Brent and Dardelwill

FAMILY COURT OF AUSTRALIA

BRENT & DARDELWILL

[2008] FamCA 329

FAMILY LAW – CHILDREN - Parenting orders - culture of aggression and violence - best interests principles - meaningful relationship - need for supervision of mother’s time with the children at a contact centre - separation of siblings.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286, (2007) 36 Fam LR 422

APPLICANT:

MR BRENT

RESPONDENT:

Ms DARDELWILL

FILE NUMBER:

DGF

2818

2002

DATE DELIVERED:

15 MAY 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

28, 29, 30 APRIL, 1, 2 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ARNOLD

SOLICITOR FOR THE APPLICANT:

MARIA BARBAYANNIS & CO

COUNSEL FOR THE RESPONDENT:

MS BYRNES

SOLICITOR FOR THE RESPONDENT:

TYLER TIPPING & WOODS

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

MS AGRESTA

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

MCCARTHY HOEY

Orders

That save as to issues of education and health, the mother and the father have equal shared parental responsibility for the children W born … September 1999, J born … July 2001 and Y born … September 2003.
That the father be solely responsible for making decisions relating to:
(a) the education; and
(b) the health of the children.
Notwithstanding paragraph (2), in respect of the education of the children, the father shall:
(a)direct and authorise the principal of all schools attended by the children to:
(i)permit the mother to attend all parent-teacher nights, school concerts, plays and sports days;
(ii)provide to the mother at her expense, copies of all newsletters, photographs, bulletins and pamphlets that might otherwise be provided to a parent; and
(iii)permit the mother to be involved with any health professional if the school principal considers that it is important for that health professional’s task.
(b)permit and encourage the children to speak to the mother at any of the events referred to in paragraph (3)(a)(i).
(c)provide to the mother details of any proposed change of school as soon as the decision is made to so change.
That the mother and anyone authorised or directed by her, be restrained from attending the schools of the children other than for a purpose referred to in paragraph (3)(a)(i) and (iii) hereof.
That the father advise the mother in writing of the name of any new health professional attended by any of the children prior to that child commencing seeing that professional and answer all written inquiries of the mother as to the progress and general details of those attendances.
Notwithstanding paragraph (2) hereof, in respect of the health of the children, the father shall:
(a)provide to the mother details as to all hospitals, dentists, doctors or other health professional appointments for the children prior to any appointment being held unless such appointment is for a normal everyday childhood illness and further advise the mother of any medication being administered to any of the children; and
(b) permit the mother to:
(i)attend any appointment if the health professional considers it appropriate; and
(ii)speak to any health professional to obtain information about the children.
That the father produce to:
(a) all school principals of schools attended by the children; and
(b) all health professionals attended by the children,
a copy of these orders.
That the children live with the father.
That the children spend time with the mother as follows:
(a)under the supervision of GordonCare for two hours per fortnight commencing as soon as possible for two periods with only the mother attending;
(b)after the two periods in paragraph (9)(a) hereof, for six periods under the supervision by GordonCare with the mother and at which T and M may accompany her should the mother so wish.
(c)after the six periods referred to in paragraph (9)(b) hereof, for six periods under the supervision of GordonCare with the mother and at which T and M may accompany her together with two of the three other children should the mother so wish.
(d)after the six periods in paragraph (9)(c) hereof, for two periods under the supervision of GordonCare with the mother and at which her husband and any three of her five children may accompany her should she so wish;
(e)after the two periods in paragraph (9)(d) hereof for ten periods on each alternate Saturday with the changeover occurring at and under the supervision of GordonCare with the collection and return times to be determined according to the available hours of GordonCare on the Saturday on the following conditions:
(i)the mother shall not return to her home; and
(ii)the mother may take the children to a shopping centre nearby; and;
(iii)the father shall not remain in the immediate vicinity of the mother.
(f)after the ten periods referred to in paragraph (9)(e), for a period of twelve months without supervision on each alternate weekend from Saturday morning to Sunday evening with the collection from and return to GordonCare contact centre at precise times and on precise dates as GordonCare shall be able to arrange.
That subject to the availability of the GordonCare Contact Service, the mother and her five other children shall spend time with the children for two hours at the contact centre under supervision on or around Christmas Day 2008 in addition to any other time referred to in these orders.
If the father fails to deliver the children during any period referred to in paragraph (9)(a) to (e) hereof then on the following weekend after the period where the children do not spend time with their mother, the father shall deliver the children to the mother at a park nominated by her for a period of three hours between the 11.00am and 2.00pm and at which T and M only may attend if the mother so chooses and such time shall not be in the presence of any supervisor. However, during such three hours, the mother:
(a) shall not return to her home;
(b) may take the children to a shopping centre nearby; and
(c)shall not bring the children into contact with her husband or her other three children.
If because of the conduct of the mother, her children (other than the three children referred to in paragraph (1) of these orders) or her extended family, the supervisor of GordonCare suspends the entitlements of the mother to use the services of the contact centre, these orders shall be automatically suspended until the supervisor agrees to the resumption and the orders shall thereafter resume from where they had been so suspended.
That during the periods referred to in paragraph (9)(a) and (b) hereof, the mother may give the children gifts from herself, her children and the extended family provided:
(a) the supervisor of the contact centre has no objections; and
(b)there is no written reference in such letters and gifts where the children are living or will live or about with whom they are living or will live in the future.
That should any of the periods referred to in paragraph (9) fall on Fathers Day in 2008 or 2009, these orders shall not be suspended and the children shall spend time with the mother accordingly.
That upon completion of the periods referred to in paragraph (9)(f) hereof, the children shall spend time with the mother:
(a)on each alternate weekend from 10.00am Saturday to 5.00pm Sunday;
(b)during the first week of all school term holidays from 10.00am on the first Saturday until 10.00am on the second Saturday;
(c)from 12 noon on 24 December until 3.00pm on 25 December on the first Christmas Day after the completion of the periods referred to in paragraph (9)(f) and for a similar period in each alternate year thereafter and for a period from 3.00pm on Christmas Day until 6.00pm on Boxing Day in the second year after the completion of the periods referred to in paragraph (9)(f) hereof and for a similar period in each alternate year thereafter; and
(d)for two weeks in the January school holidays in each year from 10.00am on 2 January until 10.00am on 16 January commencing on 2 January after the completion of the periods in paragraph (9)(f) hereof.
That for the purposes of all travel referred to in paragraph (15), the mother shall collect the children from the father at the commencement of the period and the father shall return the children to the mother at the conclusion of the period of time at the W Post Office.
That once the school holiday periods of time commence under these orders, the provisions of periodic time between the mother and the children shall otherwise be suspended during those school holiday periods.
That both the mother and the father make all necessary arrangements to attend a parents’ program organised by GordonCare and subject to acceptance by that organisation within the program, make all necessary attempts to attend.
That until otherwise advised by CAMHS the father continue to seek professional assistance from that organisation in respect of care of J.
That each of the mother and the father be restrained from discussing with W the question of his paternity until such time as each agrees that he is mature enough to understand the concept.
That all extant applications be otherwise dismissed.
That all proceedings be removed from the list of cases awaiting a hearing.
That each party be at liberty to produce a copy of these orders to all health professionals and education officials for the purposes of enabling such persons to understand the obligations of each party pursuant to these orders.
That all material produced under subpoena be forthwith returned to the recipient of the subpoena.
That all exhibits be returned to the party producing them.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2818 of 2002

MR BRENT

Applicant

And

MS DARDELWILL

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

W, J and Y have lived with their father on a full-time basis since May 2006. Since then, the time they have spent with their mother has been limited and supervised as a result of court orders. The question is whether that should now be changed.
W was born in September 1999 and is therefore 8 years of age. J was born in July 2001 so he is 6 years of age. Y was born in September 2003 so he is 4 years of age.
In May 2006, the mother went to prison for some driving offences. Until that day, she was responsible for the care of her eight children. Only the three children referred to above are the subject of these proceedings.
Virtually as soon as she started her sentence, the three children began living with their father pursuant to an interim order of this Court. Six months later, the mother was released from prison. Rather than give the three children back to her, this Court allowed and ordered, a strict and limited supervisory time for her at a contact centre. Now, 18 months later, after a four day hearing, I am asked to determine the future of these three children.
The mother’s position has always been that she should have the children back in her care. The father’s position has always been that she should have her time limited and supervised and that the children should otherwise live with him on a full-time basis. The issue for determination was that stark. After hearing all of the evidence, the difficult question for me was how long the mother’s time should be supervised.
This is not a simple case. There is an abundance of evidence to show that there are risks for these three children in the care of both parents. The evidence points to the fact that the risk with the mother is much greater than with the father. That is not the basis upon which I propose to determine the matter.
The mother has been diagnosed as having a borderline personality disorder. Notwithstanding her apparent capacity to care for eight children before being imprisoned, the children lived in a culture of aggression and violence. The opportunity to change that for the three children arises now. Their future stability and psychological growth very much depends upon the acceptance by all parties and the other five children, of these orders. Not to do so, may very well lead to the children returning to an existence of survival, aggression and fear that I am satisfied they lived up until the mother’s imprisonment.

