Bartin & Baddle

[2008] FamCA 1089

FAMILY COURT OF AUSTRALIA

BARTIN & BADDLE [2008] FamCA 1089

FAMILY LAW – CHILDREN – With who a child lives – Live with orders for four children – environmental neglect – domestic violence and abuse – children’s cultural heritage

Family Law Act 1975 (Cth) Part VII

APPLICANT: Mr Bartin

RESPONDENT: Ms Baddle

INDEPENDENT CHILDREN’S LAWYER: Danielle Webb

FILE NUMBER: MLF 2228 of 2006

DATE DELIVERED: 15 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: WATT J

HEARING DATE: 11 January, 5 February, 30 June, 6, 8, 22, 23, 24, 27, 28 October, 10, 12, 13, 14  21, 24, 25, 26, 27 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Brewer

SOLICITOR FOR THE APPLICANT: Victorian Aboriginal Legal Service

COUNSEL FOR THE RESPONDENT: Ms Athanasopoulos

SOLICITOR FOR THE RESPONDENT: Belleli King & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyer

Orders

IT IS ORDERED:

1.That all previous parenting Orders be discharged as and from 15 December 2008.

2.That the father and mother retain equal shared parental responsibility for the children

B, born … September 1997;

N, born … October 1999;

C, born … March 2001; and

J, born … February 2003

including equal responsibility for the making of decisions regarding long-term issues in respect of the children.

3.That each of the father and the mother be responsible for making day to day decisions concerning the welfare of the children whilst they are in their respective care.

AND IT IS FURTHER ORDERED

4. That the children live with the mother.

5.That the children spend time and communicate with the father as follows:

(a) During school term, in each alternate weekend from 6.00pm on Friday until 6.00 pm on Sunday, such times to be suspended during school term and end of year holidays.

(b) During each of the school term holidays (being the Term 1, 2, and 3 holidays) for one half of the holidays as may be agreed between the parties, in writing, and in default for the first half;

(c) For one half of the long summer holidays as may be agreed in writing, and in default from 26 December in the 2009 / 2010 holidays, and in each alternate year thereafter, and from 24 December in the 2010 / 2011 holidays, and in each alternate year thereafter; and in 2008/2009 on a week about basis, the father’s week to include Christmas Day, and the children to be returned to the mother no less than three clear days before the commencement of school.

(d)That in the event Mother’s Day coincides with a weekend when the children are not in the mother’s care, then that weekend shall be suspended and the children shall be in the mother’s care from the conclusion of school on the Friday prior to Mother’s Day until 6.00 pm on Mother’s Day and the following substituted: AND in the event Father’s Day coincides with a weekend when the children are to be in the mother’s care then such weekend shall be substituted for the next weekend that the children would have spent with the father and the weekend immediately following Father’s Day shall be available to the mother in lieu of the missed Father’s Day weekend.

(e)By telephone each Wednesday from 6.00 pm until 6.30 pm.

(f)At such further and other times as may be agreed between the parents in writing.

6.That the father notify the mother in writing within 48 hours of Ms R’s departure from his home in circumstances where she will no longer be a member of his household.

7.That for the purpose of paragraph 5 of this order, the mother deliver the children to and collect them  from the G Police Station car park (or such other Police Station car park as may be agreed between the parents in writing) at the commencement and conclusion of each period when the children are to spend time with the father.

8.The mother ensure that each of the children regularly and punctually attend at school on all scheduled school days unless a medical practitioner certifies that a child is not well.

9.That each party do all things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other parent the children’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the school and distributed to parents or relating to the children specifically and both parents shall be entitled to fully participate in any and all activities at the school or connected with the school.

10.That each parent shall at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the children (or any of them) and the identity of the treating professionals.

11.That the mother engage with and accept such assistance, support and referral as may be available from Child FIRST, or such other agency as she may be referred to by Child FIRST.

12.That the mother request that the children’s treating doctor provide a referral for each of the children to a paediatrician and the mother ensure attendance upon and compliance with any treatment recommended by that paediatrician.

13.That each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness and condition and any treatment recommended or provided and to visit the children (or any of them) if hospitalised.

12.Each parent is hereby restrained from:

(a)speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant  fashion in the presence or hearing of the children (or any of them);

(b)physically disciplining the children (or any of them) or from permitting any other person from doing so.

13.That the father be and is hereby restrained from consuming or injecting any illicit substance during any period when the children (or any of them) are in his care or for a period of 24 hours prior to the children (or any of them) being in his care; AND the father further undertake random supervised urine drug screens as may be requested by the mother, within 24 hours of receipt of such request and thereafter the father shall forthwith provide a copy of such screen results to the mother upon his GP having obtained results of such tests, and such requests shall not extend past 19 December 2009 and shall not exceed 12 requests in total.

14.That in the event the parents cannot reach a joint decision about:-

(a) a major long-term issue involving the children (or any of them);

(b) the interpretation of these Orders;

(c) the implementation of these Orders; or

(d) the enforcement of these Orders; which involve the children (or any of them),

each of the parents will do all things necessary to participate in Family Dispute Resolution at a Family Relationships Centre as may be agreed between the parents, and in default at the Centre closest to where the children ordinarily live.

15.That for the purpose of paragraphs 11 and 12 the mother provide to the paediatrician or agency (as the case may be) a copy of this order and the judgment of Watt J delivered 15 December 2008.

16.That all extant applications be otherwise dismissed and the case be removed from the list of cases awaiting final determination.

17.That the appointment of the Independent Children’s Lawyer be discharged.

18.Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help” a copy of which is annexed to these orders.

19.Pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Bartin & Baddle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2228  of 2006

MR BARTIN

Applicant

And

MS BADDLE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1.The parents in this matter began their relationship in 1997 when the father was 19 or 20 years old, having been born in March 1976, and the mother, 19 years old (born in November 1976). The father is now 32 years of age and the mother is 32 years old. The father works in the transport industry by occupation and the mother is not employed outside the home, and has no qualifications or recent experience of employment.

2.The parents cohabitated until 2002 when they separated. At that stage they had three children, B, then aged 4, N, 2 , and C, 1. A fourth child, J, was born in February 2003.

3.The four children have been in the primary care of the mother at all times since their births, and live with her in the Peninsula area in a three bedroom Ministry of Housing home that she has occupied for two years.

4.The father and his partner since 2002, Ms R, have three children, O, born in November 2003 (5), L, born in April 2005 (3½), Y born in March 2007 (1 yr 8 months). This family of five has occupied a three bedroom privately rented home in Melbourne’s northern suburbs since late 2007.

5.The father seeks orders that the children reside with him and spend each alternate weekend with the mother, with school holidays being shared and provisions made for special occasions. The mother seeks orders that would broadly continue the arrangements as they stand – that is, for the children to live with her and spend time with their father each second weekend, during school holidays, and other occasions.

6.For the final stage of the trial, the father was represented by Mr Brewer of counsel, Ms Athasanopoulos of counsel appeared for the mother and Mr Marchetti of counsel appeared for the independent children’s lawyer (“ICL”).

7.The ICL supported the orders sought by the father, a position that accorded broadly with the final recommendations of the family consultant, Mr AN.

ISSUES

8.The father’s case was based in large part on the mother’s failures in aspects of her parenting: failure to keep the house clean, to address personal hygiene issues that some of the children have, and failure to address health issues appropriately.  He also relied on evidence of the three older children’s significant absences from school as demonstrating the mother’s failure to give those children the chance to realise their full potential.

9.On the positive side of the father’s case, he has the support of Ms R and his mother, both of whom are close to the children and can between them provide for the children’s day to day needs. The children of this relationship have close relationships with the father’s three children with Ms R. The father’s present accommodation would be adequate for all seven children to live in, although he and Ms R acknowledge that a larger home would be better and there is a prospect of a larger home becoming available at some time. The father’s mother plays an important role in maintaining the children’s links with their aboriginal heritage.

10.The mother’s case is that she has been the children’s primary carer since birth, and, whatever the defects in her parenting skills, is the one most attuned to their day to day lives, and they to her. She wants to continue to parent the children, and asserts that she has the capacity to improve in those areas where improvement is needed, and will avail herself of assistance that can be provided to achieve these objectives. On the negative side, vis a vis the father, the mother asserts that the father has a long history of domestic violence towards both her and Ms R, certainly continuing until 2006, and an associated addiction to marijuana consumption, and consumption of alcohol to excess. Whilst admitting the addiction to marijuana, and the presence of domestic violence in both relationships, the father asserts that he has given up marijuana consumption since April of this year, and has previously undertaken an anger management  course and a parenting course, both of which he found beneficial.

11.The family consultant and the ICL took the view that the children’s lives should not be put “on hold” in such important areas as health and education while the mother “gets her act together” and that she has had help before, things have improved for a while, and then gone backwards again.

12.There is a parallel in the two cases that I will mention at this point: the father’s case is that the mother has had the help of various agencies in the past and has fallen back without long term improvement.

13.The mother’s case is that the father has made two serious attempts to abstain from marijuana consumption in the past with professional assistance - in 2002 and 2006 - and both attempts were short-lived. Very recent events to which I will refer have enlivened a concern in the mother that this most recent attempt at abstention may not have been as complete as the father asserts.

