CANNING & PENN

[2019] FCCA 2583

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANNING & PENN [2019] FCCA 2583

Catchwords:
FAMILY LAW –Parenting – dispute as to live with and spend time arrangements – change of residence sought by the father – irregular attendance at school when in the care of the mother – where both parents have a history of drug abuse and homelessness – historic DHHS involvement – change of residency not ordered – children to live with the mother and spend time with the father.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61DA, 65DAA

Applicant: MS CANNING

Respondent: MR PENN

File Number: MLC 2420 of 2018

Judgment of: Judge Blake

Hearing dates: 5 and 6 August 2019

Date of Last Submission: 6 August 2019

Delivered at: Melbourne

Delivered on: 13 September 2019

REPRESENTATION

Counsel for the Applicant: None

Solicitors for the Applicant: None

Counsel for the Respondent: None

Solicitors for the Respondent:	None
Counsel for the Independent Children's Lawyer:	Ms Buchanan
Solicitors for the Independent Children's Lawyer:	Robert Halliday and Associates

ORDERS

1. All extant parenting orders be discharged.

2. The children of the relationship X born … 2010 and Y born … 2011 (‘the Children’) live with the Mother.

3. The parents have equal shared parental responsibility for the Children.

4. The Children spend time and communicate with the Father as follows:

   (a)each alternate weekend from 5.00pm Friday to 5.00pm Sunday;

   (b)for half of all school term and long summer holidays as agreed between the parents in writing and failing agreement for the first half;

   (c)for Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;

   (d)on the Father's Day weekend as agreed between the parents in writing and failing agreement from 5.00pm on the Friday immediately preceding Father's Day until 5.00pm on Father's Day;

   (e)in the event the Children are not already spending time with the Father on each of the Children's birthdays, on each of the Children's birthdays from 4.30pm to 6.30pm;

   (f)at such other times as agreed between the parents in writing.

5. The Father's time with the Children be suspended as follows:

   (a)for half of all school term and long summer holidays as agreed between the parents in writing and failing agreement for the second half;

   (b)for Christmas from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years and from 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years;

   (c)on the Mother's Day weekend as agreed between the parents in writing and failing agreement from 5.00pm on the Friday immediately preceding Mother's Day until 5.00pm on Mother’s Day;

   (d)in the event the Children are not already spending time with the Mother on each of the Children's birthdays, on each of the Children's birthdays from 4.30pm to 6.30pm;

   (e)at such other times as agreed between the parents in writing.

6. The Mother maintain a clean and orderly home.

7. The Mother immediately contact The A Support Service, and:

   (a)do all things necessary to engage with the service and undertake any assessments; and

   (b)follow all reasonable recommendations made by the service.

8. The parents are to ensure that the Children attend school every day unless they are ill and have a medical certificate.

9. Changeovers that do not take place at the Children’s school(s) take place at the Mother’s residence.

10. The Independent Children's Lawyer provide to the Department of Health and Human Services (‘DHHS’) copies of the following:

    (a)the Family Report prepared by Ms B dated 28 June 2019; and

    (b)these Orders.

11. Upon the Independent Children's Lawyer providing documents to DHHS pursuant to order 10 hereof, the Order appointing the Independent Children's Lawyer be discharged.

12. Each of the parents be at liberty to contact any health and education professional involved with the Children and receive copies of all the information usually provided to parents.

13. Each of the parents keep the other informed of their current contact number, email address and residential address and notify the other parent within 48 hours of any change to these details.

14. Each parent continue to attend their mental health care providers at the direction of the practitioner, and continue to be compliant with any medication or recommendations prescribed by them.

15. Each of the parents be and is hereby restrained by injunction from:

    (a)using or being under the influence of illicit substances whilst the Children or either of them are in their care;

    (b)exposing the Children to drug paraphernalia;

    (c)exposing the Children or either of them to family violence or allowing any other person to do so;

    (d)abusing, insulting, rebuking or otherwise denigrating the other parent or any member of the other parent's family in the presence or hearing of the Children or either of them;

    (e)discussing these family law proceedings in the presence or hearing of the Children or either of them.