The law

Each party seeks a parenting order. Section 60CA says that when deciding to make a particular order, the court must regard the best interests of the children as the paramount consideration. That clearly means that there are other factors or interests to be considered but it is the best interests of the children that is the paramount one.
In this case, each parent sought sole responsibility for decision-making about the children as well as control of the time with them.
Section 61C says that each parent has parental responsibility for the children which means all of the responsibilities, powers and authority which parents would normally have in relation to their children. Sections 61C(3) and 61D(1) and (2) empower a court to change that by order. That is what I am asked to do here.
Section 61DA provides that when the court makes a parenting order, it must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility. That presumption does not apply if the court is satisfied that a parent or a person who lives with a parent of the children, has engaged in abuse of the children or in family violence. Abuse in relation to a child means an assault which is an offence under a law or sexual abuse as specifically defined. That raises a specific concern in this case about involving a child in a DNA parentage procedure in which the child is given a pin-prick to obtain a blood sample. It was not argued before me as to whether that would breach State law if not sanctioned properly under the Family Law Act 1975 (Cth) (“the Act”). It would possibly be argued that such a procedure has long-term psychological benefits for a child which would therefore justify a parent authorising the action which might otherwise be an assault. In this case, concerned as I was about that, it is not a matter for determination.
For the purposes of the presumption, family violence means conduct, whether actual or threatened, by a person that causes another member of the person’s family to reasonably fear or be apprehensive about, his or her well-being or safety.
This case is loaded with aggressive conduct and family violence involving both parties. I have no hesitation in finding that each party has suffered actual violence and at times feared violence.
Section 61DA(4) permits, as distinct from mandates, a court to rebut the presumption of equal shared parental responsibility if satisfied that it would not be in the best interests of the children for the parents to have that equal shared parental responsibility.
Circuitous as that path may sound starting with s 60CA and ending with s 61DA(4), it is important to note that, as the Full Court said in Goode (2006) FLC 93-286, (2007) 36 Fam LR 422, the legislature evinced a very clear intention for parents to share in the responsibilities of parenthood. However, it must be concluded that the over-arching best interests principle remains the same as it was before the 2006 amendments.
In cases such as this where the parties start from a position of seeking sole parental responsibility, that is, excluding entirely the other parent in the decision-making process for their own children, a court would not normally need to look too far into the evidence to find that either the first basis of rebutting the presumption is present or more likely as in this case, the very stance adopted by the parents was such that there could never be a united, concerted or practicable endeavour to make decisions about their children. In that case, the second basis for rebutting the presumption becomes obvious.
Notwithstanding parties such as those before me have focussed on the time with their children, I am still obliged to examine the evidence as it relates to equal shared parental responsibility. In this case, there was a clear understanding by all parties that it would not work.
In the end, in addition to sorting out the parental decision-making issue, the law requires a court to make a parenting order about the caring time each parent will have with these children.
To achieve that outcome, the best interests principle is determined by a consideration of the matters in s 60CC. That provision is divided into three parts. The first is the primary considerations. The second is the additional considerations. The third is an examination of how each parent has fulfilled their responsibilities as a parent with some emphasis on what has occurred since separation.
All of these parts are but matters to be considered. Consideration means what it says but in this case, as in most, there is not an objective standard or yardstick to be used. The judgment or assessment about the respective matters is very subjective. That in itself creates some difficulty because of the many and varied lives parents lead in bringing up their children with all the attendant difficulties caused by differing educational opportunities, economic circumstances and at times, plain bad luck. In the end, I must make a judgment of what is in the bests interests of these children for their future. In that light, I approach the task.
The mother was born in May 1967. She is 41 years of age. Apart from being a mother, she works in a food processing plant. She has completed various adult education courses and obtained certificates. She also works in the adult entertainment industry. She occasionally works as a stripper at private functions but otherwise refers those adult services to an acquaintance who should, but rarely does, pay her a commission.
The mother is married to Mr Dardelwill. He is 56 years of age. Their relationship began after the conclusion of the one between the mother and the father. The mother’s husband seems to work mostly at nights.
The father was born in November 1964. He is 43 years of age. He recently completed a sports course and, subject to appropriate police checks, hopes to work for the Education Department in schools. He is currently otherwise caring for the three children and supports himself and them on a pension. That has been his situation since 2006 when the mother was in prison.
The mother consistently described the father as just her sex partner, maintaining they did not live together at all. That was clearly the position in her affidavit of evidence in chief. She said that she and the father did not cohabit. She went on to say that he would simply stay at her house for a couple of hours approximately once per week. In the very first moments of her evidence in chief, she said that the father “slept over on odd occasions”. The father maintained that he did not live full-time with the mother but was there long enough not to breach Centrelink guidelines.

Even the position concerning the three children of this relationship, such as it was, is not simple.
To all intents and purposes, I shall deal with all three children as those of the mother and the father. However, subsequent to the conclusion of their relationship, the parties undertook DNA parentage testing. Initially, all three results showed the father was not the father. It seems there was a security problem with the bodily samples so the tests were done again. This time, J and Y were established to be the children of the father. W has been deemed not to be the father’s biological son. The mother said she had a one night stand at a nightclub in Dandenong and she did not know if the father “knew the dude”. She said that she was set up by a friend and at the time, she thought “it” (by which I understood her to mean W) was the child of the father but “the times didn’t work out”. She was emphatic in her evidence that she had not told W of these DNA test results. I have grave reservations about that statement. W has only ever known the father as his father.
When I drew to the attention of the mother that the original affidavit filed in the Federal Magistrates Court showed that she said that there were three children of the relationship with the father, she said she had raised the subject with her solicitor but had concluded that she could do nothing about the matter because of the birth certificate and, until the DNA tests were done, “it had to be that way”.
The mother has five other children. They are N who is now 19 years of age, R who is 16 years of age, S who is 15 years of age, T who is aged 12 years and M is aged 11 years.
The births of N, R and S were registered effectively to one father Mr S. Although this man showed some interest, he indicated a desire not to be part of the children’s lives. To complicate matters, N is not the child of that man. Despite being 19 years of age, N does not know that yet. A concerted effort was made to ensure that that issue was not raised in these proceedings to avoid N being hurt, he being a witness. Similar agreement was also reached between counsel that the working life of the mother would not be brought to N’s attention.
Having ended her relationship with Mr S, the mother married Mr P and had M and T. Mr P was incredibly violent towards not only the mother but also the children. The injuries of the mother were horrific.
Over a period of five years, the mother was hiding from Mr P. During their relationship, the mother used drugs as did Mr P.
As the violence escalated, the mother put the older three children in foster care. She retained M and T because the welfare authorities did not expect Mr P to hurt his own flesh and blood. Nothing could have been further from reality. Thereafter, M and T went into care. All children remained there for five years. Towards the end of that five year period, the father came on the scene.
The mother maintained that it was her protection of the children that brought about their admission to foster care rather than any action by the Department of Human Services to take them from her. When questioned about why it had taken five years to get the children back, she said that the Department had to be satisfied that Mr P was locked away and she and the children were safe. When she was cross-examined however, it transpired that the Department had been involved with her over a concern about her taking her anger out on T. She conceded that the Department also expressed concerns about her reconciliation with Mr P and her refusal to report Mr P to the police. This was the environment into which the father came occasionally.
The nature of the relationship between the mother and the father was fraught with difficulty. Apart from it being part-time, each accused the other of various flaws. The mother described the father as being “stoned” on marijuana. The father said he had not used drugs after W was born. The mother said the father “borrowed” but never repaid, money from the money boxes of the children. The father said that was not true but on the contrary, he was a financial provider for the family. The mother said the father was violent to her and her son N. The father denied the violence as it was alleged. The mother described the father as just her sex partner who turned up once a week. The father said that he was there much more often and in fact cared for the children on occasions when the mother worked as a stripper at a club. The mother attributed her success in getting that job to the father’s encouragement yet he said that he was most unhappy about the one he loved being involved in an unsavoury business. Added to this was the fact that the mother described a one night stand with an unnamed man at the time her relationship with the father began culminating in her pregnancy with W.
One thing about which there can be little doubt was that the relationship came to an end in 2005. Just what occurred between 2004 and 2005 is confusing but I shall return to it. In that year, the mother moved through “safe houses” and changed schools because she alleged she was frightened of the mother. The mother denied the suggestion of the movement being due to him but rather due to Mr P.
Such was the contrast in what I can only describe as dysfunctional lives.
Having observed both the father and the mother over four days and watched their cross-examination, as a matter of general principle, I find his evidence more likely to be accurate. I am cautious in saying that I accept that evidence in preference to that of the mother because there are many conflicts. However, except where I otherwise indicate, I have preferred the evidence of the father.
Before turning to the events which changed the lives of the three children, having described the adults’ lives as dysfunctional, there is another dimension that requires description.
The father’s criminal history records show that he was charged with a number of offences but specifically two that are of importance. The first was making a threat to kill and the other was a breach of an intervention order. Each of those offences occurred on two occasions. The first was on 15 April 2005 and the second was on 29 April 2005. When the matter came before the Court in April 2006, the father received a sentence of four months imprisonment which was suspended for twelve months. Apart from that period of his life, he does not seem to have any history of violent behaviour, dishonesty or involvement in illicit drug matters.
Having heard the evidence in this case, I am satisfied that those offences and convictions relate to the period of time in which the father was tussling with the mother.
The significant conviction for violence relates to appalling behaviour involving the mother’s husband. The father also has been a consistent participant in the State Magistrates Court lists with an annual intervention order directing and controlling his behaviour towards the mother. The father described the mother as a poor role model for the children. One might be forgiven for saying that it was the pot calling the kettle black. The evidence of the father’s mother was that he had a temper and a capacity to flare up. The father maintained he was the victim. The record speaks for itself.
When the father attended the family consultant, he was made aware of the involvement in the interview process of the mother’s husband. He uttered threats whilst his mother was present to such an extent that the family consultant called security staff who took some time to calm the father down. Accordingly, the protestations of innocence by the father about the culture of violence have fallen on deaf ears.
The mother’s husband similarly espoused that he was the victim of the father’s violence. He maintained that he wanted the father to sit down like sensible adults and work out their difficulties. He described himself as not a violent person but one who only reacted when he was pressed. His criminal history records showed that at the age of 24 in 1976, he was fined for assault occasioning actual bodily harm. The fact that he was fined rather than imprisoned at the age of 24 indicated by inference that the matter was not terribly serious. In 1978, the mother’s husband was before the court on driving offences. In 1990 and 1991, he appeared on charges relating to theft. It is significant to note that he appealed against one conviction and fine for theft but the County Court increased the fine. He was then out of trouble for 14 years apparently because the next appearance before the court was in October 2005. The charge was one of violence and relates to the father. He was found guilty of recklessly causing injury. The penalty however indicates that the court was perhaps not that troubled because no conviction was recorded but a fine of $250 was imposed.
As in the case of the father, the record speaks for itself.
There are two significant points in these last few comments. The first is that the adults readily resorted to violence and retribution to resolve modestly simple conflicts. The second is that the major concern of the family consultant in this case was that the household of the mother was itself embroiled in a culture of violence. I agree.
N is not yet 20 years of age yet he has already begun to exhibit traits of the culture. He gave evidence and seemed largely unconcerned about the violence issue. As with the adults in this case, he portrayed the victim mentality as well. He said he had no convictions for assault but conceded he had a fight which he did not start at the Traralgon Show as a result of which the police jumped on him and arrested him. He said he was later given some form of court caution. Least it be thought that this was an isolated incident, I am satisfied that it was not. At a hearing in the Melbourne Registry of this Court, N became frustrated and punched a hole in a wooden pillar outside a courtroom. N smiled when asked whether he hurt his hand, responding that it had not.
The mother has no criminal history involving violent assaults. I find however that she has a violent disposition.
I shall also refer below to the significant intrusion in her life of the Department of Human Services. Her clearly expressed attitude was that she was the victim and that the Department did not do its investigative and protective job properly. She emphatically denied suggestions of threats and abuse to the Department’s staff but the records admitted by consent of all parties also speak for themselves. Whilst employees of the Department have a difficult job dealing in the protective welfare area anyway, they should not have to live with a constant diatribe such as what was described to me. As an example, the mother conceded that when she became irate at a point in time where she felt that the Department representative was not following her wishes, she called the worker a “fucking cunt”. She went further and conceded that as a frustrated parent, she suggested to the worker that she should have a child and see what it was like. It was put to the mother that she had told the Department worker to “get fucked” and for the worker to do her job and the mother denied that but then added that the Department needed to investigate more than they had. I have no hesitation in finding that, after reading the Department file as tendered by consent, the language to which I have referred was exactly what the mother said. The abuse was not confined to the Department of Human Services. More recently, staff at the contact centre endured abuse to such an extent that it was deemed a breach of the agreement and centre assistance was suspended. Whilst there may be explanations for this conduct because of the traumatised life of the mother, it is impossible to justify it. What is important however, is that it highlights the culture of aggression and violence to which the children would be exposed if they lived with their mother. The corollary of that is that there can be no doubt that any time spent by the children in that environment may at best be temporarily harmful for them and at worst imbue them with long-lasting anti-social attitudes. The temporary harm would need to be undone over the days succeeding the periods of time of exposure to the violent culture. It is something about which the family consultant could give little guidance. Her articulation of the problem was simply put that separation of siblings on the one hand was harmful but it had to be balanced against the damage of the exposure to the culture of the mother’s household.
Sadly, as I have described, the mother was horrendously assaulted by at least one of her former partners and the children were conscious of her distress and injury. Whilst not having criminal convictions for violence, she has convictions for shoplifting. On most occasions she was fined but there is one conviction in which she was sentenced to seven days imprisonment but that in turn was suspended.
Having dealt with the criminal elements, it is almost ironic that it was not criminal charges but her driving offences that brought about the significant changes in the lives of these three children.
During a number of years, the mother drove cars without being licensed. I have inferred from the court record that a magistrate became incensed and frustrated at her irresponsible actions and sentenced her to six months imprisonment for driving whilst disqualified. That sentence was suspended enabling the mother to avoid serving the prison term.
It can be seen from the record that only months later, the mother was again before the court for the same offence. She was again sentenced to a term of imprisonment and again, it was suspended.
Only months later again, the mother was charged and convicted of another offence. This time, she was sentenced to one month’s imprisonment and the suspended sentences were activated. This time, the mother went to prison for six months. There is some significance also in the fact that she was disqualified from having a licence for two years.
The mother gave evidence that in anticipation of a possible gaol sentence, she told the schools that she may be absent from her children. She did not tell the father about her anticipated fate. When asked why, she said she was not certain she was going to gaol. I reject that. I find that there was a clear sentence hanging over head and her chances had run out. To tell the schools what she did has a clear ring of reality about it which is inconsistent with her evidence about why she did not tell the father.
What the mother intended was that her husband would care for the eight children in her absence. The move by the father to seek that the children live with him changed all of that.
With such a record of breaking the law and having actually served a sentence of imprisonment, one would have thought that the mother would approach the driving of a motor car with some trepidation. However, at the end of 2007, she was detected speeding and again faces a court shortly on a charge of driving whilst disqualified. Her explanation which was not in any affidavit was that she had thought the magistrate who sentenced her to imprisonment had disqualified her from obtaining a licence for 18 months. The particular offence at the end of 2007 was at the 20 month mark. She said in evidence that she had spoken to the licensing authorities who gave her the impression that she could have a licence back. Nothing could be further from the reality. Looking at the magistrate’s record at which time she was sentenced to serve the term of imprisonment, there is a very clear indication of two years disqualification. Even if the mother misunderstood or misheard what the magistrate said, to take a less than cautious approach and drive a motor car not to mention being caught speeding in it, gives a very clear indication of irresponsibility. Importantly, it is consistent with the evidence to which I shall refer of Dr E.
At the time of delivery of this judgment, the local Magistrates Court had adjourned the sentencing proceedings for an examination by the local corrections authorities about whether or not the mother was suitable for an intensive corrections order. As I understand it, if suitable, she will be required to undertake considerable supervision and counselling to avoid serving a formal term of imprisonment. The mother provided a letter confirming that that was what was happening. Having regard to her attitude as expressed to Dr E about counselling, I have little confidence about any rehabilitation program. That is all part of the environment in the mother’s household and indicates a very strong anti-social attitude. It may very well be however, she is found to be unsuitable for an intensive corrections order and gaol becomes the only option. As I indicated in discussion with counsel, that must be seen as a realistic possibility having regard to her track record.
Before turning to the question of what happened after the mother went to prison in 2006 and the children came to live with the father, it is important to look back at the history of the involvement of the father in the lives of the children.

