Berkeley and Berkeley

[2014] FCCA 778

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERKELEY & BERKELEY [2014] FCCA 778

Catchwords:
FAMILY LAW – Contested parenting applications – mother has exposed children to family violence through her new relationship – mother’s parenting inadequate – children’s education not a priority for the mother – children to spend one week each year with the maternal grandmother who is custodian of their cultural heritage. 

Legislation:

Family Law Act 1975, ss.60 CC, 61DA, 70NAE

Mazorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4

H & H [2003] FMCAfam 41

Applicant: MS BERKELEY

Respondent: MR BERKELEY

File Number: CSC 372 of 2008

Judgment of: Judge Willis

Hearing dates: 2 & 3 September 2013, 23-25 October 2013

Date of Last Submission: 25 October 2013

Delivered at: Cairns

Delivered on: 29 April 2014

REPRESENTATION

Solicitors for the Applicant: Mr Laursen/Self-represented

Counsel for the Respondent: Ms Wilson

Solicitors for the Respondent: Marino Moller Lawyers

Counsel for the Independent Children’s Lawyer: Ms Mayes

Independent Children’s    Lawyer: Ms Susan Gray

ORDERS

1. All previous Parenting Orders be discharged.

2. The father have sole responsibility for the major long term issues for X, born (omitted) 2001; Y born (omitted) 2002; and Z born (omitted) 2006 (“the children”) including but not limited to:-

   (a)their education (both current and future);

   (b)their religious and cultural upbringing;

   (c)their health;

   (d)their names;

   (e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

3. In exercising his sole parental responsibility, where circumstances permit, the father is to advise the mother in writing of any major, long term decision to be made at least 21 days prior to making the decision.  The mother has 14 days thereafter to provide any response to the father orally or in writing.  Once the father has made the decision, he is to convey the outcome to the mother as soon as practicable. 

4. Notwithstanding the provisions of Orders 2:

   (a)The mother will be responsible for the day to day care, welfare and development of the children when they are living with her; and

   (b)The father will be responsible for the day to day care, welfare and development of the children when they are living with him.

Living arrangements – school term

1. The children are to live with the father.

2. During school terms and subject to the following conditions, the children will spend time with the mother as follows:

   (a)each alternate weekend from after school Friday until Sunday at 5:00pm;

   (b)each Wednesday from after school until 7.15 pm, with the mother to collect the children from school and to return the children to the father’s residence at the conclusion of this time;

   (c)At any other time as agreed between the parties;

   (d)On the condition that the mother forthwith enrols and attends for Domestic Violence counselling with an accredited agency;

   (e)The mother is to file and serve a short Affidavit within 30 days of today’s date confirming her compliance with Order 6(d) herein.

3. For the purpose of weekend contact, the mother will collect the children after school on Friday and the father will collect the children from the mother’s residence (or other agreed place) on the following Sunday at 5:00pm. 

Living arrangements – school holidays and special days  

1. Unless otherwise agreed between the parties, the children will spend half the Queensland gazetted school holidays with each parent as follows:

   (a)with the father for the first half in odd numbered years and the second half in even numbered years;

   (b)with the mother for the first half in even numbered years and the second half in odd numbered years.

2. Time for the purpose of Christmas/New Year school holidays will commence at 5.00 pm on the last day of school and will conclude on Friday prior to the first day of school with the halfway point to be calculated between those dates.

3. Unless agreed otherwise and subject to Order 11 herein, the children shall spend time with the parents on special days as follows:

   (a)with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend, and to effect this, the alternate weekends provided for in order 6 herein are to be swapped if necessary;

   (b)with the mother on the mother’s birthday from 3:00pm to 6:00pm;

   (c)with the father on the father’s birthday from 3:00pm to 6:00pm;

   (d)On each of the children’s birthdays, all of the children are to spend time with the parent with whom they are not otherwise living from 3:00pm to 6:00pm when the birthday occurs on a school day or one half of the day when the birthday falls on a non-school day.

4. IT IS NOTED that the opportunity to spend time with the children on special days as provided for in Order 10 herein, is not intended to interrupt any school holiday period provided for in these Orders. 

Handovers

1. Other than as specifically provided for in Orders 6 & 7 herein, handovers will occur at the children’s school where possible, or if the children are not attending school at each of the parent’s residences, unless otherwise agreed.

Telephone communication

1. During the school term, the father is to facilitate the children contacting the mother by telephone (or Skype) after school at 4:15pm or other time as nominated by the father each Tuesday and Thursday when the children are living with him.

2. During the school term, whilst the children are spending weekend time with the mother, the father is at liberty to have telephone contact on one occasion with the children, which the mother is to facilitate.

3. During the school holiday periods, each parent is to facilitate the children contacting the other parent by telephone (or Skype) on no less than two separate occasions during each week the children are in their care.  That communication will occur on Tuesday and Thursday at 4:15pm, unless other days or times are nominated in advance by the parent with whom the children are holidaying. 

4. The father will facilitate the children Y and Z to attend upon a child psychologist within one month of the date of these Orders.  Each parent is authorised to contact the psychologist and receive advice as to the children’s progress and each parent will attend for any appointment or interview as requested by the child psychologist. 

5. Each of the parties are restrained from denigrating each other or each other’s family directly to the children, or in the presence or hearing of the children and shall remove the children from the presence or hearing of any other person engaging in such denigration. 

6. Each of the parties are restrained from physically disciplining the children and each shall ensure that no other person physically disciplines the children. 

7. These Orders authorise the mother and father to receive school reports, newsletters and any other information regarding the children’s schooling which is normally provided to parents at their own cost. 

8. The mother and father are each permitted to attend any school activity that parents are usually invited to attend, subject always to the discretion of the school authorities. 

9. The Independent Children’s Lawyer is to attend with the Family Consultant this morning, following this judgment, to explain these Orders to the children.  Neither parent will communicate with the children the contents of these Orders until such meeting has occurred. 

10. Contact arrangements from the date of this Order are to occur as follows:

    (a)From today, the children are to remain living with the father.  The mother’s time with the children pursuant to these orders is to commence on Wednesday 7 May 2014, and the mother’s first weekend contact is to occur on Friday 9 May 2014. The children’s telephone time with the mother will not commence any earlier than Sunday 3 May 2014. 

    (b)The mother is to deliver to the father any of the children’s belongings that should be permanently remaining with the children at a time as agreed between the parties, and failing agreement, by no later than 5:00pm on Sunday, 11 May 2014.  

11. The father is to ensure that for one week of his holiday time with the children each year, he makes arrangements with the maternal grandmother to enable the children to spend a week with the maternal grandmother to engage with their cultural heritage and such time may include the grandmother travelling away with the children to visit relatives as has occurred in the past. 

12. The Independent Children’s Lawyer is discharged once she has complied with her obligations pursuant to these Orders. 

NOTATION:

A.The Court notes that the father has offered to pay the mother the sum of $20.00 each week towards the cost of travelling when the mother travels to (omitted) for time with the children pursuant to Order 6(b) herein.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 372 of 2008

MS BERKELEY

Applicant

And

MR BERKELEY

Respondent

REASONS FOR JUDGMENT

1. In this matter there are three children, X, born (omitted) 2001, currently 13 years of age, Y, born (omitted) 2002, currently 11 years of age; and Z, born (omitted) 2006, currently 7 years of age.  The parents of these children, Ms Berkeley (the mother), and Mr Berkeley (the father) are unable to agree on the living arrangements of X, Y and Z.  More accurately, X is currently living with the father and has chosen to live with his father since September 2012, following a very violent incident with his mother. 

2. The mother, who is self-represented, still seeks orders that X, along with Y and Z live with her.  There was a reluctant concession at the end of the trial by the mother in her final submissions that this was highly unlikely, given X’s age being almost 13, and him being a very strong-willed boy who has expressed very strong views about living with his father.  At the time of this trial both X and Y are living with the father, pursuant to interim orders made on 20 December 2012 following an interim hearing.  At that interim hearing it was also ordered that X and Y spend time with the mother each alternate weekend commencing on 4 January 2013.  An order was made also that Z live with the mother and that Z spend time with the father each alternate weekend when X and Y are not spending time with the mother so as the children are all together.  That time was to commence on 11 January 2013.

3. The mother seeks an order that all of the children remain living with her whilst accepting that, at least at present, the strong wish of X is to remain with the father.  The mother says that she should, at least, have Y and Z living with her.  It seems to be the mother’s position also that if the Court decides that X and Y should remain where they are living that the Court should also make an order that Z remain living with the mother.  The mother lives in (omitted) and the father lives in (omitted), a distance of 75kms apart. 

4. It is the position of the father that all of the children live with him.  The father seeks an order for sole parental responsibility.  The mother is opposed to this order and seeks an order for equal shared parental responsibility.  The Independent Children’s Lawyer (“ICL”) in this matter seeks orders that all of the children live with the father, and that there be an order for sole parental responsibility for the father, subject to him notifying the mother of significant decisions to be made.  There are other specific orders set out in each of the applications.  I have received a draft from the Independent Children’s Lawyer of orders sought and also a draft from the father.

5. The remainder of the orders deal with telephone time, special occasions, birthday time and there does not seem to be much difference in those orders being sought.  At the conclusion of the trial the Family Report Writer gave evidence that she supported moving the youngest child, Z, from the care of the mother to the father and that all of the children live with the father.  In the event that the mother moved to reside in (omitted) ((omitted) being around 75 kilometres away) the Report Writer supported orders that saw the children spending more time with the mother and supported a sharing arrangement on the basis of nine days with the father and five days with the mother.  The Family Report writer did not support an equal time arrangement. 

