Burns and Bingham - [2010] FMCAfam 1217

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURNS & BINGHAM

[2010] FMCAfam 1217

FAMILY LAW – Parenting – allegations of violence and neglect – whether five year old with developmental delays and speech deficits is ready for school.

Family Law Act 1975, Part VII, ss.60B, 60B(3), 60CA, 60CC(1), 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA, 65DAA

Applicant:

MS BURNS

Respondent:

MR BINGHAM

File Number:

MLC 4921 of 2010

Judgment of:

Riley FM

Hearing dates:

13, 14 & 15 October 2010

Date of Last Submission:

15 October 2010

Delivered at:

Melbourne

Delivered on:

11 November 2010

REPRESENTATION

Counsel for the Applicant:

Mr G Jackson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms M Mandelert

Solicitors for the Respondent:

Peter Baker and Associates

THE COURT ORDERS BY CONSENT THAT:

The mother and father have equal shared parental responsibility for [X] born [in] 2005 (“[X]”).
In respect of each issue concerning the long term care, welfare and development of [X], each parent:
(a)consult with the other parent in relation to decisions to be made; and
(b)make a genuine effort to come to a joint decision about such issues.
Issues concerning the long term care, welfare and development of [X] include but are not limited to:
(a)education;
(b)health;
(c)religious observance;
(d)sporting, social and cultural activities; and
(e)travel (including obtaining a passport).
In the event that Mother’s Day occurs on a weekend that [X] would not otherwise spend with his mother, [X] spend time and communicate with his mother for the Mother’s Day weekend from 5pm on the Saturday until the commencement of school or 9am on the following Monday.
In the event that Father’s Day occurs on a weekend that [X] would otherwise spend with his mother, [X]’s time with his mother be suspended from 5pm on the Saturday preceding Father’s Day.
All changeovers take place at [X]’s kindergarten or school, if applicable, or otherwise outside [C] Police Station.
The parents are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or a member of his or her household, in the presence or hearing of [X] or allowing any other person to do so;
(b)corporal punishment of [X]; and
(c)whilst [X] is in his or her care, being under the influence of alcohol and/or any drug or substance save as:
(i) prescribed by a medical practitioner;
(ii)purchased over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets.
The parents keep each other advised of his or her residential address and mobile telephone number and notify the other within 24 hours of any change to them.
The parents each advise the other as soon as practicable of any medical emergency effecting [X] whilst he is in his or her care.
Both parents attend a Parenting After Separation Program.

THE COURT ORDERS THAT:

[X] live with his father.
[X] spend time and communicate with his mother as follows:
(a)each alternate weekend from 3.30pm on Friday to 9am on Monday, commencing 12 November 2010;
(b)during the school year when [X] is in prep grade, each Wednesday from the conclusion of school or kindergarten or 3.30pm until 6.30pm;
(c)except during the school year when [X] is in prep grade, each alternate Wednesday from the conclusion of school or kindergarten or 3.30pm until the 9am on Thursday morning, commencing 18 November 2010;
(d)for a period of two hours on [X]’s and the mother’s birthdays in the event that such birthdays fall on a weekday and four hours if such birthdays fall on a weekend, and, in default of agreement, from 3.30pm to 5.30pm on a weekday and 10am to 2pm on a weekend;
(e)from 5pm 24 December 2010 until 3pm 25 December 2010 and each alternate year thereafter;
(f)from 3pm 25 December 2011 until 5pm 26 December 2011 and each alternate year thereafter;
(g)for one half of each of the school term holidays and the long summer vacation in each year, and in default of agreement, the first half;
(h)a reasonable amount by telephone.
Both parents be restrained from enrolling [X] in primary school until 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4921 OF 2010

MS BURNS

Applicant

And

MR BINGHAM

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in relation to [X] born [in] 2005 (“[X]”) who is now 5 years old.
[X]’s parents began living together late in 2003, when they were both about 20 years old. The mother claimed that the father became physically and verbally abusive to her when she was pregnant with [X]. The father said that the mother flew into rages about once a week when she would be verbally and physically abusive towards him.
In October 2005, shortly after [X]’s birth, his mother and father moved in with the father’s parents in [omitted]. In December 2005, the mother and father separated temporarily. The mother and [X] went to live with her parents.
In February 2006, the mother obtained an intervention order against the father. The father consented to the order with a denial of the allegations. The order was to last six months. The father said that the police spoke to him about the mother’s allegations but he was not charged.[1]
[1] Father’s affidavit sworn on 30 June 2010 at paragraph 7.
In July 2006, the Department of Human Services became involved with the family. The mother said that DHS had concerns about the father’s abuse of alcohol and violence. On 28 March 2007, the mother and father consented to a protection order for 12 months. It provided for [X] to live with his mother and for his father to have supervised visits for two hours, three times per week. During the 12 months of the protection order, the mother and father decided that they wanted to live together again. DHS initially would not allow it. However, DHS later withdrew their objection and the mother and father resumed cohabitation.
In late 2007, the mother and father moved to [C] together and shortly thereafter moved again to [G]. On [date omitted] 2008, their second child, [Y] (“[Y]”) was born.
In October 2008, the mother asked the father to leave after, in the father’s words, “catching me texting another female.” The parents separated again and the mother obtained another intervention order. In early 2009, the mother moved into the father’s house, but they lived separately.
On [date omitted] 2009, at the age of 16 months, [Y] died of pneumonia.
In November 2009, the mother moved to the [C] Caravan Park to live. The father visited [X] there often.
On 31 January 2010 the mother asked the father to mind [X] for two weeks while she went to a friend’s house in [omitted]. The father agreed to do so. However, at the conclusion of the two week period, the father did not return [X] to his mother’s care. In fact, the father did not allow [X] to see his mother until after 12 July 2010, pursuant to court orders.
On 1 June 2010, the mother filed the application that initiated these proceedings. On 12 July 2010, interim orders were made by consent. They provided for [X] to live with his father and to spend time with his mother each alternate weekend from:
a)12.30pm on Friday to 12.30pm on Sunday;
b)each alternate Wednesday from 12.30pm to 5pm; and
c)each other Wednesday from 12.30pm to 5pm Thursday.
The orders have been complied with. Between January 2010, and

