Cabelka and Waite and Anor - [2009] FMCAfam 525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CABELKA & WAITE & ANOR

[2009] FMCAfam 525

FAMILY LAW – Children – parenting capacity – family violence – poor relationship between caregivers – parental responsibility.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65CG, 65DAA, 65DAC, 65DAE

Goode & Goode (2006) FamCA 1346
J Edleson 1999 “Children’s witnessing of adult domestic violence” Journal of Interpersonal Violence Vol 14: 839‑870
JR Kolbo, E Blakely & D Engelman 1996 “Children who witness domestic violence: A review of empirical literature” Journal of Interpersonal Violence Vol 11 No 2 p.281
M Brandon & A Lewis “Significant Harm and Children’s Experience of Domestic Violence” Child and Family Social Work 1996 Vol 1 p.33
Dr L Laing, 2000 “Children, Young People & Domestic Violence” Domestic Violence Clearing House Issues Paper No 2

Applicant:

MR CABELKA

First Respondent:

MS WAITE

Second Respondent:

MS COLLIER

File Number:

ADC 6211 of 2007

Judgment of:

Kelly FM

Hearing dates:

13, 14 & 15 January 2009, 16 & 17 March 2009 & 1 April 2009

Date of Last Submission:

1 April 2009

Delivered at:

Adelaide

Delivered on:

28 May 2009

REPRESENTATION

Counsel for the Applicant:

Ms M Ross

Solicitors for the Applicant:

Maloney Anderson Legal

Counsel for the First Respondent:

Mr N Eid

Solicitors for the First Respondent:

Jane Ekin-Smyth

Counsel for the Second Respondent:

Mr J Bowler

Solicitors for the Second Respondent:

Mark Mudri & Associates

Counsel for the Independent Children’s Lawyer:

Mrs H Tinning

Solicitors for the Independent Children’s Lawyer:

Nelson & Co

ORDERS

That all orders made 17 May 2005 and all subsequent orders regarding parenting arrangements for the children [Y] born [in] 1997 and [Z] born [in] 2000 as they relate to the mother Ms Waite and the other party Ms Collier are discharged.
The mother and maternal grandmother each have parental responsibility for the children and endeavour to reach agreement about long term issues regarding the children’s care, welfare and development.
The mother and maternal grandmother have day to day parental responsibility for the children during the time that [Y] and [Z] are in each party’s care.
The children live with Ms Collier SAVE as otherwise specified in these orders.
The children live with the mother Ms Waite as follows:
(a)during school terms:
(i)from the conclusion of school each alternate Friday until the commencement of school Monday (or Tuesday in the event of a long weekend), commencing 29 May 2009
(ii)from the conclusion of school each intervening Thursday until the commencement of school the Friday following, commencing 4 June 2009
(b)for one half of the first and second term school holidays each year at times to be agreed between the parties;
(c)for the second half of the third term school holidays each year at times to be agreed between the parties;
(d)for one half of the Christmas school holidays each year at times to be agreed between the parties provided that the children’s time with the mother does not overlap with [Y]’s time spent with Mr Cabelka pursuant to the orders made 14 January 2009;
(e)from 12.00noon on 25 December 2009 until 2.00pm on 26 December 2009 and each alternate year thereafter;
(f)from 12.00noon on 24 December 2010 until 12.00noon on 25 December 2010 and each alternate year thereafter, subject to paragraph 1(d) of the orders of 14 January 2009 regarding [Y]’s time with Mr Cabelka in 2010 (which commences at 10.00am on Christmas Day in that year only);
(g)from 10.00am until 5.00pm on Mother’s Day in the event Mother’s Day does not already fall on a weekend the children are in the mother’s care;
(h)on each of the children’s birthday and the mother’s birthday as follows:
(i)if the birthday falls on a school day for a period of three hours at times to be agreed and in default of agreement from the conclusion of school until 7.00pm;
(ii)if the birthday falls on a non school day for a period of five hours at times to be agreed between the parties or in default of agreement from 2.00pm until 7.00pm;
Where appropriate handovers occur to and from the children’s school.
Handovers unable to take place to and from the children’s school do occur at the home of the maternal grandmother provided that:
(a)the mother and/or Mr W remain at the front fence line when collecting or returning the children;
(b)the maternal grandmother ensures the children are ready and exit the house promptly when the mother and/or Mr W arrive to collect the children; and
(c)each party is restrained from abusing or harassing the other party during any handover.
Each party is restrained from:
(a)abusing, denigrating or criticising the other party in the presence of the children;
(b)abusing, denigrating or criticising the other party within the Communication Book; and
(c)discussing any change in primary living arrangements with the children.
The mother is restrained from:
(a)using or consuming any illegal substances or non prescription medication for a period of 24 hours prior to and during any period of time the children are in her care; and
(b)allowing the children to be exposed to any person affected by alcohol within her home;
(c)allowing the children to be exposed to violent or abusive behaviour within her home.
The parties use a Communication Book to exchange information regarding the children’s care, welfare and development.
Each party inform the other of any illness or injury suffered by the children.
Each party keep the other advised of the contact details of any health practitioners involved in treating the children.
Each party is authorised to communicate with any health practitioner providing treatment to the children.
Each party is at liberty to communicate with the children’s school and to obtain school reports, newsletters, school photographs (at their own expense) and other parental notices that the school may publish from time to time.
Each party is permitted to attend all parent/teacher nights and school events to which parents are normally invited.
The mother and Mr W participate in counselling with Relationships Australia, to improve communication within their relationship and for Mr W to address issues relating to anger management and alcohol use.
The mother submit to random urinalysis drug screen testing on the following basis:
(a)the provision of the sample is personally supervised by a medical practitioner or their delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008;
(b)the mother provide a sample for testing within 24 hours of such request being made by the maternal grandmother’s solicitor to the mother;
(c)such requests to be made on no more than one occasion in each calendar month;
(d)the mother forward the test results to the maternal grandmother’s solicitors as soon as the results become available;
(e)in the event a sample produces a positive result that the mother attributes to prescription medication then the mother shall provide written confirmation of the relevant prescription within 7 days; and
(f)such testing to continue for a period of twelve (12) months from the date of this order.
Liberty to speak to the minutes.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 6211 of 2007