6. In her closing submissions the mother, having heard this evidence, said she had thought about her position overnight and that if it meant that she had a shared-care order she would move to (omitted).  The mother’s idea of a shared-care order is week on, week off.  I note for the record that the possibility of the mother moving to (omitted) was raised at the time of the interim hearing in December 2012 and there were mixed opinions voiced by those acting on behalf of the mother to the effect that she would be moving to (omitted) and then later that she did not intend to move to (omitted).  In any event, at the time of the trial the mother had not relocated to (omitted) and remained living in (omitted). 

Parties’ History

1. These parties commenced their relationship in 1998 and married on (omitted) 2004.  The parties’ separation date was 9 May 2007, being a relationship of only six years.  Three years later they were divorced on 17 August 2008.  At the time of separation in May 2007 all of the children were still quite young.  X was around six, Y was around five and Z was about six months old.  The parties lived together in (omitted), (omitted) and in 2007 X and Y commenced school at the (omitted) State School.  After separation the mother moved with the children to (omitted) to seek the support of her family.  (omitted) is 752km from (omitted).  The school aged children attended (omitted) Primary School, having left (omitted) State School. 

2. During the time that the mother lived in (omitted) for a period in 2007 until sometime in 2008, the father travelled the 10 hour one way distance from (omitted) to (omitted) on at least two occasions to spend time with the children.  In 2008 the mother and children returned to live in (omitted) and the children commenced school at (omitted) State School and then (omitted) State School and then went back to (omitted) State School.  There is some disagreement about which schools the children went to in the years 2008 to 2011, however, it is really only the order of things. 

3. In 2011, the children attended (omitted) State School, and in mid-2012 the children were back at (omitted) Primary School.  At a point the father left (omitted) and moved to Adelaide, he then returned.  Since the children have been living with the father they have been attending (omitted) State School which is a school with a campus that goes from prep school through to the end of high school. 

4. On 14 March 2009, the father married Ms A who has three children from her previous relationship; A who is currently 14 years of age; B, who is currently 12, soon to be 13, and C, who is currently 11.  The father and his current wife have lived together since September 2007 with Ms A’s three children living together in a family unit.  X and Y and Z have been visiting every second weekend and half the holidays since the mother returned from (omitted) in 2008 up until the Interim Orders were made, noting that when the father moved to Adelaide for a period of time he paid for the children to visit him in Adelaide for all of the holiday periods.  The father would also travel to (omitted) around Christmas time to spend time with his children.  In April 2014, the parents negotiated an arrangement whereby the children would live with the father if they chose to live with him when they started High School.  However, since that agreement, welfare and risk issues arose which resulted in the father holding the boys in his care after the September/October 2012 school holidays.   

5. Ms A is studying (course omitted) in (omitted).  She has been working in (occupation omitted) for several years and at the time of trial has recently taken up fulltime employment in the (occupation omitted) area.  At the time of trial the father had recently taken up new employment following his decision to return from Adelaide to (omitted), which was largely motivated by the concerns he had in relation to the care of his children.  The father has very recently applied successfully for a position with the (employer omitted) and that position enables him to commute from (omitted) to (omitted) each day which means the father will be home every night.

6. In the period since the father has been back from Adelaide his employment meant that he left (omitted) on a Monday morning and returned Friday night, up until a period when he was able to make arrangements to return Thursday night and work at home.  The mother, at time of trial, is living with her own mother and the mother has obtained some casual work, one or two days a week just in the last few weeks. 

7. The mother is in a relationship with Mr D.  Mr D was a reluctant witness in these proceedings; the Court having issued two orders in December and again in April directing the mother to obtain affidavit evidence from Mr D given that there were very serious allegations about domestic violence and the children being treated rather poorly by Mr D.  There were also allegations in relation to the mother and Mr D being observed by the children having sex. 

8. At the interim hearing of this matter which was, as I understand it, the first time that Court Orders were issued with some fairly significant restraints including that the mother was restrained from exposing herself nude or partially nude in the presence of X and Y.  The very disturbing evidence from the children had been obtained, not only from the father, but also through interviews with the children by the process of a Child Inclusive Conference with the Court. 

9. This included a disclosure by the children to the Report Writer that the mother had been exposing herself and causing the boys embarrassment, and also a further restraint was made restraining the mother from engaging in sexual activity while the children were in her care.  This again was on the basis that the children reported that they had seen things they themselves described as things they ought not to see and that they had seen their mother having sex.

10. Another issue which loomed large at the interim hearing and which still remains a significant issue for the Court was that the father adduced evidence that the children’s attendance at school was woeful and serious levels of absenteeism were occurring.  The records have subsequently revealed that the children not only had significant absences of up around 30 or so days in a semester, but that typically the mother would retain all the children at home when only one child was sick.

11. The material relied on by each of the parties has been read into the record and included on the case outlines.  The mother was legally represented at the commencement of his hearing which started on 2 September 2013 and continued on 3 September 2013, but was adjourned part heard until October 2013.  The matter resumed on 23 October 2013, 24 October 2013 and final submissions were taken on the morning of 25 October 2013.  At the resumption of the matter the mother’s lawyer had withdrawn in the intervening period, having complied with the rules about giving a Notice of Withdrawal. 

12. The mother’s solicitor, who commenced the proceedings, Mr Laursen, indicated to the Court during the first part of the hearing that he would likely need to withdraw and get advice about his position as he found himself in a difficult position in relation to evidence given by the mother on an issue of some importance to this Court.  The issue concerned the evidence given by the mother that Z told the mother that the father’s wife had shown her pictures of naked men and women or boys and girls and saying words to the effect it was okay for boys to lick girls and girls to lick boys. 

1. When questioned about this the mother gave evidence that she had told her solicitor about it in the prior week.  The solicitor informed the Court that that was inaccurate and that the mother had told him about it on the morning of trial.  The solicitor then found himself in a very difficult professional position and obviously took a course of withdrawing.  The mother had also had the assistance of the Queensland Indigenous Family Violence Service at the interim hearing, however they subsequently withdrew their representation prior to the trial.

2. There are significant issues in this matter dealing with the welfare of these children whilst living with the Mother.  The issues I am referring to include issues of domestic violence occurring whilst the children are in the care of the mother; very poor parenting whilst the children are in the care of the mother, including their very poor attendance at school.  There are also issues to do with the mother’s discipline, her interactions with the children and the children’s moral welfare in their exposure to the Mother’s sexualised behaviour.  It is fair to say that the mother’s parenting capacity is squarely in issue in this matter. 

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).”  The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012. As a result of those legislative changes, when applying the primary considerations under s 60CC(2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.

2. When I determine the best interests of X, Y and Z, I will consider also the additional considerations set out in s.60CC(3) when evaluating  each of the parties proposals for the children’s future living arrangements.  Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.

3. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

4. In these reasons, statements of fact constitute findings unless indicated otherwise. 

Witnesses

The Mother

1. Unfortunately the mother is an unimpressive witness.  In my view the mother struggles to tell the truth.  The mother has a tendency to give evidence in a “stream of consciousness” style where explanations become a never ending story of twisting and winding facts and situations which are moulded to accommodate or overcome any fault or blame on her part.  There were many matters about which the mother gave evidence which I found untruthful or disturbing. 

2. The mother admitted that she told a lie to the police in relation to what it was that happened in a particularly chaotic and highly conflicted argument with her current partner, Mr D.  The mother said that at a point in the dispute she rang the police and that she told the police that Mr D was hurting her.  Each of the mother and Mr D gave evidence of an ongoing and high level argument with screaming and shouting and that ultimately Mr D threw the mother’s mobile phone at the car and it hit the bonnet.  The car was parked in an area at the front of Mr D's Uncle’s home where the children had been left in the car or in that area by the mother whilst the raging argument carried on. 

3. The argument was largely about the fact that Mr D was going to go out without the mother.  Mr D asked the mother to leave and said that he was going to go out “clubbing with the boys”.  The mother says she phoned the police at about 8 pm when Mr D said he was going out, without her, whether or not the mother liked it.  The mother gave evidence that the police know her and she said of her boyfriend, “I wanted to hurt him”.  The mother said, “I rang the police to hurt him.  I lied to the police that day.”[1]  She admits that she told the police a lie, the lie being that Mr D had lifted her up by the arms.  She now says he did not do that.  The mother also says that she told the police she had a bruise on her hip but the truth is that bruise was not caused by Mr D.

   [1] Transcript 2/9/13, page 8, lines 30, 45 and page 85, lines 15 and 35.

4. The mother boldly admits that she said to police that she was physically assaulted by Mr D “because I was angry with him and I wanted to hurt him.”[2] Mr D gave evidence on this topic as well and his evidence largely corroborates the mother’s in terms of a raging argument however he denies physically harming the mother.  He agreed that it was about the fact that he was going out without the mother and that a mobile phone was thrown and that all of this happened in the presence of the children.  I’m inclined to believe the evidence of Mr D that he did not bruise her.  He was quite convincing in his denials describing that he had had a huge argument with the mother but he said he did not hurt her physically.  The mother said she cried when she spoke to police with the untruthful allegations and said also, “I just told them we had an argument and then that I was scared of Mr D, but I wasn’t.  I just said that to them and that I did it to hurt Mr D because he had hurt me.”[3] The mother has the capacity to be vengeful and lie when she perceives she “has been hurt”.  The mother admits that in relation to the domestic violence incident in September with Mr D that she told him, “I will call the cops and tell them you are hurting me.”  He asked, “Are you going to lie to the cops?” and she says, “If you’re not going to listen, I will.”  She says, and Mr D confirms, that he told her, “Fuck off and get out of the house.”  The mother’s convoluted account of this argument was that it extended over a second day, that Mr D was screaming at her and that he attempted to grab her and she stepped back and back-peddled.