12 July 2010, when the consent orders were made, [X] spent no time with his mother.
The mother does not work outside the home. She was [X]’s primary carer until January 2010. The father is employed full time in [omitted]. He began living with his new partner, Ms J, in January 2010, when she was 18 years old. Ms J has done about a quarter of a [qualification omitted]. The course takes about three years. Ms J is predominantly responsible for caring for [X] when he is not at kindergarten and when his father is at work.
[X]’s General Practitioner, Dr F, said in a report dated 12 August 2010, which was exhibited to her affidavit affirmed on 24 September 2010, that:
There have been longstanding concerns about [X]’s delayed development, and about the acrimonious split between [X]’s parents, each describing the other as an unfit, neglectful, aggressive and violent parent.

Proposals

[X]’s parents agree that they should equally share parental responsibility for him. They also agree to a number of ancillary orders. The principal issues in dispute are:
a)whether [X] should live with his mother or his father;
b)the amount of time that [X] should spend with the parent with whom he does not live;
c)whether [X] should start school in 2011 or whether he should repeat kindergarten, given his apparent developmental delays and need for speech therapy; and
d)whether the mother has been seriously neglectful of [X], and, while he was alive, [Y].
The mother proposed that:
a)[X] live with her;
b)[X] spend time and communicate with his father:
(a)each alternate weekend from the conclusion of school or kindergarten or at 3.30pm on Friday to the commencement of school or kindergarten or 9.00am on Monday (or Tuesday if the Monday is a public holiday);
(b)each alternate week from the conclusion of school or kindergarten or 3.30pm on Monday to the commencement of school or kindergarten or 9.00am on Tuesday;
(c)for the father’s four weeks annual leave, upon 30 days notice in writing to the mother;
(d)on each of [date omitted] ([X]’s birthday) and [date omitted] (the mother’s birthday) in each year, from 3.30pm to 5.30pm, if a school or kindergarten day, or from 10.00am to 2.00pm, if a weekend;
(d)from 5pm on 24 December 2010 to 3pm on 25 December 2010 and each alternate year thereafter;
(e)from 3pm on 25 December 2011 to 5pm on 26 December 2011 and each alternate year thereafter;
(f)by telephone at all reasonable times; and
(g)as otherwise agreed between the parents from time to time.
Apparently as a fallback position, the mother proposed that she and the father have equal shared care of [X].
The father proposed that:
a)[X] live with him;
b)[X] spend time and communicate with his mother:
(a)
each alternate weekend from the conclusion of kindergarten or school to 9am on Monday morning, commencing

15 October 2010;
(b)each alternate Wednesday from after school or 3.30pm until the commencement of school or 9am on Thursday morning, commencing 20 October 2010;
(c)for a period of two hours on [X]’s and the mother’s birthdays in the event that such birthdays fall on a weekday and four hours if such birthdays fall on a weekend, and, in default of agreement, from 3.30pm to 5.30pm on a week day and 10am to 2pm on a weekend;
(d)from 5pm 24 December 2010 until 3pm 25 December 2010 and each alternate year thereafter;
(e)from 3pm 25 December 2011 until 5pm 26 December 2011 and each alternate year thereafter;
(f)for one half of each of the school term holidays and the long summer vacation in each year, and in default of agreement, the first half; and
(g)a reasonable amount by telephone.