16. The parties attend and complete, as soon as practicable, a Parenting Orders post separation parenting program, involving at least 3 separate sessions, (“the Program”) at an appropriate organisation, and:

    (a)do everything reasonably necessary to enrol in, undertake and successfully complete the Program;

    (b)pay all costs associated with their participation in the Program;

    (c)attend and complete, as soon as practicable, any further course or program recommended by the nominated organisation; and

    (d)provide a copy of the certificate of completion of the program/s to the other parties’ or their solicitors, and to the Independent Children’s Lawyer.

17. Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

NOTATION:

Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2420 of 2018

MS CANNING

Applicant

And

MR PENN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter commenced as an application brought by the Mother filed on 6 March 2018 (‘Application’).  The Mother sought, among other things, a Recovery Order as well as final orders that the children X born … 2010 (known and referred to as ‘X’) and Y born … 2011 (known and referred to as ‘Y’) (collectively, the ‘Children’) live with her and that she have sole parental responsibility for them.

2. The Father filed a response on 28 March 2018 (‘Response’). In his Response, the Father sought final orders that, among other things, both parents have equal shared parental responsibility for the Children and that the Children live with him.

3. As can be seen from the above, the principal dispute between the parties is about parental responsibility and with which parent the Children should live.

4. For the reasons set out below, I have determined that the Children ought to live with the Mother and spend time with the Father.

Background

1. The Mother’s Application sought a Recovery Order from the Court. The Children were returned to her care subsequent to this. Despite various orders that have been made by the Court since the filing of the Application, the Mother has not filed any further material or taken any other active step in the proceeding.  

2. At the time the Mother filed her Application, she also filed an affidavit affirmed on 5 March 2018. This was the only affidavit of the Mother that I had before me during the hearing. The Mother also gave evidence from the witness box and was cross examined. 

3. The Father filed an affidavit with his Response affirmed on 20 March 2018.  Since that time, he also filed an affidavit on 19 July 2019 (which was filed in support of an Application in a Case, also filed on 19 July 2019) and a further affidavit, affirmed on 5 August 2019. At the hearing, he relied on all of the affidavits he had filed. He also gave evidence from the witness box and was cross examined.

4. Both parents appeared unrepresented before me. The Children were represented by an Independent Children’s Lawyer (‘ICL’).

5. As a result of the way the matter initially came before the Court and the way matters developed, the hearing proceeded with the Father agitating for a change in the Children’s residence. There were various bases on which the Father submitted that the Children ought to be returned to live with him.

6. There are certain facts that are not controversial in this matter.  I set these out below:

   a)The parties commenced a relationship in 2008.

   b)The Father assaulted the Mother while the Mother was pregnant with X.  He was convicted and subsequently incarcerated.

   c)Final separation occurred in or around 2014. The Children remained living in the Mother’s primary care.

   d)In early 2015, the Mother became homeless. The Children moved to live with the Father at the home of the paternal grandparents.

   e)In April 2016, the Children returned to live with the Mother.

   f)In January 2018, the Father retained the Children in his primary care. The Mother subsequently filed the Application. Following the course of the proceedings, which included the conduct of a report under section 11F of the Family Law Act 1975 (‘Act’), the Court made orders by consent that the Children, among other things, live with the Father.

   g)In January 2019, there was a serious altercation between the Father and the paternal grandfather.  The paternal grandfather ultimately obtained an Intervention Order against the Father. The Father breached the Intervention Order.  Consequent upon this, the Father was not able to reside at the home and did not have suitable accommodation for himself or the Children.

   h)Subsequent to the altercation referred to above, this Court made interim orders on 19 March 2019, which provided, among other things, that the Children live with the Mother and spend time and Father.

   i)The Father has since resumed living with the paternal grandparents.  He has not re-partnered.

   j)The Mother presently lives with the Children and four other children from previous relationships. She has not re-partnered.

The capacity of the parents

1. A review of the evidence, and the history of this matter, discloses that both parents have a range of difficulties. This observation was made by the Family Consultant who prepared the Family Report, Ms B. A similar observation was also made by Ms C, the Family Consultant who prepared the section 11F memorandum in March 2018. Having seen and heard the parties, I agree with these observations of Ms C and Ms B.