   [2] Transcript 2/9/13, page 77 line 45 and page 78 line 5.

   [3] Transcript page 85.

5. The mother has also given evidence that in relation to the allegation that the children had seen her having sex, that this did not happen and that if it did happen the children “must have been looking through doors or windows.”  The children told the Family Consultant they had seen this.  During the trial it became apparent that the house the mother was in at the time had windows that were at least a metre and a half above the floor.  Photographs attached to the father’s material show, in my view, that the windows were higher than that and confirmed that there was no hope of any of these children looking through the windows.

6. As to the allegation, that the children had seen the mother having sex with Mr D, the mother failed to tell the Court, until she was questioned under cross examination that when she first moved into the home, the bedroom that she said she had sexual relations with Mr D had no proper wall between the bedroom and the lounge room.  There was instead just a series of wardrobes placed across a point in the room.  The wardrobes, of course, did not extend to the ceiling height and that meant that there was no sound attenuation or privacy in the bedroom.  The mother said in her own evidence when denying that the children had seen her having sex said, “I’m concerned that they have been looking in windows…that is the only way they could have seen it.”  The mother also told Ms E, the family report writer, a similar story.  Given the photographs of the height of the windows as seen in photos depicting the chaos and disorder in the mother’s home, the court observed it is inconceivable that these children could have seen the mother having sex through the windows.  The mother ultimately had to admit that this was so. 

7. I am satisfied that the mother and Mr D have engaged in arguments, conflict and conduct that has exposed the children to family violence.  I am also satisfied that the mother has lied to police about what actually occurred and that she did this strategically.     

8. In the first days of this hearing, the mother gave evidence that until three weeks ago she and Mr D have remained in a relationship.  She described Mr D as not liking her having any male friends; that if she spends lots of time with female friends he thinks she is replacing him with those friends; that he didn’t want the mother to go away for a few days; she described Mr D as being a significant person to the children; that the incident on the 23^rd was a one-off incident (this evidence had been given in early October);  that she and Mr D were arguing a lot them, just over stupid things;  that Mr D has never grabbed her;  that they had yelled at each other;  sometimes the children were present, not all of the time. 

9. The mother says that the cause of some of the arguments with Mr D was that he expected her to put the kids in the car and take him into town already when the children were asleep.  She said she was not going to wake the children.  She says that they did have arguments when they lived at (omitted).  The mother admitted that when they have arguments she cries.  The mother gave an account of being pregnant at a point in time allegedly with Mr D’s child and says however that she had a miscarriage.  I could not accept the evidence of the mother on that issue as there are so many other issues about which she has simply made up stories, that I am inclined to the view that this was just made up.

10. It has subsequently been revealed (from the subpoena material from the Commissioner of Police) that the evidence that the mother gave about her history with Mr D was untruthful.  The mother failed to tell the Court that in August this year she and Mr D had another very heated argument which involved Mr D obtaining the assistance of the police.  Mr D said the parties had been arguing when the mother tried to take his wallet out of his pocket after she would not accept that he could not give her more money at that particular time.  It seems Mr D owed the mother some money.  He had repaid some of it, a hundred dollars or so, and she was still owed some.  The mother followed Mr D from the pub where she found him to the bowls club and created a scene in the bowls club.  Mr D said the mother was asked to leave because of her behaviour.  The mother’s evidence was that they were both asked to leave.  Mr D then proceeded to the police station where the mother followed him.  The subpoenaed records show that Mr D, on this occasion, was the aggrieved.  As I said the mother failed to report this incident to the Court. 

11. At her first two days of the hearing the Mother said under oath that if she needed to give up her boyfriend for the sake of her children she would do so.  By the time the trial resumed the mother has reconciled with Mr D and they have each now given evidence that they are planning their life together.  Initially, the mother gave evidence to the Court that her partner did not want to come to Court and that that is why he hadn’t sworn an affidavit.  The mother said at one point in her evidence, “We were happy we were having a baby.  I was stressing about the Court stuff.  He didn’t want to come.  I was telling him over the last few months - we told him there was going to be a subpoena and that he said if you need me there I will turn up.”

12. The mother said also Mr D was not happy about coming to Court but said, “he would do it for me, so, no, we never argued” and that he had said he didn’t want to do it. 

13. The evidence of Mr D was that the mother did not tell him he had to come to Court and that, “there was nothing in writing to say he had to come to Court.”  Mr D was shown a copy of the orders directing the mother to obtain an affidavit from Mr D and he said that he had never been shown that by the mother.  Mr D admitted eventually that he had been spoken to by the mother’s lawyers about filing an Affidavit, but “I just didn’t really want to….because I didn’t think it was anything to do with me.”[4]

    [4] Transcript, page 58, lines 5-15. 

DNA Test - Z

1. The mother has given contradictory evidence about the identity of Z’s biological father.  Z was born on (omitted) 2006.  Final separation occurred on 9 May 2007.  The mother says there was a trial break-up prior to final separation and then she found out that she was a couple of weeks pregnant with Z.  The mother said that there was no possibility that anybody else could be the father, but that the father had said Z is not his child because she has blonde hair.  The mother confirmed again at the commencement of this hearing, that, “Yes, Mr Berkeley is the father.”

2. The mother also however gave evidence that if she did not succeed in her request to have Z live with her in these proceedings, she would probably go and get a DNA test.  The mother then stated she had a relationship with another person after separation, but that she was already three weeks pregnant.  When the mother was asked was there a possibility that the father is not the father, the mother said she’d never spoken to the father about it.  The mother was asked if a DNA test wasn’t done and Z was ordered to live with the father, would she then do a DNA test?  The mother said she probably would.

3. I have heard evidence from the father that whilst the parties were together information came to light about the fact that the mother may have been having an affair during the period of their marriage in 2006, and he followed through all these inquiries.  He asked another person whether or not it was true that that person had been looking after the boys while the mother went off to a caravan park with another man, and the father was told that that was true.  The father says subsequently they separated because of the mother’s infidelity. 

4. The father then had a swab DNA test done which concluded that the chances were that Z was not his child.  The father has given evidence that he may never tell Z the outcome of that test and that as far as he is concerned Z has been loved and nurtured by him since the moment she was born and she is, to all intents and purposes, his daughter.  The mother on the other hand is only interested in having a DNA test done for strategic purposes, if an order is made contrary to her wishes. 

5. The theme of infidelity has recurred during this matter.  The mother has given evidence that her current boyfriend gets angry with her when she has male friends over.  She described an incident when Mr D became very angry when he found out that she had had a couple of male friends down for the afternoon to spend time at her house.  She said her current boyfriend Mr D accused her of sleeping with “(omitted)” and that that was part of the argument that they had in September, when she called the police.

6. It was difficult for the mother to tell the same story twice, without significant contradiction.  An example is her evidence of an alleged statement by Y that he would kill himself if he was made to remain living with his father.  Whilst this is an extremely troubling statement to be made by young Y, it was made more problematic by the fact that the mother gave a version of events as to how it was that she heard this and what discussion she had with Y which was completely at odds with the version of events given by her own mother, Ms T.  Generally, I found Ms T to be an impressive witness.

7. Ms T then gave, it seems, a different version of events to Ms E when directed to have a short conference with Ms E on the topic.  I can only conclude that the maternal grandmother was trying to assist her daughter in coming up with a story that was different to the story that she appeared to give under oath.  I concede that the grandmother was not recalled to test the version of events that Ms E had been given or relayed to the Court, however, Ms E read from her notes.  As I said I have concluded that on the topic of Y saying that he was going to kill himself there is unsatisfactory evidence from both the mother and the grandmother.  This evidence was given mid trial by the mother to support her application.  The mother gave other “new” evidence at the beginning of the trial which supported her case.  It involved what I regard as a scandalous allegation against the father’s wife, Ms A.

8. I am satisfied that the mother is a totally unreliable historian and that she is prepared to lie when she feels it is necessary to do so.  The mother was upset for various periods of evidence during the trial.  I am satisfied that she loves her children dearly but I’m equally satisfied that there are some serious issues to do with her capacity to cope as a mother, about which I will have more to say elsewhere in these reasons.  My impression of the mother was that she did not function at a very high level and that she relied very heavily on her own mother for advice, assistance and support.  She relayed commentary about day to day events which left me with a strong impression that she was very reliant on her own mother.

9. I also consider the mother to be very naive and immature generally and a mother who has been very selfish in terms of putting her own needs above those of her children.  I refer to her unwillingness to take children to school on any whim or her refusal to take two children to school when only one is sick.  There are issues with the mother’s capacity and her failure to feed the children properly, which indicate to me also that the mother has been very distracted in recent times with her parenting.  I have a strong impression that the mother is easily distracted from the children when it comes to boyfriends and her social or sex life and she puts her own wants above those of her children or her responsibilities to parent. 

Ms T

1. Her own mother is known in the family as “Mumma.”  It seems to me, when the mother left the father she went straight to her own mother in (omitted) for assistance.  When she moved back to (omitted) her mother moved back to (omitted) as well and her mother has been very involved with the children.  The maternal grandmother, I might add, is a decidedly different character to the mother and I found her generally to be a very wise, experienced, calm and quietly confident person.  The maternal grandmother has been a (occupation omitted) for many years in (omitted) and told the Court she has worked non-stop from when she was 13 years of age up until this year when she had recent cancer health issues. 