Evidence of what occurred during the relationship

The mother said that her relationship with the father was consistent with the relationship with her former partner to which I have earlier referred. She said it was typified by domestic violence.
As a general proposition, the father vehemently denied any domestic violence stoically maintaining that he would never hit a woman. He said the same about the children.
The mother alleged that when she was pregnant with J, in other words in either 2000 or 2001, the father punched her after she interceded in an argument between the father and the oldest child N. No specific details were given.
In relation to matters as serious as questions of violence such as that to which I have just referred, I have applied the provisions of s 140(2) of the Evidence Act 1995 (Cth). I do not intend to make a finding unless I am satisfied to a higher degree than just that something probably happened. Accordingly, I make no finding in respect of the allegation about 2000-2001. In short, I am not sure what happened.
The mother referred to an incident when she was approximately seven months pregnant with Y. If the date is correct, it must have been the winter of 2003. All she described was a situation in which the father had pinned her to the ground in the front yard of his mother’s home during an argument. She said that the paternal grandmother had to grab the father by the hair in order to get him off her. Needless to say, the father had a different version and denied that which I have just set out. The most objective and believable version of events came from the paternal grandmother. She said that there had been an argument in her backyard between the father and his own father. She said her son walked away from the backyard down the driveway of the home whereupon, for reasons which completely escaped me, the mother attacked him and began hitting him. She said he brought the mother to the ground and was holding her. The mother alleged that he was sitting on her. I reject that. According to the grandmother, she said that having witnessed what was going on, she told him to get off the mother and he did so. In respect of the accusation that the grandmother grabbed the father by the hair, she not only rejected that but spontaneously answered that he didn’t have much hair then anyway. When the grandmother was cross-examined by the Independent Children’s Lawyer, she was asked whether she considered that her son contributed to some of the violence and she readily acknowledged that he had some responsibility albeit in her view, in a minor way. Again she spontaneously responded that her son had a temper, that he flared up and that he “blew his cool”. That is consistent with what the family consultant witnessed and was concerned about. That is an incident to which I shall return.

