C and K

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & K

[2001] FMCA fam 133

FAMILY LAW – CONTESTED RESIDENCE – Mother primary carer with extensive prior drug addiction – Allegations of domestic violence – Need to promote stability – Separation of child – Older child holds extremely negative views of father – Residence granted to father

Applicant:

P T C

Respondent:

C A K

File No:

ZB2308/01

Delivered on:

29 June 2001

Delivered at:

Brisbane

Hearing Date:

10 May 2001

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr Mumford

Solicitors for the Applicant:

Goodfellow & Scott

Counsel for the Respondent:

Mr Kissick

Solicitors for the Respondent:

Don McMillan

Counsel for the Childrens’ Representative:

Mrs Hogan

Solicitors for the Childrens’ Representative:

Legal Aid (Queensland)

ORDERS

That the child K S C born 7 March 1986 reside with the MOTHER.
That the children S T C born 29 March 1990 and N D C born 25 February 1994 reside with the FATHER.
That the FATHER have sole responsibility for the day to day care, welfare and development of the said children whilst they are in his care.
That the MOTHER have sole responsibility for the day to day care, welfare and development of the said children whilst they are in her care.
That the FATHER and MOTHER share long-term responsibility for the care, welfare and development of the said children.
That the children S and N have such contact with the MOTHER at all times as may be mutually agreed and in particular:
(a)For 3 weekends in every 4 week cycle from 5.00 pm Friday until 5.00 pm Sunday, the first weekend to commence on 6 July 2001;
(b)On any occasion that a contact weekend is preceded by or followed by a public holiday or pupil free day, the weekend contact be extended to include such public holiday or pupil free day;
(c)Mother’s Day each year from 9.00 am to 6.00 pm if not a contact weekend;
(d)In any year that Father’s Day falls on the MOTHER’s contact weekend, the MOTHER return the children to the FATHER at 9.00 am on Father’s Day;
(e)For a period of 2 hours on the children’s birthdays;
(f)The weekend contact referred to in paragraph (a) above be suspended during school vacation and recommence on the first weekend after school commences if the children were with the MOTHER for the first half of the school holidays, and on the second weekend after school recommences if the children were with the MOTHER for the second half of the school holidays;
(g)For the first half of the Queensland school holiday periods in the year 2001 and each alternate year thereafter;
(h)For the second half of the Queensland school holiday periods in the year 2002 and each alternate year thereafter;
(i)From 1.00 pm on Christmas Day until 5.00 pm on Boxing Day in the year 2001 and each alternate year thereafter;
(j)From 5.00 pm Christmas Eve until 1.00 pm Christmas Day in the year 2002 and each alternate year thereafter;
(k)The MOTHER shall have telephone contact with the said children between 6.00 pm and 7.00 pm each Wednesday and each non-contact Sunday by telephoning the children.
That changeover of contact occur, unless otherwise agreed, at the Liberty Service Station, Brown’s Plains.
That the MOTHER and FATHER keep each other informed of his or her current residential address and contact telephone number, and of any change thereto within 48 hours of any such change.
That the FATHER authorise the children’s schools to provide to the MOTHER at her request any school reports, newsletters and the like.
That the FATHER authorise the children’s family doctor to release to the MOTHER upon her request any information relating to the medical health of the children.
That if the children are unwell whilst in the care of either party and require medical attention, then that party shall notify the other party of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to provide to the other party at the request of the other party any information regarding the child’s care and condition.
That the FATHER attend and complete a Triple P Parenting Course within 6 months and provide evidence to the CHILDREN’S REPRESENTATIVE of the completion of such course.
IT IS DIRECTED:
That the MOTHER is not released from her undertaking given
21 January 2001.
That the CHILDREN’S REPRESENTATIVE shall be discharged
12 months from this Order unless the CHILDREN’S REPRESENTATIVE seeks to maintain a role after that date, in which case the CHILDREN’S REPRESENTATIVE shall be required to make application to the Court for an appropriate order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ZB2308 of 2001

P T C

Applicant

And

C A S K

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are related to a dispute between P T C, (“the Father”), and C A S K, (“the Mother”), as to the best arrangements for their children, S T C, (born 29 March 1990), and N D C, (born 25 February 1994). The parties agree that their eldest son, K, aged 15 years, should continue to live with the mother.
The issue is whether S and N reside with their father and have regular contact to their mother or whether they return to live with their mother, K, and the mother's partner J M and have regular contact with their father.

