CHANDLER & TENNANT

[2015] FCCA 2903

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANDLER & TENNANT [2015] FCCA 2903

Catchwords:
FAMILY LAW – Parties seeking to vary orders made following trial in 2013 – mother’s circumstances significantly improved – mother appreciating need for counselling for troubled 12 year old – father not apparently insightful as to need for such counselling – children expressing view that they wish to live with mother – whether risks associated with mother’s partner – both households having elements of risk – Independent Children’s Lawyer supporting mother’s position – orders made largely as proposed by the mother and supported by Independent Children’s Lawyer – interim orders made for 6 months to review parties’ ongoing drug screens.

Legislation:

Family Law Act 1975, ss.4AB, 60CC

Goode v Goode [2006] FamCA 1346

Applicant: MS CHANDLER

Respondent: MR TENNANT

File Number: MLC 9467 of 2011

Judgment of: Judge Burchardt

Hearing dates: 24 & 26 August 2015

Date of Last Submission: 26 August 2015

Delivered at: Melbourne

Delivered on: 10 November 2015

REPRESENTATION

The Applicant: In Person

The Respondent: In Person

Counsel for the Independent Children’s Lawyer: Mr Henwood

Solicitors for the Independent Children’s Lawyer: Coulter Roache Lawyers Pty Ltd

DRAFT ORDERS

1. That the parties have equal shared parental responsibility for the children namely X born (omitted) 2003 and Y born (omitted) 2005.

2. That the said children live with the Mother in the (omitted) region.

3. That the Mother be restrained by injunction from leaving the children in the sole presence of Mr W.

4. That the said children spend time and communicate with the Father:

   (a)each alternate weekend from Friday at 3:30pm to Monday at 9:00am;

   (b)on the children’s and Father’s birthdays for a minimum of five hours on a non-school day and for a minimum of three hours on a school day;

   (c)on Father’s Day from 10:00am to 5:00pm;

   (d)for half the School holidays by agreement and failing agreement the first half of the School Term and Long Summer holidays;

   (e)for Christmas in alternate years commencing in 2015 from 5:00pm Christmas Eve to 5:00pm Christmas Day, and in the alternate year commencing 2016 from 5:00pm Christmas Day to 5:00pm Boxing Day.

5. That the Father’s time be suspended on Mother’s Day and on the Mother’s Birthday.

6. That all changeovers occur at the children’s school on a School day and at (omitted) in (omitted) on a non-School day.

7. That the parties are restrained from consuming illicit substances for the period of 48 prior to the children being in their care. 

8. That the Father forthwith engage in drug rehabilitation.

9. That for a period of 6 months from the date of these Orders, the Mother, Father and Mr W undertake supervised drug screen testing (“the Testing”) and that:

   (a)the Testing do occur at a pathology centre or other appropriate place, as approved by the solicitors for the Independent Children’s Lawyer from time to time;

   (b)the Testing do occur randomly (but not more frequently than 3 times in any 4 week period), and within 24 hours of the solicitors for the Independent Children’s Lawyer]making a request for the Testing to occur; and

   (c)the results of the Testing, on each occasion, be forwarded - as soon as possible - to the solicitors for the Independent Children’s Lawyer.

10. That the Mother forthwith attend upon her local General Practitioner with X and Y to secure a Mental Health Plan for X and Y and to be referred to a Psychologist so that the children can immediately commence counselling associated with childhood trauma.

11. That the Father and Mother do all acts and things necessary to ensure the children attend upon a Doctor if they require medical attention or to attend follow up appointments made by the assessing Doctor and the Mother and Father keep the other advised of Doctor’s appointments for the children or either child.

12. That the Father and Mother will notify each other in the event of any medical emergency or serious illness involving the children or either child while in his or her care as soon as practicable and provide details of the treating physician(s).

13. That the Father and Mother will keep each other informed of their current residential address and a current contact telephone number and advise the other parent of any changes to their contact details within 24 hours.

14. That the Father and Mother are both at liberty to attend all School functions, special events concerning extra-curricular activities and any other significant events that the parents would ordinarily be entitled to attend, subject to any restraint by such School.

15. That the Father and Mother their servants and agents be and are hereby restrained by injunction from:

    (a)Insulting, denigrating or otherwise speaking negatively about the other parent to or in the hearing of the children;

    (b)Discussing the contents of any document relating to these proceedings to or within the hearing of the children;

    (c)Exposing the children to any parental conflict or family violence of any nature;

    (d)Using physical force to discipline the children.

16. That the appointment of the Independent Children’s Lawyer be extended for a period of 6 months from the date of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9467 of 2011

MS CHANDLER

Applicant

And

MR TENNANT

Respondent

REASONS FOR JUDGMENT

Introductory

1. This proceeding is a parenting dispute.  It is the latest tranch of litigation between two parties who seem determined to litigate almost indefinitely.  They are concerned about their two little boys; X, born (omitted) 2003 and Y born on (omitted) 2005. 

2. The parties, as was the case in the previous proceedings, have mirror image applications.  Each seeks that the children live primarily with them and spend each alternate weekend with the other parent with a day in the off week and half school holidays. 

3. As things now stand, perhaps the two most outstanding issues are first, with which parent the children should predominantly live and, second, if the children live predominantly with the mother whether they should be permitted to come into contact with Mr W, her partner. 

4. For the reasons that follow, and in accordance with the submissions of the Independent Children’s Lawyer, I think the children should live predominantly with the mother, who will be required never to leave them in the sole presence of Mr W. 

My earlier judgment

1. It is appropriate to refer to the Reasons for Judgment I issued as recently as 19 June 2013.  I refer to the entirety of my judgment.  I would take the following points from it by way of background. 

2. Both the parents had exceedingly troubled childhoods.  (Paragraphs 5 to 8).  They lived together in Adelaide until separation in 2005, and both agreed that their drug use at the time was extensive and continued (paragraph 9). 

3. The father relocated to Melbourne in (omitted) 2005 and was largely excised from the children until (omitted) 2008, during which time the mother’s life went from bad to worse (paragraph 10). 