MR CABELKA

Applicant

And

MS WAITE

First Respondent

MS COLLIER

Second Respondent

REASONS FOR JUDGMENT

Background

These proceedings relate to the care arrangements for three children [X] born [in] 1992, [Y] born [in] 1997 and [Z] born [in] 2000.
The principal parties to the proceedings are the mother, Ms Waite and the maternal grandmother Ms Collier. [Y]’s father, Mr Cabelka, has been a party in these proceedings and the parties have agreed on orders regarding [Y]’s time with him.
The primary issue remaining for determination before the Court relates to the care arrangements for [Y] and [Z]. [X] is now aged 17 and both parties concede that he should make his own decisions about his living arrangements. Previous proceedings between the parties resolved with consent orders in 2005. Those orders effectively provide for the children to live with their maternal grandmother and spend time with their mother on alternate weekends, after school on alternate Thursdays and during school holidays.
The mother acknowledges that she had a serious drug habit in the past. At the time the children went to live with Ms Collier, the mother was trying to address these problems. The mother argues that she entered into the final consent orders in 2005 on the basis that Ms Collier agreed to return the children to her once she had resolved her substance abuse issues. Ms Waite says she no longer uses illegal drugs and has been drug free for some years now. Accordingly she says the girls should return to her primary care.
The maternal grandmother denies there was any agreement that the children would return to the mother’s care. In any event, Ms Collier believes that the mother is still using illegal substances. She further argues that it would be unsafe to return the children to Ms Waite’s primary care due to other concerns within the mother’s household.
The three children have remained in the primary care of Ms Collier since late 2004. In late 2006/early 2007 [X] went to live with his mother following an altercation with his step-grandfather. [X] remained there for three or four months before returning to Ms Collier’s home after an altercation with his mother.
The mother entered into a de facto relationship with Mr W in early 2007. They married in September 2007 and have a child [A] who was born in November 2007. Unfortunately there have been significant difficulties within their relationship and Mr W has pleaded guilty to assaulting the mother. These issues will be discussed further in this judgment.

History of proceedings

The parties have had a long and protracted history in the Family Law Courts. Proceedings between the mother and the maternal grandmother commenced in 2004 and concluded with consent orders on the day of trial in May 2005.
These proceedings commenced with Mr Cabelka’s application seeking residence of [Y], filed in the Family Court in January 2006. Interim orders were made regarding [Y]’s time with her father. In January 2007 the mother filed a response seeking residence of the three children. At that time [X] was living with Ms Waite. In April 2007 the Family Court ordered the appointment of an Independent Children’s Lawyer. Over subsequent months Mr Cabelka effectively abandoned his application, which was dismissed in August 2007.
The remaining proceedings between Ms Waite and Ms Collier were transferred to this Court in December 2007. Trial dates were allocated in September 2008 and a family assessment was ordered. That assessment was prepared by Ms Salna in July 2008. Unfortunately the trial did not proceed in September 2008. Just prior to the next trial listing in November, Mr Cabelka was granted leave to reinstate his application to spend time with [Y]. The trial was adjourned to enable Ms Salna to prepare an update assessment addressing Mr Cabelka’s application, so that all issues could be heard together.

The trial

The trial proceeded before me on 13, 14 and 15 January 2009 and was adjourned part heard to 16 and 17 March 2009. Closing submissions were heard on 1 April 2009 and judgment was reserved.
The mother relied upon the following documents:
a)Her amended response filed 7 March 2007
b)Her affidavits filed 22 August 2008, 18 September 2008 and 26 November 2008
c)Affidavit of Mr W filed 2 October 2008
d)Affidavit of Dr G filed 26 August 2008
e)Affidavit of Dr W filed 15 October 2008
The maternal grandmother relied upon her trial affidavit filed 9 October 2008.
The Independent Children’s Lawyer relied upon Ms Salna’s reports dated 15 July 2008 and December 2008. [Y]’s counsellor Ms F was also called to give evidence.
At the commencement of the trial it became clear that the mother’s affidavit material did not address any issues surrounding Mr W’s violence towards her. Leave was granted for the mother to give evidence in chief on this topic.
Each party and their witnesses were cross examined. I find that Ms Waite generally endeavoured to give her evidence honestly, albeit her hostility towards Ms Collier coloured her recollection of past events. An exception to this general finding relates to the mother’s evidence regarding Mr W. The mother consistently downplayed the extent and impact of his violence and alcohol use. This tendency undermines the weight I give to her evidence on this topic.
Mr W’s evidence regarding his alcohol consumption was vague and unhelpful. Apparently he had no recall of the more serious assaults he inflicted upon the mother.
Ms Collier generally presented as a truthful witness. As with Ms Waite, her hostility coloured her recollection of past events involving the mother, but this is not a major criticism.
The professional witnesses were extremely helpful. None of their evidence was significantly challenged through cross examination.