2. I have a strong impression that Ms T is still providing for her family, looking after her other son who has had drug convictions and issues with the police and lives at home.   I accept the submission made that Ms T has been the protective factor in the household whilst the mother has been living with her and she has provided a steady influence.  Testimony to her closeness with the children is seen in the letter written by Y saying that he misses his friends in (omitted) and he misses his Mumma and Pappa, being his maternal grandparents.  It was, of course, noticeable that Y did not write that he missed his mother, though I accept that he does.

1. As I have said Ms T is a very impressive woman with a strong connection to her Aboriginal culture.  I noted during the hearing that Ms T was distressed at times hearing the evidence and particularly on hearing about the letter that Y had written saying how much he missed his Mumma.  The children are very lucky indeed, in my view, to have a wise and loving grandmother such as Ms T.

Mr D

1. This is the mother’s partner.  Mr D was a man of very few words.  He found it quite hard to construct sentences.  Many of his answers involved him saying words like “pretty much” or “yeah, pretty much”.  Mr D unfortunately has a criminal history and it includes drug offences.  He was involved in a very serious matter in which one of his cohorts was charged with grievous bodily harm.  Mr D told the story that he’d left his belongings at the home of a friend of his.  When he went to retrieve them he found that all his items were smashed.  He then went and told one of his mates who also had goods stored at the girl’s place.  That mate found that his very special belongings, including things belonging to his own grandmother, had been smashed. 

2. Mr D then said with wide eyes and a loud voice with some enthusiasm that he suggested that he and his mate should go and “smash up” the belongings of the girl who owned the house where the belongings had been stored.  Mr D said that on arrival at the house, as they walked along the street towards it, people came out of the bushes at them armed with machetes and bricks and that some altercation and fracas broke out during which time someone hurled a bottle at the owner of the property who was the girl’s father.  Mr D said that the girl’s father, the owner of the house, had an injury, he thought a fractured skull.  Mr D was charged he was not convicted, but his mate was, and Mr D explained that his mate was made an example of and received a five year jail sentence, three of which he still has to serve.  Mr D has had at least two drink driving offences.

3. I accepted some of Mr D’s evidence about things that had happened with the mother.  He did not agree with the mother’s actions in hitting X in the manner that she did.  He did not appear to me to be heavily invested in his relationship with the mother.  The relationship between him and the mother has been volatile.  It contains an element of fury and jealously.  The mother describes herself as jealous.  Mr D says the mother is jealous and that she wants to know where he is almost every minute of the day; that he likes to go out with the boys when the children are with the mother and that the mother has made it difficult for him to do this and gets very jealous.

4. I found him somewhat indifferent.  He did not appear to have any great emotion either toward the mother or toward the children.  With his criminal history and his drug usage and his desire to go out and party with ‘the boys’, he did not impress me as being a person who would be a good role model for these children or who would, in any way, be assisting the mother in her parenting of these children to any great extent.  He is a single man who is not wanting to have the responsibility of children.  He clearly enjoys his alcohol, time with his mates and it seems he has been trying to get out of the relationship with the mother, which was what he was doing in September last year.  Where the evidence of Mr D contradicts that of the mother, I prefer the evidence of Mr D.  I note importantly that the children have expressed experiencing fear of Mr D.  I also have no confidence that the mother would comply with restraints in regard to Mr D as she tends to put her own needs over those of her children.  At the commencement of the trial the mother said her relationship with Mr D was over, however during the adjourned period, the mother and Mr D recommenced their relationship. 

The Father

1. The father, in striking contrast to the mother, presents to the Court as an excellent witness.  He gave thoughtful, precise answers.  He was prepared to make admissions against his own interest.  He showed insight and thought in some of his reflections about how the matter has unfolded.  He conceded that in hindsight he had put his own career ahead of having alternate weekend contact with the children, when he moved to Adelaide.  He also stated, and I accept, that when he heard from his own mother how issues to do with the children were emerging, that he decided he should return to (omitted) and he did so.

2. He strikes me as a very competent father.  He is a (occupation omitted) by profession.  He has recently taken up a job with the (occupation omitted) in order to get work that can see him at home every night.  I found him to be a very candid witness and extremely concerned father who has acted entirely with good will throughout these proceedings.  He has been criticised by the Counsel for the Independent Children’s Lawyer for not telling the mother in advance that he was going to keep the children (the boys) in his care.  In some respects I found this criticism out of touch with what was really happening to the children.  I consider that the father was acting protectively when he saw serious bruises on his children, being told that they weren’t being fed, and after he had found out that they were not going to school. 

3. I consider that the father was in a very difficult position at this time and however he had ended up holding over the children he would have been criticised.  The father was also criticised by the Independent Children’s Lawyer’s Counsel for not coming to this Court first.  I accept that there are situations when parents have to act to protect their children and this is recognised under provisions of the Family Law Act regarding “reasonable excuse” s.70NAE being that retaining children contrary to orders was necessary to protect their health and safety.  I consider the father took steps to alert the Department.  Parents find themselves in these difficult positions at times.  I am satisfied that the father has been distressed to find the conditions in which his children have been living.  Children that aren’t being fed; that they are having to find money in the house to go and buy tea; children that are being hit; children that aren’t going to school; children that are being subjected to images of their mother engaging in sex or inappropriately dressed.  As I have said, I consider that the father had every reason to take the action that he did.

4. It also seems to me that there was a stand-off then, once the father held the two boys over, the mother held onto the remaining child.  No-one wanted to hand over the children they had in their care because they were worried that the other party wouldn’t return them, and the children would be caught in the midst of this stone-walling.  I accept that the father held his children over for valid reasons regarding the children’s health and welfare. 

Ms A

1. The father has re-partnered and his partner, Ms A, is an equally impressive witness.  I have no doubt that the father and Ms A would present a team of very competent parents.

2. On the first day of trial, the mother raised for the first time an allegation that the father’s wife has shown young Z sexually explicit photographs, when the father is away at work.  The mother’s oral evidence (this allegation never making it into an Affidavit) was adduced at the commencement of trial and had not been raised with other parties prior to this time.  The mother said that Z had told her, “the photos that Ms A showed her, which was, I think, for a six year old was very inappropriate photos and the photos were Z coming home saying that Ms A is showing her photos of men and women having sex and saying that girls suck on boys’ privates and boys lick girls’ privates.”[5]  The mother said that Z had first raised the issues 6 months earlier.  When the mother gave evidence that she had told her solicitor about the allegations the week prior to the trial, the mother’s own solicitor advised that this was not so, and that the mother raised it only on the morning of trial.  The solicitor subsequently sought leave to withdraw. 

   [5] Transcript 2/09/2013, page 40 line 35.

3. The allegation in my view, is entirely unfounded.  The time of the mother raising the issue is strategic. 

4. In fact the mother raised another issue in a similar fashion when the trial resumed after the last few days of hearing and on the first day the trial was resumed.  The evidence was entirely concerning and if it had occurred, the mother took no steps at all when she first heard it and no steps at all at the time of the trial.  I did not accept her evidence that she told her solicitor the week before, and prefer the evidence of her own solicitor. 

5. I witnessed the father’s wife, Ms A give evidence and as I have already noted elsewhere in these reasons, I consider Ms A to be an impressive and honest witness and I accept that no such event ever occurred.  Ms A is a mother and a (occupation omitted) worker.  I consider it inconceivable that she is showing pornographic material to any child.  I regard the mother’s allegations as scurrilous and entirely strategic.  I consider Ms A to be a competent, caring parent who understands the role that the children’s mother has in the lives of these children.  

Ms M

1. Ms M is the paternal grandmother.  Ms M is a loving and sensitive grandmother.  She found herself in a difficult position of receiving phone calls from a person on behalf of mothers at the children’s school in (omitted) to alert her to the fact that the children were wandering around (omitted) unsupervised;  that young Z had been heard telling other mothers or their children that she knew what penises were for;  that the children presented at school in a dirty fashion;  that they didn’t have enough to eat and that they were children that were really seriously being neglected.

2. I accept the evidence of Ms M.  I consider that she has acted totally in good faith in reporting the concerns about her grandchildren to her son and that she acted appropriately in suggesting that those alerting her to issues should contact the Department of Child Safety.  I note that Ms M also plays a significant role in the ongoing care of the children whilst the children are living with the father.  She has assumed responsibility for the children one afternoon each week.  Ms M is a devoted grandmother and I found her to be an extremely credible witness.

3. I will now turn to the relevant section 60CC issues. 

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The views of X have been made very clear.  They’re referred to in the family report that X has really had enough of living with his mother.  He is a very head-strong, energetic boy and he is desperately seeking out the opportunity to live with his father.  X is the oldest and most confident and said he has always wanted to live with his father and he has repeatedly told his mother about this. 

2. He admitted also that he and his mother argued a lot and that there had been a big blow-up.  He said that his mother began hitting him repeatedly because she was so angry, then he got angry too when he was being hit by the mother and he kicked out at her.  He said this reaction frightened him.  It was noted that he became emotional and began to cry as he told Ms E, the Report Writer, about this.  He regrets his actions very deeply and has apologised to his mother. 