4. In (omitted) 2008 the children were taken over by the mother’s parents and were removed by the father to Melbourne shortly thereafter (paragraph 10). 

5. In (omitted) 2009 the mother was charged with wounding a former partner whom she had stabbed. She was subsequently convicted of this offence and had to remain in South Australia for some considerable time to answer her bail (paragraph 13). 

6. In (omitted) 2010 the mother relocated to Melbourne and in April 2011 the children were returned to her primary care, living predominantly with the mother until the judgment I made. 

7. The father over-held the children in October 2011, this disrupting the children’s schooling.  A recovery order was issued and the children thereafter lived essentially with their mother. 

8. The father has been in a relationship with Ms P who has two children from a previous relationship, A aged 9 and B aged 7 and three children with Mr Tennant namely U aged 5, V aged 4 and W aged 12 months (these ages are taken from the family report of May 2015 and obviously update the ages in my earlier judgment).

9. The mother was in an on-again-off-again relationship with Mr W until the final sundering of that relationship in February 2013.  As I noted, the ultimate outcome was that Mr W severely assaulted the mother, told Y that he was the source of the break up of another relationship on the part of this mother, and it would appear tried to reverse his car over both the mother and possibly X who was certainly nearby (paragraph 19). 

10. I found all the witnesses had been truthful.  I noted the children wanted to live with their mother.  I noted the mother’s position that Mr W was gone and not coming back. 

11. Nonetheless, and bearing in mind the family reports of Mr A and Dr K, I made the orders that the children predominantly live with their father as recommended by the Independent Children’s Lawyer.  I noted that the mother’s endeavours to reform had come very late in the piece, and I noted, as the Independent Children’s Lawyer submitted, and as indicated by Mr A and Dr K, it was a matter of calibrating risk.  It still is. 

The parties’ affidavits

1. The mother filed an affidavit on 7 April 2014, in support of the initiating application lodged on the same day.  It should be noted that some of the material in that affidavit was concerned with matters in earlier material filed in the previous proceeding. I do not propose to traverse the affidavit in great detail but will concentrate on new matters alleged. 

2. The first matter alleged was an incident in July 2013 when the father called the mother and asserted that on unpacking the children’s clothing he had found a hypodermic needle and spoon wrapped up in one of the suitcases.  The affidavit went on to detail (at paragraph 11) the unsurprising sequelae to this assertion involving an allegation that the father told the mother “you will never be able to see the children again Fuck off you whore” and the father restricting the mother’s time with the children.  Following attempts at mediation the mother still asserted difficulties in seeing the children and this was what provoked the application. 

3. The affidavit went on to depose to the mother’s living arrangements, the fact that she had been diagnosed with anxiety and depression (for which she had been prescribed Avanza) and asserted that despite a parenting plan being signed by both parties in December 2013 the mother was simply not spending any time with the children. 

4. The father filed an affidavit on 15 October 2014 contemporaneously with his Response, largely responsive to the mother’s affidavit.  The primary concern alleged is a risk of family violence in the mother’s household from either her partner or the maternal grandmother.  The father responded to the alleged hypodermic syringe incident asserting that it did indeed occur.  He alleged on occasion angry behaviour by the mother including swearing in the presence of the children and generally responded in a self-exculpatory way to the allegations made against him.  The affidavit goes on to assert that the children are happy in his care and in good health and that they both attend (omitted) Primary School. 

5. At paragraph 50 he deposed “Academically, the school is pleased with the progress of both children since they have commenced there in the latter part of last year”.  Nonetheless I note that he conceded that although Y had progressed well he was still behind the expected level of development. 

6. The affidavit also deposed that X had some behavioural issues and could get angry and disruptive at school.  He asserted that (paragraph 55):

   “We are working with the school to try and address these behaviours.  For example, the school has a mentor program, and X has been appointed a mentor.  His mentor is a youth worker who is involved with the school, and any time X feels like he needs some time out (even if it is during class time), he can leave and go and see his mentor”. 

7. The affidavit further deposed that at home X could be very rough and bullying with Y in particular and a little difficult in dealing with his other siblings.  The affidavit deposed that assistance had been organised through Centacare and the household had been allocated a child first worker, namely Ms J who was helping the family with some of the difficult behaviours that X exhibits. 

8. The affidavit deposed at paragraph 61 that on 13 October 2014 the father took X to his doctor to obtain a mental health plan.  The doctor referred X to a specific child psychologist, Mr G, in (omitted) whom the father asserted he had contacted. He was awaiting a return call to see what Mr G might be able to provide. 

9. Otherwise the affidavit deposed in an unremarkable way to the organisation of the household. 

10. The next affidavit, filed by the mother, was on 16 March 2015.  This relevantly deposed to the fact that in January 2015 the mother relocated to the (omitted) region and was provided with a temporary unit by the Salvation Army.  It went on to depose to the difficulties experienced in the mother spending time with the children.  It further deposed that on 6 February 2015 when the children came home to their mother, she noticed a bruise on X’s right cheekbone, a scratch on his chin and finger marks on his arm.  X told the mother that these came from Ms P, the father’s partner.  The mother took the children to the police and also contacted DHS. 

11. The mother also noted that in February 2015 the father’s solicitor had written outlining that she had resumed her relations with Mr W and that time would be suspended as a result.  The mother deposed that she was in a casual relationship with Mr W and referred to the incident in February 2013 with which I had dealt in my earlier judgment. 

12. The mother deposed that she had moved to (omitted) and had bunk beds for the children.  She deposed that the Salvation Army were likely to place her in permanent accommodation in the near months in (omitted) and that she continued to receive emotional support from her grandmother.  She deposed to having completed her post separation parenting program.  She further deposed to having been referred to Dr K a psychiatrist whom she was due to see in the near future. 

13. The mother deposed at paragraph 31 that the initiative of sending X to Headspace had failed because he was not yet 12 years old and that the Independent Children’s Lawyer had recommended that X obtain a referral to a paediatric psychiatrist.  She deposed that she was not aware whether X had yet attended his first appointment with Mr G. 

