Barta and Devlin
[2011] FMCAfam 107
•20 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARTA & DEVLIN | [2011] FMCAfam 107 |
| FAMILY LAW – Intractable parenting dispute – father with serious criminal history – both parents unrestrained in mutual denigration – allegations of assaults by mother on 8 year old daughter – allegations sustained – children over-held by father – mother the primary carer till over-holding – orders that children live predominantly with father – ancillary orders for psychological assistance to both parents. |
| Family Law Act 1975, ss.60B, 60C, 60CC, 60CC(3)(a)-(m), 61C, 61DA(1), 61DA(2), 61DA(4) |
| Goode & Goode [2006] FAMCA 1346 |
| Applicant: | MS BARTA |
| Respondent: | MR DEVLIN |
| File Number: | MLC 5229 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 6 & 13 December 2010 & 10 January 2011 |
| Date of Last Submission: | 10 January 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms O. Nikou SC. |
| Solicitors for the Applicant: | Berger Kordos Lawyers |
| Counsel for the Respondent: | Mr L. McConchie |
| Counsel for the Independent Children’s Lawyer: | Mr. G. Combes |
| Solicitors for the Independent Children’s Lawyer: | Agricola Wunderlich & Associates |
ORDERS
That all previous Orders be discharged.
That the Mother and Father have equal shared parental responsibility for making major decisions concerning the children [X] born [in] 2001 and [Y] born [in] 2002 (“the children”).
That the children live with the Father.
That the Mother spend time with the children:
(a)On alternate weekends from the conclusion of school on Friday until the commencement of school on Monday commencing 11 February 2011;
(b)For one half of each school term holiday period provided that the usual cycle pursuant to Paragraph 4(e) continues during such holiday period as follows:
(i)In the event that the last day of school term is the Mother’s usual weekend time, the Mother shall spend time with the children for the first week of such holiday period and return the children to the Father at 5.00pm on the following Friday; and
(ii)In the event that the Mother’s usual alternate weekend time with the children first falls as the middle weekend of such holiday period, the Mother shall spend time with the children from 5.00pm on the second Friday until 5.00pm on the Friday immediately prior to the children returning to school.
(c)For the long summer vacation on a week about basis save as otherwise agreed commencing in accordance with the usual alternate weekend cycle;
(d)For Christmas as follows:
(i)In odd numbered years from 4.00pm on Christmas Eve until 4.00pm on Christmas Day; and
(ii)In even numbered years from 4.00pm on Christmas Day until 4.00pm on Boxing Day.
(e)For Mother’s Day from 5.00pm on the Saturday proceeding such occasion until 5.00pm on Mother’s day;
(f)On the children’s birthday:
(i)If such occasion or occasions fall on a weekend for a period of four consecutive hours as agreed and in default of agreement from 1.00pm until 5.00pm; and
(ii)If on a weekday from close of school until 5.00pm with the Mother to deliver the children to the Father’s residence on completion.
(g)For Greek Easter at times to be agreed by the parties; and
(h)As otherwise agreed between the parties.
A. That both parents will facilitate unrestricted telephone communication between the children and the other parent whilst not in their care.
For the purposes of Paragraph 4 hereof the Mother’s time spent shall be suspended as follows:
(a)On Father’s Day from 5.00pm on the Saturday prior to Father’s Day until the next scheduled occasion of time spent;
(b)For four consecutive hours on each of the children’s birthdays should such time fall on an occasion that the children are with their Mother as agreed and in default of agreement from 1.00pm until 5.00pm; and
(c)For Christmas (as applicable);
(i)In odd numbered years from 4.00pm Christmas Day until 4.00pm Boxing Day; and
(ii)In even numbered years from 4.00pm on Christmas Eve until 4.00pm on Christmas Day.
That all changeovers save those at school to occur at the foyer of the [omitted] or as otherwise agreed between the parties.
That each parent be and is hereby restrained by injunction from denigrating the other parent in their presence or within hearing of the children and from discussing these proceedings with the children.
That each parent be and is hereby restrained from physically disciplining the children.
That each parent inform the other of any substantial injury or emergency medical or dental treatment concerning the children or either of them whilst in their respective care as soon as possible.