In the circumstances therefore, in relation to the mother’s allegation of what happened in winter of 2003, I accept the version of both the father and the grandmother.
Both parties agree that towards the end of the relationship, there were arguments. The mother said that in about May 2004, the father attended her house whilst “high on marijuana” as a result of which, an argument ensued and she told him to leave. That allegation was consistent with her claim that he would “typically arrive stoned” to demand money. Not only did the father deny such assertions but went further and said that he had not used drugs since the birth of W. There is no other evidence before me about drug usage nor any basis upon which I could comfortably say that I accept what the mother says about that. Accordingly, I do not accept the mother’s allegation.
During the visit to which I have just referred and about which there was no serious dispute, it seems that W took at least a mouthful of drink from a can of Bourbon and Cola that was carried by the father. Why the father attended at the home carrying alcohol in that way was hard to fathom but his explanation was that he had finished his day’s work and was just having a drink. He was quick to acknowledge that he should not have allowed W to have the drink. That wasn’t the problem. What occurred thereafter was that the mother conceded that she became “enraged” and started yelling at the father as a consequence of which, he grabbed her in a headlock and “threatened to punch her”. This unsightly behaviour occurred in the presence of N who was then well on the way to adulthood. According to the mother, the father left her, grabbing N in a headlock and punched him. This particular part of the dispute was put to the father in cross-examination and he denied emphatically that he had behaved that way with N. His response was that there was no way he would ever hit a child because he was so strong he would hurt them. N’s version some three years later was consistent with his mother’s. I accept what N said occurred because of what followed.
When the scuffle was going on between the father and N, the mother pushed both the father and N over whereupon the father grabbed the mother around the throat. Not to be outdone, N then kicked the father who left yelling threats. The matter did not end there. The mother and N went to the police station but because N conceded to having kicked the father, the police threatened to charge him as well.
Having not received much satisfaction from the police, all parties seemed to have gone to the Department of Human Services. The mother’s version was that she went there so that they could see the bruises and understand her concerns about the children being left in the care of the father. The father said that he went to the Department of Human Services because he had no witnesses to what had occurred and he wanted to make sure that the Department knew everything that was going on and for them to document it.
It is unclear on the evidence where all of the children were on this particular day. What is clear is that all of the adults behaved in an appalling fashion. It would be inappropriate for me to make a finding that one or other was more culpable than the other.
The incident to which I have referred precipitated an application for an intervention order by the mother against the father. Almost as regular as a birthday or relationship anniversary, intervention orders in this case have been granted annually since 2004. When questioned about them, the father said that he thought that the first two were unjust but of the more recent two, he said he did not contest on the basis that he knew that the mother was going to win. That was “the system” according to the father.
Throughout the relationship, such as it was, it was predominantly the mother who was caring for the children. There was no evidence that subsequent to the return of her five other children, the Department of Human Services had intervened to remove any of those or these children again. On the basis of the father’s own concession that he was only at the home of the mother on a periodic basis, it must follow that she was the predominant carer on a day to day basis of those children.
In all of her documents, the mother made no reference to the point at which the relationship concluded. In his affidavit, the father said that they finally separated in 2005 and that there was an earlier period of separation in 2004. With the confusion as to the nature of the relationship and the recollections of the parties, the record of the Court gives a better indication. On 31 May 2004, the mother filed an application in the Federal Magistrates Court at Dandenong seeking that the children live with her and that “contact by the father be reserved”. It is important to note that the mother made no reference in the information sheet as to the dates of the relationship. The matter came on for hearing before Federal Magistrate Walters in July 2004. The matter was then adjourned to October 2004 for an interim hearing with a final hearing expected in May 2005. The Department of Human Services appeared as amicus curiae in the proceedings in July 2004 but the father was to have the children each Saturday from 1.00pm to 5.30pm under his mother’s supervision. In October 2004, the matter came back before Federal Magistrate Hartnett. The father appeared unrepresented and consented to final orders that he spend time with W and J on each alternate weekend from 5.30pm Friday until 5.30pm Sunday and at ancillary times and that his contact with Y be as agreed until Y attained the age of two years. The orders on that day were final.
The father was cross-examined at some length about these orders and he maintained that the orders were imposed upon him and he made reference to his lawyers. However, the record shows that he was unrepresented and that he consented to the orders.
One would have thought that with final orders having been made in October 2004, the question of the relationship was at an end.
In 2005, the mother said that she and the children were placed in a number of safe houses in attempts to escape the father. She said that despite “advice” of her domestic violence workers, she still attempted to organise weekend contacts between the father and the three children. She said they met in parks so that he could spend time with the children. The father said that it was more than just parks. On some occasions they seemed to have met outside of a police station and even went to the homes of each other. During the same period, the mother said that schools had to be changed because the father was seen stalking her outside of the school. There was no evidence to suggest that the school witnessed all of this or expressed any concern about it. When the father was questioned about it, he was of the view that the reason the mother changed schools was that she was endeavouring to keep away from her former partner. I accept that that is more likely than not what occurred.
For example, it was specifically put to the father that in March 2005, he went to the M Primary School. The father’s response was that he did not do that because he did not know where the primary school was. During this same period of time however, the parties met at a hotel and it seems that this is the point in time when the mother’s husband was introduced into the scene.
In May 2005, the parties were back before the Federal Magistrates Court at Dandenong with the father applying for injunctions against the mother in relation to discipline of the children. I have concluded therefore that in between October 2004 and May 2005, the relationship between the parties was ongoing to some extent. However, the father’s application was also based on the fact that he did not know where the children were living. That evidence is consistent with the father’s statement to which I have just referred about not knowing which school the children were at in March 2005.
The disciplinary proceedings were adjourned to August 2005 at which time, the father was ordered to have supervised contact for two hours each fortnight. An Independent Children’s Lawyer was appointed.
In November 2005, the matter was again before the Federal Magistrates Court at Dandenong and this time, an Independent Children’s Lawyer was appointed. Interim orders were agreed between the parties which effectively reinstated the orders of October 2004. In other words, the father was to have alternate weekends with the children. The children were to be exchanged at the T police station.
Although it is clear that the contact regime was inconsistent and unsatisfactory, it was at least occurring. In the midst of that regime, there were various violent incidents to which I shall return. My impression from all of the evidence is that, despite the assertions by the mother to the contrary, the father wanted a relationship with his three children. Most importantly, he would have been satisfied with being a weekend father.
On 15 April 2005, the father went down to the police station to find that the mother and her husband were there at 11.30pm. When he arrived, there was no police officer attending the counter and the mother’s husband, according to the father, started to harass him. Both sides conceded that this particular incident would have been recorded on a CCT camera but no evidence was presented before me to clarify the position. There was undoubtedly a ruckus at the police station because according to the father, the police came out from wherever they were to escort him to a room away from the mother and her husband. It was put to the father that he was removed by the police because of threats and he denied that. However, what was tendered to the Court as an exhibit was seven extracts of orders made by the Magistrates Court. Two convictions were recorded against the father for making threats to kill as a result of which he was given a suspended gaol sentence. The inference that the father would have me draw about the particular incident was that the mother’s husband and the mother were the aggressors. I reject that. Having regard to the certificates of the Magistrates Court and the absence of any material from the Police Department to the contrary, I find that the father was the aggressor on that particular night.
The convictions to which I have referred take on some significance in this case. The father’s accusation against the mother is that she is a poor role model. It is the father however who has recorded convictions for violence. It is of some significance to me that those convictions relate to the family situation involving the mother’s husband as the partner of the mother. It strongly suggests that the father has little control over his emotions when it comes to the mother’s husband. Notwithstanding the finding that I have made about the aggressor, I want to make it clear that I am equally unimpressed about the mother’s husband.
The father was cross-examined about what his understanding was of the suspended sentence. His view was that he had to keep out of trouble for twelve months because otherwise he would be “locked up”. The record speaks for itself. The Magistrate thought the matters were serious and the convictions recorded indicate a term of imprisonment was imposed. The fact that it was not actually served in prison is irrelevant. Arising out of the incident in the police station, the father said that he was put on bail. That seems consistent with the fact that the certificates indicate that it was some months before the Magistrate actually determined the matter. It is also of some significance that the certificates record that the father pleaded not guilty but was found otherwise.
Just one month after the incident in the police station, a further incident occurred. According to the mother, the father turned up with two friends and endeavoured to follow her at a changeover between them involving the children. The father denied that occurred maintaining that the only persons who had ever attended a changeover were his mother and father. That evidence is consistent with what the paternal grandmother told me. It seems the next day, 14 May 2005, the parties spoke to each other on the telephone and agreed to meet at a home in T to discuss things. I accept that the main topic of conversation was about a birthday party involving W. It seems that there was a dispute about the day.
The father’s evidence which was largely corroborated by the mother’s version was that he arrived and the mother’s husband pulled up, hopped out of the car, ripped his shirt off and came over towards him clearly looking for a fight. According to the father, the mother’s husband started hitting him. The mother’s version was that it was the father who threw the first punch. I am not able to make any finding about who threw the first punch but what is abundantly clear is that not only were the three children present but that M and T were there as well. The father said that he told the mother’s husband not to continue the aggression in the presence of the children (bearing in mind that the mother’s husband had removed his shirt for the purposes of a fight) but the father said that the mother’s husband in colourful language ignored him and hit him. It seems that the neighbours called the police who attended and took the father inside. The father’s view was that the police sympathised with him but no action was taken. That does not seem correct as the mother’s husband was found guilty in October 2005 in the criminal history sheet to which I have already referred. Only days later, the parties were at the Federal Magistrates Court at Dandenong. The mother’s version was that the father threatened both she and her husband. None of this material was in the affidavit of the mother nor of her husband. The evidence was scant as to what occurred that day and over the ensuing weeks.
In his affidavit, the mother’s husband made a number of statements such as that the father has continually harassed the mother and shown more interest in rekindling his relationship with her than in having contact with his sons. I reject that evidence as comment and the mother’s husband was not able to provide any first hand information which would justify those conclusions.
The mother’s husband further alleged that on an unspecified day, late at night, the father came down to his home and was “sneaking around” his property. When cross-examined about that, the mother’s husband conceded that he had not seen the father but rather a black car like that belonging to the father. That particular evidence was not in his affidavit and the vague nature of the assertion in the affidavit is such that I am satisfied that the allegation has no foundation. Whilst I accept that the mother’s husband is partisan, that sort of evidence was unhelpful. The mother’s husband went on to say in his affidavit that on another occasion, the father forced he and his daughter off the road as a consequence of which he sought an intervention order which went to a “contested hearing”. He made reference to the court making an order. Having regard to the earlier comment that I have made about the mother’s husband and his vague assertions, I would not accept his evidence unless it was corroborated. If an intervention order had been based upon such an event, no doubt the documentation could have been produced and the court record proved including the transcript of the proceedings before the magistrate. No such documentation was forthcoming and accordingly, I do not accept the assertion of the mother’s husband.
I have already made mention of the incident in the Melbourne Registry of this Court in which N punched the wooden pillar outside of the courtroom. In respect of that, the mother’s husband set out in his affidavit the events as he saw them occurring. He said the father came over to N and was “taunting and cajoling him”. When cross-examined about this, the mother’s husband conceded that he did not see how the incident started and certainly did not see the incident with the child R. He conceded that he only saw what was occurring when N was pulled away. There was no basis for his affidavit statement about taunting and cajoling.
Another such incident referred to in the affidavit of the mother’s husband is set out in paragraph 16. The mother’s husband said that at a hearing, the father’s mother spoke to the mother and the father’s mother declined to pass on Easter eggs to the children. When cross-examined, the mother’s husband conceded that he had assumed that that was what they were talking about because he was not there at the time.
In his evidence before me, the mother’s husband was at pains to say that he was not a violent man and was endeavouring to be the voice of reason. As a result of the incidents to which I have just referred, I have little confidence in the truthfulness of the mother’s husband and place little weight on any of the evidence that he has given.
The foregoing paragraphs set out what I describe as a culture of violence and aggression which is neither explainable nor justifiable.