3. I had the impression that X has lost all respect for his mother on account of both what he has seen and on account of the responsibilities he has taken on at the mother’s home given the mother was not assuming the role of a parent.  He says he has been asked to do all the cooking for the children; he’s had to find money and go to the shop and buy food for the children to eat.  He considered, quite properly in my view, that his mother should be doing that.  X said that one of the things he liked best about living with his father was, “being a kid again”.  He said whilst he has to do jobs it is not his sole responsibility.  He helps out his father and step mother as he does his work.  X has seen his mother’s sexualised behaviour with her boyfriend and commented wisely, “we have seen things we shouldn’t have seen.”  I accept this is so. 

4. Y is a much quieter young person and it was observed by Ms E (the Family Report Writer) when she did her report that he did not engage easily with adults.  He did not make eye contact and he appeared withdrawn.  It was noted he wasn’t achieving well at school and it seems to be agreed that he has a learning disability and requires special assistance.  He is behind with his reading and writing as well as his maths.  He told Ms E he misses his mother very much and his sister. 

5. This was confirmed by a note that the mother had that Y had written to his mum saying, “I love you with all my heart.”  He wrote this in the waiting room.  “Even if we have some fights I still love you.”  It was noted that some of the words were unintelligible and Ms E says that its execution indicated that Y has difficulty spelling and writing appropriate to his age. 

6. He said he loved both his parents but he did have lots of fights with his mother when he lived there, especially when he and his brother were naughty, which was a lot.  He noted that he remembered his mother being very, very angry and his brother being upset.  He said they were all upset and he didn’t like it.  He said that his mother was much better now and not so angry.  He liked being with her and missed her.  He also stated that he wanted to go to his father’s in the first place because X was going and he didn’t want to be without X. 

7. He said now that he’d changed his mind and he misses his mother too much and wanted to go home.  He knows that he will miss his brother and his father but said he misses his mother and her family even more.  He was unsure if he would change his mind again.  It was noted that Y was torn between his love and loyalty to each of his parents and his brother, and that he has been oscillating between the two.

8. Ms E noted that where X is clear and had decided that he will not live with his mother again, although he still loves her, that the Court needs to be guarded about Y’s expressed wishes.  If there is too much weight placed on his wishes then Y’s dilemma may be inadvertently acted out to his detriment.  At some level, Ms E noted, Y understands this too.  When asked about the Judge making him stay with his father he said he would do whatever the Judge decided was best for him, but he again reminded the writer that he wanted most to go home with his mother.[6]  Ms E gave oral evidence that Y is a very confused and conflicted young boy, and that he wants his mum and dad to live together.  Ms E considered that he was a soft natured little young person who feels a great deal of responsibility for his mum and that he has caused her much sadness. 

   [6] Family Report, paragraph 53, page 10. 

9. Z was described as bright, happy, interested, sociable, confident, easily engaged and relatively unscathed by the conflict at present.  She is strongly attached to both parents and moves between the homes very happily.  Although she was only six she was spoken to during the interview and said that she was happy living with her mother and does not feel scared now.  She was frightened when her mother was angry and yelled and hit them whenever they were disobedient.  She remembered the physical violence between the mother and X, which she saw.  She said it was much better now and her mother was happier with the boys.  She wants her brothers’ home living with her and the mother again.

10. Each of the children confirmed that there had been lots of fighting; that the mother had been yelling and hitting them when they were disobedient.  The children said the mother was better now.  In terms of the views, I have noted the very strong views of X and I note that Y is somewhat caught in his conflicted loyalties between his parents but at the end of the day he seems to be saying he would like to live with his mother again.

11. During the course of the trial and after the adjourned period the mother gave new evidence that on the weekend prior to the recommencement of the trial Y had said that he was going to kill himself if he had to stay with the father.  Evidence was given that the father spoke to Y that night in the company of his wife.  They gently asked Y about what they had heard in that he had said he would hurt himself.  They asked what was it that was troubling him.  Y couldn’t get the words out, and it was suggested that he write something down.  He wrote out, that he missed, as I said, his friends and he missed his Mumma and Pappa.[7]

    [7] Exhibit F2.

12. When Ms E heard further evidence about the Domestic Violence which had been occurring in the presence of the mother and which the children were exposed to in her care (which Ms E had not previously been made aware of as the Court was not aware of this at the time that the Family Report was commissioned) and noting that Mr D had not filed an Affidavit nor attended at the interviews for the Report Writer, Ms E expressed the view that Y was very conflicted;  that each of the parents had spoken to all of the children too much about the Court case, and that she was most troubled, importantly, that Y was saying he wanted to live with his mother because he has been witness to the Domestic Violence between Mr D and the mother and could well be feeling a need to protect his mother from that ongoing situation.

13. The issue of the children’s exposure to Family Violence whilst living with the mother and their divided loyalties weigh heavily on the Court and they are issues central to the children’s long term welfare, education and well-being which are beyond the capacity of Y or Z to understand.  I note the wishes of X. I note that he is a very challenging and difficult, head-strong boy, and that it would be nigh on impossible to make an Order for him at this age and given his personality which he would comply with or which did not accord with his strongly held views.   

14. It strikes me that X is a boy who will vote with his feet and that if it didn’t happen straight away it would happen within the next 12 months.  I note also the history of a very conflicted and physically violent relationship between X and his mother which has caused significant damage to their relationship.  There is no evidence to me to suggest that their relationship could be repaired such that X would entertain any idea of returning to live with his mother, based on his very strong views.  I am satisfied that Y is a sensitive boy, exposed to distressing events and who is feeling conflicted about his loyalty to each parent.  It is the evidence of Ms E in respect to Y possibly feeling he has to live with his mother to protect her from further family violence is of great concern to the Court.  In the long term this situation would lead to a reversal of roles as between parent and child. 

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. I am satisfied that the children all love their mother and they love their father.  Z has moved freely between the homes and is a very confident and, it seems from Ms E’s observations, an intelligent, outgoing child who is much loved.  Y is a much more reserved child.  He loves his mother very much and he loves his father.  I am not surprised that he misses his mother.  He’s always lived with her.  Y also has a good sibling relationship with X and Z.  I am satisfied that the children have a normal sibling relationship with each other and that they enjoy a close relationship with each other.  I note Y wanting to live where X lives.  I consider the current situation where the children are living separately is not in their best long term interest.  The association between these siblings should have the opportunity to thrive and for the children to spend the years of their childhood together.  Having the chance to live together each day, go to and from their schools, play together, tolerate each other and their differences, is in my view, giving these children the chance to build strong relationships into the future.  This is particularly important given that their parents have separated.     

1. I accept the evidence of the paternal grandmother and the father’s wife that since Y has been at the father’s his school marks may not have improved, but they certainly haven’t worsened, but very importantly that within himself Y has become more confident.  He can make eye contact.  He has won awards and his self-confidence is steadily growing.  I am satisfied that X has a very close relationship with his father and he has a very conflicted relationship with his mother. 

2. I am also satisfied that X, Y and Z, have a good solid relationship with the father’s wife, Ms A.  It seems to me she has a good understanding of her role within this family dynamic.  She described it as being something like an auntie.  She is not trying to undermine the mother.  She has tried to keep well out of the crossfire and I commend her for that.  She strikes me as being a very likeable and child-focussed parent who is, no doubt, a competent parent of her own three children.  I have no doubt that the children all respond to her very well.  I note the very close relationship between the children and their maternal grandmother, Ms T, and equally with the paternal grandmother, Ms M and her husband. 

S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:

1. 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.  

1. The history of these parties is that they co-parented post separation, though the mother moved to (omitted) for a period, then the mother moved back to (omitted).  The father saw the children approximately each alternate weekend when the mother returned from (omitted).   He moved to Adelaide for a period of time for work and on realising what was happening with the children in the mother’s care, he relocated his home and found work in (omitted) and then moved back.  While he was in Adelaide, I am satisfied that the mother has been the primary parent and made significant long-term decisions about the children’s schooling.  Whilst I accept the role of caring for 3 young children is certainly a demanding responsibility and task, I am troubled by the number of schools that the children attended whilst the mother moved from place to place and the instability of her lifestyle.  I will have more to say about that elsewhere in these reasons.

2. In terms of the father’s involvement, he spent regular time with the children in that he spent each alternate weekend with them, when in (omitted).  In the months that the mother was at (omitted) he did two return trips of some 10 hours driving each way.  Whilst he has been criticised for moving to Adelaide for work, I don’t accept that criticism per se. 

3. I note that father reorganised his time with the children, that he flew them to Adelaide for all of the school holidays, except Christmas and that, at Christmas, he came back to (omitted) and had his Christmas holidays here with them.  He has always maintained his physical relationship with the children one way or another.  I consider that he has been committed to spending time with and communicating with the children.  The mother has also maintained an ongoing relationship with the children, however it has been a struggle for the mother and there have been various upsetting incidents and experiences for the children whilst living with the mother.  The children have been struggling just to have their basic needs met, such as being fed, while living with the mother. 

4. Ms E gave evidence that the mother and her mother had closely parented the children.  I consider the maternal grandmother has played a strong role in trying to fill in the mother’s inadequate parenting.  Whilst parenting 3 children, particularly a baby, has been a demanding task, I am satisfied, that the mother even with the help of her mother, has serious inadequacies in her parenting abilities. 

S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. 

1. I am satisfied that the father has paid child support.  He has taken the children on holidays.  He has kept in touch with them regularly and that he has complied with what are reasonable obligations to maintain the children.

2. The mother, on the other hand, whilst it is conceded that she has been the primary carer, in my view, she has failed to fulfil her parental obligations to maintain the children.  I refer to the evidence given by the children themselves and others who have observed the children have had trouble even being fed in their own home, and in my view this is an appalling dereliction of a parental duty. 

