquiries about enrolment for the child at the local school, which is in walking distance of the home he has obtained; rented accommodation with three bedrooms sufficient for himself, his partner, their child S, now aged about 16 months and the subject child. 

3. The father was a thoughtful witness.  He acknowledged that he had had difficulty seeing his two older children who have been in the care of the maternal grandparents for almost nine years.  Those two children, E aged 11 and F aged 10, have lived with their grandparents since 2005.  An order for their care by the Minister of Family and Community Services New South Wales was made in 2006 and a care plan was made in 2009.

4. The father acknowledged that he and the maternal grandparents have clashed over timing, financial support and the conflict between himself and the mother.  However, he was confident that if the child lived with him he would be able to negotiate with the maternal grandparents to arrange for him to see his older brother and sister.  This is a significant matter.  The child has been able to regularly see his siblings and in the last month or so, before the mother moved to Town N, had been living in the home with them.  The father freely expressed a wish for the child to maintain contact with the mother, although he did express concern about what he had learned during the course of this hearing and his own observations of the mother’s emotional state.

Ms G, the father’s partner

1. The father’s partner, Ms G, also gave thoughtful evidence.  She is at home caring for S and is willing to take on the significant amount of care for the child and will be able to get him to and from school quite easily when the father is not able to do so.  She also volunteered her willingness to take the child with her when she travels from the Town B area to Town C to visit her own extended family who live close by. 

2. I am confident that Ms G understands the commitment that she is making to the father and to the child and will provide security and affection for him in that household. 

Mr L, Family Consultant

1. The family consultant was cross-examined.  He had not seen any member of the family for more than a year and had been unaware of the extensive history of mental health problems that were revealed by the medical records.

2. Having heard about those matters and also some aspects of Mr R’s criminal history, the family consultant freely conceded that those matters were of great concern for the child’s safety.  His recommendation had been that the child should remain living with the mother, with particular reference to the significance of the maternal grandparents and his older siblings being available to him on a daily basis. 

3. The family consultant gave helpful evidence on focusing on the child’s need for support and some counselling not only in relation to separation from the mother and brothers and sisters but also in relation to incidents from the past where an older boy had behaved in a sexually inappropriate way with him on two separate occasions; the father being concerned that the child worries about that have not yet been adequately addressed.

Applications

1. At the conclusion of the evidence the father and the Independent Children’s Lawyer submitted in favour of the child living with the father and the father having sole parental responsibility, the more difficult issue being how the child could safely spend time and communicate with the mother, who he has lived with all his life.

The law

1. 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.

2. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents; and s 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or family violence

1. In relation to this consideration the Court is to give greater weight to s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”), that is, the safety and protection of the child.

2. The child does have a meaningful relationship with both of his parents but he has been recently exposed to the mother’s mental health difficulties which have been a restriction on her capacity to meet his needs.  He has also been exposed to family violence.  The mother complains that Mr R not only introduced her to the use of the drug ice, but was violent during the course of the relationship which was why she separated from him, at least for a time.

Section S60CC(2A) – 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)

1. There was also family violence in the relationship between the mother and the father of the two younger children, P and Q.  Criminal records which were produced by subpoena to the Court reveal that there was an episode as recently as July 2014, where all of the children were passengers in a car when, on one version of events, the mother tried to run Mr R over and his elbow broke the side window of the car or, on the other version of events, Mr R attacked the mother’s car and damaged it.  The subject child, P, Q and a child of Mr R’s were all sitting in the car at the time.  Police were called. 

2. It is particularly the case, when the mother is not presently complying with medical advice, taking medication, or drawing on the crucial support of her parents; that the child is in need of protection.  The additional considerations are as follows. 

Additional considerations

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

1. The child has been assessed twice in family reports.  In the first report[4] he was described as:

   A shy young boy whose speech was a little unclear.  He found it somewhat difficult to sit still during the assessment and to have eye contact with the writer. 

   [4]Family report dated 10/05/2013, pars 39-45

1. The child said that he looked after his younger brother and sister and that he liked looking after them.  He also said he liked going away with the father.  He was observed to have a relaxed, warm and conversational relationship with the father, who understood his speech and conversation without difficulty. 

2. The father was observed to be responsive and warm towards the child and was able to draw him out in conversation on different topics.  The family consultant observed that the child appeared to be very happy playing and talking with the father.  He was also observed to be uncomfortable when both parents were present with him at the same time and did not respond to the father when the mother was present.  The mother expressed the view that she believed that the child did not want to hurt her feelings by speaking to the father in her presence. 

3. However, to her credit, the mother also said that the child “thinks the world of his father.”  It seems to me that in that observation the child, partly through words but also through his own behaviour, was expressing the view that he was comfortable with the father, enjoyed his company and was pleased to be there.