The mother’s position

The mother proposes that [Y] and [Z] live with her and spend time with the maternal grandmother on the same basis as the children presently spend time with the mother – alternate weekends, half school holidays and so on. If she is not successful in that regard, she seeks orders that the children live with her on a week about basis.
Ms Waite points to the views expressed by the girls, particularly [Y], in the family assessment. It is accepted that [Y] has held a longstanding wish to return to live with her mother.
The mother argues that her substance issues are well under control, as confirmed by Dr G and Dr W. She concedes that there have been difficulties in her relationship with Mr W and that she has been the victim of two violent assaults by him in the last 18 months. Ms Waite acknowledges these were serious incidents however she notes that Mr W has participated in ongoing counselling to address his violent behaviour and she is confident that these problems are in the past. She is equally confident that she can protect her children from such behaviour in the future.

The maternal grandmother’s position

Ms Collier argues that the children should remain in her care. She is not satisfied that the mother has truly resolved her substance abuse issues. Ms Collier is equally concerned about Mr W’s violence and alcohol abuse. She argues that these factors clearly indicate that the mother is not in a position to provide primary care to [Z] and [Y] and accordingly argues that the mother’s application should be dismissed.
The maternal grandmother initially sought to maintain the existing parenting orders. At the conclusion of the trial she supported the submissions from the Independent Children’s Lawyer regarding a variation to school holiday time such that [Z] does not spend time alone in the mother’s household during the school holidays when [Y] is staying with Mr Cabelka.

Legal principles

When making a parenting order, the best interests of the children are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in children’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In the case of Goode & Goode[1] the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although this case dealt with interim parenting issues, the Full Court provided guidance about the legislative pathway to follow in a parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346
Section 60CC is divided into primary considerations and additional considerations. The primary considerations focus on children having a meaningful relationship with both parents and on the need to protect children from the physical or psychological harm that can follow from being subjected to, or exposed to, abuse, neglect or family violence. At times these considerations are in direct conflict.
There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address those further in these reasons. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4),(4a)). In addition, I must address s.60CG and endeavour to make orders that will not expose anyone to an unacceptable risk of family violence.
The previous orders granted the maternal grandmother sole parental responsibility for the children’s day to day care. Section 61DA presumes that it is in a child’s best interests for their parents to retain equal shared parental responsibility. I consider the intention expressed in this section applies equally to other care-givers, such as the maternal grandmother.
If I proceed to make an order for equal shared parental responsibility then I must also consider s.65DAA. This section requires the Court to consider whether the children should spend equal time living with each parent (or in this case, with each caregiver), assuming such an outcome is reasonably practicable and in the child’s best interests.
If I conclude that equal time is not in the children’s best interests I must then consider whether an order for the children to spend “substantial and significant time” with each caregiver is appropriate.

Principal issues in dispute

There are two principal issues that occupied much of the hearing time. These relate to the mother’s history of substance abuse and Mr W’s violent behaviour towards the mother. My findings in relation to each of these topics set the framework for this judgment and accordingly it is appropriate to address these matters in some detail. I will then consider the relevant factors within s.60CC before setting out my conclusions regarding the best interests of [Y] and [Z].

Ms Waite’s drug use

Ms Waite says she has not used illegal substances for many years. She argues that she has successfully dealt with her past addictions and now maintains a drug free lifestyle with the support of her medical practitioners and treatment through the Buprenorphine programme.
I accept the evidence from Dr W and Dr G regarding the mother’s progress. Dr W has been involved in the mother’s care since 1999. She is confident in her assessment that the mother is no longer consuming illegal drugs. The mother’s Buprenorphine dose has consistently reduced over the last few years with no sign of relapse, despite the significant stressors Ms Waite has faced over the last two years.
Dr W noted that the mother’s present Buprenorphine dose is so low that any risk of relapse would have occurred by now. Dr W was confident the mother had not relapsed at any time during her recent pregnancy. She was able to account for apparent inconsistencies in the mother’s medical records relating to her pregnancy and the period immediately following [A]’s birth.
Ms Collier was unable to take any comfort from the evidence of Dr G and Dr W. However, I am satisfied that the mother’s prior substance abuse is indeed past history. While the mother may not have strictly complied with the 2005 orders regarding blood screen testing for illegal substances she nonetheless presented regularly for urine analysis testing. I accept that on those occasions when the mother tested positive for opiates this occurred as a result of prescribed pain relief medication.

The orders for drug screen testing were varied in April 2008 to provide for Ms Waite to undertake monthly supervised urine analysis tests. Clearly the mother did not strictly comply in that she was generally alone when actually producing her urine sample. However, having heard the evidence from Dr G and Dr W on this topic, I am satisfied the mother’s urine analysis test results are reliable and confirm she has not been using illegal substances for some years now.