14.The case concerns, in part, my assessment of whether the possibility of the mother not making long term changes to correct the areas where she is deficient poses a greater risk to the children’s welfare than the risk that the stresses of a single income family with seven children as members of the household might prove more than the father can manage without the drug which he has been using in significant quantities since he was 15 years of age. That consumption has been accompanied by significant domestic violence in the past, and the father has recently demonstrated some angry behaviour in the presence of the children, according to their statements to the family consultant, including the hard smacking of one of the children, and the breaking of a large glass sliding door.

15.There is also an issue to be considered carefully in the context of whether the children would have a meaningful relationship with their mother in the future if they were living with their father who has a very negative view of the mother and conveys this to the children.

THE PROPOSALS OF FATHER, MOTHER, AND INDEPENDENT CHILDREN’S LAWYER AT BEGINNING OF TRIAL

Father

16.In his amended application for final orders filed 7 October 2008 the father sets out the orders he seeks in relation to the four children of the relationship. In summary he seeks that the parents retain equal shared parental responsibility, the children live with him, the children spend time with and communicate with the mother each alternate weekend from 6pm Friday to 7pm Sunday, half of each school holiday periods, specified times over Christmas each year, Mother’s Day, the children’s birthdays and the mother’s birthday, by telephone each Tuesday and Thursday and at any other times as agreed between the parties. His proposed orders also seek that the mother collect the children from the father’s residence at the commencement of any time with her and the father collect them from the mother’s residence at the conclusion of such time; a suspension of the mother’s time with the children if her time falls on Father’s Day; the mother and father each advise the other if any of the children suffer from serious illness or injury and authorise any medical personnel to speak with the other parent; the mother and the father and their servants and agents are restrained from either themselves or causing or permitting any other person to address or refer to the other parent in any derogatory or insulting way or otherwise rebuke or denigrate them in the presence or hearing of the children; the father authorise all schools that the children may attend to provide the mother with all school reports, school notices and school photographs.

Mother

17.The mother filed her response to the father’s application for final orders on 21 August 2006. In the outline of case document filed on her behalf the mother sets out a minute of the orders she is seeking:

·    The children reside with her;

·    Subject to the following conditions –

o   the father re-engage with M Alcohol and Drug Centre and continue to provide regular drug urine screens for a period of 18 months to ensure a period of sustained abstinence,

o   the father be restrained from using any illicit/illegal drugs,

o   the father’s partner Ms R be in substantial attendance during any time that the children spend with the father –

the children spend time with the father:

·from 5pm Friday to 5pm Sunday on each alternate weekend,

·half of each gazetted school holiday,

·on the children’s birthdays, father’s birthday,

·half of Christmas day at times to be agreed,

·from 9am – 6pm on father’s day,

·at such other times as agreed between the parties.

Independent Children’s Lawyer

18.The orders proposed by the ICL are set out in her outline of case document and are expressed to be conditional upon the Court finding that “the mother has not complied with orders of the court and recommendations in relation to the care of the children”. It became clear very early in the proceedings, however, that the ICL was advocating a change of residence for the children and counsel for the ICL provided more of a second line of advocacy for the father’s case throughout the trial than an independent analysis of the strengths and weaknesses of each party’s proposals.

19.The orders sought by the ICL were that the father and the mother retain equal shared parental responsibility and for the children to live with the father commencing at the conclusion of the school year subject to the following:

·The father be restrained from the use of illegal drugs and re-engage with M Centre and continue regular drug urine screens for a period of 12 months to ensure continued abstinence;

·The father obtain a referral to a paediatrician for assessment of the children within the next 21 days and ensures that the children attend their appointments and the mother co-operate in allowing the children to attend such appointments if available prior to the end of the school term;

·The father continue to access support services through the Aborigines Advancement League and do all his best endeavours to obtain appropriate housing prior to the conclusion of the school year.

20.It was also sought that pending the children living with the father, the children remain living with the mother and the father spend time with the children for the first two weekends out of every three from 6pm Friday to 5pm Sunday, by telephone each Wednesday between 6pm and 7pm. If the mother is unable to care for the children due to ill health prior to the end of school term then the children reside with the father during the period of ill health.

21.The ICL sought that once the children live with the father, they spend time with the mother for the first two weekends out of three from 6pm until 5pm, half of all school holidays with any time spent with the children during the long summer holidays not commence until January 2009, on Christmas Day, the children’s birthdays, Mother’s Day and other special occasions as agreed.

22.Further orders sought included that the mother ensure that she accesses appropriate support to enable her to care for the children appropriately including the children’s hygiene is adequate and the house maintained to a reasonable standard of cleanliness, the parties to be restrained from the use of physical discipline and ensure that the children are not exposed to parental conflict or domestic violence, changeover occur at G Police Station or at a convenient contact centre, the father and mother ensure that the other is kept informed of all issues in relation to the children’s health and schooling, the father be permitted to enrol the children in T Primary School for the 2009 school year, the parties be restrained from discussing the court proceedings with the children and the parties enrol and complete a post-separation parenting course preferably taking part in the Our Kids at Centacare.

THE PROPOSALS OF FATHER, MOTHER, AND ICL IN FINAL ADDRESSES

23.Before the commencement of final submissions the ICL handed up a set of proposed orders. They were marked ‘ICL –Final’. In line with the recommendations of the family consultant, the ICL and the father did not seek more than every second weekend in either case, ie, whether the children were living with the father or the mother. The mother sought three weekends out of four if the children live with the father. The father adopted the ICL’s proposed orders except in relation to the supervised urine drug screen tests where counsel for the father proposed that they be fixed to be done on the first Monday of every second month which he later changed to every month. The mother sought that the tests be carried out on a weekly basis. If the tests were to be carried out on a random basis then the father sought that be done within 48 hours of the request, the mother and the ICL sought the test be carried out within 24 hours of the request. The mother also sought that Ms R be in substantial attendance when the children were with the father independent of whether the children lived with the father or remained with the mother. The ICL and the father sought that the summer school holidays be shared equally between the parties and that Christmas Day not be divided. The mother sought that each parent see the children for part of Christmas Day and the summer school holidays remain shared on a week about basis as the existing orders provide.

DOCUMENTS RELIED ON BY EACH PARTY

Father

24.The father relied on the following documents:

·Father’s amended application for final orders filed 7 October 2008;

·Father’s affidavit of evidence in chief sworn 9 September 2008;

·Affidavit of Ms R sworn 9 September 2008;

·Affidavit of Ms D Bartin sworn 17 September 2008.

Mother

25.The mother relied on the following documents:

·Mother’s affidavit of evidence in chief sworn 16 October 2008 and documents annexed thereto being records produced on subpoena by M Centre and other documents including an interim intervention order and various complaints and summons for intervention orders;

·Affidavit of Ms JB sworn 15 October 2008

Independent Children’s Lawyer

26.The ICL relied on the following documents:

·Children and Parents’ Issues Assessment dated 30 January 2008;

·Family Report dated 12 June 2008;

·Affidavit of Dr K sworn 13 May 2008;

·Subpoenaed material;

·School reports.

THE LAW TO BE APPLIED

The law to be applied – parenting orders

27.This case falls to be determined under Part VII of Family Law Act 1975 (“the Act”).The proper application of Part VII, as  amended with effect from 1 July 2006,  was considered by the Full Court of this Court in Goode v Goode (2006) FLC 93-286. It has been applied in subsequent appellate decisions of this court and has been followed by trial judges, in cases that involved both interim and final orders.

28.I consider that it will be helpful to set out paragraphs 5 to 13 of that judgment, in which much of the relevant legislation is set out:

THE APPLICABLE LAW

5.The Family Law Amendment (Shared Parental Responsibility) Act 2006 ("the amending Act") came into effect on 1 July 2006 and was the law that governed his Honour's decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.

6.Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:

(a)      the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c)      the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e)the communication a child is to have with another person or other persons;

(f)       maintenance of a child;

(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i)       a child to whom the order relates; or

(ii)the parties to the proceedings in which the order is made;

(h)the process to be used for resolving disputes about the terms or operation of the order;

(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 64B(3) provides:

Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

7.The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)      to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii)to develop a positive appreciation of that culture.

8.Section 60CA deals with the best interests of the child and provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

This provision of the legislation was formerly s 65E and the wording of the section has not changed.

9.In determining what is in a child's best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child's best interests:

Primary considerations

(2)      The primary considerations are:

(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.

Note:

Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3)      Additional considerations are:

(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;

(b)      the nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)       the capacity of:

(i)       each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family, if:

(i)       the order is a final order; or

(ii)the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)      has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child; and

(b)      has facilitated, or failed to facilitate, the other parent:

(i)       participating in making decisions about major long-term issues in relation to the child; and

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

Section 60CC(4A) provides:

If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

10.      Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration (as they did prior to the amending Act - see

B v B: Family Law Reform Act 1995 (1997) FLC ¶ 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.