2. In relation to the capacity of both of these parents, the following emerges from the evidence and is not in dispute:

   a)Both parents have a history of illicit substance use. 

   b)Both parents have experienced periods of homelessness.

   c)Each parent has a history of compromised mental health.  The evidence from the psychological evaluation of the Father conducted by Dr D in October 2018 indicates, among other things, that the Father has a ‘combination of Personality Disorder with Antisocial features, based on historical factors alone and the presence of an Amphetamine Use Disorder’. The evidence from Dr E, a Consultant Psychiatrist treating the Mother, is that the Mother has a diagnosis of ‘ADHD and Dysthymia in addition to borderline personality traits’. The evidence from these specialists is taken from written documentation that was placed before the Court as exhibits ICL3 and A1 respectively. Neither expert was called for cross examination.

   d)The Children have been exposed to family violence between their parents.

   e)There is a history of involvement by the Department of Health and Human Services in relation to the family. In a response to the Court pursuant to an order made under 69ZW of the Act on 5 August 2019, the Department ultimately stated that:

   ‘Given the number of previous reports regarding these children, the Mother not staying engaged with services, the Father not parenting the children without assistance, the family violence to which the children have been exposed and the parents now residing together, the decision was made that an investigation is required at this time. The department is currently investigating the concerns’.

   (It was accepted at the hearing that the reference in the above extract to the parents ‘now residing together’ is not correct.)

The principal issues in the proceeding

1. During the course of the proceeding, a number of key issues became apparent.  I deal with each of these below.

The Children’s attendance at school

1. A significant concern of the Father is the Children’s irregular attendance at school while living with the Mother.

2. The uncontested evidence discloses that each child has missed a significant amount of school when in the care of the Mother.  In 2017, X missed 69 full days of school and Y missed 74 days of school.  In the first two terms of this year, X has been absent for 18 days of school and Y has been absent for 17 days of school.

3. The Mother did not challenge the evidence above and accepted that the Children’s attendance at school while in her care is not what it should be.  Her evidence was to the effect that she had struggled to ensure the Children attended school regularly, but she would strive to do better.

4. Ms B gave evidence that the failure to ensure the Children attended school would have serious consequences for them. She stated the adverse consequences for the Children were not just educational in nature but that there could also be adverse emotional and social consequences for them.

5. I find that the Children have missed a great deal of school while in the care of their Mother and that this will have serious consequences for them if not rectified. I also accept that the Father has a better record in ensuring that the Children attend school when the Children live with him compared to when the Children are living with the Mother.

6. In addition to the days on which the Children did not attend school, the evidence disclosed that there were also a number of days when the Children were late in arriving for school.   

7. In summary, I find the Father’s concerns about the Children’s non-attendance at school are genuine and well-founded.  It is a poor reflection on the Mother that she has not taken steps to ensure the Children attend school regularly, given the consequences for her Children as noted by Ms B. While the Mother says she will do better, I am not convinced. The Children’s non-attendance at school while living with the Mother was a matter that was also the subject of comment before the 11F report writer, Ms C, in March 2018. The Mother’s ways do not appear to have changed since then. Further, even during the course of this hearing, the Mother demonstrated an inability to attend for Court on time, arriving very late on the first day of trial, and returning late after the lunch adjournment. I think that the Mother will find it difficult to change though engagement with appropriate support services may assist.

The state of the Mother’s home

1. Attached to the Father’s affidavit, and relied on by him, were photographs of the Mother’s house. Those photographs disclose an awful state of cleanliness as well as disorder in the house.

2. The Mother accepted that her house had been unclean and disorderly.  She said that she struggled to keep the house in a clean state, but that she had made significant improvements. On the second day of the hearing, the Mother tendered into evidence photographs showing what she said was the present, clean state of the home. Those photographs disclose that the house is much cleaner than the photographs relied on by the Father. Notwithstanding that, however, I observe that even in the more recent photographs tendered and relied on by the Mother, there is evidence of some dishes piling up in the sink.  One would have expected that the sink area would have been spotless given the evidence relied on by the Father, and given the Mother’s knowledge that the state of the home is a significant issue in the trial.