Mr W’s violence

It became clear in the course of the hearing that family violence was a significant factor in this case. The mother has been subjected to two serious assaults by her husband Mr W. The first assault occurred within days of their wedding in September 2007. Ms Waite was seven months pregnant at the time.
Ms Waite confirmed that the police records accurately reflect the incident[2]. The husband had been drinking at a local hotel across the afternoon. After returning home he and the mother argued about [X]’s behaviour. Mr W became angry and punched the mother a number of times. Ms Waite managed to flee from the house but her husband followed her out into the street and threatened her with a knife. They eventually returned to the house, but Mr W again assaulted and terrorised the mother before she was able to call the police. She was taken by the police to the Women’s and Children’s Hospital, to assess her injuries and monitor her pregnancy.
[2] Exhibit ICL 1
Ms Waite acknowledges that her husband’s violence was unacceptable. Despite this, she and Mr W did not separate on this occasion. She accepted Mr W’s remorse and his promise to seek counselling for alcohol abuse. Mr W refrained from consuming alcohol over subsequent weeks and Ms Waite was sufficiently reassured, to the point where she agreed her husband could have “an occasional drink” at home, where she felt he was less likely to drink to excess. Mr W did not pursue any counselling.
Unfortunately Ms Waite’s confidence in her husband was misplaced. A second serious assault took place in February 2008. Mr W had been drinking. In the course of an argument Mr W punched the mother repeatedly to her face and head. The mother was holding their 11 week old baby at the time.
The mother managed to call for police assistance and Mr W was arrested and charged with assault. To his credit, Mr W pleaded guilty at the earliest opportunity. He was sentenced to nine months imprisonment suspended upon entering into a good behaviour bond of two years duration. It was a condition of the bond that Mr W participate in counselling through the Northern Violence Intervention Programme.
The mother and Mr W separated for a number of months after the assault in February 2008. The mother gave evidence that she was not prepared to live with the uncertainty of his violence and alcohol abuse but at the same time did not want to end their marriage. She told Mr W they would not reconcile until he had participated in counselling.
The extent of this separation is unclear. Mr W continued to spend weekends at her home as the mother did not want [Y] and [Z] to know there were any difficulties within their marriage. Once again, Mr W promised the mother that he would change. He stopped drinking and commenced the Court ordered counselling.
Despite this, a third incident arose in July 2008, again triggered by alcohol. The mother telephoned for police assistance after Mr W began behaving in a manner that she found threatening. The police assisted Ms Waite to leave the premises with [A]. I accept Ms Waite took this step to avoid any escalation to violence by Mr W.
The mother blames alcohol for each of these incidents. She says Mr W only behaves aggressively when he has been drinking. She has placed considerable faith in his commitment to the Domestic Violence counselling.
It is understandable that Ms Waite wants to keep her marriage together. She wants to provide a stable family environment for [A], [Y] and [Z]. However this desire has led her to minimise the impact and seriousness of Mr W’s violence towards her.
I accept Ms Waite would have taken appropriate steps to protect the girls had they been present during the assaults upon her by Mr W. I accept that she would do everything within her power to protect all of her children from such behaviour. I accept that she does not wish to live in a relationship that is marred by the ongoing threat of violence and alcohol abuse.
However, it was pure chance that the assaults in September 2007 and February 2008 took place when [Z] and [Y] were not in the mother’s care. It was pure chance that the mother did not need to remove all three children from her home in July 2008, rather than only [A].
Neither Ms Waite nor her husband demonstrated any insight into the underlying causes of Mr W’s violent behaviour. The children have been exposed to tension and arguments between their mother and Mr W, as disclosed to Ms Salna[3] and Ms F.
[3] Family Report, 15 July 2008, pp.19-21
The report from Mr W’s domestic violence counsellor noted that Mr W “acknowledged his use of violence as extending beyond physical violence to verbal, emotional, financial and other forms of abuse and controlling behaviour”.[4] This also suggests that there have been other occasions within their marriage where Mr W has behaved in an aggressive or threatening manner.
[4] Exhibit W2, Report from Northern Domestic Violence Programme 15/1/09
I accept that Mr W has, by and large, successfully completed his counselling programme with the Northern Family Violence Programme. I accept that he is no longer drinking and at the time of the hearing had not consumed any alcohol for two months. His commitment to ongoing counselling with Relationships Australia is commendable, but it is still early days in this regard.
Ms Waite and her husband consider that his alcohol use is under control and are confident that violence will no longer be a factor within their relationship. The weight I place upon their reassurances is undermined by their failure to voluntarily disclose any of these concerns. The mother was interviewed by Ms Salna in January 2008, May 2008 and July 2008. It is impossible to accept that Ms Waite did not consider that her husband’s assault upon her in February 2008 (the second such incident in a few months) was not relevant information that should be disclosed to Ms Salna. Not only did the mother and Mr W fail to disclose these issues, their trial Affidavits deliberately minimised any problems within their relationship.

Section 60CC – Primary considerations

I am satisfied the children enjoy meaningful and loving relationships with their mother and their maternal grandmother. Ms Salna observed the children’s interaction with both parties and raises no concerns in that regard.
I view the critical comments [Y] has made about Ms Collier with considerable caution. I conclude that such comments reflect [Y]’s loyalty to her mother and her earnest wish to live with her mother, rather than any real concerns [Y] holds regarding her grandmother’s behaviour.
Given the evidence regarding Mr W’s past behaviour, there is a clear need to protect the children from exposure to family violence whilst in their mother’s care. This is a significant issue in my determinations.