14. The mother deposed that she was in the process of completing her Community Based Order which was due to finish in October 2015, and gave details of drug screens undertaken in late 2014 and January 2015, which were positive to cannabinoids, but there were two clear screens thereafter. 

15. The mother went on to depose to the fact that she was now clear of drugs and was still unable to see the children because the father had unilaterally stopped the time. 

16. The father’s responding affidavit was filed on 15 April 2015.  Scarcely surprisingly it is wholly self-exculpatory.  It repeats the father’s concerns that the mother might have re-partnered with Mr W.  He made complaints about the mother spending time with the children other than where it had been ordered.  He deposed to having completed a post separation parenting program himself. 

17. Importantly for these purposes the father deposed, at paragraphs 36 and 37:

    “36.  X has had approximately 5 sessions with Mr G, and has another 5 rebated sessions.  After the 10 rebated session have finished, Mr G will consider what is appropriate for X in terms of any ongoing treatment. 

    37.  …I have undertaken a number of drug screens upon request from the ICL.  I am endeavouring to get copies of the results for these screens, and will make them available as soon as I have them.”

18. The father repeated his denials of any violence upon the children and, in particular, the alleged assault in February 2015 by Ms P.  On 24 July 2015, the father filed a further affidavit.  He said matters had not changed much since the last Court event except that (paragraph 2):

    “…after consultation with the Psychologist at Headspace in (omitted) regarding X, that it would be better for X to be able to have ongoing treatment rather than just ten sessions on a Mental Health Plan with Mr G.  It was suggested I contact the (omitted) Base Hospital which I did and I was referred to the Infant and Child Community Mental Health Services in (omitted).  We have had the intake and are awaiting an appointment, for X’s ongoing care. 

    …I am also attending drug and alcohol counselling at (omitted) Community Health.  I admit that I smoke marijuana at least once every two weeks.  My partner, Ms P, does not take any illicit substances.  I have had my intake session.”

19. The affidavit goes on to refer again to the father’s concerns about Mr W, included assertions that the mother had, in December 2014, sworn at Ms P and, in large part, is historical.

20. Ms P herself filed an affidavit on 24 July 2015.  She denied absolutely the allegations of assault upon X and gave details of the children in the household apart from those with whom we are directly concerned, namely, A born (omitted) 2006, B born (omitted) 2008, U born (omitted) 2009, V born (omitted) 2011, and W born (omitted) 2015. 

21. The mother’s affidavit, filed 27 July 2015, deposed to ongoing drug screen tests, with clear results, and complained of the father’s lack of same. 

22. She further deposed to an incident in April 2015 where X, as it transpired, had a fractured foot and she was not able to take him to hospital immediately. 

23. The affidavit contains various ongoing complaints about the spend time regime.  It more importantly deposes to the mother having attended upon Dr K in March 2015 and the fact that she was due to start seeing Dr L in (omitted) for further counselling.

24. The mother deposed that she now had a fully-furnished two-bedroom home on an ongoing basis and asserted, at paragraph 18:

    “I continue to be in a relationship with Mr W.  Mr W does not use drugs or drink alcohol.  Mr W is more than willing to submit to random supervised urine and drug screens to prove he is drug and alcohol free.”

25. Otherwise, the mother’s affidavit is largely responsive to the father’s affidavit in self-exculpatory terms.  I note that the Community-Based Order that the mother is due to complete in late October 2015 was due to driving offences and being caught with marijuana in September 2013.  Otherwise, the affidavit, as I say, responds to that of Mr Tennant and also to that of Ms P.  It contains assertions that Ms P is herself a drug user.

26. Mr W filed an affidavit on 20 August 2008.  He confirmed that he commenced a relationship with the mother in (omitted) 2011.  He dealt with the February 2013 family violence incident and confirmed that he and the mother had been fighting that day.  It’s an essentially self-exculpatory version of the event.  He further confirmed that he had had a growth removed from his brain in (omitted) 2013 and that, in October 2013, the mother and he decided to recommence their relationship again.

27. Mr W deposed that following proceedings in April 2015, the mother telephoned Mr W and told him they could no longer be in a relationship, but that they remained friends and continued to speak almost daily.  In about June 2015, she and the Mr W decided to commence their relationship, but he could not spend time with the children.

28. Mr W deposed to having used marijuana on a daily basis but to having stopped about seven to eight months previously.  He annexed a supervised urine drug screen dated 6 August 2015, which was clear.

1. Mr W deposed to living with his parents and being in receipt of Newstart payment.  He was diagnosed with schizophrenia when he was 16 years old and is presently engaged with Mr R, a psychologist.  He annexed a letter of support from Mr R dated 12 August 2015 and deposed to being medicated with Seroquel and Imigran for his migraines.  He has enrolled to complete a men’s behaviour change program in (omitted).  Mr W deposed to having two children from another relationship and the fact that he spends time with those children each alternate weekend, apparently without difficulty.  He further noted to having been prosecuted for driving whilst suspended in January 2015, for which he received a significant fine. 

2. I note that the report from Mr R is supportive and suggests that Mr W is coping well with the stress that the current proceedings are causing him.  He is clearly under ongoing psychological intervention.

3. The final affidavit in this lengthy tranche is that of the father dated 20 August 2015.  It is essentially a trial affidavit repeating matters already deposed.  I note that he expressly concedes that it is appropriate there be equal shared parental responsibility (paragraph 28).  In my view, it takes the matter little further, although it is not shy of accusatory comments about the mother.

The evidence and submissions made at Court

1. Both parties were self-represented and this presented the Court with the sort of difficulties that might be expected. 

The mother

1. The mother’s opening address was brief.  She confirmed that she did want a change of residence.  She opposed exclusion of Mr W, even though he did not live with her permanently.  She tendered exhibit A1, a clean drug screen from 14 August 2015, and exhibit A2, a letter from the Salvation Army housing case manager, dated 20 August 2015.  I note that the letter from Ms R confirms that the applicant may stay in Salvation Army supported accommodation until alternative housing is secured and that the home is always beautifully maintained, clean and tidy.  Ms R conducts weekly home visits and states that the mother has recently completed two parenting education courses.  While the letter has a slightly partisan tenor, it is clear that Ms R speaks very well both of the mother generally and of her care of the children when they are with her.