Background

The father is 43 years of age and married the mother, currently 36 years of age, in 1983. Their children were born in 1986, (K) in 1990, (S) and 1994, (N).

The mother claims that there were numerous separations during the relationship and that she was the victim of domestic violence throughout the marriage. Certainly the parties both worked during the marriage and they both acknowledge that there were difficulties in their relationship at various times. Ultimately the parties separated in August 1998 triggering a number of events which are more particularly set out in the procedural history to follow.
In March 1999 the mother commenced cohabitation. The parties agree that there have been a number of events, changes and difficulties since separation resulting in the children frequently changing residence and schools. At the time of the hearing S and N, were living with their father at E L and attend the local State School. They have regular weekend and holiday contact with their mother and brother K who both continue to reside at G with Mr M. K chooses not to have any contact with his father at present.

Procedural history

The father commenced proceedings in late 1998 and since then there have been numerous applications, orders and Court ordered variations to the arrangements. Principally, however, after a Commonwealth Information order was made in November 1999, Registrar Rimmer on 24 January 2000 ordered that the three children reside with the mother and that the father have alternate weekend contact;
As a result of difficulties with contact arrangements, Judicial Registrar Smith ordered on 15 June 2000 (after the mother was the subject of a warrant to appear) that the father have clearly defined contact to the children each Saturday with change over to occur at the G Police Station. Regrettably, because of the mother's conduct, Judicial Registrar Smith ordered on 11 August 2000 the immediate change of residence for S and N into the care of the father. The mother again failed to comply with the order and a recovery order was made by the Judicial Registrar on 28 August 2000 when she also suspended the mother's contact to the children.
The mother's contact with S and N was restored by the Judicial Registrar on 27 September 2000 upon undertakings given by the parties on 21 September 2000 and the Judicial Registrar also appointed a child's representative. After the Judicial Registrar was again required to make more defined contact orders shortly before Christmas 2000 the matter of interim residence and contact was heard by Registrar Wilkie on 23 January 2001 when he maintained existing arrangements after considering two reports of the report writer Angela Humphreys and transferred the matter to this Court in the hope of an early trial.
At the commencement of the trial on 10 May 2001 counsel for the father made an application for an adjournment on the basis that no update report of Miss Humphreys was available. I dismissed the application and the final trial commenced.

Principles to be applied

(a) I was directed to section 60B of the Act, and the object of Part VII of the Family Law Act;
i)To ensure that children receive adequate and proper parenting to help them achieve their full potential and ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children;
ii)The principles underlying these objects are that except when it is or would be contrary to the children’s best interests:
·The 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 never lived together;
·The children have a right of contact on a regular basis with both their parents, and with other people significant in their care, welfare and development;
·Parents share duties and responsibilities concerning the care, welfare and development of their children;
·Parents should agree about the future plans of the children.
(b)I am conscious, too, of section 65E of the Act:
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.
(c)I am conscious, too, of the provisions of 68F that:
In determining what is in the child’s best interests, the Court must consider the matters set out in sub section (ii);
(d)And very shortly I intend to do so, seriatim.
Ultimately (a) the father, the mother, the paternal grandmother S M, the mother’s partner J M and the report writer Miss Humphreys were required for cross-examination. I should at this point acknowledge the efforts and assistance of the three counsel who appeared before me. Neither could have said more to advance the position of their client (firmly held) as to what was in the best interests of the children.