THE FRAMEWORK FOR DETERMINING PARENTING ORDERS

11.      Section 61DA (which is a new section) provides:           

Presumption of equal shared parental responsibility when making parenting orders

(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

Note:

The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)      family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

12.      Section 61DB provides that:

Application of presumption of equal shared parental responsibility after interim parenting order made

If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

13.The relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of s 65DAA, which provides:

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Note 1:

The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2)      If:

(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:

The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

(a)the time the child spends with the parent includes both:

(i)days that fall on weekends and holidays; and

(ii)days that do not fall on weekends or holidays; and

(b)the time the child spends with the parent allows the parent to be involved in:

(i)       the child's daily routine; and

(ii)occasions and events that are of particular significance to the child; and

(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Note 1:

Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));

(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).

Note 2:

Paragraph (c) reference to future capacity - the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

29.      I will also set out parts of section 13C. Section 13C provides:

Section 13c court may refer parties to family counselling, family dispute resolution and other family services

13C(1) [Orders the court may make]

A court exercising jurisdiction in proceedings under this Act may, at any stage in the proceedings, make one or more of the following orders:

…

(c) that one or more of the parties to the proceedings participate in an appropriate course, program or other service.

Note 1: Before making an order under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).

Note 2: The court can also order parties to attend appointments with a family consultant (see section 11F).

13C(2) [Purpose]

The court may suggest a particular purpose for the attendance or participation.

13C(3) [Attendance of other persons]

The order may require the party or parties to encourage the participation of specified other persons who are likely to be affected by the proceedings.

Note: For example, the participation of children, grandparents or other relatives may be encouraged.

13C(4) [Other orders necessary or appropriate]

The court may make any other orders it considers reasonably necessary or appropriate in relation to the order.

13C(5) [Court may make orders]

The court may make orders under this section:

(a) on its own initiative; or

(b) on the application of:

(i) a party to the proceedings; or 

(ii) a lawyer independently representing a child's interests under an order made under section 68L.

RELATIONSHIP HISTORY

30.The father and the mother commenced a relationship in or about 1997 and finally separated in late 2002 (mother) or before July 2002 (father). During the evidence it emerged that the father undertook treatment in July 2002 at M Centre and he described the mother as being his ex-partner. As J was born in February 2003 it appears that the relationship continued in some respects until May 2002. Exhibit M, F and ICL1 however shows the parties separating in February 2002 when the mother left the address where she and the father and children lived. The mother reported to Ms CN in ICL11 at page 16:

Mother stated that [the father] told her he would stay with her if she agreed to fall pregnant. [The father] then reportedly left her whilst she was pregnant with [J] …

31.There are four children of the relationship B born in September 1997 (11 years old), N born in October 1999 (9 years old), C born in March 2001 (7 years old) and J born in February 2003 (5 years old).

Commencement of father’s relationship with Ms R

32.Ms R is the de facto partner of the father. She was born in May 1979 and is 29 years of age. Ms R has been in a relationship with the father since November 2002; see paragraph 3 of her affidavit. The father in his affidavit states that he has been in a relationship with Ms R since 2003 (paragraph 3) but in his evidence he agreed his relationship with Ms R started in 2002. Ms R also stated in evidence that she was with the father in July 2002 when he first went to M Centre for assistance in giving up his use of marijuana.

Children with Ms R

33.The father and Ms R have three children of their relationship. O born in November 2003 (5 years old), L born in April 2005 (3 years old) and Y born in March 2007 (1 year 8 months old).

34.Ms R has a child of a previous relationship T aged 12 years. T lives with his maternal grandmother and stays with his mother most school holidays and Ms R visits him from time to time.

35.Neither the father in his affidavit of evidence in chief nor Ms R mention T as being a child that forms part of their household on a regular basis or at all. Dr K mentions on page one of this report that the father told him that Ms R has a 12 year old son who lives with his grandmother but that Ms R sees him regularly. There is no reference to T in the family consultant’s reports. It is in the mother’s affidavit of evidence in chief at paragraph 8 that T is mentioned. The mother’s reference is mainly to suggest that T was living with Ms R but that since the father and Ms R commenced living together T has moved to live (eventually) with Ms R’s mother. The mother’s case is that this occurred because the father does not like the child or did not want him to live with him and Ms R. In cross-examination both the father and Ms R denied this.

36.In cross-examination the father said that T went to live with his maternal grandmother about two years ago when he was about 10 years old. The father explained:

It was on and off because [Ms R] and myself were on a move around and we just wanted him in a stable schooling. Because we were just young and stuff like that.

37.The father agreed that T at that time could not have stable schooling residing with them. He thought that T was living with them when they were in H in rural Victoria but that he did not really like the country so he moved to live at his father’s mother house in the northern suburbs where he used to go to school. When his paternal grandmother died of cancer he came to live with Ms R and himself for a few months and then went to live with his other grandmother, Ms R’s mother. The father said he had a pretty good relationship with T.

38.Ms R said in cross-examination that she had T when she was 16 years old and that he lived with her until he was nine years old. He lived with Ms R and the father for about two years. At that time (when he was nine) she and the father were moving residence so he went to live with his father’s mother who lived near the school he was attending. He lived with her for about a year and when she died he went to live with his mother (Ms R) for a short period in H. T did not like it there so he went to live with Ms R’s mother and he had lived there for the past two years. She said that the father and T have a good relationship. She said she sees him most school holidays – he comes to visit or she goes to visit him and she goes for regular visits to see her family in the area.

39.The family consultant said in evidence that he was not aware of T’s existence until his interviews with the children on 11 November 2008 when one of the children told him that “[Ms R] gave up [T] to live with dad”. The family consultant had known nothing of T’s existence until this time.

40.The Department of Human Services were involved in Ms R’s care of T and reports of their involvement are set out in ICL11.  They certainly confirm the father’s evidence that he and Ms R “moved around” in the early stages of their relationship.

BACKGROUND OF EACH PARTY

Father

41.The father was born in March 1976 and is 32 years of age. He is currently employed as a truck driver and has been employed in this position for almost four months (as at 22 October 2008). He works five days a week from 5.00am to 3.00pm. His previous employment had been as a driver and that had involved him working five days one week and six days the next week.

42.The report of Dr K sets out the father’s family history as told to him by the father:

His parents lived in […]. His father was 54 and a truck driver. At times he could be grumpy, but he felt he was ‘a pretty good dad’. His mother was the same age and [worked with an Aboriginal Organisation]. He indicated that the loved his mother and would speak to her every day. He has two brothers and a sister, and he was third in the family. The older brother was a truck driver, and the younger brother a fork lift driver. … He was born in 1976 and grew up in […], and he felt it was a good family life. He was always playing outside rather than concentrating on school work.

43.In re-examination the father said that his older brother lives about five minutes by car from his house and he has four children. His sister lives about ten minutes drive from his place and she sometimes helps looking after the children. His mother and father live about 15 minutes by car from the father’s house. His parents own a farm outside H which he and Ms R and the children visit from time to time, approximately every six weeks.

Aboriginality

44.      In paragraph 47 of the father’s trial affidavit he states:

My Aboriginal heritage is something that I closely associate with my identity. The children also have been brought up appreciating their background, and is something that I want to share with them and further develop. I am involved with the Aboriginal Advancement League. This provides myself and the children with a community of extended family. I want the children to grow up with this family around ….

45.The father also acknowledges that the mother regards the children’s aboriginality as important; see paragraph 48 of his trial affidavit and the fact that the mother understands the importance of the children’s aboriginal heritage was not in issue in the course of evidence. Counsel for the father raised it in his final submission, however, criticising the mother for not doing more than reading some dream time stories to the children. I do not accept this submission.

46.The family consultant states at paragraph 19 of the family report:

[The mother] confirmed that all four children have Aboriginal heritage and considers it important for them to understand their heritage and background, and to have ongoing opportunities to experience cultural aspects and maintain contact with extended family through which they will learn more about their heritage.

47.The father’s mother is employed at an Aboriginal Organisation. She deposes to the family’s aboriginality and connections in paragraphs 17 to 23 of her affidavit of evidence in chief. In cross-examination by the ICL she gave evidence of her connections to extended family living in regional Victoria and in particular her sister, and other family members in Melbourne and regional Victoria and of her involvement with the Aboriginal Advancement League and the children attending activities there with the father. There appears to be no doubt that the father and his mother will maintain the Aboriginal family and cultural connections in a meaningful way for these children. I find that the mother is genuinely supportive of maintaining these connections.

MOTHER

48.In her affidavit of evidence in chief the only part of the mother’s background prior to meeting the father that she relates is when she states:

During my teenage years, for a period of approximately three years I was repeatedly sexually abused by my former foster father. Such abuse has been extremely traumatic for me and it is only now that I feel able to seek counselling in relation to this abuse.

49.Dr K reports that the mother and her sister lived with their grandparents after her parents split up when she was four. When she was 11 and her grandmother died they were in Gordon Homes until she was 17. At one stage the mother worked for a year in a child care centre.