3. The mother gave evidence that she locked the fridge at night time.  Apart from being unsure how she would actually do this, she said that X always wanted ice-cream and lollies at night.  Whereas, X gave commentary that the mother did some cooking, but he had to do a lot of the cooking.  He not only had to do the cooking, he had to find money to buy food and go to the shop.

S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. This issue is quite significant in this matter.  There are three children to be considered.  The effect of changes in the child’s circumstances in X living with his father, in my view, is a most positive effect.  He has removed himself from the source of conflict with his mother.  He has been involved in some very disturbing physical arguments with his mother.  The mother has hit him so hard she left red marks.  I do not accept the mother’s evidence that she tried to smack him while standing over him and didn’t leave a mark.  The mother’s approach in using this angry physical discipline on X was completely out of order and shows a significant lack of parenting capacity.  It was humiliating and distressing for X. 

2. There have been many arguments, it is clear to me on the evidence, between herself and X.  X is a young teenager and the effect on him of change has been positive in all respects.  He is a much happier person.  He is removed from the conflict.  He has a strong and positive alliance with his father and I am satisfied that orders that see X living with the father are orders which will have a very positive outcome for X in the short and long term.  

3. In turning to Y and Z, the effect of the change of moving them to live with the father will, in my view, ensure that the welfare issues raised are addressed and dealt with.  The issue of the children’s non-attendance at school is a significant matter.  There are, as seen in the tender bundle of the Independent Children’s Lawyer some 28 days absence for Y from (omitted) School, many of which were unexplained.  In the second semester, he had seventeen and a half days absences, most of which were unexplained.

4. In 2011 from (omitted) school, Y had 35 days absences and it was noted that:

   He continued to experience difficulties with the level of work expected in Year 4 and he must endeavour to spend extra time with reading in particular if he is to make the necessary gains.

5. A cross checking of all of the absences shows, as the children have told their father and Ms E, that all of the children are kept home by the mother when one of them is unwell.  They seem to all go, or no child goes.  This is illustrative of the mother’s dismissive attitude towards the value of education.    

6. The other effect on the children, in the event that they all live with the father, is that they will be removed from their exposure to Family Violence.  Ms E gave evidence of the very serious effect that being exposed to Domestic Violence will have on the children, particularly in the long term.  It will affect their development, their ability to form relationships and she was most troubled by the potential for the children to suffer further exposure to the conflict which has been a feature of the relationship between the mother and Mr D.  The children will also not have as much exposure to the effects of the mother’s poor parenting. 

7. Whilst living in the home of the father and their step-mother, there is no evidence of any Domestic Violence or family discord that would trouble the Court.  Quite the contrary is the case.  The home of the father and Ms A appears to be extremely child focused and the emphasis is on the children.  There are routines and the normal requirements for children to be fed, clean, housed, attend school are all addressed.  The likely effect on the children of living with the father is that they will see less of their maternal grandmother, Ms T, than they otherwise would if they lived with their mother.

8. As I said, I have a strong impression that the children are very attached to Ms T.  However, Ms T has not been in a position to protect the children from what they have been exposed to.  It seems that the mother has been quite secretive about the domestic violence occurring between herself and Mr D as Ms T did not seem to be aware of the extent of this hostility and conflict.  Ms T also did not seem to be aware of the extent of the children’s absenteeism from school or that all the children were regularly all kept home. 

9. The Independent Children’s Lawyer submitted that Ms T minimised the children’s poor attendance at school whilst living with the mother.  I agree that she did offer up some excuses about illness and that may have been the case on an occasion, but it certainly could never explain the non-attendance at school of these three children.  I am satisfied that there are some very long term, positive outcomes for these children living with the father and that the effect of changes would be mostly positive. 

10. I accept that if the children live with the father, particularly Z, that it will be a considerable change for Z who has always been in the primary care of her mother.

11. I note also though that Z is very confident and she moves from one parent to another very easily.  Living with her father, she would be in the household with her siblings and with three other girls, being the daughters of Ms A.  I have every confidence that the father is sensitive enough to realise the difficulties involved and the challenges that they would face as a blended family.  Ms A said there were no problems at all with the boys assimilating into her household.  I am inclined to accept her evidence in this regard.  I consider that Ms A and the father would have maturity and capacity to deal with these challenges. 

12. In the event that there are changes in the current circumstances with Y and Z remaining with the mother, these siblings would be separated.  I am very troubled about these young children being separated from each other.  Basically, there is no justification in doing so and the mother simply makes the submission that Z should stay with her as she doesn’t want to lose her.  If Y returned to the home of the mother, I am satisfied having heard and accepted the evidence given by Ms E, that there is every likelihood that Y will, just as his older brother has done, become a much more challenging child and that a head on collision with the mother at some point, exactly as has occurred with X, is somewhat inevitable.

13. I also consider that the same is quite possible, in the fullness of time, for Z who is described as being very outgoing and confident and intelligent.  I am troubled at the prospect of both Y and Z continuing to have the appalling non-attendance at school which happened when the mother was parenting previously.  At the time interim orders were made, the court made orders essentially ensuring strict supervision of the Court of school attendance.  The interim orders provided for the mother to keep the Court informed, on a regular basis, of the child’s non-attendance at school.  However it is not possible for the Court to Police School attendance indefinitely.  I am satisfied in the past the mother could not be bothered taking the children to school when it did not suit her.    

14. I also consider that if Y changes residences and lives with the mother, that he is at the same risk of exposure to Domestic Violence as has occurred in the past.  Also there is the prospect of him becoming the adult and having to cook for himself and Z, as did X.  Also the court considers the mother will continue to be preoccupied on the computer, or with her friends or boyfriends to the detriment of the children.  I have no evidence to satisfy me that the mother would simply change her ways in terms of her conduct and exposing the children inappropriately to her own sexual activities.  Despite the children recounting their observation to the father and the report writer, the mother has refused to admit that this has occurred.  I have no evidence that the relationship between the mother and Mr D will, in any way, settle down to the extent that the children would no longer be exposed to domestic violence and their ongoing conflict or the mother’s sexual activities. 

S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The mother lives, at the time of trial, in (omitted) and the father lives in (omitted).  There is a 75km trip of probably an hour and twenty minutes or so between (omitted) and the father’s home.

2. That has not been an insurmountable problem because the parents have been organising for one to collect the children from school and the other one to return the children.  I have taken submissions from each of the parties in terms of any future orders.  I am satisfied that it would be appropriate to make orders that they are collected from school on a Friday and returned to the other parent on a Sunday night, or Monday, if it was a long weekend.  The distance from either (omitted) to (omitted) or (omitted) to (omitted) is too great, in my view, to commence to set out on a return trip on Monday morning for the children and it’s unnecessary to subject them to such a long day.

3. The distance, though, does preclude any regular time other than weekend time, though I note the father’s position that in the event the children live with him, he is agreeable to the mother spending one afternoon a week with the children in the event that she travels to (omitted).  The mother has only recently obtained work and she may or may not be working on any given day.  It is possible for the Court to make an order that the children spend an afternoon each week with the mother and that would certainly give them more opportunity to spend time with the mother if she was so inclined to travel to (omitted) to take up that time.

S.60CC(3)(f) The capacity of each of the child’s parents; and 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

1. This is another significant matter for the Court.  There have been some very troubling matters raised in this trial about the mother’s capacity.  I am satisfied that the mother does not have the capacity to ensure that the children attend school.  The mother places a low priority on school attendance.  The mother also fails to accept the disruption caused to the children by moving them from school to school.  The children had 6 changes of schools in 2008 to 2011.  Y unsurprisingly has learning difficulties.  In relation to the mother’s capacity to provide for the children’s intellectual needs the court is extremely troubled by her lack of appreciation of the value of education.  The mother’s evidence that Y struggles at school and therefore it’s better for his self-esteem not to go to school is breathtaking in its naivety.    

2. I accept the evidence of the children’s comments to their father and Ms E in relation to being exposed to their mother’s sexual encounters.    The mother says that the children are lying about this matter, or that they must have seen her having sex by looking through the windows.  As I have already observed, there are photographs of the house in question and the height of the windows included in the father’s material.  The windows in the mother’s room contain an air conditioner in any event.  The mother also says that the sliding door is always locked and the curtains are always pulled and that there are vertical blinds.

3. The mother’s own evidence, therefore, is that there is nowhere for the children to see it, albeit she says they must have looked through a window.  More particularly, I have seen a photograph of the exterior of the house and of the windows of the bathroom next to the mother’s bedroom.  The mother gave evidence after it was suggested to her as she says, that if the windows were one and a half metres from the ground, that the children couldn’t have seen in them.  The mother then switched her evidence and said, “Oh, they must have been looking in through the bathroom window.”  The bathroom window can be seen in the photographs and is probably more than two metres above the ground, or a metre and a half or more.  They are very high and there’s no hope of the children looking in a bathroom window through into the mother’s bedroom.

4. I accept that the children have at times gone largely unfed by the mother.  I accept the children’s statements told to the Family Consultant and to the Report Writer that the mother regularly left it to X to organise a meal and that he was scrounging around the house looking for money to go to the shop to buy something.  I am appalled by this evidence, which goes to the heart of the children’s welfare.  If a parent is not able to provide the basics, such as food, shelter and emotional comfort to children, this would be a very distressing household for children to live in.

5. This is precisely what has been happening in the mother’s household.  The children have been distressed and exposed to the family violence and arguments of the mother and her partner.  They have made disclosures which I accept, that the mother has been yelling and hitting at the children indicating to me that her parenting techniques for looking after these three children are completely inadequate.  The mother accepts that she has hit X hard and he has been so hurt that he kicked her in response and then felt overwhelmed with his own actions.    