The father

The father presented as a quiet and careful witness, clearly very nervous and anxious to say the right thing. He did not respond quickly to questions put to him but was deliberate in his answers. A summary of his evidence touching on the principle issues was:
(a)He was surprised and distressed by the separation which he said occurred without warning;
(b)He denied persistently and firmly that he had assaulted the wife as she alleged from the commencement of the relationship or had stalked, harassed or intimidated her after separation. He denied he had a violent temper or controlling manner;
(c)He says that between separation and 24 June 2000, nearly two years, he had no contact to his children despite numerous Court orders to the contrary. He lays the blame for these difficulties squarely at the feet of the mother;
(d)He gave an account of the unusual events leading to his son K coming to live with him on 14 July 2000. During the change of residence for S and N ordered on 11 August 2000 and also the events thereafter where the mother held the children over, K continued to live with the father before he announced to the father on the evening of 30 August 2000 that he wanted to go home and live with his mother and take his two young siblings with him. The father says K left of his own free will and denies K's allegations recounted by the mother and also Miss Humphreys to a degree that he assaulted K. Since that time the father has not seen K. He says when K left he was also disappointed and heartbroken and a lack of contact is frustrating but has not made him angry;
(e)He says he has told the other children that he misses seeing K. He says the children are settled in their current routine. They have learning difficulties but he is getting them assistance and he believes they are improving. The arrangements before and after school because of his work as a bus driver include assistance from his mother and more particularly now M A who was the original day care mother. M's daughter is a friend of S's and Mr G A is a school teacher and assists the children with their homework until the father collects them after work;
(f)He maintains regular weekend contact between the children and the paternal grandmother;
(g)He says the supports the children's other interests, nutritionally feeds them and carefully clothes them. He denies suggestions to the contrary by the mother. Whilst he acknowledged the mother was the primary carer for the children he found it hard to make any concessions or admit any positive attributes of the mother. He says he did not have any major concerns about the children's welfare at separation, having been in the mother's care, but does have concerns now.
In particular, he dislikes Mr M who he suspects was in the relationship with the mother prior to separation and the influence he has over K. He was hurt by the mother's actions though effectively, as he sees it, replacing Mr M as the father figure for K. He raised some concerns about Mr M disciplining the children when they exercise contact to their mother.
He acknowledged the communication with the mother was poor but was not able to offer any strategies to improve the situation. Generally he said changeovers of contact were now progressing smoothly and he would like a more neutral and mid way point for changeover rather than the Police Station.
He says that he has been able to bond closely with the children and believes that since the children have been living with him they are "doing well both physically, emotionally and educationally." He believes he could deal with S's approaching puberty sensitively. He says the children are not expressing any wishes to him to return to the mother's home, although he agrees they do enjoy contact to the mother which has recently been progressing well.
I assessed the father as a person who is now enjoying the expanded role as resident parent and was serious and genuine in providing a stable structure for their development. He did not naturally exude nurturing demeanour but I sensed he is becoming more confident and relaxed in his role. This is not surprising considering the level of conflict in the matter and the past uncertainties.
I regarded him as a witness of truth although I do believe he minimised the extent of previous difficulties in the relationship and his contributions to those events. He did show, in my view, an appropriate insight into the needs of S and N.

The mother

The mother presented as a more relaxed and responsive witness, more inclined to concede and admit some of her personal problems and the effect it has had on the prior relationship and her parenting. A summary of the evidence touching on the relevant matters was:
(a)She has been the primary care giver to all children throughout the marriage and the many separations she alleged during the course of that marriage until S and N were ordered to live with the father on 11 August 2000;

(b)That the marriage was an unhappy and unsettled relationship punctuated by frequent events of domestic violence and the first, as she called it, bashing occurring shortly after the parties married. She was examined at length about these general allegations and gave further details of incidents including:
(c)The initial assault she says occurred when she was about 18 that arose from her leaving her wallet at her place of employment;
(d)An incident in or about 1986 after K was born;
(e)An incident in 1987 when she says she sought sanctuary from friends E and K S;
(f)An incident in December 1997 when she alleges the father "pushed me down the stairs". This resulted in an egg size bruise and a cut to her head. She said this was the last incident of violence and by August 1998 she had had enough and decided to separate permanently.

She admitted that she did not report the abuse to police or her doctor. Although she says a number of people could corroborate seeing her bruising she was unable to produce them as witnesses. Many, such as the S’s and T and D H, she has not seen for some time.
She openly admitted a long history of drug abuse and addiction. She says she smoked marijuana since she was 15 and was a heavy user of amphetamines. She kept this addiction "a secret from the father". She was able to meet the costs of her habit from monies earned baby sitting up to 10 children at a time and from child endowment. Although she claims never to have used drugs whilst baby sitting she freely acknowledged using them before and after.
She did not express any concerns that this behaviour could have affected her capacity to care for the infants she had agreed to mind. She can recall the undertaking she gave to the Court on 22 January 2001 about maintaining regular drug therapy and offered reasons for her failure to do so consistently including K's ill health and her attendance instead at a St Vincents support group. She also produced results of frequent drug testing to establish that she was, in fact, drug free.
Whilst she acknowledged that S and N have lived in a number of homes and went to different schools and preschools since separation she says this was brought about by the threatening behaviour and her fears of the father. If the children are returned to her she will enrol them in the local State School where she says her inquiries are that the same level of special assistance for the children as they now are receiving can be provided including speech therapy for N. She admitted the children have improved in their school performance since living with their father.
She explained the relationship with J M as commencing after separation, he being a former neighbour. She says she introduced him, a man some years younger than her, to the drug culture that was part of her life. This use resulted in further criminal activity which ultimately resulted in both being charged with offences and being convicted on 20 July 2000.
Mr M was jailed whilst the mother was placed on probation. This interestingly occurred at about the same time as K decided to live temporarily with the father. She regards the relationship as stable with Mr M who returned to live with her and K after he was released from jail and looks to his support in disciplining the children.
It is clear that if the children were to return to her care Mr M would have a significant role in their care and development. She admitted that prior to going to jail there were arguments between her and Mr M “and I would throw things at him and he would throw things at me. K would also throw things”.
Her description suggested this was not an usual way in which disputes were resolved in her household. She gave details of another incident where S and N were "kicking or punching her and Mr M stepped in and smacked them on the bottom".
In respect of K she says he no longer has any feelings for his father and whatever feelings he does have are very negative. She supports his versions of the incidents of 30 August 2000. She admits that K is a troubled child who has suffered serious health problems stemming mostly, it would seem, from his asthma and consistently has had long periods where he has not gone to school.
Even for the first term of this school year she agreed that he only went a few days. K's behaviour when at school has been variable. She has no concerns about K aligning so quickly with Mr M as his father and supported what she says was K's wish to name Mr M as the father when enrolled at the local High School.