3. I accept that the Mother’s house has been very unclean and disorderly. This is of real concern. Having the Children live in an unclean and disorderly home could have serious health and other consequences for them. I also accept that the Mother has made some effort recently to keep things tidier. Whether that state of affairs is able to be maintained is difficult to predict.

Drugs and drug paraphernalia

1. The Father contended that the Children have been exposed to illicit drugs and drug paraphernalia while living with the Mother.

2. It is convenient to deal with the issue of illicit drugs in two ways. First, to consider whether the parents have been engaging in illicit drug use. Second, to consider the claim by the Father that the Children have been exposed to illicit drug use and drug paraphernalia. I deal with each of these matters below.

3. It is accepted that both parents have a history of illicit drug use. A question in this proceeding is whether the parents continue to use illicit drugs.

4. On 12 April 2018, Judge Williams (as she then was) made orders by consent that, among other things, both parties undergo random supervised urine drug screens within 24-hours of a request from the ICL.  Neither parent consistently complied with the requests that were made.

5. The Father stated to the Court that he was now free from illicit substances. He produced a single drug screen result from July of this year in support of his statement. While I accept that the Father may have been free from illicit substances at the time of the July 2019 drug screen, I am far from convinced that the Father has the capacity to remain free from illicit substances. My reasons for this are below.

6. First, the Father admitted to a recent relapse in relation to use of illicit substances. He told the Family Consultant, Ms B, that he had ‘a bit of a relapse and used ice’ earlier this year.

7. Second, the Father’s history of abuse of illicit substances is also documented in the report of Dr D. Among other things, in his report, Dr D notes that:

   ‘20. [The Father] has had long standing problems with behavioural difficulties including drug use from his teens onwards and has continued with significant problems associated with methamphetamine use. The evaluation raised questions about ongoing drug use and/or withdrawal

   …

   22. In order for [the Father] to reduce these difficulties with respect to risk, there would need to be more complete substance abuse treatment in an appropriate substance abuse treatment facility, with identified cessation of all substances.

   23. ‘[The Father’s] prognosis is relatively poor as he has had consistent difficulties with relapse and maintenance of such drugs at this point.’

8. Third, the Father did not produce any evidence to the Court that he has undertaken more complete substance abuse treatment of the type referred to by Dr D.

9. Finally, the Father conceded during the hearing that he had problems with illicit substance use and had relapsed throughout his life.

10. On the most recent evidence available to me, the Father would appear to be free from illicit substances. He has, however, by his own admission, used illicit substances since these proceedings were commenced and has relapsed many times. When all of the above matters are considered, I am satisfied that the Father has a serious problem with illicit substance use which is ongoing. Further, I am satisfied there is a real risk that the Father will continue to use illicit substances if the Children were to live with him.

1. Insofar as the Mother is concerned, the Father tendered a photograph of a bong in the Mother’s household. He was not challenged effectively about this evidence and I accept that there was, at least at one point, a bong in the Mother’s household.

2. The Father also attached what he said was a log of text message communications from the Mother’s mobile phone to another individual.  He identified messages that he said, effectively, gave rise to an inference that there was either drug manufacturing or the sale of illicit substances occurring out of the Mother’s home.

3. I have looked carefully at these messages. The source of the log of text messages is not confirmed. I am uncertain as to how the log was obtained or its authenticity. The apparently most concerning messages relate to a period that, on the face of the log, occurred some five years ago. Without better context it is difficult to ascertain what is actually occurring, although on its face, some of the messages appear concerning. 

4. In light of the matters referred to above, while I have looked at the messages and considered them, I attach no weight to them. I am satisfied that the Mother is not manufacturing illicit substances, or selling illicit substances.

5. The Mother also failed to comply with requests for supervised drug screens sent to her by the ICL. The Mother tendered however, a report from Melbourne Pathology of March 2019. The report shows a positive test result for Sympathomimetic Amines. No evidence was placed before the Court as to the meaning of this result. The ICL reviewed this report and submitted that it did not disclose that the Mother had been using illicit substances. The Mother also tendered earlier drug screen reports from 2018 which indicated that she was free of illicit substances at that time.