2. The father did not put any questions in cross-examination.

3. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother confirmed that the children have not seen Mr W since February 2015.  She herself had a good relationship with Mr W’s sons, who are aged 11 and 9, they being with him every fortnight.  She confirmed that Mr W has been diagnosed with schizophrenia.  She said that she threw an ashtray at him in February 2013 and there has been no violence since.  She traversed the incident in February 2013 in terms essentially exculpatory of Mr W. 

4. The mother confirmed that she was not medicated at the time, but is now known to have borderline bipolar condition.  She takes 100 milligrams of Seroquel every night to control this condition.  She is seeing a psychologist, Ms N, and has seen her every three weeks since 15 June 2015.  From now on she will see her every two weeks.  She has also seen a counsellor over the last two to three years on and off.

5. The mother intends to stay in (omitted) where she has permanent accommodation three blocks from the school.  She now has a two-bedroom unit, which she obtained at the end of May 2015.  She can stay there till she receives a Housing Commission property.

6. The mother said she last used marijuana around about early January of 2015 and has had nine or 10 clean screens since.  She does not take other drugs.  She has not spoken to her own mother since early 2015 and said that she needs to stay away from her.  She has no support from her family in (omitted), but has made some friends through school and has the support of her housing worker.  She confirms that the children go to her friend’s to play but do not stay overnight.  They are friends with this person’s children.

7. The mother said that X is good in her care.  Y is the angry one.  X likes the night light on for the toilet. 

8. She had recently had an interview with the children’s teachers.  X had been very withdrawn as his aide had been away for three weeks. 

9. Mr W lives in (omitted) with his parents and they see one another about three times per week.  He sometimes stays overnight.  She had no concerns about Mr W with the children and had a pretty good relationship with Mr W’s children’s mother, Ms S.  There are no court orders in respect of Mr W and his partner’s children.  Her Community Corrections-based order will last until October 2015, which arose out of a driving offence and a weapons charge, which was a taser in the car.  She said she was drug-affected at that time.

10. The mother was taken through the history of her conviction in South Australia and the way in which the children returned to Melbourne.  It is clear that when the children were removed from South Australia, the mother was severely drug-affected.

11. The mother says she was not drug-free at that time but, rather, was always using.  She started using heavy drugs when the father took the children from her. 

12. The mother traversed the way in which the children came back into her care in Melbourne in a fashion I found unremarkable. 

13. When taken to the issue of the hypodermic syringe, she denied that there was any syringe in the bag.  She confirmed also taking X to the police following the February 2015 incident.  She said this had been told to her by Y.  She traversed contact with the police, but I would interpolate and say that, as is plain from what the policeman, when called, had to say, that this does not take the matter much further.

14. The mother says she has no phone contact with the father and that when she rings Ms P, the call goes to voicemail as she is blocked.

15. When cross-examined about X’s broken foot at school, she said she picked him up and X told her that he had hurt his foot.  He told her the foot was not broken, and she took him home and gave him Panadol.  X was not complaining at the time.  Because she would have needed public transport to get to the hospital, she would not have been able to get home.

16. The mother confirmed that changeover is presently at school or at the (omitted) Train Station, but she would prefer it at a shopping centre.

17. The mother said X needs counselling, but this has not occurred, apart from once.  She confirmed that she could get X to counselling on time and regularly.

18. The mother confirmed that she and the father are unable to co-parent and that she still does not get all the time ordered by the Court with the children.

19. When taxed with the fact that she had told Ms C during the preparation of the family report that she had finished her relationship with Mr W, she said that the relationship ended in April 2015 when the matter was before the Court.  It was gradually re-established and they restarted in about June.

20. When challenged with the fact that in February 2013 Dr K had noted a tendency towards chaos in her life, the mother said she was on marijuana at that time.  It was, in fact, the week when the incident had taken place with Mr W.  She was nothing like that now and is on medication with a mood stabiliser.  She feels a lot better now she is diagnosed.

21. The mother confirmed that the father is a good father and that the children love him.  They say so.  She says she just could not understand the violence involved in Ms P’s behaviour.  This was based upon what the children tell her and she had not told the children to say that they wish to live with her.  She said she would facilitate time with the father.

The Evidence of Mr W

1. Mr W adopted his affidavit as true and correct.  Mr Tennant did not cross-examine.

2. Under cross-examination by the Independent Children’s Lawyer’s Counsel, Mr W confirmed he was diagnosed with schizophrenia when he was 15.  There was no violence in his relationship with the mother.  The ashtray incident was just a disagreement.  The mother had thereafter been standing on a corner and he reversed.  He had not realised she was directly behind him and had not tried to reverse over her.  Pursuant to the orders made in April 2015, he had had no contact with the children and, indeed, they had put their relationship on hold.  He thought the relationship was over, but it restarted in June 2015.  The last time he saw the children was at a skate park before the orders made in April 2015.  He said he feels sad not seeing the children.  He misses the children terribly, but will obey Court orders.  The relationship with the mother would cease if he was not permitted to see the children.

3. Mr W has two children, boys, of his own that he sees each alternate weekend from Friday to Sunday or Monday.  There is no Court order as there is no need for one.  He has the children half the school holidays.

4. He confirmed recent driving offences and the removal of the tumour from his brain in 2013.  He lost his licence for driving while suspended. He was originally suspended for demerit points.  He used speed and ecstasy until he was 22, but he had last used marijuana at the end of 2014, early 2015.

5. He is not seeing a psychologist or psychiatrist, but he is undertaking a men’s behavioural course at (omitted).

The Evidence of the Father

1. The father adopted his affidavit as true and correct.

2. Under brief cross-examination by Ms Chandler, the father stated that X started counselling the previous Friday.  There has only been one session, as it takes time for intake.  The intake for drug and alcohol counselling was by phone and he said he would only stop time if there was danger to the children.  He is not smoking marijuana, but is taking counselling for this.