She also gave the Hospital the same misinformation. She said K has a strong relationship with S and N who really idolise him. She does not perceive any problems with K's strong “hate” for his father influencing the younger siblings.
When asked about her view of the father's parenting capacity she acknowledged that he has, "shown he can look after the children and that he is a good father now. He is doing the best he can do". And when pressed for a current criticism she said, "he could do a bit more on hygiene and before and after school".
She said that during the relationship the family spent some of most weekends with the father's parents and that she got on most of the time with the paternal grandmother. She more warmly remembered the paternal grandfather who has since died. In particular she admitted that K had a close relationship with his grandfather and was a bit upset when she told him of his sudden death but let him deal with it in his own way which was apparently to lock himself in his bedroom.
She says S and N no longer complain about their father to her. Whilst she said she had concerns about the hygiene of the children, she encouraged S not to share with her father the fact that she had commenced menstruation. The father did not know about this until it was revealed in Court.
The mother saw nothing wrong with this being kept a secret. The mother showed an alarming lack of insight into how her parenting style of allowing the children to do as they wished might have contributed to their lack of stability. She demonstrated a very natural nurturing and caring demeanour but her failure to acknowledge the negative effect of the influence of K and her partner J M upon the two younger children was revealing to me.
My impression was that she had been the subject of intimidation and controlling behaviour during the marriage but not to the extent or of the frequency alleged by her. I believe she exaggerated some events and had reconstructed some to support her position. I believe this was motivated by a strong desire to attack the father in some way to deflect any adverse inferences from her own behaviour during the marriage including the damage to the relationship which must have followed from her heavy and consistent drug use.
In many ways I feel Mr M has adopted the same type of relationship with her as did the father. It is clear, however, that she has a strong bond and love for the children and is distressed by them being in the father's care. She is clearly the more relaxed and fun parent.
The mother’s partner – J M. Put bluntly, I found Mr M an unimpressive witness and his attitude to parenting a concern. He showed little insight into child behaviour and his comments when asked about K's reaction to his grandfather's death was dismissive. He confirmed he is 26 years of age and reflected back on his own life experience of leaving school before he was 15 when he remarked that you can't tell K what to do.
He admits to a very negative view of the father and when pressed as to why, he responded by saying, "I don't like women bashers so I would rather not say". He says he expects to play a equal role in the upbringing of the children S and N when they live with their mother. He says he is drug free and is trying to rebuild his life, although his work at the moment is only part time.
The paternal grandmother – G C. Ms C presented in, what I would describe, as a predictable normal and truthful witness who is able to support the position of her son whilst not being highly critical of the mother. She has clearly had a lot of involvement with the children and I can only assess her interaction as genuine loving and stabilising. In respect of the incident where K came to live with his father unexpectedly, she observed, rather insightfully in my view, that he seemed to be on "a mission". I can see only positive aspects flowing from the continued involvement of the paternal grandmother with the children. It is a great pity again that K has apparently chosen to cease contact with his grandmother as well.
Susan Miller. Ms Miller made herself available for cross-examination. She is a psychologist attached to a branch of the Alcohol, Tobacco and Other Drug Service of Queensland Health. She gave details of appointments made and contact with the mother. She sees the mother for clinical purposes and acknowledged that the mother has attended 10 sessions in seven months.
She was aware that the mother was under a lot of stress and has no reason to be suspicious or to disbelieve the mother when she says she is drug free. Although in her view the mother is in the initial stages of her assessment, she believes counselling for at least a further 12 months was indicated. She felt it was unfair to make a prognosis of the prospect of a relapse into her previous habits.
Educational witnesses. The child representative offered evidence by affidavit from D H, S's teacher at E L and W T, N's teacher at E L, to confirm that both children are well settled in their current school and are showing positive development academically, socially and emotionally.
Mr M H, a guidance officer at B State High School, describing K as