6. The mother has been, in my view, preoccupied with her own activities, whether it’s computers or boyfriends, very much to the detriment of these children.  I am satisfied they have been dragged off to the boyfriend’s home and left to sit in the car or play outside the car while she has gone in to create a scene.  I accept that the children will have been, as they have said, frightened of Mr D.  I accept also that at times they have said that they have had a good time with him.  Both of these comments can be true.

7. I accept the maternal grandmother’s evidence of the mother’s house that the sheets were filthy, that the toilets were filthy and that the house was in a dreadful state.  I do not accept the mother’s evidence that the photographs which the father took in January 2012 simply depict her home being just “moved into.”  The pictures show disarray and disorganisation and very little attention being made to the living environment.  The overall capacity of the mother to parent, in my view, is deeply troubling.

8. I do not accept that, as she suggests, the mother has been, but is no longer, a jealous type.  I do not accept that character trait will simply disappear during the course of Family Law litigation.  The mother has primarily parented these children with significant parental deficiencies.  I am sure the children have received much love and support from their maternal grandmother.  Issues to do with the mother’s capacity go to the heart of this matter.   

1. The father is a mature and well-grounded person.  He has made, in my view, very sensible decisions.  He has demonstrated a commitment to the children.  I have no issues in regard to his capacity.  He has informed the Court that X is quite headstrong and a handful, however, he is respectful toward his father and the rest of the family.  I accept his evidence that the parenting style of the mother yelling and screaming and hitting are not present in the father’s household.

2. The evidence of life for the children in the father’s household is a home of routine, love, structure, order and being child focused.  The impression I have with the children at the mother’s household is that they are left largely to their own devices.  They are having to feed themselves.  They are not clean.  Their bedrooms and sheets are not cleaned regularly.  They are left as onlookers in terms of their mother acting out her relationship with Mr D, whether it be violence, conflict or sexual encounters.  The paternal grandmother was contacted by parents who rang to report them wandering around (omitted), being unfed, asking other people to assist them.  Quite a tragic picture is painted.

3. In terms of the capacities of either of the grandparents, I am satisfied that the paternal grandparents are loving, devoted grandparents who have the interests of their grandchildren at the forefront of their minds and that they are able to provide real and sensible advice and support.  In terms of the maternal grandparent, I am satisfied she has a close and loving relationship with all of the children, that she is someone who is very competent parent.  She has probably been, in my view, the difference between the children coming to the attention of the Department and remaining with the mother.

S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. I have nothing further to add under this section. 

S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting Order under this Part will have on that right

1. These children have a mixed racial heritage and part of that heritage is they are Indigenous Australians.  My impression of the mother was that she has had limited interest in her Indigenous culture.  I acknowledge that the mother has always agreed that the children could travel with their maternal grandmother and, at times participated in, the trips south to (omitted) with her own mother to spend time with her family of origin in that area. 

2. The maternal grandmother is clearly to me the custodian of the children’s indigenous culture.  Starting from when the children were very young she has explained the nature of plants, she has taken them to family celebrations and has taken them to their ancestral homelands in and around (omitted).  The impact of any proposed parenting order will be that the children, if they live with the mother, are likely to have more regular contact with their grandmother whilst the mother remains living in and around (omitted), I have the impression though that the maternal grandmother will always avail herself of contact with the children and even if the mother moved to (omitted), that the maternal grandmother would make it her business to keep in touch with the children regularly.

3. If the children live in (omitted) with the father, then they will have the opportunity to spend time with their grandmother and that would be on the each alternate weekend, or on Wednesdays that are proposed that could be the days available for the mother each week.  I have suggested during submissions that I consider that the children being permitted to spend a week with their maternal grandmother (apart from any other time that the children spend with the mother) on one occasion a year would enable the children and grandmother to travel to (omitted).  This would enable the children to genuinely enjoy their Aboriginal heritage with other people who share that culture, including their much loved “Mumma” or grandmother.  The father and mother were agreeable to this proposal of a trip or week together which will also address the wish of the children and particularly Y, to spend time with his grandmother.    

S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. In terms of the attitude to the child and the responsibility to the parenthood demonstrated by each of the child’s parents, I accept that the father has the requisite parental responsibility and that he has shown a very child focused attitude towards the children.  I accept that the father has been extremely distressed about the prospect of the children being hit, being exposed to domestic violence and that he has been deeply distressed to find that his children have even had to fend for themselves in terms of being fed.  I accept that he has the determination and commitment to ensure the children attend school and achieve their potential.    

2. It goes without saying that I am very critical of the mother in terms of her attitude towards the children.  She has not protected them from domestic violence.  In my view, she has exposed herself and her conflicted relationships to the children.  I accept also that she has, one way or another, exposed her sexual activity to the children.  Her responsibilities of parenthood are sadly lacking: failing to feed the children; failing to get them to school and failing to ensure that they live in a house which is free of domestic violence, or that they are not exposed to it, in my view, demonstrates an extremely poor attitude to parental responsibility by the mother.

S.60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. The mother has been involved in family violence with her current partner.  There was no family violence between the mother and the father.  The mother has been treated very poorly by her current boyfriend on her own evidence and his evidence in that he has told her to, “Fuck off out of the house” and to get out of his life.  Lengthy, highly conflicted arguments have occurred with objects being thrown and the mother highly distressed, all in the presence of the children. 

2. The family consultant, Ms E, was most concerned that the mother describes herself as being jealous, she considered that goes toward her own insecurities.  The mother gave evidence that she likes to know where her boyfriends are at all times and Mr D says that that has been a source of great discontent.  There has also been an occasion when Mr D was described as the aggrieved by police when the mother has been trying to hound him, follow him and refusing to take “no” for an answer.  Overall, I consider the mother is quite immature and her approach to life very self absorbed.  Unfortunately, the mother is not able to place the children’s needs over her own.   

S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:

1. the nature of the order;

(ii)   the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv) any findings made by the Court in, or in proceedings for, the order;

(v)   any other relevant matter. 

1. I have referred to this issue throughout these reasons.  I am satisfied the mother has exposed the children to family violence whilst living with her. 

2. There is no domestic violence order between the mother and father.  The mother and her boyfriend have had intervention by Police, each requesting help on different occasions.  The father’s home represents a safe and secure home for the children, free of the erratic and distressing exposure to family violence. 

S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In my view, orders which see X living with the mother will most likely result very quickly in X physically leaving her home or further physical and violent altercations with his mother much to the distress of himself, the mother and the children. 

2. I have precisely the same concern in relation to Y.  He is turning 12 in May and he is aware of the ongoing conflict.  When he has been living with his mother, he has not wanted to be away from X and given their close ages of being only a bit over 12 months apart, I’m not surprised.  He has been exposed to the mother’s very poor parenting; yelling and screaming, his older brother having to do the cooking and not going to school.  Y is a very different child to X and he also has learning difficulties.  I refer to the report writer’s observations and recommendation regarding Y and the other children.  In my view, it is imperative that he attends school and live in an environment of safety, stability and free of conflict.  I am not satisfied that the mother is able to offer such a home. 

S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

1. I have nothing further to add under this section. 

Parental responsibility

1. In terms of the presumption of equal shared parental responsibility, I am satisfied that the mother has exposed the children to abuse and/or family violence and that the presumption does not apply. 

2. Section 61DA(4) states:

   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.

   An order for equal shared parental responsibility requires the long-term decisions to be made jointly and as set out in section 65DAC(3):

   It requires those persons to consult with the other person in relation to the decision to be made about that issue and to make a genuine effort to come to a joint decision about that issue.

3. In terms of whether or not it is in the best interests of the children to have an order for equal shared parental responsibility, requiring these two parents jointly make decisions, I am mindful that it is very apparent that these parents have a very difficult relationship.  Their relationship came to an end in the context of there being accusations of infidelity which appear to be validated, certainly from the father’s perspective and based on the evidence of a DNA test obtained by him.  Added to those difficulties post separation and since the father has returned from Adelaide, he become very aware of some of the appalling conditions in which these children have been living.  Other revelations about the children’s lives with their mother surfaced during the trial.  I observed the distress of the father on hearing Ms E given evidence of what X had told her about times when the children were hungry, the mother was either on the phone or on the computer and he would sneak out to buy food and telling Ms E, “I had to look for all of us” and “I got sick of looking for all of us, it was mums job.” 

4. It is very difficult, in my view, for the father to have a lot of confidence in the mother in terms of her decision making about matters such as schooling or medical matters. 

5. The mother has demonstrated that she has almost no regard for the children attending school.  She gave very alarming evidence that Y has difficulties at school and therefore, it’s probably better that he doesn’t go to school because he’s not going to do very well and that it would be better for his self-esteem if he didn’t have to go to school. 

6. It is difficult to think of a more misguided assessment justifying why a child with learning difficulty, should not even go to school.  The mother very much places a different value on education from the father and I consider that they hold entirely different parenting values.  The mother has indicated that she doesn’t accept the medical evidence that the father got in relation to Z suffering from some acidic problem.  When I asked the mother why she didn’t accept that, she said that she doesn’t trust the father and she never did.

7. The mother who in my view has no insight into her failings as a parent and she somewhat naively sees the father as just trying to take the children away from her.  The Court does not have any confidence that these parties will have the capacity to agree on long term issues.  I would go so far as to say that there is very little that the mother could contribute about education issues in particular. 