The Family Report

A family report dated 2 September 2010 was prepared by Ms H. For the purposes of the report, Ms H contacted the Department of Human Services, [X]’s psychologist, his speech pathologist and his kindergarten teacher. Ms H reported the content of her conversations as follows:
32.The report writer has had telephone contact with the current child protective worker Mr W who confirmed that DHS is in the process of closing the case, having not substantiated the allegations reportedly made by [X] that his mother has hurt him.
33.The report writer also had a telephone discussion with Ms S Psychologist. She confirmed that she has seen [X] on approximately three occasions and is still in the process of assessing his emotional needs in relation to the death of his young sibling. It is likely that [X] will have between six and twelve sessions with her with a focus on providing opportunities through play therapy for him to work through his experience. Ms S described [X] as “a dear little fellow, of average intelligence with some developmental delay possibly due to environmental factors.” Ms S informed the report writer that she has met with Mr Bingham and his partner and whist (sic) Ms Burns has also been invited to meet with the psychologist around [X]’s needs, she has not done so as yet.
34.The report writer had a telephone conversation with Ms B who is a speech pathologist with the Early Intervention Service. She has seen [X] on three occasions and assessed his speech in terms of his needs when he starts school next year. This assessment is yet to be formally scored. Ms B informed the writer that [X] has areas of difficulty in the areas of both expression and comprehension and will continue to attend the service.
35.[X]’s kinder teacher informed the report writer that [X] is a happy child and very settled at Kinder this year. [X] did attend pre kinder for part of last year but did not attend for the remainder of the year following [Y]’s death. Both his speech and his social development are significantly delayed and this has an impact on his ability to link in with other children. This term, he has begun to play alongside another child with encouragement from the staff. The delay in his speech and his social development does at times frustrate him and he may lash out physically. However there are no concerns regarding overt or “malicious aggression.” He focuses well and is able to persevere with tasks eg puzzles.
36.It has been observed by staff at the Kinder that [X] has been rather unsettled since spending time with his mother. It is quite possible that this is due to him having to adapt yet again to another change in his life. It was noted by the kinder staff that [X] becomes somewhat anxious at the anticipation of seeing his mother, but he is really happy to see her when she comes to pick him up. Kinder staff have also noticed that since [X] has been spending time with both parents, his language has regressed with him reverting back to gestures rather than vocalising his needs.
37.[X] was described as “a delightful child” and the kinder teacher believes that “his families are obviously doing a good job with him.” Despite the kinder teacher recommending that [X] spend a further year in four year old kinder, at this stage, the parents intend for him to start school.
Ms H spent some time with [X] and each of his parents. Ms H reported on her observations as follows:
38.[X] aged 4 years 11 months presented as a quiet and rather serious young boy. He appeared to be well nourished and of average size. Although his grandparents were also in the waiting area when he arrived with his father, he reportedly did not greet them. Neither did he acknowledge his mother when she returned to the waiting area following her meeting with the family consultant. It would seem that [X] continues to be impacted on by the ongoing hostility between his parents.
39.[X] did not appear to be distressed at being left in the child care facility and seemed eager to explore the room. [X]’s speech was problematic in that his articulation was unclear and the family consultant had to rely on the parents to “interpret” what he was saying. [X] was not interviewed separately during this process.
40.[X] was observed interacting for a short time, with each of his parents separately. He appeared to be equally comfortable with each parent and enjoyed engaging in activities with both of them. Mr Bingham informed the family consultant that he had already prepared [X] that he would be going home with his mother. During the observation period, he again informed [X] of this arrangement and was observed to respond appropriately to [X]’s need for clarification as to when he would see his father again.
41.Mr Bingham was child focussed and was observed being able to read and respond appropriately to [X]’s emotional needs. Ms Burns whilst also appearing to be focussing on [X], concentrated on teaching [X] new skills and was observed to be somewhat detached in her emotional responses to her son. [X] appeared reluctant to leave the play room, becoming tearful and ignoring his mother’s efforts to encourage him to leave. He reluctantly left the room with encouragement of the child care worker. [X] was pleased to see his maternal grandfather in the waiting room and spontaneously ran to give him a hug.
Ms H made the following evaluation:
42.The parents agree that their relationship began to deteriorate significantly during the mother’s first pregnancy and that their relationship was characterised by significant and frequent verbal violence and abusive behaviour each towards the other. The parents have provided polarised views regarding the alleged physical violence perpetrated against the mother by the father. From the information provided by the parents the dynamics of their relationship appear to be consistent with situational couple violence. Generally this type of violence results from situations or arguments between partners that escalates on occasion to physical violence. It is not uncommon in this situation for one or both partners to appear to have decreased ability to manage their emotions, including anger. Violence of this nature generally decreases in intensity post separation.
43.In addition to being exposed to family violence, [X] has had to adapt to frequent changes of environment in response to his parents many separations and periods of reunification. Not only has he lived in several different locations, he has also resided with numbers of different people. The fact however that he has always lived with his mother is an important factor in considering his experience of a primary attachment. Furthermore, [X]’s relationship with his father has been disrupted several times. As stated previously, both parents have acknowledged that [X] continued to see his father even when his parents were separated, however they have provided differing views regarding the nature of this contact and the quality of [X]’s relationship with his father.
44.The death in 2009 of their young son [Y] aged 16 months, has clearly had a significant impact on Ms Burns and Mr Bingham and each has responded to their grief in different ways. Both parents confirmed that [Y] was unwell for several days prior to his death.
45.There can be no doubt also as to the confusion that [X] would have experienced at that time and currently as he tries to make sense of what happened to his brother. [X] requires the adults around him to be able to respond sensitively, and provide simple, age appropriate answers to his questions about life and death. To his credit,