50.Ms CN in her report s at page 16 of ICL11 states:

Mother reportedly did not have a close relationship with her own mother and has not had any association with her since she left when mother was 4 years old. Mother was raised primarily by her paternal grandmother until age 11, when PGM died suddenly of a heart attack. Mother reported that her father and new step-mother did not want to look after her and her younger sister, therefore they were placed in foster care system. Mother reported being abused physically, verbally and sexually whilst in foster care, over a total of 4 separate placements. Mother has not received counselling to address the abuse she suffered, nor to explore the impact of her family abandoning her. …

51.The mother gave evidence that she had recently attended her first session of counselling with an appropriate service provider (SECASA).

52.In her affidavit of evidence in chief at paragraphs 27 and 29 to 33 the mother outlines a period of ill health from late June 2008 to mid October 2008 – severe flu symptoms, bronchial pneumonia, infected teeth and gastroenteritis. On 7 or 8 August the mother requested that the father and Ms R to look after the children. There were differing versions of the arrangements but in the end it can be said that the mother sought the father’s and Ms R’s assistance in caring for the children because of her ill-health and they agreed to help, and the children spent a week with them from 8 to 15 August 2008.

Issues identified by family consultant in Children and Parents’ Issues Assessment and in the Family Report.

53.In the family consultant’s Children and Parents’ Issues Assessment dated 30 January 2008 the key issues are set out as:

·Allegations of past and current family violence to which the children are allegedly exposed

·Allegations that the father continues to use an illicit substance

·Allegations about recent behavioural and emotional changes amongst the children including soiling and wetting

·Deterioration of the parental relationship and the impact on the children

·Demonstrated lack of parental capacity to communicate about the children’s needs

·Past and current involvement of the Department of Human services

·Children’s views.

54.The family report sets out the ‘Issues in Dispute and Issues Identified during the Assessment’ as being:

·The children have indigenous heritage as a result of their biological relationship with their father

·Competing applications about whom the children will live and how much time the children will spend with each parent – both parents meanwhile support the children spending time with the other parent

·The absence of parental alliance through which to communicate about the children’s needs

·Past family Violence allegedly perpetrated by the father to a number of his partners

·Illicit substance misuse by the father and the status of the father’s referral and attendance at M Centre and current status of urine screens

·Allegations that the mother allows friends to consume illicit substances in her home

·Concerns that the children are being neglected and are at risk of sexual assault whilst in the mother’s care

·Concerns about the children’s academic performance, social status and attendance at school and social isolation

·Involvement of community agencies including the Department of Human Service, Anglicare and Oz-Child

HISTORY OF HOUSING AND SCHOOLING SINCE SEPARATION

55.Ascertaining where the parties were living at various times since 2002, and which schools the children attended for what periods was problematic. Some time was spent in evidence trying to resolve these factual uncertainties. A document prepared by all parties setting out dates, where mother lived, where father lived and what school the children attended was tendered and became Exhibit ‘MF and ICL 1’. It was later replaced as evidence emerged that showed the then current version to be incorrect.

56.The father in his examination in chief said that he and Ms R moved from Melbourne to H well before June 2006. He said that the mother and the children moved up there about two to three weeks after he moved. The father gave no explanation of why he and Ms R moved to H although it appears that his sister was living there at the time, and this may have provided the incentive to move there. It is also close to his parents’ farm, although that is not where they reside. At this time the father said that he was working 15 to 16 hours per day and the site of his employment was in Melbourne and so he travelled from H to Melbourne to commence his work – he would leave at 3am in the morning and he would get home at about 9pm.

57.Paragraph 9 of the paternal grandmother’s affidavit states that B lived with her for a period of time because the mother was not able to get the child to attend school. The paternal grandmother puts this down to the mother not having a routine and the child not having a regular bed time. She gives no dates or context for when this is said to have happened. In cross-examination the paternal grandmother said that she sent B to O Primary School and she was in prep. She thought it was in 2003 for a period of five or six months. The mother and the other three children were living in W. It follows the time when the mother moved to W following an assault on her by the father, discussed elsewhere. The paternal grandmother’s evidence was that the mother had been living in W for about three to four months and the mother told her that B was missing school because she was scared to go, she was throwing up on the way to school and it was decided that B would live with the grandmother during the week and go to O Primary School.

58.The ICL took the paternal grandmother through the various places where the mother and children lived and what she observed as to the state of those homes. However her evidence was somewhat general and disjointed. It is important to bear in mind however that when the parties separated – and it seems to be clear that the parties separated over domestic violence issues - the father remained in the home the parties had been living in and the mother and children first moved to stay with the father’s sister and then to the father’s parents’ home. The paternal grandmother then assisted the mother in getting accommodation at U. This was in July 2002 according to Exhibit M, F, ICL1 soon after separation when the mother is pregnant with J.

59.There was an episode of a domestic violence episode in 2003 (between the father and the mother and with the paternal grandmother either observing part of it or coming in at the end of it that led the mother in about April/May 2003 to stay with or near her relatives in E and then W.

60.It also appears that following an incident involving domestic violence in June 2006 at H (discussed later) the mother and the children left H and the mother and children went to live first at K where her father lived. She then obtained transitional accommodation in the south east suburbs before moving to her home in the Peninsula where she has lived with the children since January 2007. The paternal grandmother said she could not contact the mother while she lived at K because the mother had obtained an intervention against her and other members of the family – the father, Ms R, the paternal grandfather and the father’s brother. The circumstances of the making of the intervention order are very unclear, but the paternal grandmother gave evidence that they had been advised to give undertakings with a denial of the necessity for this and had done so.

SCHOOL ATTENDANCES

Up to 2008

61.I commence my consideration of this issue by noting that Ms R states that up to end 2006 when the mother moved to the Peninsula she and the father saw the children on a daily basis and the mother was at her house every day. If this is true, then they would have observed and known on a daily basis if the children were attending school and if not why not. There was no evidence of what they (the father and Ms R) did about this at the time or what involvement they had with the respective school at the time, save that Ms R refers to helping with reading at H Primary School. Otherwise, the father and Ms R blame the mother entirely for school absences. The father’s mother was also involved in the care of the children on a regular basis up until 2006 but gave no evidence of efforts to ensure that the children attended school.

62.In re-examination Ms R said that when she and the father lived in U, B and N went to U Primary School and the mother lived in D. Ms R said that “virtually every day” the mother was at their place “she would be at my house all day”. Ms R said that before the mother moved to D she had been living with the father’s parents, the children had been attending U Primary School and they remained there when she moved to D.

63.The ICL told the court that the children left H Primary School on 15 June 2006 and were enrolled at ST Primary school on 3 July 2006 where they remained until the end of the 2006 school year.

2008

64.The father agreed that the children came to him on Friday 8 August 2008 at the request of the mother and stayed with him until Friday 15 August 2008 as both she and the children were ill and that the children missed those days at school because of illness. The father did not take the children to the doctor because he thought they just had a normal cold and required ‘plenty of water and rest’.

65.The father agreed that the children did not attend school on Monday 21 April because his car broke down on Sunday 20 April when he was meant to return them after a weekend with him but he said that he returned them to the mother on the Monday night. He denied returning them on the Tuesday night which the mother alleged. The children did not attend school on Tuesday 22 April 2008.

66.The father also denied keeping (overholding) the children on the first day of school of the last term this year.

HISTORY OF PROCEEDINGS

67.Proceedings commenced in the Family Court of Australia on 21 July 2006 when the father filed an application for final orders and an application in a case. He sought in the interim shared parental responsibility and to spend time with the children. By this time the mother had left H (end June 2006) following the incident involving police on 5 June 2006 and was living in K with the children. As at 27 June and then on 10 July 2006 she had obtained first an interim and then an intervention order (or perhaps undertakings) for 12 months. On 23 August 2006 the father attended M Centre to address his cannabis use and M Centre notes state that his primary motivating factor is his children and the court case to be held in the Family Court on 13 November to gain access to his children. On 21 August 2006 orders were made by consent before a Registrar. On 13 November 2006 interim orders were made by consent that provide, inter alia, that the children remain living with the mother, the father spend time with the children overnight each fortnight from 9am Saturday until 5pm Sunday, Ms R to be in substantial attendance for all times spent with the father, the father to undertake supervised urine drug screen tests within 48 hours of being requested to do so by the ICL (appointed in August) and the father to undertake an anger management course. The matter was adjourned to 8 January 2007 and on that day further consent orders were made which extended the fortnight time with the father to start from 6pm Friday, half school term holidays and half summer vacation on a week about basis as well as times on specific days. Other orders provided a restraint on both parties from criticising the other in front of the children or discussing the proceedings and the usual orders for keeping the other informed of medical conditions and the mother authorising the school to send the father material.  It is these orders that were in place until the matter came before Bennett J on 5 December 2007 in circumstances where the mother was not permitting the children to spend time with the father in part because of his marijuana use and excessive drinking and other matters. The father told M Centre on 21 February 2008 that he had been advised by the family court to attend treatment via the service so that he could gain custody of his children; see annexure ‘KDJ4’ to the mother’s affidavit.

MARIJUANA USE BY FATHER

68.The father’s use of marijuana and its effect on his behaviour were important issues in this case. It was identified by the family consultant as one of the key issues in his Children and Parents’ Issues Assessment dated 30 January 2008.