6. It seems to me that the proposition I am being asked to accept in respect of the Mother is this. It appears that the Mother is free from illicit substances on the basis of a single drug screen conducted in March 2019. I am asked to accept this against a background where first, the Mother has not complied with requests from the ICL to undertake drug screens during the proceedings and second, where there is an acknowledged history of illicit drug use. There is also, as noted above, a question in relation to the test result in March 2019. I accept that the Mother may have been free from illicit substances at the time of the March 2019 drug screen, however there is no evidence before me to satisfy me that she is presently free from illicit substances or has been free from illicit substance use for a significant period of time. Given all of the circumstances, I find that there is a risk the Mother may use illicit substances. I also find that there is a risk the Children may be exposed to drug paraphernalia while in the care of the Mother.

The Father’s accommodation

1. It is accepted that the Father had an altercation with the paternal grandfather in January 2019. That altercation led to the Father being subject to an Intervention Order. A consequence of this was that, for a period, the Father had to leave the home of the paternal grandparents. A further consequence was that orders were subsequently made by this Court that the Children live with the Mother.

2. The question of the Father’s ability to house himself and the Children was a significant issue in the proceeding before me.  During the period that the Father was not living with the paternal grandparents, he spent some nights at the home of the Mother.  He was specifically asked where else he lived during that period.  His answer was that he was unable to recollect where he had lived. I find that answer highly improbable. The Family Consultant noted that the Father was homeless during this period. I accept this evidence and find that he was homeless for a period. The Father’s inability to face up to that fact under direct questioning does him no credit.

3. The Father’s evidence is that the altercation with the paternal grandfather occurred during a stressful time when the maternal grandmother was unwell. His evidence is that he has since patched things up with the paternal grandfather, and that the grandparents are content for him to live in their house with the Children (if that were ordered). His father was not, however, called to give evidence on this point. To support this, the Father attached a statutory declaration from the paternal grandparents indicating that the Father and the Children were welcome to stay with them while they looked to find suitable accommodation. I accept the paternal grandparents are willing to have the Father and the Children live with them for a period but given the wording of the declaration and the issue discussed below, I find the paternal grandparents are not offering accommodation to the Father and the Children on a long term, ongoing basis.

4. There is then the issue as to what may happen in the future to the paternal grandparent’s home. Under cross examination, the Father indicated that his parents were intent on fixing up their home and selling it at the end of the year. What will happen to the Father after that is unclear. He indicated that he would be looking for accommodation.

5. The above matters lead me to the conclusion that the Father’s accommodation is precarious at best. In my view, there is a real risk the Father may again face the prospect of not having a place to live.

6. It is apparent that the situation with his accommodation is causing the Father concern. It gives rise to an issue as to whether the Father is pursuing these proceedings in part to secure better and more stable accommodation for himself. Ms B notes in the Family Report that the Father ‘requested that the Court provide him with a letter addressed to the Office of Housing, confirming that X and Y are to reside with him.  It is his understanding that unless he has formal confirmation that the children are to live with him, he will not be eligible for priority housing and consequently will not have suitable accommodation for him and the children’. Further, under cross examination, the Father acknowledged that there is a 14 year waiting list for DHHS housing if the accommodation was just for himself.

7. The Father was asked during cross examination what his present living arrangements were and what he intended to do. He said that he wished to rent privately a home for him and the Children. I do not believe the Father on this point for two reasons. First, quite how he would do this given his present financial circumstances remains unclear. Second, the Father told Ms B that he could not afford to rent privately.

8. It may be the case that an order that the Children live with the Father will secure him priority DHHS housing. Ultimately, however, no third party evidence was placed before the Court on this point. Nor was any independent evidence provided as to how long the Father would have to wait for such housing. In the circumstances, I remain satisfied that accommodation for the Father remains precarious. There is no guarantee that he can provide stable accommodation for the Children, who have already faced a number of changes of residence.