The Mother be authorised to request from the Principal of any school attended by the children copies of all school reports, newsletter, event notices and application forms for school photographs, at his expense and further be at liberty to arrange separate appointments from the Father with the children’s teachers.
That each parent be and is restrained from the use of non-prescribed drugs or alcohol to excess while the children are in their care.
That the Mother attend counselling to address her emotional and anger management issues.
That the Father attend a parenting skills course and an anger management course.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Barta & Devlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 5229 of 2007
| MS BARTA |
Applicant
and
| MR DEVLIN |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
By way of introduction I would make two points. In a previous case I observed at the outset of my judgment that, first, the inadequate nature of the evidence and the materials filed by the parties presented the Court with a significant forensic challenge and, second, while it is well established and indeed only common courtesy to avoid findings that may be disparaging of or hurtful to parties or witnesses, the way that case was presented made adverse findings unavoidable. Although this case is by no means on all fours with the one to which I have referred, very regrettably, both those general points apply here.
It should be noted that this judgment is given orally because of the pressure of time as, after all, one issue is where the children should go to school in February. I would have preferred to have dictated my judgment and then edited it. It would not have produced any different outcome but might have produced a more eloquent judgment. I should emphasise that I carefully re-read the file, all the exhibits and my notes and looked again at the DVD. I should say the VATE tape has been found but I did not re-visit that.
I do not propose to traverse in this judgment each matter raised. If the matter is not mentioned it does not mean it has not been considered. It merely means that I do not regard it as sufficiently material to merit express consideration. I turn now to the history of the matter.
The proceeding concerns the best interests of [X], born [in] 2001 and, therefore, approaching 10 years old; and [Y], born [in] 2002 and, therefore, eight years old. According to the mother’s affidavit filed on 6 December 2010, the parties were in a relationship from about October 1998 until separation in March 2003. The mother was not cross-examined on this assertion.
I note in passing that in these proceedings there has not been much said about the history between the parties. This is because of the way in which it all happened. The proceedings commenced, after all, as a contravention application. Proceedings started in the Family Court, however, as long ago as 14 April 2003. The files from the Family Court have been before me without objection by either party. There were numerous proceedings before Guest J. The conduct of both parties was open to criticism. Nonetheless final consent orders were made in front of Guest J on 17 April 2007.
The mother filed a contravention application in this Court on 10 May 2007 alleging a failure on the father’s part to change the names of the children to Devlin-Barta. That application was discontinued by the mother on 18 July 2007. Thereafter no further Court applications were made by either party until 4 October 2010 when the mother sought a recovery order. It is common cause that the children were handed over by the mother to the father on 13 August 2010 for a routine weekend visit. They were deliberately overheld and have remained with the father, save for a recent period during school holidays, where the arrangement has been week about as ordered by the Court. The proceeding has clearly been dealt with expeditiously with a family report prepared and hearings in December and January.
I move now to the parties’ positions. The mother wants the children to live with her in her home in [K] and spend time with the father on alternate weekends from 5 pm Friday until 5 pm Sunday. The father’s position is effectively the reverse. He desires the children to live with him and his wife, Ms D, and spend time with the mother from Friday to Sunday. The position of the Independent Children’s Lawyer is the same as the father but suggests that there should be a return on Monday to the school.
Both sides agree with the proposition that the school holidays be split evenly and all seem to accept that the children should go to school near to where the primary carer’s home is. The report writer suggests additionally that the mother attend a parenting course, that the father should likewise attend a parenting course, although the emphasis of this course is slightly different and that further, the father attend anger management and/or counselling about anger.
The issues in the case are all too numerous. The salient points are first, who should be the primary carer. The mother says she has always been the primary carer until 13 August 2010. She says that the father is inadequate as a parent, having inadequate parenting skills, that he did not perform parenting tasks when they were in the relationship and had no skills relevant to looking after the children should they be in his care.
She further says that the father is violent and manipulative, both of the children and others, and has a serious criminal history. She next says that the father and/or Ms D use drugs and that Ms D’s relationship with the father is volatile. She expresses concerns about Ms D’s children and their father. She next raises the issue of the father’s mental health about which she has expressed concerns and she further says that the father fabricates allegations by the children to the effect that the mother has committed acts of violence against them. She says he has done this to avoid child support and to get back at her.