Additional considerations

Section 60CC(3)(a) any views expressed by the children 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 children’s views

[Y] and [Z] were interviewed by Ms Salna in January and March 2008. [Y] was interviewed again in December 2008. At the time of the first interviews [Y] was 11 years old and [Z] was 8 years old. I am satisfied both children participated fully in the interview process and that both children expressed their own genuinely held views about their living arrangements and the adult figures in their lives.
In assessing the weight to be attached to [Y]’s views I take into account her age and the intensity of her wishes. Both Ms Salna and Ms F noted that [Y] is “desperate” to live in a normal family setting, ie with a mother and a father. She has developed an idealised view of life in her mother’s household. Ms Salna noted that [Y]’s extremely negative description of life in the maternal grandmother’s household seemed at odds with the comfortable interaction between the children and Ms Collier, as observed in the assessment process.
[Z]’s views are more fluid. When asked where she wanted to live she answered “At Nanna’s and Mum’s.”[5] She clearly wishes to spend more time with her mother but her most significant desire is to be free of the conflict between her primary care givers.
[5] Family Report, 15 July 2009, p.22
The Independent Children’s Lawyer is concerned that the mother has discussed these proceedings with the children in an attempt to influence their views. On the evidence before me, I am satisfied that both girls have been exposed to discussions about their future parenting arrangements in each household. However I do not consider these conversations were deliberate attempts by either Ms Waite or Ms Collier to influence the children’s views.

Section 60CC(3)(b) the nature of the children’s relationship with each of their primary caregivers and other extended family members

Both girls love their mother. [Y] in particular is strongly aligned to Ms Waite. Ms Salna is concerned that [Y] has taken on a “monitoring role” regarding her mother’s welfare. This seems to have arisen through [Y]’s counselling with Ms F, when [Y] became aware that her mother’s past substance abuse was the reason why the children were living with Ms Collier. [Y] was anxious to assure Ms Salna that “Mum’s life is straight”[6] and accordingly there was no reason why she and [Z] should not return to their mother’s care.
[6] Family Report, 15 July 2008, p.17
[Y] was highly critical of her grandmother. Taken at face value, these criticisms suggest that there are significant problems within

Ms Collier’s household. Even if the actual allegations are unfounded, [Y]’s overly critical attitude suggests that there may be a significant problem in their relationship.
Having considered all of the evidence however, particularly the observed interaction within Ms Collier’s household and the evidence from Ms F, I conclude that [Y]’s apparent hostility towards her grandmother is overstated. Her negative comments are an attempt to undermine her placement with Ms Collier and thereby strengthen the possibility of returning to her mother’s care. Ms Salna concludes “[d]espite her [[Y]’s] responses … [Y] has a secure attachment with her grandmother.”[7]
[7] Ibid, p.29
There are no real concerns regarding [Z]’s relationship with the grandmother. The observed interaction was positive, as previously mentioned.
There are other significant people in the children’s lives. Their brother [X] lives with them in the home of the maternal grandmother as does their “step” grandfather, Mr C. The children appear to interact comfortably and easily with their grandfather and I conclude that the children’s relationship with him is significant but secondary to their relationship with Ms Collier.
There is occasional conflict between [X] and his two younger sisters, as discussed in Ms Salna’s report. I do not consider this is significant. Both girls expressed genuine affection for [X] notwithstanding occasional arguments and irritations.
The children also have extended family within the mother’s household. Their new sister [A] is 16 months old. Understandably, both girls love their baby sister and their developing relationship with [A] is important to them both.
They also spend regular time with the mother’s husband, Mr W. [Y] described Mr W as favouring [Z] but nonetheless described him as “alright”. [Z] described a more easy going relationship with Mr W. Mr W was present while Ms Salna visited the mother’s household and their interaction was relaxed.

Section 60CC(3)(c) the willingness and ability of each of the children’s caregivers to facilitate and encourage a close and continuing relationship between the child and the other care giver

Both Ms Waite and Ms Collier accuse the other of actively undermining their relationship with the children. Ms Collier denied that she had ever exposed the children to hostile or critical discussions about their mother. No doubt Ms Collier believes this to be true, however I conclude that the children’s comments to Ms Salna accurately reflect discussions that they have been exposed to within

Ms Collier’s home. I conclude she has been unable to fully insulate [Y] and [Z] from her hostility towards her daughter.
While Ms Collier struggles to encourage the children’s relationship with their mother, nonetheless she has generally complied with orders of the Court and there is no suggestion that she has not facilitated the relationship in a practical sense.
Ms Waite also struggles to support or encourage the girls’ relationship with Ms Collier. She was unable to identify any positive features about Ms Collier’s day to day care. Having said that, there is no evidence to suggest that she would not comply with orders supporting the children’s ongoing relationship with their grandmother.
The hostility between the parties is long standing and unlikely to improve. This is a sad reality for [Y] and [Z], who find the hostility and animosity between their mother and grandmother distressing.

Section 60CC(3)(e) the likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from a parent (or caregiver)

[Y] and [Z] have lived with their grandmother for four years now. Across that time they have maintained a strong and meaningful relationship with their mother. While a change in primary care is always emotionally disruptive for children, the girls would still spend regular time with their maternal grandmother, which would minimise the disruption. If a change in primary care was considered to be in the children’s best interests, I am confident that this change would be manageable for both children.
Ms Salna expressed some concern at [Y]’s reaction, if the children remain living with their grandmother. I accept that [Y] will be unhappy with such an outcome.