The allegations of family violence

1. There was a history of family violence during the relationship.  The most serious aspect of this was the Father’s assault of the Mother when she was pregnant with X, which resulted in his incarceration.

2. While I accept that family violence occurred during the relationship, it is noted that the relationship ceased some years ago, and the parents appear to have been able to work together since.

3. In the Family Report, Ms B refers to more recent allegations of family violence, in particular, verbal abuse in the context of arguments and disagreements. It appears that the Children have been exposed to such arguments and disagreements given their comments to Ms B. The particulars, or specific incidents, of arguments or disagreements or verbal abuse did not feature prominently in the evidence.

4. The most recent and significant exposure of the Children to family violence appears to have occurred while the Children were in the care of their Father. Y directly witnessed a heated verbal altercation between the paternal grandfather and the Father in mid-2018. This incident is different from the incident that led to the Intervention Order being put in place against the Father in January 2019.

5. I am satisfied that both parents have engaged in arguments and potentially verbal abuse of each other in front of the Children. I also find, however, that there is a risk of the Children being exposed to family violence in the form of disputes and altercations between the Father and the paternal grandfather.  The evidence discloses two serious altercations between the Father and paternal grandfather, one of which was witnessed by at least one of the Children.

The Law

1. The Act sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.

2. Section 61DA of the Acts contains a presumption in parenting matters that parental responsibility is to be equally shared.

3. Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in a child’s best interests.

4. The primary considerations in relation to what is in the best interests of a child are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. By virtue of subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).

5. Finally, section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in a child’s best interests.

6. I turn now to consider the above principles in the context of the present matter.

Consideration

Parental Responsibility

1. The Mother sought an order granting to her sole parental responsibility for the Children. The Father sought an order for equal shared parental responsibility.

2. The evidence of both of the parties in the witness box was that they were able to communicate about matters relating to the Children. I accept this evidence. Further, Ms B, in the Family Report, noted the following:

   ‘Despite a history of family violence the parents at this time demonstrate a capacity to work cooperatively to prioritise the children’s needs and there is no substantive reason for equal shared parental responsibility not to prevail’.

3. In view of the evidence of the parties in the witness box, and the observation of Ms B, I am of the view that an order for equal shared parental responsibility is appropriate.

Best Interests of the Children

1. In determining the best interests of a child, I am required to have regard to the factors that out in section 60CC of the Act. I deal firstly with the primary considerations under section 60CC(2) of the Act and then the additional considerations under section 60CC(3) of the Act.

2. A relevant consideration is the benefit to the child of having a meaningful relationship with both parents. The evidence in this case was that the Children have a meaningful relationship with each parent. Each parent agreed that the Children had a good relationship with the other.  That the Children value each parent is also evident from the Family Report prepared by Ms B.  Any order made needs to take account of, and if possible enhance, the relationship that these Children have with each of their parents.

3. I am also required to consider the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence. I have examined earlier in these reasons the issues relating to family violence. I rely on my reasoning in relation to those matters. I note that I am required, and do, give greater weight, to the need to protect the Children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

4. I next consider the views of the Children. The Family Report does not disclose whether the Children have a preference for living either with their Father or their Mother. The tenor of the evidence in the Family Report is that X wants ‘everything to be fair’ and for ‘no one to be upset’. Y wants everyone to live together all the time. X acknowledged that this cannot occur. The Children are reasonably young, and have expressed a desire to avoid conflict between the parents. That is a factor I will give weight to, though I acknowledge that the Children have not expressed a preference to live with either parent. I also take into account the comments made by the Children to Ms B that they have made friends at their current school and spoke positively about it.  I give some weight to the fact the Children report being settled in their present school in circumstances where they have had to endure a number of changes of residence in their short lives.

5. I am next required to consider the nature of the relationship that the Children have with each parent and any others, including grandparents or other relatives. If the Children were to live with the Father it will enable them to develop or continue to grow closer to their grandparents. If the Children live with the Mother, they will have the opportunity to continue to develop close relationships with their half siblings. I note that both Children spoke positively to Ms B about the relationship with their half siblings, particularly H and J.