If one reads paragraph 19 of the family report it is to this effect:
“Ms Barta presented as being cooperative, and happy to help with providing information for this report. She also presented as being very intent on getting the children returned to her, and quite offended and upset about the allegations; suggesting that they had been fabricated by Mr Devlin and he has primed/manipulated the children to say the same, all so he does not have to pay child support, and so he can get back at her.”
That short extract reflects the matters indicated by Ms Barta when she saw Dr W as recently as late last year.
The mother further says that the children want to live with her
(at paragraph 63 of her affidavit filed on 6 December 2010). I note that on 10 January 2011 the mother sought to give evidence that the children say they want to live with her. Counsel for the Independent Children's Lawyer opposed that evidence being received. He said it would add nothing and submitted there was no reason to doubt the children were enjoying their time with their mother and would say what she wanted them to say. That objection was supported by the father.
I upheld that submission. The assertions that the children want to live with the mother are nothing new. One only has to look at the mother’s earlier affidavits to see that that is so. The evidence sought to be given would simply have restated the controversy already articulated before the Court.
I turn now to the issues raised by the father. First he says the mother hits the children, in particular [Y]. This was the issue that arose on
13 August 2010. He deposed that he discovered the assault on [Y] while putting cream on her psoriasis, which I note is wrongly described as cyhrosis in the report by Dr W. Second, the father says the mother does not look after the children properly and points, for example, to the failure to treat the psoriasis of [Y].
He also raises issues with the children’s diet when they are with their mother, although this is put at a lower level of intensity, and points also to a lack of extra curricular activities. He next points to instability in the mother’s household regime and points to numerous moves of home and he further asserts a failure on the part of the children at school as a result of the mother’s care of them.
I should say at once that the father’s assertion about failure on the part of the children at school is clearly wrong and totally so. There were no problems at their previous school when they were with their mother. Finally, he says the mother swears at Ms D and treats her badly. Obviously, that puts the matter in the round.
I then move to my findings and I will deal with the father first. He was born [in] 1970 and is therefore now 40 years old. It is fair to say he has had a tough life. He has a serious criminal history. He says he was last in gaol in about 1999-2000, although there are some discrepancies from time to time in the materials as to when the last incident in gaol may have been.
He has undertaken two anger management courses but says in his evidence that he still gets frustrated and upset. He has been helping at [T] since 2004. He denies any mental health problems in respect of the alleged depression and says that only obtains a bit. He denies problems in his relationship with Ms D. He denies that there was any separation with Ms D in 2008/2009 even though he and Ms D established separate households for some months. He denies a violent incident alleged to have taken place on 29 January 2009 and denies living with the mother for a period of time in early 2009 likewise.
I should say that the father was a poor witness. He was evasive and self-serving in his answers. His criminal history did not cease in 1997. He has had a number of convictions since including an incident of road rage on 14 December 2007. He said he remembered none of the details of that incident but I find that denial completely unconvincing.
He admits he has always asked the children how they went after their visits to their mother and he admits that he disparages the mother although that would be hard to deny if one looks at his own CD. He denied assaulting his former employer. A reference to “belting the employer” meant success in litigation. I should note that I accept that. Had he assaulted his employer there is little doubt he would have been prosecuted. The father denies taking marijuana since about 2003 or 2004. I accept that evidence because it was given with conviction.
An incident in 2006 as to drugs, I accept, occurred because of distress on the father’s part when the mother relocated to Queensland temporarily and he lost contact with the children. The father otherwise denies that Ms D takes drugs. I do not accept that evidence. It is inconsistent with the contemporaneous records of his treating doctor, Dr G.
This brings us to the central area of difficulty, namely the father’s relationship with Ms D. They married [in] 2006 having commenced cohabitation in about July of that year. Ms D has two children, [C] born [in] 1998 and [S] born [in] 2010. On 29 January 2009, an incident occurred. Ms D called the police and made a complaint.
Ms D’s evidence about this incident was hard to understand. It appears in the ultimate that what she says is that she was drunk.