3. There are a set of bunks for the children who occasionally decide to sleep together.  They are on the waiting list for a bigger house, but this could take a very long time.

4. Under cross-examination by Counsel, Mr Tennant confirmed that he last smoked marijuana about two weeks ago.  His last drug test in August 2015 was positive.  He is prepared to undertake drug screens in the future.  He is not actually having drug counselling at the moment and has been using cannabis since he was 13 years old.

5. The father confirmed that he drinks about four to five Bundy cans on the weekend and has never had drug and alcohol counselling in the past.  He says he does not smoke marijuana in front of the children.

6. The father was pressed about his compliance, or, more accurately lack thereof, with the Independent Children’s Lawyer’s drug screen requests.  He said he had done drug screens requested by his lawyers, but some may not have been sent to him.

7. When pressed with correspondence from the Independent Children’s Lawyer seeking that X undertake counselling, he said he believed his new lawyer replied to that.  He had taken X to Mr G more than once.  He said he had only missed one appointment with Mr G.  X was having difficulties, but has stopped urinating in the house.  His behaviour is very bad.

8. He said the current regime of treatment for X is all approved through Medicare.  He said he could not afford a cancellation fee and another fee with Mr G.  Nothing had, in fact, happened until the previous Friday when Ms P took X for counselling.  He said this was counselling for them both, because X’s main problem is with Ms P.

9. He said Ms P did the intake over the phone and he stayed with the other children.  He said the other children are good, but X is the main problem.  Y has problems reading and writing.

10. He confirmed that the boys say “are we spending more time with mum this weekend?” on occasions.  When taken to paragraph 45 of the family report, he confirmed that he did, indeed, tell the children it was unsafe and there has been violence to the children and said that they understood this.  He said there were no problems with the mother if Mr W was not there and that the mother was good when not on heavy drugs.

11. When taxed with an incident where Y hit his head, he said he made no inquiries to the hospital.  He confirmed that his major concern is Mr W and also the maternal grandmother, whom he alleged the mother punched about two years previously.

12. He confirmed that the children had said they want to live with the mother.  He then gave details of the non-physical discipline of the children in his house.

13. The father was further cross-examined about his affidavit material about the visits with Mr G.  His assertion in an earlier affidavit that there had been five visits with Mr G was not true.  There were two such sessions.  They are not with Mr G any more and they had started with somebody new on the previous Friday.

14. The father was cross-examined about the alleged assault by Ms P in February of this year.  He denied the assertions and said that X had denied being hit.

15. The father admitted telling the Department of Human Services that X was seeing a psychiatrist (something that was demonstratively not true).  He denied calling the mother a “junkie slut”, although Counsel pointed out that X had said this to Ms C during the family report.

16. The father was cross-examined about two friends of his who live at the back of Ms P’s parents’ home and denied that they smoked marijuana.

17. He denied allegations made by X to Ms C that he and Ms P buy drugs off (omitted) and (omitted).  When taken to paragraph 64 of the report and Ms J’s concerns about X’s counselling, the father said he went straight to Headspace after Ms J recommended it.  He denied that Ms P uses cannabis and said that what X says is not true.

The Evidence of Ms P

1. Ms P adopted her affidavit as true and correct.  She was not cross-examined by the mother.

2. She denied outright any assault on X in February 2015 and said there was no such incident at all.  She consented to an Intervention Order with denial.  She confirmed that (omitted) and (omitted) live at the back of her parents’ place and said that X had been told to accuse them of drug use.  She said she had smoked marijuana in university when she was 17, but was not a drug user.

3. She confirmed that it was she who had taken X to the counselling session the previous Friday and said that both she and the father parent both the children.  The counsellors had no preference as to who attended.  They called back, and she happened to take the call.

4. Ms P is aware that the father smokes marijuana and tells her that he smokes with his mates.  She says it is not very often, as far as she knows;  maybe once or twice per month.  The father is not much of a drinker.  The fact that he smokes marijuana does not bother her, because the children are not in his care at the time.  She had not told him not to smoke and was aware that he had failed his drug test. 

5. I should say that these answers about the father’s drug and alcohol use struck me as being somewhat glib.

6. Ms P confirmed that X is a handful on occasions.  She said that children only know what they are taught, but X will be easily fixed.  He just needs time and it is nobody’s fault.  It arose out of his parents’ separation and moving between housing.  She said that X told the doctor he is unhappy with the situation and he is scared that his mother will go back to Adelaide.

7. Ms P confirmed that she thought X needed counselling since he was back in her and the father’s care over a year ago.

8. She denied calling the mother a “junkie slut”.  She says that she and the father talk about the mother on their own.  She has blocked some numbers of the phone, including the mother’s, because of abusive texts.

The Evidence of Ms M

1. Ms M is the assistant principal of the children’s school.  X did not have any behavioural problems previously.  He had problems learning.  Then X left, but, since his return, his behaviour has been very concerning.  This year it has been very, very concerning.  Y was not so bad until this year and was a little concerning.  X is getting better.  He is only one year behind in reading.  He is in an intervention group.  Y is low in numeracy (this evidence was elicited by Mr Tennant in chief).

2. Ms Chandler did not cross-examine.

3. Counsel for the Independent Children’s Lawyer cross-examined, from which it emerged that X lies.  Ms M watches him doing something, then he will lie about it.  He often refuses to come to reading club.  He hides.  He does not follow instructions.  He makes racial slurs, which never occurred before.  He called a teacher retarded.  This year his behaviour has escalated quite significantly.  The father and mother both behave entirely appropriately if asked. 

The evidence of Mr R

1. Detective Senior Constable Mr R is based at (omitted).  He was called to give evidence about the incident in February 2015.  It is sufficient for these purposes to note that Mr R’s evidence was not consistent with either parties’ self-exculpatory or inculpatory assertions.  His evidence was self evidently true but does not in my view take the matter further. 