Section 60CC(3)(f) the capacity of each party to provide for the children’s needs;

Section 60CC(i) the attitude each party demonstrates to the child and to the responsibilities of parenthood; and

Section 60CC(4) the extent to which each party has fulfilled or failed to fulfil their responsibilities as parent or caregiver

These factors are interrelated and it is appropriate to discuss them together. In a general sense, I am satisfied both parties are able to provide for the children’s day to day care. Ms Collier has demonstrated her capacity in this regard. While the mother criticises some aspects of Ms Collier’s day to day care, I do not consider these concerns are supported by the evidence before me.
Equally, I am satisfied the mother’s day to day lifestyle is more stable and settled than was the case when the children were placed in

Ms Collier’s care. Ms Waite also understands that it is important for the children to have a stable and secure home environment. However, I am concerned about the mother’s present capacity to provide stability and security for the children.
In considering each party’s parenting capacity and their attitude to their parental responsibility, I now address the following additional issues and concerns.
·The mother’s relationship with Mr W
The mother and Mr W commenced their relationship in mid 2007 and married [in] September 2007. [A] was born [in] November 2007. I have discussed the impact of Mr W’s violence elsewhere in these reasons. Notwithstanding that history, the mother asks the Court to accept that her relationship with Mr W is settled and that she is able to provide a stable home environment for the children.
I accept Ms Waite believes this is the case. However she and Mr W are not yet at a point where the Court can be satisfied that their relationship is stable and free from violence. As recently as October 2008, the mother was discussing her concerns about their relationship with her counsellor.
Clearly she and Mr W are in an ongoing relationship and it is to be hoped that the past episodes of violence are indeed “in the past”. However these are early days. Mr W has only recently completed his court ordered counselling. He expresses a commitment to ongoing counselling but that commitment is yet to be tested. I accept that Mr W has not consumed alcohol in recent months and that he presently has his alcohol use under control. However, Ms Waite had received similar assurances in the past, only to find her husband again began drinking to excess.
Ms Salna was unaware of Mr W’s violence at the time of writing her first report. During her cross examination she was concerned that the mother had minimised and indeed hidden the extent of her husband’s violence. Ms Salna expressed further concern that the mother now finds herself in “a classic co-dependent relationship” with Mr W, such that her need to preserve and protect the relationship outweighs her ability to acknowledge the risks to her and to the children.
As recently as October 2008 the mother raised with her counsellor her concerns over Mr W’s resentment over the time she spends with the children. This is not necessarily a problem in itself – many couples face similar tensions within their relationship. However, there is no evidence to suggest that the mother and Mr W have sought any joint counselling to address issues that may arise within their relationship, such as their respective commitment to parenting of the three children, [A] included. This was a matter of significant concern for Ms Salna.
·Firearm incident
During a counselling session with Ms F on 5 March 2007, [Y] was reported as saying:
“… she [[Y]] had been ok until her last visit to mums house. [Y] disclosed that when she was at mums house she saw one of mums friends bring two guns into mum’s house, which was rapped [sic] in a quilt. Mum told the person to go hide it in her bedroom.”[8]
[8] Exhibit ICL 2
Ms F informed Ms Collier who reported these concerns to the police. The police attended at the mother’s home and removed a gun from her premises. The mother addressed this issue with Ms Salna, in her affidavit material and in more detail during the trial.
Ms Waite recalled an incident where a friend brought a statue wrapped in a quilt to the house, to hide it from a mutual friend prior to that friend’s birthday. She also recalled a previous incident that occurred with a friend who was staying at her home in 2006. Ms Waite told the Court that her friend Mr M (not her husband Mr W) did attempt to bring a gun into the house but she immediately told him to remove it and believed he had done so.
The mother went on to say that shortly after this incident this friend was killed in a motor vehicle accident. Some of his belongings remained stored in her premises and it was amongst those items that the police subsequently located a gun.
While the mother’s explanation is plausible at face value, it fails to explain why [Y] told Ms F that she saw a gun brought into her mother’s house. It is difficult to see why [Y] would have assumed that an object wrapped in a quilt was a gun unless she was aware of some other information leading to that conclusion.
There is no suggestion that any firearms were accessible to the children or that the children were exposed to any risk in relation to this incident. However, the mother’s convoluted explanation raises concerns about the mother’s judgment in allowing this friend to stay at her home in the first place.
·Excessive physical discipline by maternal grandmother
The mother says the children complain that their grandmother has assaulted them. [Y]’s description of the maternal grandmother’s behaviour is set out in Ms Salna’s report[9]. She describes extremely aggressive behaviour by her grandmother and goes on to say that her grandmother hurts [Z] more than [Y] herself.
[9] Family Report, 15 July 2009, pp.16-19

[Z] makes no such complaint about her grandmother, nor did [X] raise such concerns. Ms Collier admitted smacking the children on one occasion and described another incident where [Y] tripped as she “grabbed at the children” to stop them when they were running through the house. She suggested [Y] could have interpreted this incident as “being thrown to the floor”.
No doubt the maternal grandmother finds the children’s behaviour challenging at times. It is likely that she has resorted to physical discipline on more than the one or two occasions she deposed to, but I do not accept that this is a frequent occurrence. While this Court does not condone physical discipline, I am satisfied the children are not at risk of physical abuse whilst in the maternal grandmother’s care. I do not consider this is a significant factor in my determinations.
·Communication between the mother and the maternal grandmother
The relationship between Ms Waite and Ms Collier has broken down totally. There is no trust or respect between them. I see little hope that the relationship between the parties will improve. Ms Waite cannot forgive her mother for refusing to return the children to her care.