Allegations by the mother of sexual abuse by the father

In the middle of 2005, J disclosed to an employee of his kindergarten that he had been “touched on his private parts by Daddy”. Suffice to say, the matter was reported to the police and the Department of Human Services but the father continued to spend weekends with the children. In her affidavit, the mother said that the children continued to make “concerning disclosures” regarding their treatment by the father. The records show and it was put to the mother that at kindergarten, J took his pants down and exposed his penis and bottom. He told a child to “lick his balls”. The mother denied the first suggestion but agreed with the second one to which I have just referred but then added that J had taken a child to the toilet and when it was found what he had done, he told the kindergarten teacher “that’s what Daddy done”. The kindergarten reported to the Department of Human Services whatever occurred and the Department’s response was that they found no risk involved. The mother did not accept that because in her view, the Department did not investigate it properly. However, the Department turned the focus to the mother and indicated that there was a moderate risk for J in her care. That related to aggression. The Department’s protective plan showed no concerns in relation to the father but took the unsurprising step of requesting the mother to attend anger management. She was asked in evidence whether she went and she agreed that she went to “a few” meetings.
There is no evidence of any concern by the Department or the police arising out of the kindergarten incident and just exactly what was investigated is unclear. Suffice to say, counsel for the mother indicated that it was not being alleged that the children were at risk in the father’s care.

The father’s concern about the mother’s occupation

In his affidavit, the father said that the mother had worked in the adult entertainment industry for many years and had been advertising in a local newspaper. When cross-examined about this, she said that she was working as a stripper when they were “living together”. The mother’s version was that the father in fact encouraged her whereas his version was that he did not like it. When asked how he found out about the advertisement, he said it was his “mates” who had found out towards the end of late 2005.
It is not suggested by the father that the mother had ever introduced the children into that scene although his concern was that whilst she was visiting a “client”, the children were left outside in the car. That seems to have given rise to the statement that he “firmly” believed that the mother continued to work as a prostitute. I am satisfied that the mother does not work as a prostitute as she has another acquaintance who does the “escort” work. However, a subject of some cross-examination of the mother was about her possession of mobile telephones. It appears that she has three. One of them in particular, she was at pains to point out, was not answered by the children and they knew they were not to touch it. She said it was locked in her room. If she answered the telephone, she went into the bedroom. This apparently is the telephone used for the purposes of the mother’s business activities. When queried about this process, the mother said that she got a commission for each escort that the other acquaintance undertook although there had not been any payments of late and in any event, all she wanted was enough money to cover the costs of maintaining the telephone line and the advertisement in the newspaper. The mother’s husband was not able to shed much light on the issue because although he was able to confirm that the mother took such telephone calls, there was only one that he was aware of in the previous month and that was taken by the mother in her bedroom where the door was “always locked”.

Having regard to the sensitivity with which every member of counsel treated the subject of the business of the mother with her son N and the vehement protestations by both the mother and the mother’s husband about the telephones, I accept that she is diligent in ensuring the children are not embroiled in or aware of, her business activities. I am also otherwise satisfied that the children would not be at risk in the mother’s care as a result of those activities.
One of the sad facts of this case is that the parties have strongly held views about the other as a parent based upon what other people have told them. Some of it may be true; some of it may be gossip whilst other parts may have some elements of truth that have been misconstrued. In this case, I am determining the matter on the evidence not supposition.
By early 2006, there is little evidence that either party respected the other. There is ample evidence of appalling behaviour in the presence of the children. Just exactly what impact all of that had on the children is hard to say.

The mother goes to gaol

In April 2006, the father learned that the mother had been imprisoned for approximately six months for driving whilst disqualified. Having been imprisoned, the mother had made arrangements for her husband to simply take over the care of the children. This is the man who at that stage, had an appalling relationship with the father. Within days of becoming aware of the imprisonment, the father made an application to be made responsible for the care of the children and Senior Registrar Fitzgibbon made those orders. The orders provided for the mother to see the children each alternate weekend. Significantly, the children were to remain in the care of the mother’s husband during those alternate weekends so that the mother’s husband could take the children to visit the mother in Melbourne whilst she was in prison. Prior to the orders of the Senior Registrar, the father had been taking the children to the prison during the weekends that they were in his care. Between May and August 2007, it seems that the relationship between the children and the mother was continued by the mother’s husband. For reasons which were not clear, on 18 August 2007, orders were made that the children spend time with the mother while she was in prison each alternate Sunday but that this time, the father transport the children to and from the prison facility.
Upon the release from prison, the mother sought orders that the children return to her. On 10 October 2006, Senior Registrar Fitzgibbon refused the mother’s application but granted her alternate weekends from Friday night until Sunday night and thereafter, the children resumed something of a normal relationship with their mother albeit on a weekend basis only.
Matters changed direction again when the matter returned to the Court on 6 February 2007 because the mother raised further allegations against the father of sexual abuse of the children. This time, orders were made that the mother be restrained from discussing with the children any allegations of sexual abuse or allowing anyone to discuss them in the presence of the children. The mother did not comply with the orders because she overheld them in February 2007 and the matter came before Mushin J on 21 February 2007. As a result of the evidence on that occasion, Mushin J not only ordered a return of the children to the father but suspended the existing orders between mother and children and directed that time be organised through the contact centre at W. Those orders were reinforced on 13 March 2007 when Senior Registrar Fitzgibbon made interim orders that the children live with the father and that the mother’s time with the children be limited to two hours per fortnight at GordonCare in W. Those orders subsist.
I find that there was no basis for the allegations made in the hearing in February 2007 and any residual concern of the mother must be seen in the light of her counsel’s concession that she did not now say that there was any risk of sexual abuse by the father of the children. I am not at all convinced that the mother believes that. Rather, there is no objective evidence that could be placed before the Court to support any such contention.

The Paternal Grandmother

Mrs Brent is the paternal grandmother of the three children. Her support for her son was strong and obvious. Her objectivity was not really challenged. Counsel for the Independent Children’s Lawyer probed the paternal grandmother about what contribution she could make towards ensuring the children were able to talk openly, healthily and safely about their problems in either, but particularly the mother’s, household. The grandmother was forthright in her views about the mother and her way of life and parenting. I am satisfied she strongly believes that nothing good could come from having any relationship with the mother or from endeavouring to have the children talk about their life with their mother other than in circumstances where the children volunteer it. That is not necessarily a criticism; it is a sad fact of the lives of these parties.
An incident involving the paternal grandmother which was the subject of contention related to some Easter eggs. The mother said that at one court hearing, she asked the grandmother to give the children some Easter eggs which she had brought. She said the grandmother’s response was to refuse to take the Easter eggs or pass on a message about the fact that the mother loved the children and missed them. The grandmother’s evidence was that she had seen the mother attending court with a bag and for some time sat opposite her. The mother then sat down beside the grandmother and asked her to get the children to ring the mother for her birthday. According to the grandmother, she initially ignored the mother but then responded to the effect that she would not do what the mother wanted because of court orders. When asked about whether she was requested to give Easter eggs, the grandmother was emphatic that no such request was ever made.
It seems that the Easter eggs were then delivered to the Independent Children’s Lawyer who in turn delivered them to the father’s solicitor and within the Easter eggs was found the mother’s telephone number. I accept the grandmother’s evidence in respect of that. It has a ring of reality about it.
It was the forthright simplicity of the views of the grandmother that convinced me that her version of the evidence was truthful. In respect of a number of matters, her evidence was not challenged. She said that the father and three children visit her on a daily basis because their school was nearby. There were visits as well on weekends. Importantly, she said that she and her husband enjoy spending time with the children and that they were “flourishing” in her son’s care. She went on to say that she had noticed a vast improvement in the children’s behaviour from the time when they commenced living with her son in May 2006 until the present time. She compared the naughtiness of the children in May 2006 in which they would often kick and punch one another but subsequent to their settling into the home of her son and their current school, the behaviour improved.
Another issue that was contentious between the parties and which relates to parenting capacity as well as the protection of children from violence was an assertion by the mother that not only the father but also the paternal grandmother had encouraged the boys to fight and use physical violence to resolve disputes. The mother conceded that this was well prior to the children coming into the father’s care and she was not able to say what was happening now. The grandmother was very clear in saying that she had seen wrestling occurring between the boys but nothing akin to aggression. She gave evidence about the father’s ability to control the situation which in the circumstances, I found to be appropriate. There was nothing about the demeanour of the grandmother that suggested she would behave in the way described by the mother and I accept her evidence that she does not accept aggression as a form of dispute resolution nor do I accept that the boys are constantly encouraged to be aggressive as the mother would have me accept.
The mother said that her son had provided a stable environment for the children since May 2006 and that the three bedroom home had all appropriate amenities. She compared that situation with what she had witnessed following the birth of Y. She described the state of the mother’s household at that time as dirty and smelly.
In respect of recent matters, she described her son as a loving and capable father and apart from two overnight periods with her, the children have always been in her son’s care. She said that he always ensured they were properly fed and had appropriate school lunches. I accept her evidence.

The school reports of the children

An examination of the student reports of W show that he has settled well at school and there are signs of progression. It is interesting to compare his June 2007 results with those of December 2007. Whilst very subjective and untested, it gives the clear impression that W is in a settled environment at school.
A similar situation could be said of J however he has a number of difficulties which seem to reflect themselves in the school environment as distractions. Having said that, the reports tend to suggest that he is also doing well in the circumstances.
The significance of this evidence is that it shows that notwithstanding the criticisms of the father by the mother, the father has done an admirable job in difficult circumstances. Until May 2006, whatever relationship he may have had with the three children, he had never been a full-time parent. However, what I consider most important is that when I compare what the father is doing and has achieved in the last two years compared with what I accept was the chaotic household of the mother for many years, whatever other criticisms I may have of the father, his dedication to the parenting task now, cannot be doubted nor can his stability in that role.
In those circumstances, it is important to look at the contentious issues in the case about which I shall now make findings. These findings have convinced me that the view taken by all of the objective professionals in this case is right and that ultimately, despite the risks with the father, it is in the best interest of the children that they live with him.
I am conscious in this case that the mother has sought the return of the children. I am satisfied that she sees them as an integral part of the family made up of she and her other children. I am not entirely convinced that the mother’s husband fits into that but even accepting that he does, it is clear on the evidence that the mother does not now nor has, nor will in the future, see the father as having any significant role as a parent in the lives of these children.
Whilst acknowledging the risk, there is clear evidence which I find credible that the children have thrived with the father over the last two years. They are in a stable household and there is an absence of violence in the father’s care provided the children stay away from the adult conflict of changeover.