According to Ms D she was so drunk that she thought it was the father, her husband, on the phone saying things that provoked her to calling the police. She and the father denied that she was in a refuge at the time. However, if one looks at exhibit A5, which is a police record, one notes the following contemporaneous record from the Victoria Police subpoenaed material.
“At approx 0130 hrs on 29/01/09 victim was at home address (given) which is a refuge unit.
Victim Ms D ([born in] 77) (MNI #) has received a mobile call from ex husband [Mr Devlin].”
It then goes on to deal with a number of issues all denied by both Ms D and the father in this case. The father and Ms D’s explanations, I am afraid, are utterly unacceptable. They are inherently unbelievable. If one looks at the medical records of Dr G, who is the treating doctor as I say for the father throughout the relevant period, in particular, exhibit A11, one can see that contemporaneously the matters reported simply do not stand up.
The police report of 4 December 2008 shows that they were called to the [suburb omitted] home of Ms D and arguments had been loud enough for neighbours to call. Exhibit A14 is a record of Dr G and for 12 November it reads:
“Had fight with [Ms D] and was blind drunk. He hurt her and feels very remorseful. He would like to reconcile. She has been closet drinking too.”
Exhibit A13 is a further medical record from Dr G. It is dated
22 January 2009:
“Started marriage counselling. Still talking but things up and down.”
Exhibit A12, which is yet another record from Dr G records on
22 April 2009:
“Chest infection caught off Ms D. Back together again.”
Exhibit A9, which is undated I note but is again from Dr G, describes Mr Devlin as 39 years old and makes a reference to Effexor which was prescribed last year and also says:
“Wife Ms D lives in housing unit. Smokes cannabis daily.”
So it is clear from that that the relationship between the father and
Ms D was under strain in late 2008 and early 2009. It is clear, in my view, that there was a violent incident on 29 January 2009 following which the father decamped to the mother and lived with her until he had made his peace with Ms D. I regret to say that the father and
Ms D were simply not truthful in their denials, but that is not wholly helpful to the mother.
The mother’s evidence in part is that while she does not want Ms D involved with her children and does not encourage the children to speak about Ms D, she does not denigrate or insult Ms D. It is, however clear, despite these denials, that she does. As I find the father went back to the mother in 2009. The mother must have felt betrayed when he returned to Ms D. In evidence she said:
“I couldn’t believe it when he went back to her.”
In effect, the father scorned the mother to go back to Ms D. Little wonder that the mother loathes Ms D. I accept the father and Ms D’s evidence that the mother is grossly abusive of and about Ms D. The mother dismissed the children’s disclosures to this effect about what the mother says about Ms D as wrong, but they are not.
I move to the mother. She has moved about a fair bit. There are at least three moves of dwelling in the last five years and if I am correct in my understanding, she is presently living with her parents because of problems with a stalker. An intervention order is now in place and she proposes to return to her three bedroom home in [K] near Melbourne. It is clear the mother was the primary carer of these children until August 2010. It is clear that she is inept as a carer in at least some ways. It is quite clear that she does not attend to [Y]’s psoriasis properly. Her own evidence was that she sometimes lets [Y] put the cream on.
For all its numerous failings, the CD taken by the father shows, in my opinion, terrible psoriasis, even accepting it is a condition that flares from time to time.
The real issue with the mother is whether she hits the children and in particular [Y]. Psoriasis is in the ultimate, while disturbing, an issue of lesser moment. I should note that the mother admits smacking her back, referring to [Y], once in any event. The points I would make about this controversy are as follows. It is clear that something happened on 13 August 2010 to cause the father to overhold. It is clear [Y] told the father of a bruise caused by the mother. It is equally clear from the VATE tape that [Y] told this to the police later on, although the father was present and clearly encouraging her, inappropriately, during the interview, as he was restrained by a gesture from the police officer conducting it.
It is also clear that [Y] and [X] told Dr W of these assaults. That brings us to the report of Dr W. I should say in passing, I passed over numerous other health professional persons who have been involved with the children. They tend to corroborate claims of assault but they were not called as witnesses and to an extent, have either become partisan or their evidence might be thought to be contaminated one way or the other.