6. I next consider the extent to which each of the parents has, among other things, taken or failed to take the opportunity to participate in making decisions about long-term issues, to spend time with the Children and to communicate with the Children. It is apparent from the evidence that both parents have spent significant time with and communicated with the Children. The Children have spent lengthy periods of time living either with the Father or with the Mother. This is not a case in which one parent has been absent. If anything, the desire of each of these parents to play a substantial role in the lives of these Children may be one matter that has contributed to them not being settled in one place for a significant period of time.

7. I next consider the extent to which each of the parents has fulfilled, or failed to fulfil, an obligation to maintain the Children. Neither parent is currently in paid employment. Ms B commented that the Mother is ‘not in paid employment and is in receipt of Centrelink benefits including a Disability Support Pension’. Ms B notes that the Father is ‘not in paid employment and is in receipt of NewStart Allowance’. The Father also reported to Ms B that he ‘cannot afford private rental... he no longer has a motor vehicle and is reliant on public transport’. While the Children appear to be cared for appropriately, I was not taken to any evidence as to who pays for the Children’s expenses, or the extent of those expenses.

8. I next consider the likely effect of any changes in the circumstances of the Children. This is a matter in which the Children have faced significant disruption in their lives. They have, at various times, spent substantial time living with either the Father or the Mother. This is a matter that was commented on by Ms B, who stated that:

   ’74. X and Y have already experienced significant disruption to their primary care arrangement, resulting in them being out of the care of both their parents for a period of months, being separated from their mother with whom they have always lived, and being separated from their siblings. In addition changes in their living arrangements have also necessitated changes in schooling. Whilst there are no reported behavioural concerns, including their academic achievements, such disruption is likely to have impacted on the children. Currently they have expressed concern for parenting arrangements “to be fair” and they appear to feel the burden of being responsible for ensuring that neither parent is upset by whatever Court Orders will be made in this regard’.

9. The effect of the constant changes in circumstances was also a matter that was commented on by the 11F report writer, Ms C. At the time of giving the section 11F report, Ms C stated ‘X aged eight years impressed as a capable and articulate child. She lamented she does not have many friends at her current school, whereas at her old school she had lots of friends’.

10. It is a significant concern that these Children have been subjected to so much disruption and to various changes of schools and residence. I am of the view that it is in their best interests that, so far as possible, any future changes be minimised or eliminated unless there are very compelling reasons for such a move.

11. I am next required to consider the practical difficulty and expense of the Children spending time with and communicating with each parent and whether that difficulty or expense will substantially affect the Children’s right to maintain personal relations and direct contact with both parents on a regular basis. The Father lives in Town F. The Mother lives in Suburb K.  A search of Google discloses the distance between the two locations to be around 117km. While I was not addressed on this point, the distance between the two homes would make it very difficult for the non-resident parent to spend any substantial time during the week with the Children.

12. I next consider the capacity of each of these parents to provide for the needs of the Children, including their emotional and intellectual needs. 

13. The Father presented at trial as a person who had the ability to look after the Children. This stands, however, in contrast to what he told Ms B at the time of the Family Report interviews, which were conducted in June of this year. At that time, the Father told Ms B that ‘as it stands, I have no ability to have the girls return to my care at the moment’. Quite how the Father’s position changed between the time of the Family Report interviews and the trial was not explained.

14. Ms B made two pertinent observations in relation to the Father that I have taken into account in respect of his capacities. The first was her observation that the Father’s ‘narrative during the interview was primarily focused on his own current dilemmas, rather than focussing on the needs of the children’.

15. The second observation made by Ms B was that the Father’s ‘ability to care for the children on his own remains untested’. There is a question about whether the Father has the capacity to care for the Children on his own. In the witness box, the Father gave evidence that he had some help around the house from his Mother. He also gave evidence, however, that he was responsible for ‘a majority of the cooking’, for cleaning the house, and that he cared for the Children himself. Further, when the Children lived with him, they were clearly organised enough in the Father’s home to be able to attend school on a regular basis. In light of this evidence, I have not placed a great deal of weight on the Father being a parent whose capacity is ‘untested’. I accept, however, that his ability to parent the Children without the support of the paternal grandparents is untested.