Father’s evidence

69.In his affidavit of evidence in chief the father refers to his marijuana use. He clearly regards this as an issue in the past but does not seem to acknowledge that the effects of its use and his behaviour over the years of his use could have had any lasting and ongoing effect on the children or the mother. I set out the relevant paragraphs in his affidavit:

29.The mother has made numerous complaints against me over this time. She has stated that I drink to excess whilst caring for the children, smoking marijuana and that I am physically abusive to them. I admit that I have had problems in the past in relation to marijuana consumption which affected my ability to control my emotions. I say, however, that I ceased using marijuana early this year and all other complaints levelled against me I firmly deny. I believe that the mother has made this allegation in an attempt to shift the focus away from her own personal issues

21.I have not used marijuana or any other illicit substance for a long period of time. I attended at [M Centre] for some time. Attached hereto and marked with the letters “GB1” is a true copy of a supervised urine screen undertaken on 15 May 2008 which was clean for cannabinoids. I say that I have no desire to smoke marijuana again, and I only now realise how particularly harmful this drug was to me and to my relationships.

22.I stopped going to [M Centre] to see counsellors as I believe that I simply did not need to. I had ceased smoking on my own accord, and it was difficult for me to get time off work, and not get paid for it.

The father was wrong about the May drug screen: it was positive for cannabinoids and benzodiazepines. It was the July test that was the first clean screen.

70.It is perhaps surprising that the father had only limited contact with M Centre in 2008. The evidence of both the father and Ms R was that the father only attended M Centre on two occasions this year. The recommendation of the family consultant in his June report was:

In the event that the court makes a finding that the children live with [the father] is imperative that he remain linked with a drug rehabilitation programme until such time as he is assessed as no longer requiring such level of support.

71.The father has not followed this recommendation. The father was asked in cross-examination why he did not continue with M Centre when he started with them in February 2008. He said:

I started being clean in about April, and I’ve no sensation to touch it or go near it or anything like that.

72.The father identified to Dr K that one of the mother’s main complaints about him would be that he had been on drugs. Dr K reported the father’s version of the history of his drug taking as follows:

He admitted he had been smoking a lot of marijuana which started when he was 15, but he had stopped it in January. At the start of the year he was smoking a quarter, which was seven grams a week, and would cost him $70.00 per week. Half way through the year he was down to two grams a week. He had never used needles as he was scared of them. He had gone to [M Centre] for some treatment, and had been given initially Valium which he took at the start two a day, but that he was not taking it now.  …

At one stage some years ago he had gone to [M Centre] for a ten day program, but it was home based. … Recently he was at [M Centre] for a home based program, and he saw the nurse on that occasion twice. He had already indicated that he no longer was taking the valium.

73.The father is now 32 years old and so he consumed marijuana for about 17 years.

74.In the June 2008 family report the family consultant identified “illicit substance misuse by [the father] and the status of [the father’s] referral and attendance at [M Centre] and current status of urine screen’s” as one of the issues in dispute. Under the heading “interview with the applicant father, Mr [Bartin]” he states at paragraph 13:

[The father] claims that he has attended ‘[M Centre]’ on three occasions for assistance to address his illicit substance use. He claims that he no longer consumes marijuana, having last used it in February 2008. [The father] indicated that, having now ceased using marijuana, he feels better within himself and is currently not spending time worrying about how to ‘score’ additional marijuana. [The father] advised that to date he has completed one urine screen and was to complete another on this day.

Evidence of Ms R of father’s marijuana use

75.In evidence in chief Ms R was asked about the father’s use of cannabis. She said she was aware he had had a problem but now she did not “think it’s an issue any more. He doesn’t in any way seem to want it any more, it’s not part of his life, it’s definitely something he’s moved on from.”

76.Ms R said that since the father had stopped using cannabis it had made “a huge difference – his whole demeanour, he’s a lot calmer, he’s wanting to be more active with the kids .. we’re generally just happier.” Her observations are similar to the remarks the children have made to the family consultant about the father. In paragraph 26 of her affidavit she states:

Since [the father] has given up smoking this year, I have noticed a huge change in his demeanour. It has been great for him, and everyone acknowledges that he is much more pleasant to be around. …

77.Ms R said that if he felt like taking it up again she felt he would talk to her about it and they would look into some counselling or something. She added that if he commenced using cannabis again, that would be the end of their relationship. She expressed it this way:

But I have let him know that if it comes up again, I’m done with it. I don’t really want that in our lives. I don’t think it’s good for the kids, and he’s aware of that.

78.Ms R’s evidence was that the father was aware of her stance and that they had discussed this about February and she remembered repeating it when the first clean drug test came back – that she was proud of him, how great things were and she could not go back.

79.Ms R’s evidence was that the father had stopped smoking marijuana about February 2008 and that he had slowed down [his intake] a while before that. Her evidence was that he usually smoked in the garage and usually after work in the evening. Ms R was asked specifically about the father’s usual practice since they moved to T in November 2007. She said that with the job he had then he would get home about 5pm, talk and relax with her and the children for about half an hour and then go to the garage for a few pipes of marijuana and then return to the house in about ten minutes.

80.Ms R’s evidence was that in about February she went with the father to M Centre and he was prescribed valium to help him sleep which he took for three to four weeks. She said that the father stopped smoking marijuana “pretty much straight away” after his appointment at M Centre. Since then she said she had not seen him go to the garage and everything to do with the marijuana smoking was thrown out. Several times, Ms R refers to these events happening at the beginning of the year, she could not recall exactly the month but it was around February.

81.In re-examination Ms R said she had seen the father throw his bong into the outdoor bin. She said she had very recently been into the garage and saw nothing to do with bongs in there.

Cross-examination of Ms R about father’s marijuana use

82.Ms R said she was with the father in 2002 when he tried to stop his use of marijuana for the first time. She thought he stayed off the drug for probably a month. The father attended at M Centre in July 2002 and Ms R has stated that she commenced her relationship with the father in November 2002.

83.Ms R agreed that the father tried to stay off marijuana in 2006 and thought he did so for weeks rather than months. She said she did not give him an ultimatum then that she would leave him if he did not stay off the drug as she knew it was going to take time and support but that eventually it would happen. She said “It’s a long term thing now, and the ultimatum has been put down”. It was put to Ms R by counsel for the mother that she had put down the ultimatum down not only because of his use and how it affects the children but also because of the way he acted towards her in terms of violence when he was on marijuana. Ms R said:

We haven’t had a problem with violence in a long time. I’m not saying that he wasn’t more aggressive on marijuana but just full stop, I just think it’s not a good environment for any of us.

84.In cross-examination Ms R said that the father used to get home from work about 5pm, sometimes 6pm, sit and relax with her and the children for about half and hour and then go to the garage for about 10 minutes, have a few pipes. She said that although he used to help with the children his involvement has definitely become more since he stopped smoking marijuana. She knew he had stopped because everything [his equipment] was thrown out and the counsellors at M Centre told them that it can take three months for the drug to be out of the system. Ms R believed the first drug test the father took after he had stopped showed positive but the next one after that was clean. It is not clear which tests she is referring to, but the test taken on 15 May 2008 was not clear, but the one taken 9 July 2008 was.

85.In cross-examination Ms R said that although they had talked about what would happen to their relationship if he started smoking marijuana again early in 2008, and she agreed that the father knew her position in February, she said it was not until he got his first clean result that she told him how proud she was of him, how great things were and she could not go back to the way things were.

86.When counsel for the mother said to Ms R that the father’s evidence had been that he had stopped in April and not February, Ms R said she was not surprised as the father is not good with dates. She agreed that she had said he had stopped in February and thrown the equipment out and she said that she did not believe that he was smoking in April.

87.Significantly, Ms R described the father’s demeanour before he stopped using marijuana as being more short tempered and quicker to become angry about something rather than thinking it through. Ms R said that generally the children did not know about the father smoking marijuana and they only became aware of it since the court case began. She believed that the mother had told the children. If the family consultant was reporting that the children themselves stated that the father’s behaviour had improved since he had given up smoking, however, Ms R agreed that these were their words and did not come from the mother.

Cross-examination of Ms R by ICL about father’s marijuana use

88.Ms R told the ICL she was very confident that the father can stay off marijuana and that if he did relapse he would seek help. She did not feel it was going to be an issue in their lives any more. She said she knew the father in 2002 when he first went to M Centre and again in 2006 when he tried to give up. She said the difference now was that he needed time  - you try, you fail, you try, you fail – and this time he has been off it for a longer period and he has noticed a difference himself and he is aware that things are generally happier in the house. Ms R said she went twice to M Centre with the father in 2008 as a support.

Evidence of father’s mother about his marijuana use

89.The father’s mother makes no reference to the father’s marijuana or alcohol use in her affidavit. In cross-examination by counsel for the mother the paternal grandmother said she was not aware at the time that the father had started smoking marijuana at age 15. She said she was concerned that he had smoked marijuana for 17 years but “it was his choice to still do it but now he’s done something about it and he’s stopped.” The paternal grandmother said she believed he would not start again. She was aware that he had tried to give up marijuana in the past and said that she had supported him all along.