4. In the second report[5] the child was observed to be:

   .. a happy young boy who appeared to be well cared for.  He engaged happily with his mother and maternal grandfather in play. 

   He was described by the mother as in need of speech therapy, although I note that there is no evidence that anything has begun in that regard. 

   [5]Family report dated 18/10/2013, pars 67-71

5. The observation on this second occasion was that the child was reserved and difficult to engage in interview.  He struggled to articulate his views.  He had a hesitant and reserved manner and provided limited information about his current family situation.  He was positive in speaking about both his parents, describing them as “fun” and “good”.  He referred to his large extended family in Town C and spoke positively about his school.  He reported enjoying spending time with the father and recalled special events that he had enjoyed, also speaking regularly to the father on the telephone.  The child responded with a shrug when he was asked whether he had ever wondered what it might be like to live with the father and go to school in that local area.

6. That second observation of the child suggests that he had become more careful about speaking about his immediate family, but was otherwise still closely attached to both his parents and his extended maternal family. 

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons

1. The child has his most important relationships with the mother, the father, the father’s partner, his two older siblings (E and F), his two younger siblings (P and Q) and the maternal grandparents, Mr Barnwell and Ms T Barnwell.  It will be important for the child to maintain all of those relationships if possible. 

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother is in receipt of Commonwealth benefits and part of those benefits are directed towards the child. 

2. The father has his funds, which are compensation funds arising from an accident in 2006, but managed on his behalf.  There was a complaint by the mother about the failure of the father to pay child support.  However, there was insufficient evidence for me to understand this issue, particularly in the context of the father’s funds being managed and the father doing all of the travelling for those times when he did see the child.  I do not consider that the father would fail to provide for the child as best he could.

3. The father has always been interested in the child and indeed in his two older children.  He has attempted to participate in decision-making although the mother has been reluctant to communicate with him about important events.  For instance, the mother did not advise the father of her intention to move from her parents’ home to independent accommodation in Town N. 

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 either of his or her parents, or any other child or other person

1. A change of residence for the child will be a substantial change.  He will no longer see the mother and his younger siblings every day.  He has, however, already moved away from Town C, from the school where he was settled, and from daily contact with the maternal family.  In that sense, a change of school is going to happen in any event, whether he stayed in Town N or moved to the school at Town D.  He is likely to feel the loss of the mother and brother and sister, and I am satisfied that the father understands that the child will be upset.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

1. This is a significant consideration.  The mother lives on the north coast of New South Wales, now in Town N.  The father lives in Town D, in the Darling Downs region of Queensland.  It is a very long drive for a young child and he should not have to do all of the travelling.  The cost of petrol is a consideration and the fact that the mother does not usually drive.  The father is able to drive, as is his partner, and there is some assistance there because of her willingness to transport the child to Town C when she visits her family. 

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. This too is an important consideration.  The father has had a limit on his capacity to be a parent since he suffered a brain injury arising from an accident in 2006.  The father fell or jumped from a vehicle and was badly hurt and hospitalised.  Since then, however, he has made steady progress and is able to live independently, and has had a partner, Ms G, for several years, and they have a child who I have no reason to think is not progressing well.  The father has now moved in order to take up employment and has made significant progress in having his own finances managed by himself in future.  He is hoping to buy a home with some of those funds in the Town D area. 

2. The mother has struggled with abuse of alcohol at times.  She drank liquid amphetamines in 2005 in an attempt to commit suicide and she has taken, and then not taken, prescribed medication to her disadvantage.  Her mental health, certainly as recently as December 2013, was poor. 

3. The medical reports suggest that, at least since 2002 when the mother began attending on H Aboriginal Health Service, she has struggled with her own history of sexual assault and some difficulties in her family. 

4. In November 2005, after the attempt to commit suicide using amphetamines, an appointment was made for the mother to see a psychologist to address suicidal thoughts and other difficulties.  She failed to attend that important appointment and the service was unable to contact her for some time.  It does seem to be a pattern for the mother that when she is feeling well she ceases medication and does not take up the medical and other advice which is available to her. 

5. There are reports in the records[6] which indicate that in April 2014 during a home visit by the H Aboriginal Health Service, the mother was reported being regularly locked in her own room by herself, afraid to leave the house and fearful that people were out to get her.  After that home visit an appointment was made on 8 April 2014 for her to see Mr T, psychologist, to deal with her intense anxiety and failure to leave the home.  She failed to keep that appointment.  These matters are a significant restriction on the capacity of the mother to identify and meet the needs of her children.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

[6]Exhibit 5

1. The child is an eight year old boy.  He appears to be having difficulties with his speech which have gone unaddressed.  He has had some concerns and worries about an older boy who behaved inappropriately with him.  He has been exposed to several partners for the mother where there has been episodic family violence.  He needs a quiet, stable, predictable home in order to flourish. 