The evidence of Ms J

1. Ms J is the case manager, Integrated Family Services in (omitted). 

2. Under cross-examination by Ms Chandler, Ms J confirmed that Ms P self referred.  Ms J started working with the family in September 2014 and has regular home visits. She has spent time with both parents. There are issues with X who sometimes shows challenging behaviours.  He is being referred to child mental health services.  He has seen a counsellor previously but this was not enough.  X was referred to CAMHS, several months ago.  She visits the home fortnightly and has observed the children.  The children are reasonably happy and she has not seen the problematic behaviour.  When she is at the home she is there for one to two hours. 

3. Under cross-examination by counsel for the Independent Children’s Lawyer Ms J confirmed that the visits are not conducted by reference to any particular timetable.  She has seen the family at least 10 times.  She has never seen the father drug affected and was not aware he was using drugs.  She had not asked him about this.  She was concerned that X was not getting enough therapy.  He was too young for Headspace and has ended up at CAMHS.  She thought that Mr G was away for part of the time and had not understood that the father had failed to take X to Mr G.  The parents were committed to the process and X’s behaviours were challenging.  She had not spoken to X about the alleged physical abuse by Ms P. 

4. She had never seen that the boys disliked Ms P.  Ms P had never told her that X disliked her.  She said Ms P and the father do their best for the children but she was not there every day. 

The Evidence of Ms C

1. Under cross-examination by the mother, Ms C confirmed that the children had commented on drug and alcohol exposure.  She said it was not inevitable the father would stop time again.  The rationale for her recommendations was that the children had been with the father for two years.  She said their father needed to comply with drug screens, and should he fail to do so, the matter should be reviewed.  She was aware of his previous noncompliance.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Chapman said she would be concerned if the father was not doing drug screens.  He had said he used on and off but was trying to stop.  It can only be measured by drug screens.  When it was put to her that both previous reports suggested the children wanted to live with the mother and that X had said the same kind of thing this time, Ms C said that X was not particularly mature.  He did not have the maturity of an average 12 year old.  She could not say, however, that X had been coached to say this.  She said X recalls Mr W trying to run over the mother, and this was a frightening incident.  She thought that the ashtray thrown in February 2013 was thrown at the mother and conceded that her report might be inaccurate as to this.  The children had told her that their mother was hurt.  Y wants the father to spend more one-on-one time with him and not with all the other children.  Y was the easier child to be with.

1. Ms C confirmed that X has problems in various areas of his life and needed therapeutic counselling.  It was disappointing for X that therapy with Mr G was not followed through.  She accepted that the mother had followed things up in the past; for example, a school assessment in (omitted).  The mother could provide for the children’s needs, but the concern was consistency.  The mother’s network is with her family in (omitted), and she may move back there.  She is isolated in (omitted).  X is about to start high school, which is a big move.

The Submissions of the Parties

1. Counsel for the Independent Children’s Lawyer submitted that the children’s wishes have always been the same.  They want to live with their mother.  Both parents have risks in their lives, but the mother is taking her medication and seeing a counsellor.  Since January 2015, all her drug screens have been drug free.  She wants to be a parent and has moved to (omitted) to do so.  She has support networks to an extent in (omitted), and the mother and her own mother, perhaps fortunately, are not in communication.

2. Counsel expressed concern that the father is still using drugs. He said to the family report writer he would provide clean drug screens, but none were provided.  His last two screens on 22 July 2015 and 10 August 2015 were positive for cannabinoids.  Ms J was not aware of his drug use.

3. The father has only recently enrolled in drug and alcohol counselling.

4. There are seven children in the family aged from twelve to one.  Ms P cannot be criticised, but X is the odd one out.  He was urinating in the house.  There are issues at school.  It was submitted that X needs help, and that the father and Ms P struggle because there are so many other children.  By way of contrast, the mother would be there 100 per cent of the time for the children.  Counsel submitted that Mr W should have no contact with the children, but it was noted he has two children of his own with whom there are no difficulties.  It was submitted that X, in particular, is unhappy where he is.  It was noted that the father had unilaterally stopped time recently because he thought Mr W was on the scene.

5. Ms Chandler’s final submissions were brief.  She said that she and Mr W had changed in the last two years.  They had ceased marijuana use and engaged in counselling.  She had stopped Mr W seeing the children, but he missed them.  She had no intention of leaving (omitted).  X and Y wanted to live with her.

6. Mr Tennant did not elect to make any final submissions.

Some Observations on the Credit of the Witnesses

1. In my view, the mother was a generally good witness.  Given the strain upon her of the proceedings, she was reasonably composed.  She faced up to her prior misdemeanours, and her evidence was generally given with confidence.

2. Mr W, whom, of course, I did not see in the previous proceeding and about whom I made a number of negative findings, impressed me as a good and composed witness.  I formed the clear impression that his sadness at not seeing the children was genuine.

3. As with the mother, there are some aspects of his evidence I do not accept because they are, in my view, inconsistent with the objectively known material, but I repeat, in the main, he was a good witness.

4. The father was, I regret to say, less satisfactory.  His answers about his failure to complete drug screens were given with exceptionally evasive demeanour, and it is clear that he uses marijuana more than he admits.  He was similarly unconvincing in his evidence about missing appointments with Mr G.  So far as counselling generally is concerned, his answers were, I regret to say, entirely unconvincing, and his failure to make enquiries about the time Y hit his head suggested a total lack of insight.

5. I note that he told the Department of Human Services that X was seeing a psychiatrist when this was plainly not true.  His answers about Headspace and Ms J’s subsequent recommendation of further counselling were not convincing.  He was angry and talking over counsel by the time his evidence finished.

6. Ms P’s evidence I have in part commented on already.  Her answers seeking to minimise the use by the father of marijuana and her own awareness of it are totally unbelievable.  She is keen to blame the mother at every opportunity.  Her answers on this occasion suggested a volubility and temperamental quality I had not observed when I saw her before.  Some of her remarks were spiteful and suggest to me quite clearly that she has, on occasions, a volatile and significant temper.