8. Whilst that sounds harsh, a mother who does not even believe that a child with special needs gets any benefit from going to school is someone who seriously underestimates the long term benefit of education.  Medical matters are, in my view, are another ground where a lot of discord can arise and there are already issues about that.  The mother’s solution to one of the boys having problems with a medical condition arising from lack of personal cleanliness is that he should have a circumcision, instead of dealing with the issue of lack of cleanliness.  I accept the evidence of the paternal grandmother as to the children always being received in quite filthy state.

9. I am not satisfied that it’s in these children’s best interests for the parties to have an order for equal shared parental responsibility.  I do not consider that they have the ability to communicate to the extent that they could jointly make long term decisions.  There remains much disappointment and mistrust between the parties and I am not satisfied that that is an order that could seriously work.  I accept that there has been criticism of the father for not telling the mother about an appointment for an ear, nose and throat specialist.  He did tell the mother that he was taking the child to a doctor for a referral.  He simply did not tell the mother about the forthcoming appointment.

10. Ms E was quite concerned that the father might not be showing the mother respect in failing to do this.  The father agreed that he didn’t tell the mother and said that he just found, at this time, that he couldn’t have any confidence that any communication with the mother would be at all beneficial.  The mother has a propensity to yell and scream at the children.  She has been in protracted and violent arguments with her current boyfriend.  The father gave evidence that in their time together, the mother had at times been impossibly difficult to have any sensible or rational discussion with, in much the same was as she has communicated with the children and current boyfriend.

11. Whilst I think it is very unfortunate that the father could not see his way clear to tell the mother about the appointment, I do not consider that that act in itself, nor the occasion where he apparently didn’t tell the mother about a football award evening, to which neither he nor his own wife attended as the tickets were sold out, is cause to be highly critical of the father.  As I said to the mother, I find it difficult to believe that the only way she could find out what was happening at school was from the father.

12. Most schools, these days, have a website and newsletters can be obtained that way.  I had the impression in some respects, the mother has been quick to find blame against the father if it at all assists her litigation.  Steps are being taken to ascertain what arrangements can be put in place so that the mother can be included on newsletters.  In terms of making long term decisions about the children, I am satisfied that it is appropriate for the father to have sole parental responsibility and I intend to make that order. 

Primary Considerations

1. In this matter I am satisfied that it is in the best interest of the children to have a meaningful relationship with both parents, though that time with the mother needs to accommodate factors such as likely being further exposed to family violence; exposed to the mother’s desire to act out her relationships and sexual activity in the presence or hearing of the children, and from the mother’s poor capacity to parent and poor attitude toward parenting. 

2. In relation to protecting the children from psychological and physical abuse, this is a matter of great concern to the court in terms of the children spending time or living with the mother, for the reasons I have already referred to.  The courts orders well reflect the significant concerns about the lifestyle of the mother, her engagement in an abusive relationship and the trauma caused to the children through the mother’s poor parenting and disciplining the children.   I have rejected the allegations made by the mother about the father’s wife and I do not regard her representing any risk to the children, quite the opposite is the case, she has a good relationship with the children. 

Discussion

1. In terms of the best interests of the children and the future living arrangements there are some very real concerns for this Court based on evidence that has been placed before the Court.  I am satisfied that the mother does not have the capacity to deal with even the children’s basic requirements of feeding them.  I am satisfied that she has been less than adequate in her supervision of the children and that she has not demonstrated a capacity to have them attend school as they ought to.

2. I consider their school absences are endemic and that there has been no reasonable excuse offered up by the mother for their woeful attendance.  Having heard the mother’s views on schooling whilst in her care, understand why they weren’t attending school.  This Court has to make orders which help children achieve their full potential in life.  I do not consider that these children will reach their full potential whilst they live in the home of the mother with her as the primary carer.

3. The father has in my view, shown significant commitment to these children in leaving Adelaide and returning when he started to realise that they were falling into extreme difficulties.  He is, in my view, a very competent, caring, capable father who very much appreciates the strengths and weaknesses of these children.  He is keen for and has involved the children in motor-cross and is very supportive of them competing at championship levels. 

4. He is very supportive of their education and has made it clear, even to Y, that if he is going to grow up to be a (omitted), he is going to be a very good (omitted), whereas in my view, the mother has no such goals.  I have the view the mother is very preoccupied with her own life.  I considered the difficulty in Z, leaving the full-time care of her mother and this is a very significant change.  It is not, however, a change in my view, that is without significant long term benefits.   

5. I need to make orders that look to the long term benefit of these children and that may mean some difficulties and sadness in not living with the mother in the short term.  However, I am confident that the father has the capacity to identify and deal with those issues that Z is likely to encounter in the short term.  I consider that the father will be well assisted by the step-mother, Ms A, in this regard.  I note also that the father is proposing to re-engage Y in counselling with Mr C as has happened in the past in acknowledgement of his sadness about missing his mother.

6. These children still very much love their mother, but they do not have yet, of course at 13, 11 and 7 years of age, the maturity to realise the adult issues that are in existence to do with their own welfare, such as their right to be protected from family violence and the effects on their education and moral development arising from the mother’s conduct.  I am very concerned about the children’s ongoing exposure to family violence and I accept that even if Mr D is not around, that it is not improbable that the mother will take up with another partner with similar problems, or similar dynamic in their relationship with the mother.  The mother has been described as very needy and I can tell from her desperation in following Mr D around, that she has been prepared to be treated very poorly by him in order to save her relationship.

1. I note the recommendation by Ms E that the mother should attend at counselling to understand the cycle of domestic violence and to educate herself about not being the victim of domestic violence.  I intend to make the mother’s time with the children conditional upon her attending domestic violence counselling. 

2. As is obvious from what I have determined in these reasons, my serious concerns about the mother’s capacity and her exposing the children to domestic violence and lack of parenting capacity and her lack of responsibility in parental responsibility, lead me to the conclusion that the best interests of these children require that they live primarily with their father and spend limited time with the mother.

3. I intend to order that the children spend each alternate weekend with the mother and half of the holidays, noting that one of the weeks that is the father’s holiday week, is to be dedicated to, once a year, the children having a week with their grandmother for the purposes of travelling to (omitted) or elsewhere in furtherance of being exposed to their indigenous culture.  The father has indicated his agreement to the children spending one week a year to holiday with their maternal grandmother.  I consider that making this Order will enable the children to properly be engaged in their culture. 

4. I also intend to make orders for telephone time.  I do not intend to make orders for telephone time every night, though that has been offered up by the father.  I consider this will be too difficult for the children to cope with. 

5. I know that the mother will be very upset about this and that the children have seen her upset before and this understandably distresses them.  I am not satisfied that she has the capacity to engage with the children on the phone every night without them becoming very aware of her sadness and, no doubt, her resentment about the fact that they no longer live with her.  I intend to make orders for telephone twice a week on times nominated by the father and that the calls only occur at those times, unless the mother is working, and in that event another time be nominated by the father to accommodate the children’s routine and the mother’s work.  

6. The mother has indicated to the Court that she would or might move to (omitted) if she was to have week on, week off with the children.  I do not consider that that is the appropriate order.  I do not consider that the mother has the capacity to parent these children on a regular week on week off basis for all the reasons outlined herein.  I do not consider that she has the responsibility toward parenting to do so nor the parental capacity. I am concerned about her commitment to her ongoing relationship with Mr D and their violent outbursts which characterise their relationships.  Mr D is quite indifferent about the children and he wants time to drink and socialise. 

7. I consider that if the mother lived in (omitted) I would not order anything other than a night in the off week for the mother, instead of an afternoon, or alternatively extending the mother’s time from Thursday to Monday each alternate week and with the condition that Mr D does not stay overnight at the mother’s house whilst the children are there and on the condition that the mother ensure the children attend school on each day they are in her care.  I do not have any confidence that the mother and Mr D will not burst into argument as they have been prone to do in the future.

8. I understand the children may have had some fun times with him and those fun times can occur during the day.  At night when Mr D wants to go out with his mates, the mother seems to become even more jealous and arguments have been acted out revolving around this.  The mother has wanted to go out when Mr D wants to go out, or Mr D wants to go out without the children, or the mother takes the children with her to drop him places.  I consider that it will almost be a relief to Mr D to know that he is not going to stay overnight as he seems to have quite a strong desire to go and spend a weekend with his mates out clubbing. 

9. I note the comments of Ms E that if the father has sole parental responsibility that he needs to be inclusive of the mother to ask her for her input.  In matters, other than education, I will make an order that the father is to, where possible, prior to making a long term decision, write once to the mother to tell her the decision he wishes to make and why.  The mother has 14 days to respond after which, having given the mother that opportunity, the father then can exercise sole parental responsibility.

10. The Court is placing a great deal of confidence in the father, not to disrespect the mother despite her past failures that he perhaps did so in relation to not advising her of two issues.  I accept the father’s regret for doing so is genuine.  Ms E observed that if the children detect the father does not respect the mother, they will not respect her either.  I consider that X reached that stage in the mother’s household when he told the mother that she ought to be cooking the meals not him and that was the point of contention which led to their very violent argument.  This was not because of anything said or done by the father, it was entirely due to circumstances between X and his mother.  The mother has struggled with the responsibility of raising these children.  Whilst she does not seem aware of her own short comings, I am confident that she loves her children and I am satisfied that the orders I intend to make will enable the children to have a meaningful relationship with each parent. 

11. I have every confidence that the father and his family will respect the mother’s role and that she has done as best she could in raising these children and that between herself and her mother, that they have helped to raise these beautiful children and that ought not to be forgotten.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date: 29 April 2014