If one comes to the family report, paragraph 39, this is what [X] had to say about his parents:
“[Y] doesn’t let mum paint her nails or do her hair … and she lets [Ms D] do it … and mum says why do you let the slut lady do your hair … she says I hope your dad and [Ms D] die … I just like ignore it because she might get angry … when she is angry it’s not normally me … it’s my sister who gets it … I normally run and hide … it’s not true mum doesn’t hit us or get angry … I asked her why she smacks … and she says because you’s stress me out … my sister stresses me out lots so I go on the X-box to calm down … I used to be scared of my dad when I was little because he has lots of tattoos … but not anymore … mum gets angry … but not really at me … she doesn’t really smack me … only my sister … sometimes she calls her names too … but not me … sometimes she wouldn’t get me food … and I’d have to get her food.”
At paragraph 41 [Y] had this to say to the same question about her parents:
“mum says lots of things about dad and [Ms D] … dad doesn’t … once when mum picked us up we drove past and [Ms D] was outside and mum called out the window ‘fucking dog’ I think … she is crazy like a psycho my mum when she gets angry … she likes driving angry … she drives fast and says I’m going to smash into a power pole and you will be laughing when I’m dead … she says to me why do you let [Ms D] do your hair … she’s not your mum … I don’t like it … mum …since we haven’t seen her as much … she is being nice … before then she was a crazy psycho … mostly with me … she would hit us … she yells at me to get up … and sometimes pulls my hair … mostly to me … I don’t think mum hit’s [X] … she’s hit me 100s of times … sometimes when I’m naughty … sometimes when I’m kind of naughty … she yells at us for no reason … she’s saying we sleep in … but we don’t know what time it is … she should just wake us up normal … now she does … dad’s so sad about it because he doesn’t want his children to get hit … mum says she doesn’t do it at all … she says she can't remember doing it … it did really happen … the last night with mum … on a Thursday … I wouldn’t go to bed and she got one of her high heels and hit me on the side of the bottom … and [X] bit me … dad saw the bruise … he said how did that happen … I said mum hit me with her high heel … I said [X] bit me … he ([X]) got into trouble for that … I can't see [name omitted] any more … I think mum stopped it because she said we are not supposed to see her … we tell her stuff … mum’s just stopped it … I’d like to see her again … mum never made us breakfast in the morning unless we were really early … but we were always running late … and we always had McDonald’s and KFC for dinner … we live with dad now … for 15 weeks … for 10 weeks we didn’t see mum … yeh I missed her … I just didn’t want to get hit … we are seeing her now … it is much better … I want to live at dad’s … I want it the way it is.”
Dr W was strongly cross-examined by senior counsel for the mother but Dr W stuck to her recommendations. She also stuck by her opinion that the children were not making these allegations up; this was even though she had seen the father’s DVD and accepted that in that he was extremely leading in his remarks. Dr W said there were problems with both parents. She was concerned if the father and Ms D were untruthful about the events on 29 January 2009.
She was also concerned about denigration by the father of the mother but said the mother was worse. The mother said she would harm herself if she does not get what she wants. Dr W also expressed concerns that [X] was being inappropriately made to parent [Z]. She said further moves were undesirable and that the children were uncontained and chaotic with the mother and [Z] but contained appropriately when they were with the father. She expressed the further view that the separation of the children was undesirable.
This brings us to conclusions. I accept the Independent Children’s Lawyer’s submission as to violence. I accept that the mother does hit [Y] and to a lesser extent [X]. Her denials were untruthful and they are very concerning. I should emphasise that Dr W was an excellent witness who made appropriate concessions under cross-examination but nonetheless stuck to her conclusions. The evidence was given within her area of expertise and her report, subject to matters arising in cross-examination, speaks for itself. I accept it as qualified by Dr W’s evidence.
That brings me to the legislation. In Goode & Goode [2006] FAMCA 1346, the Full Court paraphrased the relevant provisions of the Family Law Act at paragraph 65. First, the Court must consider joint parental responsibility unless there is family violence. Second, that presumption can be rebutted if it is not in the child’s best interests. Third, if it is applied, the Court must consider equal time or if that is not reasonably practicable, substantial and significant time.