7. The professional witnesses were all clearly honest.  Ms J, who has obviously engaged well with the family, was somewhat partisan, and it is not necessary to comment otherwise.

The Facts as Found

1. Both parties have sought to revisit a number of issues dealt with in the earlier hearing.  Despite their endeavours to minimise it, it is clear that a significant incidence of family violence took place in February 2013, which culminated in the mother throwing an ashtray at Mr W and hitting him on the head.  It is clear that Mr W abused Y at this time.  One only has to read Dr K’s almost contemporaneous report to see this.

2. Notwithstanding this, it is noteworthy that X, by and large, regards Mr W in a positive light.  I see no reason to doubt that Mr W likes these children.  He says so, and his demeanour while saying so was convincing.

3. The father ceased the children’s time in 2013, and that is what has provoked this present application.  He did so essentially because of his fears about Mr W.

4. The various complaints the parties have about each other in their care of the children seem to me, by and large, to amount, when looked at objectively, to very little.  The mother may have been somewhat feckless when X broke his foot, but I am not at all satisfied that this was through a wanton disregard of his interests.  Her description of X on the occasion of the incident was, in my view, believable.

5. Similarly, I do not accept that Ms P has assaulted X.  It is typical of the sort of hypervigilance that these cases give rise to that the mother saw some mark on X and immediately escalated the matter to the police, who ultimately took no action.

6. From the welter of mutual accusation and self-exculpation, the significant salient facts that emerge for me are as follows.

7. I accept that in the last period of time, the mother has really got her act together.  She has moved to (omitted) out of love for the children, and I accept that she will stay there.  The orders sought by the Independent Children’s Lawyer would require her to do so.

8. She has finally got a proper diagnosis of her mental health and is taking appropriate drugs to treat the difficulty.  The mother impressed me as far more grounded and self-controlled than when I saw her in 2013.

9. The evidence the mother has given from time to time about her relationship with Mr W has been, in my view, less than wholly honest.  She has sought to either downplay or deny a relationship when it was clearly subsisting.  Nonetheless, I accept that she has complied with the orders made in April 2015 to excise Mr W from the children’s lives, and it is to her credit and that of Mr W that this is so.

10. I further accept that the mother is making a life for herself in (omitted) (I have not mentioned, but would applaud her endeavours to seek employment), and, more particularly, she shows a significant insight into the need for X to have counselling.  X clearly needs help.

11. On the father’s side of the ledger, things are, in some ways, less good.  He continues to use drugs far more than he admits.  The florid accusations made by the children about drug use by Ms P are clearly untrue.  I accept that she does not use drugs.  I further accept that the accusations about the father and Ms P buying from their friends are wildly exaggerated if not wholly untrue.  They reflect what the children think the mother wants to hear.  This sort of confabulation is entirely unremarkable in cases of this sort.

12. However, since the father undoubtedly obtains drugs from third parties, and I note that Ms P said he smokes with his friends, this is probably the origin of the assertions about (omitted) and (omitted) (the names of these friends, and indeed their number, are not clear).

13. The children undoubtedly listen when the father and Ms P are discussing the mother.  I have no doubt that each and every one of these people has sworn at the other.  Their lack of self control is a historical reality.  Ms P in particular impressed me, when I saw her give her evidence during this trial, as being well capable of insulting remarks.  She was hard put to contain her temper even in the witness box.

14. Having said this, however, I make it clear again that I do not accept that Ms P has assaulted X.  It is far more probable than otherwise, however, that Ms P, who has to run what is, after all, an extremely demanding household full of very young children, loses her temper from time to time and yells at the children.

15. The father’s attitude towards counselling was as insouciant as his attitude towards drug taking.  Although X has been in obvious and significant need of medical/counselling assistance, the father’s evidence about his endeavours to involve him with Mr G or, indeed, with anyone else was extremely unconvincing.  It was, in fact, Ms P who arranged for the present intake and attended the first session.  One would have expected the father to have attended the interview with his own child, at least on the first occasion.  His failure to do so speaks volumes.

16. I note that Ms J visits the father’s household at unpredictable times, and I note the very favourable evidence she gives.  I have already referred to the evidence referred to the evidence about the mother’s household.

17. Although I will return to these matters in dealing with the s.60CC matters, I have no doubt that each of the father and mother are competent carers for these children when they are in their care.

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

Equal Shared Parental Responsibility

1. Little was said about this important matter in the currency of the proceeding. That is probably because each party seeks it. Although there are real issues about family violence in this case (and I make it clear that both households, in my view, have been the subject of family violence in the past within the expanded definition of s.4AB of the Family Law Act 1975) it is implicit in all parties’ positions that the risks are not so great as to make an order for equal shared parental responsibility inappropriate.  I think that this is correct.  Both the parents love their children, and for all their failings both have something to offer in terms of decisions about the children’s long-term development.

2. Both these parents have acted unilaterally at times in the past, but an order for equal shared parental responsibility will require them to turn their minds to their children’s development.

Equal Time or Substantial and Significant Time

1. No one suggests for an instant that a regime of equal time is appropriate, and it is not necessary to say more than that.

2. Each of the regimes of time proposed by the parents just about scrape across the line of the definition of substantial and significant time, albeit that the configuration of the time proposed might be said to be inconsistent with the aim contemplated by substantial and significant time. The question accordingly becomes whether the regime proposed by the mother or the father should be adopted. This requires consideration of the matters in s.60CC.

Section 60CC(2): The Primary Considerations

1. Everybody agrees that it would be to the benefit of the children to have a meaningful relationship with both of their parents. Each parent in their own way points to the need to protect the children from physical or psychological harm, from being subjected to abuse, neglect or family violence. Pursuant to s.60CC(2A) I am required to give the latter criterion greater weight.

2. Notwithstanding all the understandable and, indeed, appropriate reservations that each parent has about the other, I think that the risks of abuse, neglect or family violence in either household are somewhat overstated by each of them.  On any view of the matter there is no violence alleged involving Mr W post-2013, hideous though that particular experience must have been for the children.  Similarly, the allegations of physical violence, in particular on the part of Ms P, are not, in my view, established.