Mother’s evidence of father’s marijuana use

90.The mother’s affidavit of evidence in chief under the heading ‘Applicant’s use of illicit substances’ sets out her evidence of the father’s marijuana use in paragraph 13:

13.That since the age of 15 years I am aware that the applicant father has used cannabis on a daily basis until the present time. During my relationship with the applicant, the applicant smoked marijuana on a daily basis (at an approximate cost of $140.00 per week) and drank alcohol to excess most weekends. The applicant was repeatedly verbally and physically aggressive towards me whilst he was under the influence of alcohol and drugs.

91.In paragraphs 15 and 16 the mother sets out her evidence of the father’s attendance at M Centre in July 2002, September 2006 and February 2008. She produces and relies on various documents produced on subpoena by M Centre recording intake assessments, progress notes and a case summary.

92.At paragraph 15 she states:

That in or about July 2002 I am aware that the applicant underwent an Intake Assessment at [M Centre] for his proposed attendance at an inpatient withdrawal program. During this assessment the applicant admitted to an aid worker at [M Centre] that he was physically abusive towards me as a result of his craving for cannabis. He also admitted that he has driven his motor vehicle while he was ‘stoned’, even though his driving licence had been suspended. The applicant was referred by the aid worker to an Inpatient Withdrawal program and informed that he needed to address the issue of anger management. The applicant stated that he did not want to attend a long term program and/or counselling. The applicant did not complete the Inpatient Withdrawal program but instead elected to undertake the home based withdrawal treatment program which he completed. Now produced and shown to me and marked with the letters ‘KDJB 3’ is a copy of the [M Centre] Intake Assessment dated 18 July 2002 in relation to the applicant.

93.The Comments noted in the father’s M Centre intake assessment and case summary document dated 18 July 2002 -attachment ‘KDJB 3’ – state:

Smokes cannabis mostly alone – however does use with others. Client stated that he becomes verbally and physically aggressive whilst withdrawing and/or craving cannabis. He stated that he was physically abusive towards his now ex-partner. Suicidal ideations in the past. Discussed safe sex practice at length with [the father]. Drives whilst ‘stoned’ even though his licence has been suspended. Discussed dangers of this behaviour.

94.      The case summary notes also show:

Advised to address Anger Management Issues

·    Client is not wanting to attend long term program

·    Will think about addressing this issue.

95.Paragraph 16 of the mother’s affidavit covers the father’s treatment at M Centre in September 2006 and February 2008. It states:

That in or about September 2006 I am aware that the applicant completed a home based withdrawal treatment program via [M Centre] after which the applicant reported a 4 week period of abstinence. Also, on 21 February 2008 the applicant discussed his proposed attendance at a further withdrawal program. On 25 February 2008 the applicant informed the aid worker at [M Centre] that he did not commence his cannabis withdrawal over the previous weekend and made arrangements to attend an appointment on 3^rd March 2008. However, since 25 February 2008 [M Centre] have been unable to contact the applicant by telephone. The applicant failed to attend his appointment on 3 March 2008. On 11 March 2008 [M Centre] closed its file. Now produced and shown to me and marked with the letters ‘KDJB 4’ and ‘KDJB 5’ respectively is a copy of [M Centre’s] progress notes in relation to the applicant and a copy of [M Centre’s] case summary dated 21 February 2008 and progress notes in relation to the applicant.

515.It was then put to the family consultant that the pattern of the last year has been one of relative stability compared to the preceding four years and he said that this would appear to be case. He said there is a risk on both sides. There was a risk of the father’s return to cannabis, a return to any family violence, a risk of whether the court makes a finding in terms of his alcohol use – layered risks. He saw a link between cannabis use and domestic violence.

516.In re-examination the ICL put to the family consultant that the father had clear urine screens in May July October and November 2008 and would this give greater confidence in terms of his assessment of risk. The family consultant said “to some extent, yes. It’s still relatively new changes”. But in fact, the May urine screen results do not show a clear result – see Exhibit F1 – in May cannabinoids and Benzodiazepines were detected.

517.The risks on the mother’s side were said to be the long term association with support agencies and the ‘revolving door’ situation.

518.In conclusion, the family consultant still recommended that the children live with father.

FINAL ADDRESSES

ICL

519.The ICL supported a change of living arrangements for the children. The reasons for change identified in final addresses by counsel for the ICL were:

·    To protect the children from neglect.

·    The children’s schooling. Counsel submitted that the children’s schooling has been most disruptive and pointed to B having attended five separate schools on six occasions in six years and three different prep schools for N. He could not say, however, whether those multiple changes were attributable only to the mother.

·    History of absences from school

·    Failure of children to meet their full potential

·    Hygiene issues in the mother’s house

·    Difficulties of mother to maintain a clean home environment

·    N’s wish to live with his father

·    Headlice incident in June 2008. Counsel for the ICL submitted I should prefer the evidence of Ms R over the mother.

·    Failure of mother to take children to paediatrician

·    History of mother’s engagement and non-engagement with support agencies

520.The ICL submitted that the children’s educational, emotional and social needs need to be put first.

521.Counsel for the ICL referred to Mrs EG’s October report – the poor personal hygiene of B and C – and also referred to the staff at the child minding at the Family Court  saying that B and C had odour problems. Counsel for the ICL made reference to what the mother described as C’s accident or incontinence on 27 October and stated that Mrs EG “suggested that that is not something that was fresh, it was stale, it was old”. There was, he submitted, a very clear difference between the two sets of events. I have already set out the evidence of Mrs EG on this point. I do not accept that this is something more serious than simply an accident.

522.The ICL submitted that the evidence of Ms JB may not be reliable about her seeing a bong in the father’s car. The main reason the ICL gives is because she got the date wrong when she said she went there and did some cleaning for the mother. 

523.The IC referred to the evidence of the mother’s history of depression and to the evidence of the father’s drug history but did not invite me to draw any particular conclusion from the evidence.

524.The ICL said that N said to the family consultant that he had caught the father with a bong in September not that he had caught him smoking it.  The ICL submitted that at its highest it was an isolated event and it is denied by the father.

525.In terms of the ICL’s proposed orders counsel for the ICL submitted that separating the children out of the father’s household more than every second weekend to spend time with the mother is “simply going to be too difficult”. He also submitted that the children spending half of each Christmas Day with each parent is too disruptive and will not work on ongoing basis.

MOTHER

526.Counsel for the mother submitted that the children have been residing with mother all their lives and they have their primary attachment to her. They have a secure attachment to her. She submitted it was not as revolving a door as portrayed. She also submitted that I can have confidence from the assessment made by Child FIRST – positive outlook – the mother has capability and willingness to work to overcoming the problems. She submitted that the care for children in the father’s household will mostly fall on Ms R as the father is at work from 5am to 3pm and in 2009 there will be five going to school. With respect to the glass door incident when the father became angry, this was consistent with the description by Dr K who described him as a personality who might have a tendency to become angry.

527.The mother’s counsel put that the criticisms of the mother for failing to engage with services was ironical because the father’s lack of success with giving up drugs in 2002 and 2006 showed that M Centre became his revolving door. The father did not comply with paragraph 10 of the orders made 5 February 2008 orders to undertake a course at M Centre for drug and alcohol rehabilitation.

528.Counsel referred to the mother saying that the children are the mother’s life. She does not work, smoke, drink, take drugs and asked me to take into account Dr K’s report with respect to the mother’s depression, and her maternal instinct.

529.Counsel for the mother agreed that the children would do better if they attended school more regularly but submitted that they are still doing well.

530.Counsel for the mother also raised the issue of no mention of T’s existence in the father’s case.

FATHER

531.In summary counsel for the father submitted:

·Overall interests of the children are paramount;

·If children are her life then she has failed;

·Mother has had difficult life;

·16 changes of addresses and 7 schools;

·Serious and pitiful neglect – telling test/litmus test is the head lice incident – his words are quoted elsewhere;

·Weekend of 31 October – B in a sexualised outfit; C wearing “an inappropriately style of trousers and boob tube”. This was not the evidence, which I have set out elsewhere;

·Recommendation of the family consultant. – must carry a great deal of weight, great deal of investigation into the issues, mother’s counsel put domestic violence to the family consultant and he still recommended a change;

·Evidence of weekend of 31^st October – why did the mother’s solicitor not act more quickly requesting test, was it malice?  But bottom line is the drug screen was clear;

·HOUSE CLEANLINESS - Counsel referred to Ms CN’s report of state of mother’s house on her return visit. He exaggerates her evidence in his submissions and states: “it’s a bomb site, it’s a site of serious neglect, of health issues that have arisen to the surface, with the food scraps and other things throughout the house”.  Counsel the father then stated “The question you Honour might need to ask yourself is this: might the state of the house, the unfortunate description of the toilet and bathroom area in one of the reports, with human faeces still…”. What counsel does not say is that this reference to the description of the toilet is a reference to a note in ICL11 for the dates 11/12/02-5/2/03. At that time the mother is pregnant with J (born in February 2003) , and according to ICL1 she and the children are living with the paternal grandmother from November 2002 to May 2003and even if it refers to the period when the mother lived at D the grandmother states she is visiting every day and providing support;

·The school is saying a change of school would be beneficial. Mother should have been looking for another school;

·Routine of Ms R and father to keep their house in order;

·Aboriginal heritage - critical of mother reading children dreamtime stories only.