Mr Bingham has recognised this need as well as acknowledging his own lack of skill and confidence to respond to [X] appropriately and has sought counselling for his son. [X] appears ready developmentally to use therapeutic counselling/play therapy and may not have previously been able to do so.
46.It would appear that [X] has experienced a great deal of instability in his life, coupled with periods of insecurity. Whilst it is not in the scope of this family report to have assessed the impact of this for [X], from information provided by his parents, it would appear that [X] has been adversely affected by the level of instability to which he has had to accommodate. This is indicated by delays in achieving ordinary developmental tasks eg toilet training, dressing himself, eating with a knife and fork. In addition the delay in social skills noted by the kinder teacher is also possibly due to the chronic instability which [X] has experienced. Furthermore, the level of stress and instability Ms Burns has experienced is likely to have impacted on her both personally and in her role as parent.
47.Although his mother has been his primary carer and [X]’s attachment relationship with his father was disrupted during [X]’s first twelve months, it would appear that [X] has been able to manage yet another change resulting in him living with his father and spending time with his mother, without significant adverse consequences. This view is supported not only by Mr Bingham, but also by professionals involved with [X].
48.Although [X] has only lived with his father since the end of January 2010 the stability, consistent care and routine that his father has reportedly been able to provide, has been beneficial for him. In addition, Mr Bingham has been pro active in accessing counselling and speech therapy for [X] and appears to be committed to ensuring that he attends regularly and for as long as he needs to do so.
49.The family consultant’s observation of Mr Bingham’s ability to be child focussed and his capacity to pick up on and respond to [X]’s emotional needs is clearly beneficial to [X]. Whilst there is no dispute about [X] having a positive relationship with his mother the writer’s observation of her generalised blunted affect and detached emotional responses to her son is a stark contrast.
50.The parents’ decision whether [X] begins primary school next year or whether he spends an additional year at Kinder must be based on consideration of the feedback and recommendations from [X]’s kinder teacher and speech therapist[.] Any decision in this regard should reflect what is in [X]’s best interests given his developmental delay.
51.The ongoing hostility between the parents continues to significantly impact on [X] in that he was not able to acknowledge or greet his grandparents or his mother when he arrived at the Court with his father. Given that the parents continue to live in the same community it is essential that they do not continue to impose restrictions on [X] continuing to have varied interactions with a range of people who may be significant in his life. The parents need to be able to separate their son’s needs from their own.

Ms H made the following recommendations:
52.    It is respectfully recommended that:
·   The parents have equal shared parental responsibility.
·   [X] lives with his father and spends regular and significant time with his mothers (sic) at times that do not disrupt him being able to attend Kinder or primary school if he begins next year. This time should include overnight stays with his mother on weekends as well as opportunities to spend time with her during the week.
·   [X] spends some weekend time with his father as the quality of this time differs from the routines and time constraints experienced by most families during week days.
·   Both parents attend a Parenting After Separation programme to assist them develop further understanding of their son’s needs as well as helping them develop effective ways of communicating about [X]. This can be accessed via Centacare in Bendigo telephone 03 5443 9577.
·   The parents provide opportunities for [X] to maintain a relationship with members of his extended family.

The family report writer’s oral evidence

Ms H was cross examined, firstly, by counsel for the mother. Ms H acknowledged that she had only been a family consultant for a few months and that her report in this matter was the third one that she had prepared. She also acknowledged that, at the time of her observations, [X] had only recently resumed seeing his mother after a break of six months. Ms H considered that the father had acted appropriately in not allowing [X] to see his mother, because there were allegations that [X] had reported to the father that the mother had choked and punched him. Ms H remained of the view that the father’s conduct was appropriate, although the allegations had not been substantiated by DHS, and the father later consented to orders for [X] to have unsupervised time with his mother.
Ms H acknowledged that she had not interviewed or observed the father’s new partner, Ms J, even though it was Ms J who attended to a large part of [X]’s care. (The mother said in cross examination that she had no criticism of Ms J as someone who is assisting the father, that Ms J is a pleasant young lady and that [X] gets on well with her: transcript page 33).
Ms H stood by her recommendation that [X] live with his father, because, she said, [X] had made significant progress in several developmental areas since he began living with his father in January 2010. Ms H said [X]’s progress had been confirmed by his kindergarten teacher, his psychologist and his speech therapist.
Ms H said that the main criticism she made of the mother’s care of [X] was that he was developmentally delayed, and, without blaming the mother, it was necessary to acknowledge that the mother was his primary carer. Ms H said that she did not recommend a shared care arrangement because of the mother’s itinerant lifestyle and because of [X]’s developmental delays.
Ms H was reminded that she reported that the father told her that he would go out because he could not tolerate the babies’ crying. Ms H said that she understood from that statement that the father was not a particularly effective parent of young babies. Ms H was reminded that she reported that the father told her that he had benefitted from attending an anger management course. She said that she understood from this that the father acknowledged that, previously, he had an anger management problem.
Ms H supported [X] spending alternate weekends with his mother, plus an overnight in the off week, at least until [X] starts school. When [X] starts school, Ms H thought a couple of afternoons in the off week would be better than an overnight. (I understand that recommendation to apply to the period when [X] is settling into a new school routine, rather than for the entire period that he attends school.)
Ms H was cross examined, secondly, by counsel for the father. Ms H said, in response to numerous detailed questions, that if the court accepted the father’s claims about the mother’s parenting capacity, they would be matters of concern. In response to a question about whether she was concerned that the mother had not taken [Y] to the doctor,

Ms H said that she was concerned that neither parent had taken [Y] to the doctor.
It was put to Ms H that, although the mother had been [X]’s primary carer until January 2010, he had now been with his father for

10 months and had progressed well. Ms H said that she considered that moving [X] back now to his mother’s predominant care or an equal shared care arrangement would be “another significant and major disruption in his care arrangements” and would be likely to cause him “a significant set back to the developmental gains he’s made.”