Fourth, where neither of those two possibilities are available, the matter is at large and determined by the child’s best interests. Fifth, the best interests are ascertained by the primary objects set out in s.60B of the Family Law Act 1975 (“the Act”) and the additional considerations in s.60CC. I should say the points are effectively the same if joint parental responsibility is not ordered.
I should note neither party has formally indicated a position about joint parental responsibility. No party made any submissions about it and there was no discussion about it with Dr W. There has been joint parental responsibility in place at least since 2007 when the orders were made by consent before Guest J. Pursuant to s.61C joint parental responsibility is required unless the Court orders otherwise. Pursuant to s.61DA(1) and (2) that presumption applies unless there is abuse or family violence and pursuant to s.61DA(4) the presumption may be rebutted.
Here, first, it is clear there has been family violence by the mother. Second, it is arguably abuse also by the father in relation to the constant denigration by him of the mother. However, the fact is the presumption clearly does not apply in the mother’s favour. Nonetheless the overriding issue is the children’s best interests. It is clear that both parents love the children. It is clear that both children love both the parents although [X] is somewhat aligned with his mother and [Y] with the father, although she still loves her mother despite the difficulties that obtain between them.
Third, it is clear that joint parental responsibility has worked perfectly well from 2007 until now.
In all the circumstances, it is not appropriate for the Court to limit the presumption of joint parental responsibility set out in s.61C. That, therefore, leads to consideration of equal time. Both parties agree that this is wholly impossible. No-one suggested it. The parties live too far away for it to work. Schooling and other issues would be completely impossible were they to spend equal time with each parent.
Substantial and significant time faces exactly the same difficulties. The parties are simply too far away where they live for this to be practicable. I have obviously had regard to the matters contained in s.60B of the Act. I turn now to s.60C. The primary emphases of the Act set out in s.60CC(2) are the benefit to the child of having a meaningful relationship with each parent and secondly, the requirement to protect the children from harm. I accept the Independent Children’s Lawyer’s submission. It is clear from Dr W’s evidence that for all the problems in both households, the children have good relationships with both parents.
That brings me to the additional considerations in s.60CC(3)(a) that is, the views of the children. The views of the children are not determinative. They are far too young but [Y] is precocious for her years and has a very clear view about what she wants and one that the evidence wholly justifies in the light of my findings about the mother’s assaults. So far as [X] is concerned, I accept the Independent Children’s Lawyer’s submission. While he is clearly aligned with his mother, this is partly because he wants to help his mother with [Z]. Once again, I accept the submission of the Independent Children’s Lawyer that there must be a query about how well the mother is coping with [Z]. That is not a criticism. Most tragically, [Z] would be a very difficult child. I should say her date of birth does not appear to be disclosed by the materials but it is said she is two years old. She has a number of very significant health difficulties.
Section 60CC(3)(b), the nature of the relationship with the child’s parents and other relevant persons. Clearly both children have good relationships with both parents although that is qualified to an extent in the case of [Y] with her mother. Both have good relationships with the father and both have good relationships with Ms D and her children. Ms D’s affidavit filed on 13 October 2010 at paragraph 2 says words to the effect that all the children get on well and there are no problems at all. Ms D was not cross-examined as to that assertion and I therefore accept it. The children were quite clear – that is to say [X] and [Y] were quite clear when they saw Dr W that Ms D was alright.
Section 60CC(3)(c) the willingness and ability of each parent to facilitate and encourage a close and continued relationship between the child and the other parent. Regrettably, neither is any good at this. There is mutual recrimination on all sides. All parties suffer from poor impulse control and lack insight as to their conduct.
Section 60CC(3)(d) the likely effect of any change in the child’s circumstances, including the effect of any separation from parents or another sibling. The children are doing fine with their father. They have been doing fine at their new school. They have expressed no trauma to anyone about the change of residence save to the extent that [X] told Dr W that he misses [Z]. Obviously, both [X] and [Y] miss [Z] but I note Dr W’s clear view that [X] needs, in effect, this separation to enable him, as she put it, to be a child himself. Her evidence was to the effect that [X] is, as it were, put in the inappropriate position of being a quasi parent to [Z].