532.    I will now turn to the application of the law to the facts.

CONCLUSION -THE FACTS AND THE LAW APPLIED

533.I have set out the law to be applied earlier in this judgment and a summary of much of the evidence. I have already made some findings in that process. In applying the law to the evidence, I will state, in this section, the facts as I find them, when considering the application of the relevant sections of Part VII.

Equal shared parental responsibility

534.Both parents seek this and the ICL supports it. I propose to make such an order by consent. In seeking such an order, the parties are giving effect to the presumption set out in section 61DB. The order that I will make engages s65AA and requires me to consider equal shared time, or significant and substantial time.

Equal shared time

535.Neither of the parents (nor the ICL) seeks an order for equal shared time. The parties’ living arrangements mean that they are more than one hour’s drive away from the other’s home, and a similar distance from the school that the children are likely to attend under each party’s proposals. The parties do not see equal shared time as reasonably practical, and I consider that their reasons for taking this view are well founded.

Significant and substantial time

536.The present arrangements for the children to spend every second weekend with the father, plus half of school holidays and certain other times do not really satisfy the test for significant and substantial time, but in final addresses, counsel for the father accepted the recommendation of the family consultant that more frequent (weekend) periods would be too disruptive for the children, weeknights are not practicable, and no order for an increase in the weekend or holiday time to be spent with the father was sought, if the children were living with the mother. The father’s case was that if the children were living with him, and the mother moved to live closer to where he resides, the children should spend from Friday after school to Monday morning at school with her each second weekend, which would be practicable because of the reduced travel time.

537.The mother’s case was that if the children were living with the father, they should spend three out of four weekends with her, plus half school holidays. Even this, however, does not satisfy the ‘weekday’ requirement of s60CA(2), and the reality of this case is that the travel distance between the parents’ homes makes it very difficult for either of them to have any weekday involvement in the children’s lives.

538.The mother’s case did not explore what might be possible if she moved to live closer to the father: this move was not part of her proposals and arose out of an answer given in cross examination of the mother to the effect that she would certainly consider moving closer if the children were living with the father. There are significant unknown quantities about such a move, however, particularly the time frame within which public housing for her (and the children when with her) might become available, and on her pension-only income, she is not a candidate for rental accommodation in the private rental market, and it was not submitted by anyone that she was. I can not therefore predicate any order on the basis that such a move is likely to take place in circumstances that would make it reasonably practicable for the mother to have significant and substantial time with the children if they moved to live with the father as sought by the father.

539.In the circumstances, I find that further consideration of equal shared time, or significant and substantial time is not required in this case, because of the impracticalities of giving effect to these concepts.

540.I now turn to ascertaining what parenting orders (in addition to the order for equal shared parenting that will be made by consent) will be in these children’s best interests in accordance with s 60CC(1). That section requires consideration of the primary considerations identified in (s 60CC(2) and the additional  considerations in s60CC(3), all to be seen in light of the objects and underlying principles set out in section 60B, which are reproduced in the extract from the judgment of the Full Court of this court in Goode, set out above.

541.In the context of this case, I find that of the objects in s 60)B(1) (a)(b)(c) and d) all require consideration in this case, and of the underlying objects in s 60(B)(2), (b), (c) and (e) require consideration when examining the primary and additional considerations.

542.    Primary considerations

(2)     The primary considerations are:

(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.

Note:

Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

543.As to the first of these, I find that the children presently have a meaningful relationship with both parents, and I find that they benefit from those relationships. The fact that there are matters deserving criticism in both parents’ behaviour, past and present, and questions about their ongoing capacity to parent appropriately, does not take away from the fundamental finding I make under this primary consideration that there is a benefit to the children in their present relationship with each parent. The fact that neither parent seeks orders that would exclude the other from the children’s lives recognises this reality. It becomes important, therefore to identify any threat to the continuation of those relationships. There is, I find, a basis for real concern that in the father’s care, the continuation of the children’s presently beneficial and meaningful relationship with their mother might not be given the priority it deserves. He has a very poor opinion of the mother. He expresses this in the children’s presence, and has done so very recently, as reported to the family consultant. If the children were living with him on a full-time basis, it seems inevitable that they would be exposed to such expressions on an ongoing basis, and that his attitudes could be reflected in an unwillingness to ensure that the children’s relationship with their mother was promoted by spending time and communicating with her on a regular basis. There are other matters relevant to the additional considerations that add to the grounds for this concern, and it calls for significant weighting in my consideration of these children’s best interests.

544.I find that the mother is likely to continue to promote the children’s relationships with their father as long as there are no fundamental and well-founded concerns for their safety in his care.

545.The second of the primary considerations set out above identifies the high priority that the legislature has attached to protecting children from the psychological harm that may be caused by being subjected or exposed to abuse, neglect or family violence. Here there are significant allegations of neglect against the mother in terms of her housekeeping, her application to getting the children to attend school, and her attention to their needs for specialist medical assessment and support in the form of counselling. Other areas where allegations of neglect are made include the hygiene problems of B and C, and the incident involving head lice. There is much substance to these allegations, and I find that there is a real concern that if unaddressed, these aspects of neglect will impact adversely upon the children’s wellbeing, including their potential to achieve their full capacity, both educationally and socially. Specifically, I consider that there been an ongoing pattern of inadequate housekeeping, attention to health care (head lice incident, paediatric appointments) and ensuring school attendance on the part of the mother.

546.Under the second primary consideration, there are clearly identifiable concerns arising from the father’s conduct during his cohabitation with the mother, and since. I refer in particular to the father’s propensity for anger to be expressed in verbal and physical abuse. This has been evident in his relationships with both the mother and Ms R. The children have described him as angry and verbally abusive to Ms R in the context of the recent breaking of the glass door panel. Their statements to both the family consultant and Ms CN do not support the view that anger is a feature of the father’s behaviour that is only to be found in the past. For C to tell the family consultant that her first wish is “to become invisible so that dad can’t hit me” leads me to find that she has been subjected to physical abuse by the father.  C’s further statements to the family consultant about getting smacked and not feeling safe at her father’s home only confirm that this is a matter of significance that has been manifested in the very recent past.

547. I find that the last incident of physical violence within the father’s relationships with the mother and Ms R that is identifiable in the evidence is the incident at H that occurred in June 2006. I accept the mother’s evidence that the father was violent to Ms R on that occasion in the manner described by the mother, and I find that the father sought to obstruct the police from entering his premises to investigate the report that they had received. This led to the police attempting to subdue the husband with capsicum spray in an incident where he appears to have given no thought whatsoever for the fact that all the children were present in the home, other than Y, who was not born until after that time. I find that Ms R, although truthful in much of her evidence, was prepared to give false evidence about the father’s conduct where it reflected so badly on him, as it did on this occasion.

548.The family consultant’s evidence about the adverse effects that exposure to violence can have on the children is unambiguous. The mother’s neglect may have a long term impact on the children also. Both these aspects of the second primary consideration will be further considered when I have examined the additional considerations.

549.    Additional considerations

.           (3)     Additional considerations are:

(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;

550.Under this I take into account the children’s views as expressed to both the family consultant and to Ms CN. I have set out the evidence in some detail already and will not repeat it here. B does not appear to have (or want to express) a particular view about which parent she would like to live with

551.N has recently expressed the view to the family consultant that he would like to live with his father, having said in June that he would consider doing so. When asked by the family consultant for his reasons, N referred to the father having more money and being able to do more things. At 9, N is starting to enjoy activities with his father such as go-kart driving and activities at the paternal grandparents’ farm which includes motor cycle riding. It is very understandable that N finds these attractive, but they would not be a feature of daily life in the father’s household. N’s views do not demonstrate any reflection on what it would be like to live away from his mother, and I find that having regard to his age and lack of maturity, N’s views should not be given significant weight in my determination of the children’s best interests.

552.C’s views are a little more complex, including, as previously set out, a concern about being hit on both hands really hard (by her father) and wanting to go back to her mother’s home. Taken together with her first wish, and expressed desire to feel safe, not frightened, her wish to live with her mother requires  some considerable weight, even when her young age and lack of maturity are taken into account, because it is founded on her need to feel safe, and her statements adequately explain why she feels that need.

553.J’s views were negative about the fact that the court forced him to go to the father’s home regularly and the inference to be drawn is that he would not want to live there. His reasons for these statements were not explored, and at his age, they can not be given great weight.

554.   

(b)      the nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

It is not either parent’s case that the children do not have a close relationship with the other parent. The children’s relationships with the father’s mother and Ms R are not challenged in any way: they are solid family relationships from which the children derive many benefits, some of which will call for further consideration under another heading. It is also apparent that the children regard the father’s three children with Ms R as family members. This latter fact no doubt contributes the positive views that some of the children have expressed about spending more time in the father’s household.

555.   