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Each of [X]’s parents apparently accepts that he would benefit from having a meaningful relationship with his other parent. There is no reason to doubt that.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The mother alleged that the father used alcohol to excess and was angry and violent. The father said that he did not have “ongoing issues with the consumption of alcohol or anger management problems”.[2] I take that, in the context of this case, to amount to an admission that the father had such problems, at least in the past.
[2] Father’s affidavit sworn on 8 October 2010 at paragraph 9(g).
The father denied that he was violent to the mother, except in self-defence, when he would twist her arm behind her back, and once when he gave her “a back-hander” while he was driving the car. The father said that both [X] and [Y] were present during the assault in the car. I take it that both children were present during the other violent incidents. They seem to have been a regular occurrence.
DHS documents were subpoenaed but not tendered to the court. There was no evidence before this court from DHS to say why they became involved with this family, whether because of the father’s violence, or the mother’s violence, or the violence of both of them, or for some other reason. However, the clear fact is that DHS left [X] in the mother’s care primary care, and permitted the father to have only supervised time with [X] for two hours three times per week.
In the light of all of the evidence in this case, I accept the mother’s claim that DHS became involved largely because of the father’s abuse of alcohol and the father’s violence. However, I also accept that the mother was prone to anger and violence towards the father. The mother’s violence does not, of course, excuse or justify the father’s violence, or vice versa.
I find that both parents caused [X] harm in the past by exposing him to family violence. It is now scientifically established that exposing infants to family violence can damage the normal development of their brains. It is also very clear in this case that [X] is suffering from developmental delays. There was no objective expert evidence about the cause of [X]’s developmental deficits. The father blames the mother’s poor parenting. However, an objective analysis would place some of the responsibility for [X]’s present difficulties on the anger and violence perpetrated by both the father and the mother.
Having said that, the father has undertaken an anger management course, from which he says he has benefitted, and the family report writer said that his violence was situational. Although there is a risk that the father will harm [X] in the future by exposing him to family violence involving the father’s new partner, Ms J, there are also some grounds for optimism. It is to be hoped that the father has learnt from his past mistakes, and will, for [X]’s sake, control his consumption of alcohol, his temper and his inclination to violence.
Similarly, it is to be hoped that the mother will moderate her behaviour, and not resort to violence for any reason. Witnessing family violence is obviously very distressing for children during the incident and immediately afterwards, but it can also be extremely damaging for them in the long term. The father’s earlier allegation that the mother hit and choked [X] was apparently not substantiated by DHS and was not pursued before this court.
The father’s case largely rested on his allegations that the mother had been appallingly neglectful of both [X] and [Y]. He made a host of complaints, many supported by evidence from relatives and a friend.
The most serious allegation was that the mother had failed to take [Y] to the doctor when he was sick in the days leading up to his death, and, by implication, that the mother had contributed to [Y]’s death.
It was common ground that [Y] died at [date omitted] 2009. An autopsy gave the cause of death as pneumonia but did not disclose how long he had had it. Apart from the autopsy, there was no coronial or other enquiry into [Y]’s death. The police asked the parents some questions, but the matter went no further.
The father said that he had told the mother in the week prior to [Y]’s death on the Monday that she should take him to the doctor. The father said that [Y] was quite unwell when he returned from work on the Friday. The father said that [Y] had improved by the Sunday. However, the father said that, before he left for work on the morning that [Y] died, he insisted that the mother arrange a doctor’s appointment for him. The father said that he asked the mother to tell him when the appointment was so that he could come home from work and take the mother and [Y] to the doctor. It seems that the father took the only available car to work, and the mother was otherwise left with public transport.
The mother agreed that she had not taken [Y] to the doctor. However, she said his temperature was only fluctuating by one degree. The mother said that she telephoned the doctor’s surgery in the previous week and spoke to a nurse. The nurse advised the mother to give [Y] Panadol and see if he improved.
The mother said that [Y] did not seem to be particularly sick until the Monday morning, when “his breathing was funny” and “rough” and he “sounded like he had a wet rag over his face when he was breathing.”[3]
[3] Transcript page 14
On the Monday, the mother made a doctor’s appointment for 2pm. The mother said that she did not take him immediately to the doctor when his breathing was “funny” because she missed the bus and she had not been able to contact the father.
The mother said that, at about 11am, she was cleaning in the kitchen while [X] and [Y] were in another room watching a movie. She said that [X] came into the kitchen and told her that [Y] had stopped breathing.
On the evidence before me, I am unable to determine whether it had been necessary to take [Y] to the doctor before the Monday that he died. It is well known that young children can become extremely ill very suddenly.
However, it is clear that, by the Monday morning, when the mother noticed that [Y]’s breathing was unusual, he needed urgent medical attention. It is very unfortunate that the mother did not have access to a car to take [Y] straight to a hospital, and did not think of calling an ambulance. It is also very unfortunate that the father did not see the gravity of the situation, and take [Y] straight to hospital himself, instead of going to work.
Nevertheless, the facts are that the police did not prosecute, or refer the matter for a coronial enquiry, or engage DHS to consider [X]’s ongoing care. Those facts suggest that the view that was taken at the time by the authorities, and presumably supported by the autopsy, was that no one was to blame for [Y]’s death, and it was simply a terrible tragedy.
Having said that, if [Y]’s symptoms had been such that he should have been taken to a doctor in the previous week, I share Ms H’s concern that neither parent took [Y] to the doctor. While families are free to divide their responsibilities to earn income and care for children in any way they see fit, no one should stand idly by when a child has a serious need for medical attention.
The other allegations made by the father included the following. The father said that the mother would not bathe the children more than once per month. He said:
I would regularly tell her to give them a bath but she would get very upset with me for telling her how to parent the children.
The mother denied that allegation and said that she bathed the children every day when their father was at work. The father’s father gave evidence that [Y] was often dirty and smelt of urine and off milk. The mother in response to this allegation said, “Most children smell like urine and stale milk”.[4]
[4] Transcript page 40
That is simply not true. Most babies and small children smell very sweet. There are inevitably leaks and spills, but the usual solution is to change the nappy, or bib, or clothing as required, use baby wipes, and bathe the baby once a day.
In view of the mother’s opinion that “Most children smell like urine and stale milk”, I consider that the mother had very low standards of cleanliness for her children. I accept the father’s evidence that the mother bathed them rarely.
However, it does seem extraordinary in the 21^st century that a father would “tell” the mother of his children to bathe them regularly. The more usual approach these days is for men to come from work and very willingly and happily bathe the children and otherwise share in their care. It is entirely possible that, if the father had been a more hands on father, the mother would have been a better mother as well.
The father and his parents made a point of saying that the mother did not keep the house clean and did not wash the dishes regularly. The mother said that she washed the dinner dishes the following morning, because she was tired in the evening. That is understandable. But again, the more usual arrangement these days is for one of the parents to cook and the other to do the dishes. In any event, I do not consider that people’s dish washing habits are necessarily reflective of their parenting skills.
A more serious criticism of the mother was that she typically did not hold the babies while they were feeding, but propped up a bottle on a towel for them to feed themselves. The mother said in response that she had propped up the bottles because, if she held the bottle, they would drop it and not feed themselves. The mother was asked whether she thought it was important for babies to be held while they were being fed. She replied that, if she was holding them, they would not feed themselves.
It is difficult to understand why the mother thought it was so important for the babies to feed themselves. Most mothers delight in holding their babies while feeding them. It is a great opportunity to look at them adoringly and consolidate a close and loving bond with them. Indeed, it is apparently necessary for the normal development of babies that they are held in that way by an emotionally engaged carer, whether that carer is the mother, the father or another loving person. The mother’s admitted reluctance to hold her babies while feeding them is a matter of very great concern.
The father also gave evidence that [Y] was unable to walk or crawl at 16 months of age. The mother said that there was a video of [Y] doing a commando crawl, sitting up by himself and rolling around in circles. She also said that he was able to walk with aid. The father’s father said that when he had put [Y] on the floor, the mother would pick him up and put him in his bouncer.
It is a matter of common knowledge that infants need to be given plenty of opportunities in a safe place on the floor to practice holding up their heads, rolling, sitting up, and then crawling and walking. Very few children who are developing normally are still doing a commando crawl at 16 months, or need assistance walking. [X] has documented developmental delays. I accept that the mother did not allow [X] or [Y] sufficient time on the floor for their proper development.
The father’s father also said that the mother showed very little interest in talking to the children. The mother said that she did talk to them but the father criticised her for talking to them like adults. It appears that the mother did not talk to her infants in the particular way that mothers all around the world use to talk to their babies. It also appears that she interacted with them very little. This, of course, could have contributed to [X]’s developmental delays in general and his speech delay in particular.
The father said, and the mother apparently accepted, that she had not toilet trained [X] by January 2010 when he began living with his father. At that time, [X] was four years and three months old. The father said, and the mother accepted, that [X] was toilet trained within a short time of starting to live with the father. Obviously, [X] was ready to be toilet trained. No doubt, the mother could have helped [X] reach that milestone much earlier.
The father said that in 2009 he was concerned about [X]’s speech, so he arranged for him to be tested by a speech pathologist at his kindergarten. The mother was aware of the appointment. However, she did not take him to kindergarten that day, so he missed the appointment. Of course, it is now well established that [X] has a significant speech delay and he needs speech therapy. Obviously, it would have been to [X]’s advantage for the speech therapy to have started in 2009 rather than 2010.