Ms Collier cannot forgive her daughter for her past abuse.
They each accuse the other of behaving in an aggressive and abusive manner. They each blame the other for their failure to engage in any child focussed discussion about the children’s care and welfare. I consider both parties have failed to meet their parenting responsibilities in this regard.
Given the state of the relationship between Ms Collier and Ms Waite, it is hardly surprising that they have generally been unable to participate jointly in making decisions about the children’s long term welfare. However, both Ms Waite and Ms Collier are devoted to the children’s welfare and they each participate in the children’s schooling and other activities to the extent that they are able to do so.

Section 60CC(3)(g) maturity, gender, lifestyle and background of the children

[Y] and [Z] are emotionally vulnerable children. They have lived through their mother’s history of drug abuse. They have experienced the disruption of moving from their mother’s care to live with their grandmother. They are all too aware of the hostility between their grandmother and their mother.
Both girls would be extremely sensitive to any tension or violence within their mother’s household and are likely to find such an experience emotionally overwhelming.

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

I do not accept the three identified incidents are the only occasions when Mr W has behaved aggressively towards the mother. Both the mother and Mr W tended to minimise past difficulties and the impact that Mr W’s violence has had upon their relationship. I conclude that their evidence on this topic is unreliable.
The tragedy of family violence extends beyond an actual physical assault by one spouse upon the other. Ms Salna agreed that it would have been distressing for the children if they had witnessed their mother being assaulted. She further agreed that family violence can impact upon children even if they do not witness an actual assault.
The social science literature[10] tells us that children who are exposed to family violence may experience significant emotional and developmental problems as they grow up. Ms Collier was a victim of domestic violence in her first marriage to Ms Waite’s father. Ms Waite grew up in that household. Both parties know the devastating impact that this experience can have upon children because they have experienced that devastation themselves.
[10] The impact of family violence upon children is discussed in the following articles: J Edleson 1999 “Children’s witnessing of adult domestic violence” Journal of Interpersonal Violence Vol 14: 839‑870; JR Kolbo, E Blakely & D Engelman 1996 “Children who witness domestic violence: A review of empirical literature” Journal of Interpersonal Violence Vol 11 No 2 p.281; M Brandon & A Lewis “Significant Harm and Children’s Experience of Domestic Violence” Child and Family Social Work 1996 Vol 1 p.33; Dr L Laing, 2000 “Children, Young People & Domestic Violence” Domestic Violence Clearing House Issues Paper No 2

Section 60CC(l) future proceedings

I do not consider a further adjournment of proceedings is appropriate or in the children’s best interests. Family law litigation has provided a consistent backdrop to the children’s lives over the past five years. Unfortunately, the litigation has only fuelled the conflict between their mother and grandmother. It is a sad reality that litigation rarely minimises conflict, rather it forces each party to focus directly on the issues that have led to the conflict developing between them in the first place.
[Y] and [Z] are entitled to enjoy the remainder of their childhood free from the pressure of such litigation. The orders I make today will be final orders and are made after a full examination of all of the evidence put before the Court through a lengthy trial. I hope both parties are able to accept the Court’s decision, even if it is not the outcome they had hoped for.

Conclusion

Parental responsibility

The existing 2005 orders provide for the maternal grandmother to exercise sole parental responsibility for the children’s day to day care, welfare and development, but are otherwise silent on parental responsibility. This suggests that the mother (as opposed to the maternal grandmother) retained parental responsibility for long term issues regarding their welfare, pursuant to the relevant sections of the Family Law Act 1975 in force at that time[11].
[11] Family Law Act 1975, ss.61C and 61D
The Independent Children’s Lawyer argues that sole parental responsibility should vest in the maternal grandmother. She argues that the parties have no capacity to communicate effectively and an order for equal shared parental responsibility is unworkable. The mother seeks an order for equal shared parental responsibility.
Section 65DAC says that parents (or parties) who share equally in parental responsibility must consult and make a genuine effort to agree about the issues affecting the children’s care. Section 65DAE clarifies that the parties are only required to consult about “major long term issues” and not about the day to day parenting issues that routinely arise.
Despite their differences, both parties are devoted to the children’s best interests. In my view, it would send the wrong message to [Y] and [Z] to remove all parental responsibility from their mother. However, I conclude that an order for equal shared parental responsibility would not be in the children’s best interests.
Given the present hostility between the parties, Ms Waite and

Ms Collier would struggle to consult and reach agreement as anticipated by s.65DAC. Rather than improving the parenting arrangements for the children, I consider that such an outcome may expose the children to more frequent hostility between the parties.
While it would clearly be in the best interests of [Y] and [Z] to see more productive and respectful communication between their mother and grandmother, it is up to the parties to improve their communication. Unless and until both parties demonstrate a genuine willingness to do so, I conclude that both parties should have parental responsibility but not equal shared parental responsibility. They should endeavour to reach agreement about major long term issues, such as future school enrolments, but otherwise each retain responsibility for day to day parenting issues, as envisaged by s.65DAE.