16. Finally, in relation to the Father’s capacities, and his ability to understand the emotional needs of the Children, I note that the Father admitted discussing the Children’s answers to Ms B with them. In my view, this demonstrates a lack of emotional insight into the needs of the Children and an inability to put them first.

17. In relation to parental capacity, there is then the issue of each parent’s mental health. I take into account the findings I have made earlier in relation to the mental health of the Father.

1. Insofar as the Mother’s mental health concerned, it is apparent that since the 11F conference in March 2018, she has taken steps to seek treatment for her mental health. She is treated by a psychiatrist, Dr E, who supplied a brief written overview of the Mother’s mental health. It is apparent that she remains under ongoing care. While the overview provided by Dr E is brief, the Mother is to be commended for taking positive steps to address her mental health issues on an apparently ongoing basis.

2. I next move to consider the maturity, sex, lifestyle background of these parents. The most recent issue here is the criminal history of the Father. Ms B has noted the criminal history of the Father which includes offences such as attempted robbery, theft, use of an unregistered motor vehicle and other offences. I take these matters into account.

Other matters

1. Given the difficulties faced by each parent I placed some weight on the recommendations made by Ms B. For completeness, those recommendations are as follows:

   I. X and Y live with their mother.

   II. X and Y spend time with their father every second weekend from after school on Friday to Sunday at 5:00pm or Monday at 4:00pm if Monday is not a school day. The is father to collect the children from school or the mother's home on Friday and the parents are to meet at G Railway Station at the conclusion of time spent.

   III. X and Y spend time with their father at any other time as agreed between the parents, including during school term holidays.

   IV. X and Y are to attend school every day unless they are ill and have a medical certificate.

   V. Should further disputes arise the parents are encouraged to attend dispute resolution to attempt to resolve issues prior to initiating any Court proceedings.

   VI. Each of the parents is to continue to attend their mental health care providers at the direction of the practitioner and to continue to be compliant with any medication prescribed by them.

   VII. The parents would benefit from attending a Parenting Orders Programme to increase their understanding of their children's needs from a developmental perspective, as well as assist them to develop an effective communication strategy regarding their children and their needs.

Conclusion

1. This is a matter that is finely balanced. It is clear that the Father has legitimate concerns about these Children in the care of their Mother, particularly as regards to their schooling and the cleanliness of their accommodation.  The Mother accepted responsibility for this, and made statements that she would improve. She will need to. It will have consequences for the Children if she does not change.

2. On the other hand, the Father is someone whose accommodation arrangement is precarious at best. This is not ideal, particularly where the Children have already endured many changes. Further, the Father has a serious issue with illicit drug use and there is no evidence before me that he has taken the steps suggested by Dr D to address this. He is also a person who I find is less child focussed than the Mother.  

3. When the above matters and the various matters set out in these reasons are weighed, and the recommendations of Ms B considered, I am of the view that the Children need to remain living with the Mother and spend time with the Father.

4. Neither the Father, nor the Mother, addressed me in relation to the amount of time that the Children should spend with the non-resident parent, nor other ancillary matters.

5. Section 65DAA(1) of the Act requires the Court to consider whether the Children spending equal time with each of the parents would be in the best interests of the Children and whether it would be reasonably practicable.

6. Section 65DAA(2) provides that if the parents are to have equal shared parental responsibility, and the Court does not make an order for the Children to spend equal time with each of the parents, the Court must consider whether it is in the Children’s best interests for them to spend substantial and significant time with each parent and whether it is reasonably practicable to do so.

7. I have had regard to the criteria set out in section 65DAA(3), (4) and (5). It is not reasonably practical to order equal time or substantial and significant time in this matter. The parties presently live far apart. That distance makes it not practicable for the Children to spend equal time or substantial and significant time with each of the parents as contemplated by the Act.

8. In relation to other matters, I will make orders broadly consistent with the proposal that has been tabled by the ICL. In doing so, I am satisfied that the orders proposed by the ICL are appropriate having regard to what is in the best interests of the Children and what is set out in section 65DAA of the Act.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Blake

Date: 13 September 2019