K C M, was unable to report on the child's academic progress because K had only been in attendance at school for two days over the entire term. I should note of course that the mother indicated in her evidence that she was seeking to support K's learning when he was not at school with some other assistance. He was enrolled at the school under the surname of J.M..
Angela Humphreys. Although it would have been of assistance to have an updated report of more recent origin than the last report filed 19 January 2001, the ability for all parties to cross-examine Ms Humphreys to put scenarios to her for comment was very useful. I do not propose to recite the contents of Ms Humphreys two reports as they are well known to the parties. It is fair to simply summarise their content by saying Ms Humphreys found S and N demonstrated a strong attachment to their mother and each other.
She was not in a position to interview Mr M, who was in prison during the time of the preparation of the two reports, but observed the children spoke of a positive relationship with him and anticipated his return. She regarded it as appropriate that a further assessment of Mr M's "relationships and role within the family and in the children's lives" be completed when he was released, but this did not occur.
She regarded educational stability for the children as important given the level of the disruption the children had experienced in their education to this point in time. She recommended that all three children be in their mother's care and observed at the time of her second report that S and N want to continue a relationship with their father. She did not consider it was in K's best interest to force him to have contact with his father.
During the extensive cross-examination of Ms Humphreys she gave further evidence that the relationship between the two boys is quite strong and there is a degree of hero worshiping of K by his younger siblings.
She felt, the children's relationship with their father could be affected by K's strong and negative feelings about his father.
She described the mother as not having "a high level of skill assisting the children adjusting to things they find difficult" like going to school. She would have been challenged in her view if the children expressed no desired to go to contact with their father. She is always trying to meet the children's wishes.
She regarded the mother as being in genuine fear of the father which she believes was the motivation for not promoting contact for nearly two years after separation. In this regard she identified two distinct parenting styles, the mother's being more flexible and the father's more disciplined.
She said the father seemed reluctant to engage in a discussion about the difficult subject of violence and he found it a very painful subject to talk about. She felt he was evasive on the issue.

She felt S had a high level of awareness of the conflict but was coping quite well and seemed to be a child able to make friends easily. When confronted with K's reaction to his grandfather's death, which as I recall it was to say to Mr M "stiff shit", she thought it was a strange response but one which was more evidence of his strong alignment with the mother.
She regarded some of K's comments as possibly exaggerated and "objectively implausible". She could accept that with the tension surrounding the mother's home at the time of the criminal trial K may have been concerned about his siblings remaining with the father and the description of the grandmother's idea that his return was "a mission" may explain what otherwise was a very unusual event in the history of the matter.
She said although she was still of the view that the three children should be together in the mother's care she would be less firm on those recommendations if the Court was satisfied that stability at home and at school was promoted by the continuation of residence with the father.
In this regard she made the observation that apart from love and nurturing children need routine and someone to meet their physical care needs. This is, as she described it, “a big part of being a parent”.
I am required to take into consideration a number of factors under Section 68F(2) which I will deal with as follows:
(a) With respect to the wishes of the child. Because of their ages and the conflict that has taken place it is not clear to me on the evidence whether they have expressed any definite wish. Certainly S has indicated that she, on the evidence, was comfortable with living in the mother's home but more recently has been comfortable living in the father's home. I do not think I can attach any significant weight to the children's wishes at this stage and there has been no clear preference in my view given by them.