The father said that the mother sometimes fed [X] noodles for breakfast, lunch and dinner and gave him a lot of junk food. The father said that he was giving [X] much healthier food and his appearance had improved as a result. The mother said that she sometimes let [X] eat some of her noodles but maintained that she fed the children properly. She said that when they were small she gave them jars of baby food. In view of the mother’s overall care of the children, I accept the father’s claims that the mother did not give them a healthy diet.
A family friend said that, at a barbeque, the mother poured some of her Vodka Cruiser into [X]’s baby bottle and he drank it. The friend said that she took issue with the mother about this, but she just laughed and said that she always did it.
The mother said that [X] was thirsty and he had finished his cordial. She said that she tipped out the remaining half of her Vodka Cruiser, rinsed the bottle, filled it with water and gave the Vodka Cruiser bottle to [X] for him to drink the water from. The family friend in cross examination said that was not true. She said that the mother was sitting next to her the whole time. The friend implied that she would have seen if the mother had refilled the bottle with water.
The friend’s credibility was challenged on the basis that she had said that the mother bought a Vodka Cruiser for a fifteen year old girl when it turned out that it was the friend who had actually made the purchase. However, I accept the friend’s explanation that the mother provided the money for the Vodka Cruisers and, after the purchase, the mother gave one to the fifteen year old.
I accept the friend’s evidence about this incident generally. Her credibility was not effectively undermined. Nothing was put forward as a reason for her to lie. The mother, on the other hand, had an obvious motivation to deny that she had given alcohol to her very young son.
I accept that the friend was well positioned to know whether the mother had refilled the Vodka Cruiser bottle with water, and the mother, in fact, did not refill her Vodka Cruiser bottle with water. Moreover, it would have been peculiar for the mother to put water into her Vodka Cruiser bottle and then pour it into [X]’s bottle when she could presumably have more easily put water directly into [X]’s own bottle.
Obviously, it is very harmful for young children to be given alcohol. The mother clearly was not acting in [X]’s best interests when she did so.