Primary care arrangements

Both parties are seeking primary care of the children. Ms Waite also puts forward week about shared parenting as an alternative. There is no doubt that [Y] and [Z] love their mother and that [Y], in particular, wants to live with her mother. However, my obligation is to determine what parenting outcome will be in the children’s best interests. The children’s views are one factor that I am required to take into account, but there are other equally important considerations to weigh up.
I am satisfied that the mother has dealt with her past drug addiction. However there are significant concerns within the mother’s household relating to Mr W’s past violence, his consumption of alcohol, and the mother’s response to these issues.
I have no doubt that Ms Waite would do everything possible to protect the girls from exposure to any violence or aggressive behaviour. However I am not confident that Mr W has taken responsibility for the impact that his violence and alcohol use have had upon Ms Waite and, therefore, potentially upon the children.
Both Ms Waite and her husband have minimised the extent of difficulties within their relationship. If [Y] and [Z] were to live full time with the mother and Mr W this would potentially place further stress upon their marital relationship, as discussed by Ms Salna[12].
[12] Family Report, 15 July 2008, p.30
In addition, if the children were subsequently exposed to episodes of domestic violence, the emotional impact upon [Y] and [Z] could be devastating. These children are already vulnerable. They have had to cope with a great many challenges in their young lives. While life with their maternal grandmother may not be their (or at least [Y]’s) preferred option, I conclude that Ms Collier is best able to provide the stability and security that [Y] and [Z] require.
For the same reasons, I conclude that it is not in the best interests of the children to live on a week about basis between Ms Waite and

Ms Collier. I have no confidence the parties would be able to demonstrate the degree of co-operation necessary to implement a shared care arrangement.
Regarding the future care arrangements, the Independent Children’s Lawyer proposes that the existing care arrangements continue during school terms. However, in light of the concerning evidence regarding violence within the mother’s household, the Independent Children’s Lawyer was opposed to any extension of time for the children in the mother’s household.
[Y] and [Z] presently spend three hours on alternate Thursday evening with their mother. The handover arrangements for this time have been fraught with difficulty in the past. The arrangements were varied in April 2008 to allow Mr W to return the children at 7.00pm on Thursdays. However, at the present time, there is clearly ongoing hostility between Ms Collier and Mr W.
I conclude that it is appropriate and in the best interests of [Y] and [Z] to extend the Thursday night visits to conclude at the commencement of school on Friday. This variation will give [Y] some sense that her wish to spend more time with her mother has been heard and acted upon, to a degree. It will remove the Thursday night handovers, which has the advantage of releasing the children from the potential of any hostility erupting and from their anxiety about any hostility erupting. It also increases the mother’s involvement in the children’s daily school routine, which will be particularly meaningful for [Y].
I consider the potential risks associated with extending the children’s time with their mother is outweighed by the advantages that an overnight midweek stay will offer. The children are already in the household across the early evening. Mr W has indicated his willingness to participate in ongoing counselling and I intend ordering the mother and Mr W to do so. I also intend restraining the mother from allowing anyone under the influence of alcohol to be present while the children are in her care. Given Mr W evidence that “he has not had a drink for the last two months”, I presume this order should not cause any inconvenience.

Other parenting issues

The Independent Children’s Lawyer also opposed [Z] remaining with the mother during any portion of school holiday periods when [Y] is otherwise staying with her father, due to [Z]’s young age and her emotional vulnerability.
This issue had not arisen at the time the parties entered into consent orders regarding [Y]’s time with her father. While I appreciate the concerns identified by the Independent Children’s Lawyer, I am reluctant to reduce either child’s holiday time in their mother’s care. The children’s holiday time is finite. In my view, it is not in the children’s best interests to simply divide their school holidays three ways between each party. Such a result could be counter productive for [Y], who may conclude that the loss of holiday time with her mother is too great a cost for the re-establishment of a relationship with her father. This may have unforeseen consequences for the re-establishment of that relationship.
The previous Christmas arrangements will be varied slightly to reflect an earlier handover time on Boxing Day, to allow for Mr Cabelka to collect [Y], in accordance with the orders of 14 January 2009
[Z] may also struggle to understand why she is spending substantially more of her holidays with her grandmother than with her mother. The children will remain living in the primary care of the maternal grandmother. Ms Collier’s role in the children’s lives will not be undermined if the children spend more school holiday time with their mother. Given that [Y] and [Z] generally spend less time overall with their mother than with their grandmother, each day in their mother’s care becomes more significant, from the children’s perspective. Accordingly I will order that the children spend half of each school holiday period with the mother, but not to overlap [Y]’s time with

Mr Cabelka. This may mean that the children’s time with Ms Waite takes place in two separate blocks during the Christmas school holidays.
It is appropriate to continue previous orders restraining the mother from consuming illegal substances and to continue a regime of supervised random drug screen testing. The mother now understands the significance and requirements of supervision and will need to ensure that she complies with the strict requirements of the order. I consider random monthly testing for a further twelve months is appropriate. In the event a positive test is returned for substances such as amphetamines or benzodiazepines, then the mother will need to provide confirmation of a relevant prescription from her doctor. I do not anticipate the mother will experience any difficulty in providing clean test results.
It is essential for [Y] and [Z]’s emotional welfare that the mother and Mr W participate in further counselling, as recommended by Ms Salna. Mr W gave evidence of his intention to continue counselling with Relationships Australia. No doubt he and the mother can also pursue joint counselling through that organisation, as well. While I am confident the mother and Mr W will pursue counselling voluntarily, I will nonetheless make an order in this regard.
Neither party addressed the Court with respect to ongoing handover arrangements. The orders I now make reduce the number of handovers that will take place away from the children’s school, which is clearly a benefit to the children. The orders are designed to minimise the possibility of the children being exposed to conflict. In the event there are alternative handover arrangements to consider, I grant liberty to all parties to speak to the minutes in this regard.
Both parties support the introduction of a Communication Book. This is one avenue they can implement immediately, to improve communication between them and I will order accordingly.
I now make orders as published at the commencement of these reasons.

I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Kelly FM

Associate: K. Fedele

Date: 28 May 2009