(b)The nature of the relationship of the children with each of the children's parents and with other persons. Although I think it is fair to say that on the evidence the relationship of the children to the mother was stronger at separation than it was to the father, I sense more from the evidence that the father, that by his continuing role, it has strengthened his bond with the children. There is of course the concern that I have expressed about the relationship that the children have with K. They should have an ongoing connection with him, whether by living there or by having extensive contact to the mother whilst living with the father. It seems clear to me, however, that there is a potential that the children's relationship with K can be a matter of some confusion for the children when they try to grapple with his strong negative views about their father with what, I sense, is their now more accepting view of the differences of the father's parenting style to that of the mother.
(c)The likely effect of any changes in the children's circumstances. The children having been temporarily in the care of the father at this stage, a change in those circumstances is a relevant consideration. I am satisfied on all the evidence that there is stability in the father's household and that I have concerns associated with the children returning to the mother's household, which cannot be totally discounted such as the attitude of K, the behaviour of Mr M and the ultimate behaviour of the mother. Also a change in residence would bring with it a change in schooling which must be assessed against the evidence put before the Court by the child representative.
(d)The practical difficulty and expense of the child having contact with the parent. This is not an issue in this case.
(e)The capacity of each parent and others to provide for the needs of the children. In my comments previously I identified what I see as some of the strengths and weaknesses of the individual parents in their parenting style. They are different parents and they parent differently.

(f)The children's maturity, sex and background including culture and traditions of Aboriginal people. During the course of the trial it became apparent that the children are partly Aboriginal. There is very little material in the affidavits filed in the Court that related to this. It only arose during the course of a reference by the mother to assistance that the children received from an ATSIC funded program for learning difficulties. As a result, the extent of any Aboriginal heritage and the extent to which that needs to be nurtured and promoted was not before me and was not, when I put it to Ms Humphreys, a matter that she had considered. In fact Ms Humphreys was somewhat surprised when I indicated to her that it appears that the children are partly Aboriginal.
(g)The need to protect the children from physical or psychological harm. In respect of these issues there are competing allegations, one against the other. The mother of course alleges that the father still has a terrible temper and is abusive. I am not satisfied on the evidence that even if that did occur during the course of the marriage on which I will say something more, that it is reflective in his parenting style now with the children. The father said, of course, that the children whilst in the home of the mother would be subjected to the negative influences arising from Mr M and K. I regard that as a significant issue in this matter. Furthermore there is also the uncertainty of whether the mother's drug habit, which commenced when she was 15 years of age, has in fact been totally extinguished from her life.
(h)In respect to the attitude of the child and to the responsibilities of parenthood of the parties, I believe I have dealt with these adequately in the reasons when I have set out some of the evidence of the parties. There seem to me to be the relevant Section 68F(2) factors.

Conclusion

This is a finely balanced matter. I have some concerns about the father's behaviour during the relationship, and although on the evidence I am not satisfied that there was the level or frequency of violence alleged by the mother, I do accept that the father controlled and otherwise dominated the relationship.
The power imbalance may not have helped the mother adjust her teenage drug habit to the responsibilities of adulthood. However, her wide substance abuse problems could only in my view have contributed to the general turbulence and volatility in the relationship. In some ways I assess she has formed a relationship with Mr M the dynamics of which are not entirely different from that which she shared with the father.
The children have experienced behavioural problems which reflect instability and conflict in the marriage. Both parties have since separation acted in less than a child-focused way at times. The father by not pursuing initially an interest in contact and then when he did the actions of the mother in either denying contact or making it difficult. The children need the benefit of some stability.
Their current schooling I am satisfied contributes largely to that stability. The father's regime before and after school is appropriate and his desire to enable the children to maintain their relationship with their grandmother is important. He will, I assess, grow in the role of a parent if the children remain with him. The mother, despite her personal difficulties, has generally always been there for them.
However, the level of negativity in her household, particularly from K, coupled with the deep concerns I hold about whether Mr M has yet developed the skills to be a stable and insightful parenting influence, leads me to the conclusion that the best interests of the children, S and N, will be served by them continuing to reside with the father.
I think it is important that the mother's contact be extensive but not disruptive to the routine now established in the father's household. The mother shall, as a result have contact to the children three weekends out of a cycle of four. The father will benefit from completion of a parenting course and I will so order.

I have an underlying concern whether the effect of these orders and the natural disappointment and anxiety the mother will suffer could result in the mother reverting to old habits. I certainly hope that that will not be the case, but as a safeguard I will order:
(a)
That the mother not be released from her undertaking of

22 January 2001 which of course includes an obligation to maintain therapy with Susan Miller or someone of her nature; and
(b)That the child representative will not be discharged.
I would hope that the child representative would consider maintaining contact with both Ms Miller and the children's schoolteachers. If difficulties arise in this matter both of those sources of information are likely to be aware of the impact of those difficulties. I would encourage the child representative with the parties concurrence to involve Ms Humphreys in the explanation of these orders to the children.

I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:

Date:

[2001] FMCAfam 133

8 October 2001