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

The father report writer does not appear to have asked [X] his views about who he wanted to live with and spend time with, presumably because he is so young and his speech required interpretation by a parent.

Section 60CC(3)(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)

The family report writer observed that [X] appeared to be equally comfortable with each of his parents and enjoyed engaging in activities with both of them. However, the family report writer also observed that [X] did not acknowledge his mother when she returned to the waiting room, and she seemed to be somewhat detached in her emotional responses to him.

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

The mother has demonstrated that she is willing and able to facilitate and encourage a close and continuing relationship between [X] and his father.
The father, on the other hand, did not allow [X] to see his mother at all for six months, when he was only four years old. This is in the context of the mother having been [X]’s primary carer for the first four and a half years of his life, and [X] no doubt having his primary attachment to her. It is also in the context of the father alleging that the mother had choked and punched [X], but that allegation not being substantiated by DHS or pursued in this court.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

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

The family report writer said in very clear terms that returning [X] to his mother’s predominant care would be likely to cause him “a significant set back to the developmental gains he’s made.” There was largely undisputed evidence that, since living with his father, [X]’s speech had improved, he had been successfully toilet trained, and he had made developmental gains overall.

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

It was not suggested that there was any practical difficulty or expense in [X] spending time with each of his parents. They live fairly close to each other.

Section 60CC(3)(f) the capacity of:

(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

The mother’s capacity to care for [X] is not at an acceptable standard. After being in her predominant care, he has developmental delays, including difficulties with his speech which made it impossible for the family report writer to understand him. Such difficulties no doubt impact on his ability to communicate with his peers and therefore on his social development. While there has been no thorough examination of the cause of [X]’s developmental delays, the family report writer certainly thought that environmental factors may have contributed. By environmental factors, I understood the family report writer to mean, at least in part, the quality of the care given to [X] by his mother.
Moreover, the mother did not hold [X] to feed him when he was a baby, she did not keep him clean, she did not let him play enough on the floor, she did not socially interact with him sufficiently, she did not give him a healthy diet, she did not toilet train him, she gave him vodka and she did not take him to a speech therapy appointment arranged by the father. These omissions and commissions indicate that the mother does not have the necessary capacity to be [X]’s predominant carer.
The father was unable to tolerate his babies’ crying and apparently made no effort to pacify them. However, since [X] began to live with his father, [X] has been toilet trained, he has attended a speech therapist and a counsellor, his speech is improving and he is making developmental gains.
The father works full time. However, his partner Ms J is available to care for [X] when he is not at kindergarten and when his father is at work. It is true that Ms J is only 19 years old. However, she has done about a quarter of a [omitted] course. There was no criticism of her ability to care adequately for [X], though it was alleged that sometimes she and the father left [X] in the care of another person. There is nothing wrong with engaging occasional babysitters, provided that they are competent and the child is happy with them. Indeed, it can enable the child to form bonds with various friends and relations and thus be very much in the child’s best interests.

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

The mother and father were both very young when [X] was born. They were only 20 years old. It is entirely understandable that they have had difficulty parenting him.
For the last year, the father has lived in the one house. He has a three year lease on it and expects to remain there for at least the next two years. The father has a job and is able to provide stable accommodation for [X].
The mother’s lifestyle since separation has been itinerant, in the sense that she has lived at six different addresses, including her parents’ house. She intends to move in with [X]’s godfather at the end of this year. The father alleged that the mother was actually having a relationship with [X]’s godfather. The mother denied it. There is insufficient evidence for me to accept the father’s claims in this regard.

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

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;

This factor does not apply in this case.

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

The matters relating to this factor have already been discussed above.

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

This matter has already been discussed.

Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or
(ii) the making of the order was contested by a person

There are no current family violence orders.