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

I have already expressed a view about some aspects of this consideration when dealing with the first primary consideration. In addition to the father’s low opinion of the mother, and its possible impact on the children’s ongoing relationship with her, I find that the children’s “close and continuing relationship” with the mother will depend, if they live with the father, on seeing their mother very regularly, and that requires transport that she would be unlikely to be able to afford without the father providing a substantial share of the travel, as he does at present. I find, however, that the father has shown himself willing to put his capacity to provide transport at risk by allowing his licence to be forfeited because of accumulated demerit points on at least two occasions, and he has lost it for other reasons, as the record shows. It is no comfort on this point to find, as I do, that the father is quite willing to drive without a licence because he needs to work. If the children were with him, the absence of a license could be used as a reason for not transporting the children to see their mother. I would certainly not want to be seen to make an order that might depend on continuing breaches of the law for it to be effective. Ms R requires a licensed driver with her and it is equally of little comfort that she is prepared to drive without such a driver present in the car.

556.The father’s plan to obtain a larger van for the transport of all 7 children was not supported by evidence of any capacity to fund such a purchase, and in a single income family with 7 children (occasionally 8 when T visits) the provision of such a vehicle, though obviously necessary, is by no means demonstrated to be achievable.

557.I therefore conclude that I am unable to find that the father has, and will have on an ongoing basis, the ability to support the children’s relationship with their mother if they live with him. 

558.

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

My findings under the last consideration carry over into this area in terms of the transport aspects of practicality and expense.

559.The issue of the effect on the children of separation from their mother was approached by the father and the ICL on the basis that might be summarised: “Sure they’ll be upset, but they’ll get over it”, and this may not be an inaccurate summary of what might happen. Of great concern to me is that the acknowledged short term distress is going to be occurring in the context of a new school, a household of seven children, and in circumstances where the father’s case is that a fresh start will ‘fix’ the problems the children have been experiencing in their present school situation. The family consultant recognised that the problems (at school) could well remain even if the children were to live with the father, and that there was no way of predicting what the outcome might be. Accordingly, I find that there is a real danger that the children’s presently satisfactory progress at school, and the improvements in their soiling and odour problems observed by a number of witnesses as the year has progressed, could regress and become much worse if they are removed from their mother’s care. 

560.   

(f)       the capacity of:

(i)       each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Both parents have shown real shortcomings in their capacity to provide for the children’s needs, and both have expressed a desire to improve. Both have demonstrated recent improvements in a number of areas but neither has demonstrated a commitment to engage in ongoing mechanisms for improvement: the father’s abrupt disengagement with M Centre earlier this year, in spite of a court order requiring him to continue there, is one example. The mother’s failure to follow through on her second paediatric referral (after attending Dr S and being rejected as a patient by him) is another. The mother’s sporadic engagement with services and improvements that ebb and flow accordingly is another.

561.On the positive side, the father has the very strong support of Ms R and his mother in maintaining the changes that he has made.

562.The mother, for her part, has expressed a commitment to continuing to improve in areas such as school attendances, hygiene, household cleanliness and other areas. Neither party’s declarations of intention to change has withstood the test of time. The mother’s home was still messy when seen by Ms CN on her second visit. The father may have recently used marijuana on one occasion and certainly gave vent to his anger in the context of the glass door incident. How he would manage the additional pressures of seven children in his household on a full time basis is far from clear. I do not consider that I can find that either parent is better established on the road to necessary change than the other.

563.I attach weight, however, to Dr K’s evidence that the mother’s depression is likely to pass if she remains the children’s carer. I accept that the mother has seen herself as depressed, basically since the father left her and had a child with Ms R so soon after. I also attach weight to Dr K’s evidence that the mother has a dependent personality type, and this in part explains to me why she would follow the father through changes of address as far afield as H, and remained dependent on Ms R and the father’s mother until the June 2006 incident. The mother has, in the last two years, shown that she can live without that support which the father’s mother and Ms R gave willingly, and I find that she has a reasonable prospect, and certainly the intention, of addressing the children’s needs on a variety of fronts with more understanding of those needs. I certainly accept that she intends to do this, and the fact that she has at last been to SECASA to address her personal abuse issues is a positive indication that she will seek the help that she needs. Her demeanour in the witness box during cross examination that extended over two sitting days was not that of someone who was overwhelmed or giving up. She remained positive and impressed me as having already begun to shed the weight of past experiences.

564.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(g) and (h) can conveniently be considered together in this context. The children’s aboriginality is an important feature of their identity, as is their right to enjoy the culture of that background. In this case, the evidence clearly establishes that the father and his mother have provided the children with the connections and exposure to extended family relationships that is so important to their being able to identify with their background. I accept the evidence of both of them about these matters. I also accept, as does the father, that the mother is supportive of maintaining those family and cultural links. There is no evidence, however, of any day to day activity that the children engage in with either their father or their grandmother in this context, when the children are with them. No doubt there would be greater opportunity for such activities if the children were living with the father, but there was no evidence of any such activities that are engaged in by him (or his mother) with his three children with Ms R, who do live with him full-time. The primary source of developing their sense of awareness and understanding of their aboriginality appears to come from their ongoing contact with extended family in country Victoria, and their father and grandmother will ensure that this continues. The opportunities for the children to travel to maintain those relationships (or to have visitors in their home from the family’s country relations, identified by the grandmother, will, on either parties’ case be limited to weekends and holiday periods, and this is something that I take into account, and give weight to, when considering whether an order for the mother to have the bulk of the weekends, if living with their father, would be appropriate. I consider that the mother will continue to support the maintenance and development of the children’s identification and engagement with their aboriginal culture and origins.

565.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family,

I will consider (i) (j) and (k) together and say that I consider that (i) is well canvassed in my earlier findings thus far. In summary, both parents have shown real shortcomings in their attitudes to the responsibilities of parenthood in ways that have been largely set out thus far. I further find, however, that the father’s willingness to allow his demerit points to accumulate this year to the point where he lost his licence shows a particularly irresponsible attitude in my view, at a time when two families were dependent on his ongoing income for support. The fact that he kept working by driving illegally is not an answer: by doing so, in my view, he puts himself at risk that he will be charged with another charge of driving whilst suspended or disqualified, and such conduct could have very serious consequences – even leading to a custodial sentence that was not suspended, as earlier ones have been.

566.I have canvassed the family violence issues extensively in the context of the second primary consideration and elsewhere. It has occurred at a very serious level and is, in my view, a factor that can safely be consigned to the past in light of the glass door incident, which I find was an overt act of violence against property on the part of the father, and that his attribution of responsibility to O was false.

567.

if:

(i)       the order is a final order; or

(ii)the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

I find that there is no order in this case that will be least likely to lead to further proceedings:

568.

(m)any other fact or circumstance that the court thinks is relevant.

Under (m) I consider that the evidence of Ms CN and Ms GR is important. They assess the mother as willing to engage at a level that means that they will continue to provide services to her. I was impressed that Ms CN has, in her recommendations, identified key issues for the direction of further engagement, and I express the earnest hope that the case manager appointed to the mother will read this judgment and ensure that the mother is given every available assistance in her continuing care of the children which, I find in the light of the findings and matters of weight already set out, will be in their best interests. Ms EG expressed a willingness to work with the mother’s supports if the children remain in her care, and I certainly hope that this occurs also.

569.My decision goes against the recommendations of the family consultant, and the ICL. The family consultant had not been exposed to important evidence in the case – the parties’ affidavits, and Ms CN’s report - until he was in the witness box. I consider that he had no real opportunity, before making his recommendation, to reflect on the depth and scope of the evidence in a case that he described as multi-layered and complex. I have had that opportunity and consider that the mother has the intention to change, and is likely to be better able to accept and act on support once her depression is gone. An order in her favour will not involve another change of housing or school, with their attendant uncertainties as to how the children would cope in circumstances where their mother was no longer part of their daily lives, and I have much greater confidence in her willingness and ability to support the father’s relationship with the children than I have in the father’s willingness, and ability to do the same towards her. I consider that the father and his mother will continue to support the children’s aboriginality in the ways that they have to date. Their evidence of visits to family members at weekends, and the family consultant’s recommendation, point to an “every second weekend” regime in this case whatever the outcome in terms of where the children will live. That would, in my view, be a particularly unsuitable outcome for these children if they had been removed from their mother’s care, and would not ensure the continuity of a sufficiently meaningful relationship with her in circumstances where she has been part of their daily lives until now.

570.    I will therefore make orders to give effect to this judgment.

571.As to ancillary disputes, I consider that a 24 hour response time to a testing request once per month is justified by recent events, and the father should go out of his way to ensure compliance. I also consider that the father should notify the mother within 48 hours if Ms R leaves in circumstances where she is no longer a member of his household.

572.I also consider that the children should spend this Christmas holiday period with their parents on a week-about basis. J, who has made the best start so far in the education system, starts school next year and will, I consider, be better able to withstand a separation from his mother of some weeks duration  when he has completed his first year of schooling.

573.    I will now make orders to give effect to this judgment.

I certify that the preceding five hundred and seventy three (573) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt

Associate: 

Date:  15 December 2008