The Mother’s son N

N is 19 years of age. He is the oldest son of the mother. He is employed on a full-time basis during the day at a food processing plant and at night in a restaurant.
He had little to say about the father that was positive.
His evidence was that the father came to the home rarely and only for the purposes of borrowing money. He said when he did make those visits, he seemed to act abnormally which in his view now in hindsight, indicated that the father was “stoned” from consuming marijuana. This evidence was extraordinarily wide and vague and not objected to by any party. In cross-examination however, it soon became clear that N had no really accurate recollection of what periods of time the father spent at the home nor how often he came to borrow money and left notes if he had taken it. I am quite convinced that he was either guessing or making up answers to satisfy the cross-examiner. In respect of the accusation that the father was “stoned”, he said that he knew this now because he was acquainted with friends who smoked marijuana as did he and in hindsight, he recognised the symptoms. When he was challenged about many things that occurred in his life particularly at the young age of 15, he was vague and uncertain. In respect of the evidence concerning the attendances of the father at the home and his involvement in the lives of the children, the best he could say was that the father “whinged” when he was asked to change nappies as a consequence of which the task fell to N.
N was quick to say that the father made no contribution towards the “upkeep and wellbeing of the boys when they were young”. Having heard the evidence of N and watched his demeanour, I am convinced that those were not his words albeit the concept might have been. His view was that the father made no financial contribution to the children.
Without specifying dates, N said that he worked alongside the father as did his younger brother to help him dig holes, put in concrete and other tasks associated with erecting fences for which although promised, no payment was ever made. The father in turn denied that occurred saying that he would not have asked a teenager to undertake those tasks having regard to the effort involved. The difficulty I have with all of this evidence from N stems from his general remark that the father was rarely around and certainly not involved in the lives of the children. The vagueness of his evidence convinces me that I ought not accept its accuracy. In so far as some of the events occurred, I could not rely on the accuracy of the evidence of N to be certain as to exactly what occurred.
N alleged that the father was physically abusive towards him on “a number of occasions” when he was a child. He gave evidence of one incident apart from the alcohol incident involving the child W to which I have referred. In this second incident, N said that he rearranged the furniture in his bedroom as a result of which the father became angry. Again, the difficulty with this evidence is that it is remarkably inconsistent with someone who was rarely around taking on some responsibility for insisting that a house bedroom be constructed in a particular way. The father was questioned about this incident and he gave evidence to the effect that no such incident occurred and that because of the state of the house, he would have loved to have had the furniture rearranged.
As a result of the rearrangement of the furniture incident, N said that the father grabbed him by the throat and pinned him against the wall whereupon both his mother and sister were trying to get the father off him. A chase ensued into the backyard where he said that the father grabbed him in a headlock and began punching him to the stomach. He then said that the father punched his mother who at that time was pregnant with J. J was born in July 2001 so the incident must have occurred between late 2000 and July 2001. The only reference that the mother made to that incident was that when she was pregnant with J, the father punched her after she interceded in an argument between N and the father. The father said that an incident similar to that described by N in fact occurred but it arose at a time when N was holding a knife to his mother. Apart from putting to the father that he had grabbed N in a headlock and punched him, the father was not challenged about the evidence that he had given. The father’s response to the question was that he would never have hit a child because he was very strong and would hurt that child. Having regard to matters relating to the credit of the parties and in particular the accuracy of their evidence, I accept the evidence of the father in this case and reject the evidence of the mother and N.
N also alleged that the father broke into the mother’s home when everyone was away and on a number of occasions, “borrowed” money from the piggy banks of the children leaving notes promising to refund the money. N was extremely vague about the number of occasions that this occurred but it was certainly more than one. The mother made a similar allegation about “borrowing money” but when challenged about how often the note leaving occurred, she said it was only once. Neither the mother nor her son, produced any such piece of paper. The father simply denied the allegation. I accept the evidence of the father.
The mother’s evidence was that the father made no contribution to the care of the children during the period of time that the parties were in a relationship. In fact, when questioned, she simply described the father as a sexual partner. She said that he was rarely in attendance at the house and she discouraged him from having any part in the lives of the children. Notwithstanding that, she conceded that the child M from her earlier relationship sometimes spoke about the father as having done some good things. N was not prepared to make any concession about anything involving the father in the lives of he or any of his siblings. Some difficulty was created by the fact that the mother was cross-examined about having gone out to work as a stripper. The difficulty arose because her son N, was apparently not aware of his mother’s occupation and still is not so aware. The mother was cross-examined about who cared for the children when she went out to her occupation at night and she reluctantly conceded that the father had in fact assisted on some occasions. When N was asked about whether his mother had gone out “to work” at night, he said that he was not aware of her going out other than occasionally to buy milk and that that occurred at a time when the children were all in bed including himself. He was not able to assist me at all as to how long his mother was gone. I accept therefore that the father was present in the household at times and did contribute to the care of the children when the mother left them in his care.
Another delicate and difficult issue arises from the question of the paternity of these children. Much debate occurred over the fact that W is not the child of the father. I have already canvassed that issue earlier. However, a similar problem arises in respect of N. The mother was emphatic in saying that her son was not aware of who his real father was and that she did not feel it appropriate to tell him at this point in time because it would significantly upset him. Counsel all agreed that they would not raise the subject and to their credit, the issue was not put to N. I raise the subject now because of a dilemma I feel points to some double standards on the part of the mother. In respect of W, she was content to take all children to the pathology laboratory for the purposes of the DNA sample being taken. She said in cross-examination that it was necessary to do that because the children could not be left and more particularly, could not be left in the waiting room. She also said that it was possible that the children had overheard she and her husband talking about the subject. I am quite satisfied that she did not see any problem about exposing all of the children to the clearly adult issue of paternity in respect of W but was very careful and conscientious in respect of the paternity of N. That in turn leads to a finding that I make that the mother has had an obsession about establishing that the father is not the father of W for the purposes of endeavouring to exclude him from W’s life.
In what I consider a bizarre twist in the State privacy laws, the mother having received the DNA test results relating to W, approached the Registrar of Births, Deaths and Marriages and had the father removed as the nominated father on the birth certificate. She said it was done a couple of days after receiving the test results. When asked why she did not say anything about this step to amend the birth certificate, she said she had “other issues that were more important” on her mind. If the Registrar of Births, Deaths and Marriages has simply taken the results as a fait accompli without contacting the father named on the certificate bearing in mind that it was the father who filled in and signed the certificate in the first place, I find the whole situation quite extraordinary.

In an application that the mother filed on 23 December 2005 in the Federal Magistrates Court, she sought the suspension of the father’s time with the children on the basis that he was not the father of at least one of the children if not all of them. This application was filed after an allegation had been made that the father had sexually abused J. That allegation had been investigated by the Department of Human Services who had declined to do anything about it on the basis that they were not concerned. In her evidence, the mother made it clear that she felt the Department of Human Services had not investigated the matter properly and she was very unhappy about what they had failed to do. The aftermath of her dissatisfaction was the filing of the application on 23 December 2005. It was put to the mother that she had failed on the sexual abuse allegation so she tried this particular course of action. Her response was that she was not a vindictive person. She was simply trying to “protect the kids”. Having regard to all of the circumstances, it is hard for me to make any other finding than that the mother did take the action she did for the reasons that I have just described namely that she failed to satisfy the Department of Human Services to exclude the father from the lives of the children. I find that she did then believe and still now believes that the father ought to be excluded from at least W’ life on the basis that the DNA testing has established that the father is not the father of W. It was put to the mother that having regard to the chaotic childhood of all of her children, it may have been better to have allowed the father to have had a significant involvement in the lives of these children but her unashamed position remains that these children belong in their family. The mother’s view is that the family constellation relates only to the siblings and that the father has little or no contribution to make to the lives of these children in the future. Having regard to what I have already set out about what has occurred in the last eighteen months to two years of the lives of these children, I find that nothing could be further from the truth.