Section 60CC(3)(e), practical difficulty and expense of a child spending time with and communicating with a parent. All sides agree that there are practical difficulties as the parties live so far apart.
Section 60CC(3)(f), the capacity of each parent to look after the children. I accept the Independent Children’s Lawyer’s submission. For all their problems, both sides can provide for the children’s needs. There have been no problems either at the school they attended when they lived with their mother or at the one they have attended when they lived with their father but I note the mother must pay far closer attention to [Y]’s psoriasis in the future.
Section 60CC(3)(g). That adds nothing in the context of this case. The maturity, sex, lifestyle and background of the child and their parents are matters I have already dealt with earlier. Section 60CC(3)(h) is irrelevant. The children are not Aboriginal or Torres Strait Islanders. Section 60CC(3)(i) I have already dealt with. That is to say the attitude to the child and to the responsibilities of parenthood demonstrated by the parents. Both are within acceptable range as parents but I am afraid utterly inadequate in their dealings with one another.
Section 60CC(3)(j), family violence. I accept the Independent Children’s Lawyer’s submission. These are very serious matters. They are serious as to their nature and they are serious as to the mother’s untruthful denials.
Section 60CC(3)(k) is irrelevant and s.60CC(3)(l) adds nothing. I have no confidence that the orders I make will bring litigation to an end but I am certainly going to make the orders that I best can in the interests of the children.
Section 60CC(3)(m) is any other matter the Court thinks is relevant. Here I would deal with the criticisms of Dr W’s report made by the mother to the extent that they are not already dealt with, and other matters raised in the trial. First there is the question of the father’s mental health. I accept, as submitted by the mother’s counsel, that the evidence is incomplete. The father appears to suffer some element of depression but I notice that it has not affected the children since they have been with him since August. I accept that the father is not bipolar, even though Ms D clearly suggested this to Dr G. There is no evidence of bipolarity on his part.
The next matter raised I deal with is the assertion that the report writer did not see Ms D’s children or their father. I accept that is so. The evidence of Ms D is of good relations between all the children and there have been no complaints made by [Y] or [X] about her children. The sleeping arrangements at the father’s home are not optimal but are sufficiently satisfactory for the moment and will be addressed. I note in passing that the photographs taken of the father’s house appear to show excellent upkeep.
I accept the evidence as to why Ms D’s children were removed from the prior week about arrangement because of the stress of this proceeding. The stress would be considerable. Even if there was something untoward about the cessation of the week about arrangement for Ms D’s children there was nothing to suggest there are any present problems for [X] and [Y] in their father’s house.
The next question is the matter of the up-to-date evidence sought to be given by the mother. I have already dealt with that but would repeat it would make no difference. I accept that the children had not articulated any fear of the mother and say that they want to live with her from time to time. This does not alter my conclusions for the reasons already given. It is, in my view, clear that the best interests of the children are that they should live predominantly with the father and spend time with the mother.
The orders I propose are as follows. There will be an order for joint parental responsibility. The children to live with the father. They are to spend time with the mother from the end of school on Friday until the start of school on Monday each alternate weekend. The mother does not work, she can collect and return. It is going to be an early start for school on Monday but in my view, it is still preferable the children have two full days with the mother and [Z]. If the children are crabby on Monday evenings when they return to the father’s household then he and Ms D will just have to accept this and deal with it.
As I understand it, there is no challenge to the proposition that school holidays should be split between the parties and likewise I have heard nothing about special days, which do not appear problematic. I expect the parties to bring in minutes to resolve those issues. Next, both parties are to be restrained from denigrating each other and Ms D, which of course applies to the mother only. Next there will be a restraint of physical violence or discipline by all parties. Next there will be a restraint upon the use of illegal drugs and alcohol to excess while the children are in the care of the respective parties.
Next I will order counselling for the mother as recommended by Dr W. I will further order counselling for the father and that means both as to parenting skills and as to counselling for anger. It is clear that he still has difficulties in this area and having undergone two courses I accept Dr W’s submission that it would be appropriate that he see a counsellor in this regard. I would request the parties to draw up minutes to give effect to these conclusions.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 20 January 2011
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