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child

1. The mother identifies as Aboriginal.  There was not a great deal of evidence about any connection she has to that culture.  There was no evidence from her parents at all. 

2. The father gave some evidence that it seems to him that the child has very little knowledge about his own Aboriginality or Aboriginal culture generally and that at times when events involving an Aboriginal community have been on and the father has spoken to the child about that, he has seemed to have no understanding of the implications for himself.  That is not to say that he should be denied his right to enjoy his Aboriginal culture and the people who share that culture. But I am confident that the father would not discourage the child and will advise the school to the extent of his own knowledge about his Aboriginality. 

Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. There have been those two instances of sexual molestation of the child by an older boy who is known to the parties.  The two events occurred in August 2009 and April 2012.  On the first occasion the child was a toddler.  On the second occasion, as an older child, he was more conscious of what had happened and has apparently been more upset.[7]

   [7]Affidavit of father filed 29/10/2013, pars 84-99

2. It seems that the mother may not have been decisive enough in ensuring that the child was not left alone with this boy after the first incident. 

3. The second incident happened in the home of that boy’s family and was a social occasion, a barbeque.  Just as concerning is the fact that the mother did not tell the father about the first incident at all and he was left to find out from the Department of Child Safety after the second incident. 

4. The father is also, reasonably in my view, concerned that the mother was reluctant to make any official complaint on the second occasion, referring to the fact that her “boyfriend had bashed the boy”.  The father is concerned that the mother may have been more focused on protecting her boyfriend at the time than protecting the child.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family and 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

1. As stated, there have been incidents of family violence which have affected the child in July 2014 and earlier when Mr O was in a relationship with the mother.[8]

   [8]Exhibit 6

2. There was an Apprehended Violence Order put in place in August 2013 against Mr O for the protection of the mother for a year. 

3. There was an incident in 2011 where Mr O is said to have punched the mother in the face and threatened her with a butter knife.  The child was present on that occasion.  There is also, in Exhibit 6, reference to the mother being a person of interest in a series of abusive text messages between herself and her sister which became so disruptive that police were called to speak to both women.

Parental responsibility

1. Having considered all of those factors the most appropriate course is for the child to change residence and to live with the father, the father having at this time a greater capacity to meet his needs and to keep him safe, both physically and psychologically.  There is a presumption of equal shared parental responsibility but I am satisfied that the evidence about the mother’s state of health and lack of support rebuts that presumption. 

2. Accordingly, the presumption that the child would spend equal time or substantial and significant time with the mother, does not arise.  In fact, in the circumstances, unless the parties are able to agree otherwise, because the mother cannot satisfy the father that she is receiving appropriate medical treatment, is connected to family support, and is not maintaining a relationship with somebody who represents a physical threat to herself and her children, supervised time is the most appropriate way.

3. On that basis I have adopted the proposal of the Independent Children’s Lawyer that supervised visits take place both close to where the father lives and to where the maternal grandparents live and where the mother most recently lived.  There are centres in Town B and Town C which can be used and that will balance the child’s need to see the mother and his brothers and sisters and grandparents as often as possible against the expense and distance of doing so.  Monthly visits, where every second month occurs in Town B, saves the child that long trip and he should be able to easily cope with one such return trip to Town C every second month. 

4. I have made orders accordingly for the child to continue to live with the father; he is presently there on the school holidays, and for the father to have sole parental responsibility.  The father will be obliged to advise the mother of the important decisions he makes for the child and to support him in having communication with the mother by phone.

5. I have also made an order for these Orders and Reasons to be provided to the Secretary of the Department of Family and Community Services in New South Wales.  I do so for these reasons: 

   (a)As stated, the parties have three children between them, the subject child and the two older children, E and F, who live with the maternal grandparents and there is the settled arrangement in place for them to continue there. 

   (b)The mother also has two younger children earlier referred to, P and Q, from her relationship with Mr O.  Those children are not subject children in these proceedings and are not children in the care of the Secretary, but they are exposed to the same risks identified in these reasons, namely, the fragile state of their mother’s mental health; the risk of exposure to family violence arising from the friendship/relationship between the mother and Mr R; and the lack of extended family support. 

   (c)I expressed these concerns during the course of the proceedings and the Independent Children’s Lawyer also supported some step being taken to identify the risk for those two younger children.  It is the understanding of the Court that the Secretary was notified of those concerns.

I certify that the preceding sixty five (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered ex-parte on 2 October 2014.

Associate: 

Date:  13 October 2014