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

It probably would be preferable to make the order that would be the least likely to lead to the institution of further proceedings, though it is not entirely clear what that order would be.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

There are no other facts or circumstances that I consider to be relevant.

Section 60CC(4): Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and

(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and

(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

The father apparently worked throughout the relationship and thus maintained [X]. Nothing was said about his support of [X] post separation. Except for the schooling issue, which [X]’s parents have been unable to resolve between themselves, there do not appear to have been any long-term issues regarding [X] that have arisen.

Section 60CC(4A): If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The circumstances since separation have been addressed previously.

Equal shared parental responsibility

Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
[X]’s parents have agreed that they should have equal shared parental responsibility for him. I agree that that is in [X]’s best interests.

Equal or substantial and significant time with each parent

Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2)     If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)     the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)     how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Neither parent, in documents filed in the court, proposed that they care for [X] equally. However, during the course of the hearing, the mother put forward a proposal for equal shared care. The father opposed such an arrangement. Ms H said that she did not recommend a shared care arrangement because of the mother’s itinerant lifestyle and because of [X]’s developmental delays.
In view of all of the circumstances of this case, I do not consider that equal shared care would be in [X]’s best interests. I consider that the mother’s parenting skills are inadequate for [X] to spend a large part of his time in the mother’s care. There is a very considerable risk that his recent developmental gains would be undone, or at least compromised, if he were to spend large amounts of time with his mother.
All in all, in the exercise of my very broad discretion, I consider that it would be in [X]’s best interests to continue living with his father and to spend time and communicate with his mother as follows:
a)each alternate weekend from 3.30pm on Friday to 9am on Monday, commencing 12 November 2010;
b)
during the school year when [X] is in prep grade, each Wednesday from the conclusion of school or kindergarten or

3.30pm until 6.30pm;
c)except during the school year when [X] is in prep grade, each alternate Wednesday from the conclusion of school or kindergarten or 3.30pm until the 9am on Thursday morning, commencing 18 November 2010;
d)for a period of two hours on [X]’s and mother’s birthdays in the event that such birthdays fall on a weekday and four hours if such birthdays fall on a weekend, and, in default of agreement, from 3.30pm to 5.30pm on a week day and 10am to 2pm on a weekend;
e)from 5pm 24 December 2010 until 3pm 25 December 2010 and each alternate year thereafter;
f)from 3pm 25 December 2011 until 5pm 26 December 2011 and each alternate year thereafter;
g)for one half of each of the school term holidays and the long summer vacation in each year, and in default of agreement, the first half; and
h)a reasonable amount by telephone.
The reason for making special provision for [X]’s first year at school is that prep is notoriously stressful and tiring for children. It will be much easier for [X] to cope with his transition to school if, as Ms H suggests, he does not have midweek overnights with his mother during his prep year.
There is very little between the parents’ proposals in relation to Christmas, school holidays and birthdays. The father’s proposals are reasonable. I accept that they are in [X]’s best interests.

Schooling

In relation to whether [X] should start school next year, Ms H said that it would be in [X]’s best interests to follow the recommendation of his kindergarten teacher. That is very sound and uncontroversial advice.
Both parents said that they would support the recommendation of [X]’s kindergarten teacher in relation to him starting school next year. However, the father apparently understood that recommendation to be that [X] is ready for school next year and the mother understood that the recommendation was that [X] would do better with an extra year of kindergarten.
The father proposed that [X] attend [G] Primary School next year. The mother proposed that [X] do a further year at kindergarten.
The father said that [G] Primary School is a very small school, with about 10 or 20 pupils and two teachers. The father considered that its small size would help [X] to develop socially and would particularly help with his speech. The father considered that it would be better for [X] to do two years of prep, if need be, than an extra year of kindergarten. He said that [X] attended kindergarten for a total of about ten and a half hours per week spread over three days.

The father said that he had spoken to [X]’s kindergarten teacher a few days before the hearing. He said that although she had recommended that [X] do an extra year of kindergarten, she had then said that it was really up to the parents. The father clarified that the kindergarten teacher had provided a letter recommending that [X] do another year of kindergarten. That letter was not tendered to the court. After receiving the letter, the father said that he had spoken to the kindergarten teacher, and she had said that [G] Primary School was not a bad idea.
[X]’s kindergarten teacher was eventually called to give evidence by telephone. She said her recommendation was that [X] should repeat kindergarten, but that, if he did not repeat kindergarten, he should start school. The kindergarten teacher then said that, after speaking to the father and the proposed primary school teacher, and given that parents did not have to accept her recommendations, she was happy for [X] to start school. However, she then said, very definitely, that if she left aside the family’s preferences and circumstances, she would recommend a second year of kindergarten for [X].
I consider that it is in [X]’s best interests to have a second year of kindergarten. That is the view of the person who is best placed to know how [X] would cope at school. Although she correctly indicated that it was not her decision but the parents’, and although she was willing to support the parents in whatever they chose to do, the kindergarten teacher’s view was clear that [X] would do better with another year of kindergarten. Nothing was put to the court about any family circumstances that would tip the balance in favour of [X] starting school next year. In all the circumstances, the order will be that [X] not start primary school until 2012.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 11 November 2010