The evidence of Ms R

Ms R is the coordinator of GordonCare for children. She prepared a report dated 11 December 2007 from notes of various contact workers who facilitated and supervised each visit by the mother and members of her family.
In addition to the supervision, GordonCare provides a parent orders program which is aimed at helping children develop better relationships with both parents following separation. Its aim is to help families move from high levels of conflict and anxiety to insightful, sensitive and competent parenting focussing on their children. I propose to make an order in this case on the basis that whilst it may be pointless having regard to the attitude of the mother about courses and counsellors, with some finality in these proceedings, she may have some prospect of developing a family relationship with these three children away from conflict and anxiety.
In her evidence, Ms R said that the delay in starting the supervision program in 2007 was not related to any delay on the part of the parties. However, subsequent to her report, there have been periods of time from 25 January 2008 until the start of April when the service was suspended. Ms R said that the service was suspended as a result of the fact that on 13 January 2008, the maternal grandfather had handed Christmas cards to the children in which statements were made that the children would return home to their mother in the next year. Although the Christmas cards were given in January, I have presumed that they were written in 2007. The Christmas cards came to the attention of the father who brought them to the attention of the contact centre who in turn contacted the mother. According to Ms R, the mother was verbally abusive and refused to discuss the matter. Pursuant to the agreement with the mother, the Centre suspended the ongoing supervised contact until a review meeting. The mother’s response was that she was going away for a month anyway.
Ms R said that the mother was abusive at other times. This was usually to office staff. When asked what she meant by abuse, she said that it included swearing, raised voices, yelling and hanging up the telephone in such conversations. Interestingly, Ms R said that there was much more aggression over the telephone than in face to face meetings.
Ms R set out her observations over the period of time that the service was provided. I do not propose to set out those in detail however, they point to an interesting contrast. The evidence before me is that the mother is an aggressive person and I shall refer to that in more detail in the evidence of Dr E but contrasted against that is her mothering skills.
In August 2007, the contact service witnessed the mother hugging the children as one would have expected as she had not seen them for a long time. However, she was still sufficiently well prepared for them to have brought along large bags of healthy food for their lunch. She gave them all presents of drawing books and then joined in activities. That particular visit however was marred by J punching Y. The contact centre noted that the behaviour was not simple childhood play but clear aggression. When told of what had occurred, the mother reprimanded J.
In the next visit, similar parenting skills were witnessed. The children were clearly excited but the contact centre noted the unhappiness of the mother in just being in that situation. Y approached the contact centre worker to engage in explaining his activities and my impression is that when the mother concentrated, there was a reasonable relationship between she and the children. Discipline however was clearly a problem. Language was also a problem but subjectively, it may be that that is part of the way of life in this household.
In September 2007, again, the mother attended with appropriate things to show and discuss with the children. She was encouraging J to paint a card for W’s birthday. There was clearly some indication of the mother being distracted and dealing with issues that were inappropriate in front of the children however, my impression is that matters went reasonably well.
It had become apparent by September that apart from the mother being unhappy about having to be supervised with her children, she had difficulty containing herself in expressing dissatisfaction and discussing issues that were more appropriate to be dealt with between the parents. At the conclusion of the period, M, the child living with the mother wanted to stay longer and J indicated his desire to stay with his mother. My impression again is that the mother acted appropriately in deflecting the issue. Interestingly, the children returned to their father without resistance.
There was an interesting incident in October in which J was misbehaving and the supervising workers were unable to get his cooperation yet it was the mother who talked J into joining in the game that she was playing.
All of the reports of the contact centre indicate that the father had acted appropriately in his participation in the handover. For her part, when the mother did not get what she wanted and became agitated, her focus on the children was lost. Sadly, these events occurred in front of the children. When focussed, the mother seemed to act appropriately.
Ms R said that philosophically, the Centre was not intended for families over a long period of time. However, GordonCare would abide by any order that the Court made. That issue applied to not only supervision but also the use of the changeover facilities. In Ms R’s words, it was not ideal for ever.

The evidence of Dr E

Dr E was called as a witness by the Independent Children’s Lawyer. He is a consultant psychiatrist. His qualifications and expertise were not challenged.
Dr E was instructed to provide a psychiatric assessment of the mother and he completed that report in August 2007. He read extensive material. Importantly, he had the mother’s prison records in relation to medical matters. He interviewed the mother in his rooms.
Dr E said that the mother told him that the reason she was seeing him was something to do with the diagnosis of bipolar disorder which had been made of her in gaol. Her perception was that as a result, she had been medicated and could then get on with her life and look after her children with her aggression under control. Importantly, she acknowledged to Dr E that she would only “lose it now and again”.
At that interview, the mother said that she and her husband had separated and was very vague about when that had occurred. She said that “[the husband] can’t handle it any more”. In so far as the mother was being honest with Dr E, that statement was inconsistent with her evidence before me.
Dr E reported the occupations that the mother was following and there was certainly no suggestion of any activity in the sex industry. Having described her work and her endeavours, she said to Dr E that she was unsure as to whether there was any other capacity for other work. That history was inaccurate.
The mother described to Dr E why she was in prison and in particular, the episodes of aggression. Those statements if true to Dr E were inconsistent with the evidence that she gave to me.
The mother told Dr E she was uncertain about paternity and that became important for the perception that Dr E formed about her view of the father’s role in the lives of the children and I shall refer to that again in a moment.
The mother described to Dr E the medication she was on and the fact that it made her calm although her description was that she hadn’t “smashed anything lately”.
Dr E described the mother’s mood as unstable and that she was unpredictable. He said she acknowledged “going off” but not to the degree that she had previously.
The diagnosis of Dr E was that the mother has a borderline personality disorder as well as post-traumatic stress disorder. He said she appeared to have little ability to reflect upon her own contributions to the difficulties which the children may be experiencing. Her description of her relationship with the children was likely to be enmeshed.
Dr E explained that the diagnosis of borderline personality disorder meant that she was emotionally reactive, emotionally unstable, had problems with impulse control and problems with judgment. He said it was difficult for her to maintain regular interpersonal relationships because of internal chaos. She had problems with boundaries and regarded the children as hers with the father “on the margin”.
Dr E’s evidence was perceptive because it describes what the contact centre has witnessed and how I viewed the mother’s evidence about the role of the father in the future lives of these children. The importance of this evidence is that if the mother was to have responsibility for the daily care of the children, according to Dr E, it was difficult to see the children forming relationships in the future. He said that the trauma that she had experienced would “percolate” and the children would continue to experience that.
As for the prospect of changes occurring, Dr E said that the mother’s problems were entrenched making it difficult for her to move on.
Dr E’s diagnosis of borderline personality disorder meant that treatment would be difficult. It could, he said, be undertaken by psychotherapy but that required a willingness on the part of the mother which in turn was difficult because of her insight. In prison and since her release, she has been treated with medication that suppresses anger outbursts. Counselling was not realistic because she had told Dr E that it was a meddlesome and interfering process. However, if anything, she would have to undertake that first. There is no doubt in my mind that any process to change the mother’s view of life will be a slow process.
Dr E was asked about the children being in the mother’s care and whether the process of spending time with them should be supervised. He said that it would have to be a consideration.

The evidence of Ms W

Ms W is a family consultant with considerable experience in Family Court proceedings. In this case, she had interviews with all of the relevant parties on 19 October 2007 and made various contacts with social workers, child care workers, departmental team leaders and teachers. Her report which she supported in evidence and for which she subjected herself to cross-examination was comprehensive, insightful and very helpful. She detailed the factual background as each party had given it to her. She expressed concern about the father exhibiting aggression when he found out that the mother’s husband was to be present and whilst I accept that the father thought that the mother’s husband and the mother were no longer in a relationship, his behaviour indicated that he too would not hesitate to resort to violence if he lost his control in the way that I have obtained in the description from his mother.
Ms W described the mother as spirited, self-righteous and defensive. Importantly, the mother expressed the view that she was convinced that J had been sexually abused by his father. I have already indicated that I find that there is no basis for that perception. Ms W was not tested about her observations concerning the mother. Her evidence about the mother can best be summed up as follows:
There is no doubt that [the mother] loves her children and wants the best for them. However there are serious questions as to her capacity to put aside her own needs and issues and focus on those of the children.
Of the father, Ms W was also not entirely complimentary. She was concerned about his worrying lack of impulse control much of which stemmed from his behaviour at the commencement of the interview to which I have just referred. In summary, Ms W said that the father:
Presented as reasonable, quite focussed on the children and above all wanting to ensure their protection and stability.
Ms W interviewed and observed the children. Of W, she said that he missed his mother and siblings and was delighted to see them but was equally comfortable in the presence of his father. J also missed and enjoyed being reunited with his mother and siblings and was anxious to spend time with them but Ms W said that when observed with the father, J was more relaxed and more able to concentrate. Ms W was unable to obtain much information about Y.
Ms W was frank in her assessment that there were problems in both households for these children and that it was a matter of balancing up the options and risks. In her view, the risk with the father was less than that with the mother.
Ms W said that there was clearly a problem of the splitting siblings but equally there was a togetherness problems. Separating the children was obviously not a good idea but then putting them back into the environment which had been chaotic and traumatic was also a problem. Her concern was that what the children had experienced to date must have affected their functioning. She described them as very troubled children.
Ms W was impressed that at least the father allowed the children to go and see the mother when she was imprisoned and that it was he who had raised the issue of the children seeing their siblings. She said that she found him child-focussed and very passionate about the children. He was able to tell her all about their different needs. In contrast however, Ms W found the mother full of her own concerns.
Of serious concern to me and consistent with what I observed in hearing the evidence of the mother was Ms W’s comment that if the mother was responsible for the daily care of the children it was unlikely that there would be any relationship between the children and the father.
One subject which was raised a number of times related to the question of whether or not W should be made aware of the paternity issue. The father is desirous of having another test done for the purposes of clarifying the issue and to use his counsel’s words, it would simply mean a “pin prick” to get a blood sample. In other words, W would be subjected to an assault and not be told the truth about why the test is being undertaken. Ms W said she felt for the father in wanting to know but it was not appropriate for W to be told about the paternity issue. To some extent therefore the DNA testing could probably be done without W being aware of what was happening. In discussion with counsel, I expressed great concern that having regard to the way the parties had lived until now, I would have little confidence that this misleading procedure would not somehow or other be brought to W’s attention. The mother had made it clear that she had taken the children to the pathology organisation and that the children could read about what was going on and there was evidence that the paternal grandfather had sat down with W and had a discussion with him about disputing anyone who said that the father was not his father. Tensions obviously run high on this issue but they are not child-focussed. I canvassed with counsel for the father whether it was appropriate to make injunctive orders precluding even the possibility of testing. In hindsight, I accept that it is an issue that will have to be faced at some stage or other even though it will make no difference to the decision that I make in respect of the parenting orders that I propose. Sad as I feel it is, I will not make any orders precluding the adults undertaking those tests to establish the paternity but I do propose to order that neither party specifically raise the subject of paternity with W until he is of an age where either parent believes that he has sufficient maturity to understand the adult concept.

Submissions of the parties

Counsel for the mother urged me to make orders that the children live with the mother. She provided a comprehensive set of proposed orders which contained alternatives. The second part of that document as did her oral submissions, dealt with the more realistic position of how the relationship between mother and children should occur in the future.
Counsel for the mother argued that the mother was the primary carer in the formative years of the lives of the children and there was an important closeness with the other children and in particular M and T. Counsel did raise the issue of the separation of W from J and Y but that could not be realistically pursued having regard to the evidence of Ms W.
The mother instructed her counsel that she would attend upon a counsellor but the words had a hollow ring about them having regard to the mother’s attitude as expressed to Dr E and in court. If the mother voluntarily undertook professional assistance and recognised her problem which in turn led to treatment, the children must ultimately benefit. For the present however, the reality is that I am left with the stark evidence of Dr E and Ms W.
Counsel for the Independent Children’s Lawyer urged me to provide a structure using a “carrot and stick” approach. I agree but it has to apply to both parties. The mother needs to know that there is a light at the end of the tunnel but that the children will remain in a settled household at least for the next few years. Beyond that, the future of these children must remain in the hands of their parents.
On a more simplistic level, the “carrot and stick” approach is to be seen in a move forward towards unsupervised and extended time but if the supervisors are abused or have to suspend the mother’s entitlements, then the “stick” approach will apply and the time that the children spend with her will be suspended. In the same simple way, the extended family will have to wait and be patient to participate in the relationship with these children. My unashamed intention is to allow the children to be children in a settled non-threatening family environment where they do not have to face pressures. Their future relationships with siblings will no doubt suffer but I have tried to arrange orders so that those closest to them can maintain a relationship and share interests. The older children already have different interests and concerning attitudes. Their relationship can be fostered in due course.

It is not practicable to flood these children with lots of attention from siblings all in a limited space of time. That will only confuse them and more importantly, detract from them building their relationship with their mother. It must be remembered that Y has been away from his mother’s care since he was just two years of age.
I specifically propose to exclude the mother’s husband and the mother’s other extended family members. I do not have confidence that initially these adults have much to contribute to the lives of these children. The mother’s husband for all his protestations was happy to fight with the father. The mother’s father was content to send an inappropriate Christmas card. Time will give these children an opportunity to settle.
In the fullness of time, the mother’s dedication and devotion to the task of maintaining a relationship with these children will be tested. If she proves that she can avoid the aggressive attitudes and be positive about the future of these children then her time with them will be valuable albeit only weekends and holidays. Hence, the “carrot and stick”.
The same approach applies to the father. If he feels empowered by these orders to be other than concerned about the children, these parties will be back in court. To ensure that if the mother is dedicated, he should be also, I propose to order that there be a make-up period immediately after any period he fails to provide. That will be at his inconvenience and without supervision of the children. Again, the “carrot and stick”.
To a very large degree therefore I have accepted what the Independent Children’s Lawyer says as soundly based upon the evidence.
The father’s position did not change throughout. He wanted the mother to undergo psychiatric treatment. In my view, that is a forlorn hope and would be beneficial if it occurred but it must be voluntary. I agree with the Independent Children’s Lawyer that there comes a point in time where these parents have to take some responsibilities for the lives of their children. If the mother does not see benefit in some form of psychotherapy, her relationship with people around her and in particular, the father, will remain conflictual. That will never benefit these children.
GordonCare has a parenting orders program. I propose to order the parties to inquire into it and insofar as each is assessed as suitable, they are to attend.
I have already dealt with the best interests principles in summary form. I propose now to turn to the specifics.

Equal shared parental responsiblitiy

Section 65DAC indicates that the sharing of parental responsibility in respect of major long-term issues is something expected of both parents. The Act expects them to consult and attempt to reach agreement about those joint decisions. The opposite of equal shared parental responsibility means that one party makes all of the decisions and the other parent is excluded from having a very significant role in determining the future of their children. It is an important right recognised by the law and about which a court should be very cautious before removing it. Ultimately, the best interests principle must be the determining factor.
Here, all of the evidence points to the fact that the father and the mother could not agree on how to raise their children. The mother sees no participatory role for the father. The father sees the mother as irresponsible and psychiatrically unsound as a parent to care for and make decisions about the children. There is no communication between them. To all intents and purposes, an objective bystander would consider they were never in a relationship together. To all intents and purposes, they disagree about how to bring up their children. The mother says the vital familial issue is having all of her eight children together without any serious role for the father. She points to the intervention orders as indicators of a need to exclude him from her life. The father sees the mother and her relatives as so destructive that he cannot allow her to know his address. In that environment, shared parental responsibility is not only impracticable, it is absurd.
Section 61DA(4) says that if the court determines that it is not in the best interests of the children that the parents have equal shared parental responsibility, the presumption of equal shared parental responsibility may be rebutted. I find it would not be in the best interests of these children for their parents to have that responsibility and therefore the presumption is rebutted.
Needless to say however, one parent has to then at least make the important decisions in the lives of these children. Having regard to the fact that I will be making orders giving the father the predominant caring role and he will be on the scene on a day by day basis, I propose to make an order that he have responsibility for education and health of the children but with an opportunity for the mother to participate subject to conditions.

The determination of time

Without the pathway that flows from equal shared parental responsibility, the decision about how much time each parent spends still has to be determined according to what is in the best interests of the children. Section 60CC provides assistance.

Primary considerations

Each of the matters in s 60CC(2) must be considered. The first consideration therefore is the benefit of the children having a meaningful relationship with their parents. That simply means an evaluation of the benefit to the children of any relationship but in particular, what can be meaningfully achieved by these parents. The word “meaningful” is used in the sense of having some positive impact on the lives of the children. Having regard to the evidence and the findings I have made, there is little benefit for these children in being placed in an aggressive or hostile environment with their mother where there are no real boundaries and guidelines and they would not be encouraged to know and respect their father. Insofar as I acknowledge that there is a paternity dispute in respect of W, it still remains the situation that the father is the only father he has known and therefore he should not be distinguished.
Conversely, there is every benefit for the children being in a stable, violence-free environment where schooling is an encouraged objective. That is what the father provides. The provision in s 60CC requires me to consider and to order whatever it is that will benefit the children in having a relationship with their mother. Having regard to the evidence, a supervised and controlled environment will enable the aggressive tendencies and stressors of competing arguments to be dampened if not eliminated at least for some time.
The second consideration is to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I need say little more about that. The orders I propose to make are the only ones which, at least for some time, will remove the children from the exposure to family violence.
In this case, I see little distinction between the primary and the additional considerations. These are all matters that need some consideration.
There are no specific views in this case of the children that are relevant. The children clearly indicated at various times, a desire to be with their mother but were equally comfortable with their father. The views of the children have been given no weight.
I have set out the nature of the relationship of the children with each parent. In summary, the objective evidence of Ms W is that there is a calmness with the father more so than the mother and he had a greater capacity to direct their activities. That may very well have been because of the excitable nature of the visits which occurred in very limited circumstances with the mother. There was also some evidence in relation to the nature of the relationship between the children and their siblings but I agree with the view espoused by Ms W that whilst it would normally be an unusual if not draconian thing to separate siblings, this is a case in which the protection of the children required it. Having said that, I propose to try and continue to foster the relationship between the siblings by allowing the younger ones to have regular time with these three children and reintroduce the older ones in due course.
Section 60CC also requires me to consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. I have no doubt at all that the mother sees no benefit in the children having a relationship with their father for the reasons that I have already set out.
There are also no indicators that the absence of the children from their mother is causing them anxiety. At the end of the various periods of time at the contact centre, whilst the children showed some hesitancy about her leaving, they equally went happily to their father. It is therefore unlikely that the children will be distressed about being separated from their mother on a permanent basis.
There are clearly practical difficulties in the children seeing their mother at the contact centre but having regard to the background of the matter, there is little choice.
Section 60CC also requires that I consider the capacity of each of the parents to provide for the needs of the children including their emotional and intellectual needs. The evidence of the school suggest that the father is providing appropriate assistance for the needs of the children and their settled nature which is alluded to by the grandmother would suggest that he is caring for their emotional needs as well. If I take into account the intervention of the Department of Human Services up until the birth of these children, I would be entitled to conclude that the mother lacks the capacity to provide for children in the protective and emotional sense. When she made allegations of sexual impropriety against the father, apart from having little concern about the father, the Department turned its concerns to the mother and described her as a moderate risk. On that basis, I would have serious concerns about the mother’s capacity notwithstanding she has had eight children.
There are no lifestyle or cultural issues in this case that are of any significance.
Section 60CC also requires the court to consider the attitude to the child demonstrated by each of the parents and in particular, their attitude to the responsibilities of parenthood. In this case, I find that it is the father who has shown the most responsible approach in settling the children particularly having regard to his lack of parenting skills up until that time.
The family violence and family violence order provisions are very concerning. All of the parties have been involved in violence in one form or another as have the extended members of the mother’s family. In the end, it is a balancing act and it seems to me that removing the children from that environment as much as possible must be in their best interests.
Section 60CC also requires that I take into account whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. I have no confidence that the parties will accept these orders in the spirit that they are intended. However, rather than make temporary orders and see how things unfold, I have decided to make permanent orders here having regard to the fact that I see little evidence that the mother has the capacity to change. The father on the other hand seems to have adapted to a way of life in which in very recent times, has turned from aggression and violence and hopefully that will continue. Final orders in this case will put the matter to rest and the children can have a sense of stability and purpose.
Section 60CC(4) more or less repeats some of the considerations in sub-section (3). It is a consideration of what the parties have done subsequent to separation. There is no doubt that initially, the father had a modest role in the lives of these children and was making little by way of contribution. That now seems to have changed and subsequent to the mother’s imprisonment, whatever may have been his motivation, he has shown a capacity to not only care for and spend time with the children but also facilitated the mother’s time and involvement in the lives of the children. He took the children to the prison and he has taken them regularly to the contact centre.
Whilst I have made reference to the orders of 2006 and 2007 in relation to the removal of the children from the mother, I have not determined this matter on the basis of any status quo. Quite the contrary, the evidence is clear that whilst the imprisonment of the mother was the catalyst for change, the father has taken up the responsibilities in an appropriate way.
In the circumstances, having regard to all of those matters which I have taken into consideration, the evidence shows that as a balancing act, the father is the person who should predominately care for the children and the mother’s relationship should be supervised until matters settle down. Accordingly, I propose to make the orders that I have otherwise referred to.

I certify that the preceding One Hundred and Ninety Eight (198) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate:

Date: 15 May 2008

[2008] FamCA 329

15 May 2008

Key Legal Topics

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Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

Remedies