3. I said at the start that this case is about the calibration of risk, and it remains so.  While there is a risk of harm to an extent in both households, since, in my opinion, it is more probable than otherwise that these significantly challenged parents and their significantly challenged partners may be prone to lapses in self-control, having seen the parties give their evidence I am of the view that such risks are relatively low.

Section 60CC: The Additional Considerations, Section 60CC(3)(a)

1. The children have at all times said they wanted to spend more time with their mother.  Even the father concedes that this is so.  I note that Ms C asserts that X is not as mature as he could be for a 12 year old, but this does not mean, in my view, that his views should be discounted to nought.  These are clearly articulated views, and even the false tales of violence that X has provided to third parties and to the mother only goes to show how much he now wishes to be with her.  He invents these stories because he wants his mother to be pleased.  This is thoroughly undesirable, and the mother’s excessive hypervigilance in response is also unhelpful, but putting the matter shortly both these children have made it clear they want to live with their mother.

Section 60CC(3)(b)

1. Both of the children have good relationships with both of their parents.  So much is clear from the evidence of Ms C.  I note that the mother expressly concedes that the father is a good father and that the children love him.  That concession does her credit.  The father does not make the same concession in respect of the mother, but even he concedes the children want to spend more time with her, and it is implicit in that concession that he concedes they have a good relationship with her.

2. The relationship between the children and Ms P is more difficult to assess.  It seems that on occasion X has his difficulties with her.  The lies that he has told about her are also concerning, but I have just dealt with them above.  In my view, Ms P does her level best to love and look after all the children in her care.  Nonetheless, there must be times at which X’s behaviour in particular is exasperating.  A child who behaves very badly and who urinates around the house, as X was doing until recently, must be quite a handful. 

Section 60CC(3)(c)

1. The father’s historical commitment to a relationship with the children is by and large good.  There was clearly a period from when he left Adelaide in 2005 until 2008 (and this self-evidently was not a short period) when he took himself out of the children’s lives.  This stands against him.  Nonetheless, he has reengaged with the children, and, indeed, as things would have it, the children have been predominantly in his care since that time, whether by an initial agreement or by Court order.  The mother’s countervailing record is, as she concedes herself, far from perfect.  She, effectively, allowed the father to remove the children from her when she was undergoing a drug-fuelled binge in Adelaide and thereafter was unable to re-establish relations with the children for quite a period of time.

2. As I noted in my earlier judgment, she had begun to take steps by 2013 to get her house in order, but they were then characterised, effectively, as too little too late. 

3. Greatly to her credit, however, she has now sorted herself out, and her endeavours to spend time with the children are entirely to her credit.

4. Although the matter might be said to fall under another subsection, the matter that is of very considerable significance in this regard is the failure on the part of the father to follow through on counselling.  As earlier indicated, he does not seem to have understood how vital it was and remains for X to have the counselling that he needs.  This is a matter to which I attribute considerable weight.  It is a serious deficiency. 

Section 60CC(3)(ca)

1. As already indicated, both parents have at times, and for quite protracted periods of time, failed to fulfil their obligations to maintain the children.  There is nothing to be done now about these failures.  They are simply, albeit important, part of the landscape.  As a result of the deficiencies in their parents’ conduct, these children have had a troubled upbringing.

Section 60CC(3)(d)

1. The change of residence sought by the mother, and supported by the Independent Children’s Lawyer, are likely to have a number of effects on the children.  First, given that it is what they say they want, it is likely to make them happy.  They will not need to change school because the mother lives close to where they go to school. 

2. As was conceded by counsel for the Independent Children’s Lawyer, a change of residence would mean that they would spend less time with their step-siblings and with Ms P’s other children.  This would be a diminution in their lives.  Conversely, however, they would probably get to spend more regular time with Mr W’s children, depending upon what outcome obtains in respect of Mr W. 

3. Here I lay particular emphasis on the submissions by counsel.  X is a troubled child who needs more care and attention than his father and Ms P can give him in a seven child household.  It is quite clear that it will be in X’s best interests in particular to have the extra care and attention that his mother can bring to bear upon him, especially given that she has a far more developed and insightful view as to the necessity for therapeutic intervention than has the father. 

Section 60CC(3)(e)

1. All the parties in this proceeding are in receipt of benefits, so a change of residence will doubtless diminish the income in the father and Ms P’s household and increase that in that of the mother.  I do not think that this factor should be given any significant weight.  To their credit, none of the parties have said anything about this aspect of the matter, and I have not formed the impression that any of them are running this case in any sense for money.  As earlier indicated, a change of residence will not affect the children’s schooling.

Section 60CC(3)(f)

1. This matter may be dealt with briefly.  Notwithstanding their various difficulties and limitations, both parties can properly care for the children while they are in their care.  This is implicit in the time regimes each has proposed for the other, in any event. 

Section 60CC(3)(g)

1. There is all too much to be said about the maturity, sex, lifestyle and background of the children and their parents.  I observed in my earlier judgment that both parents had extremely troubled upbringings.  They continue to have troubled lives.  Criminal offences abound.  They are by no means even completely ceased (the mother’s Community Corrections Order does not finish until October).  Here perhaps the two salient aspects of the matter are, on the one hand, the mother’s noted and very significant personal improvement, including, as I find, a genuine cessation of all drug use.  On the other hand, the father continues to use and displays to all effects and purposes no insight into this matter.

2. It is perhaps appropriate to consider, at this stage, Mr W.  He forms part of the lifestyle of the mother, and her maturity in continuing the relationship has been put in question strongly by the father.

3. There must have been family violence in the relationship between the mother and Mr W.  Dr K’s 2013 report speaks for itself.  Nonetheless, Mr W impressed me as a composed and good witness.  His composure is perhaps important, as giving evidence is a stressful experience, which tends, as it did with Ms P, on occasions, to cause disinhibition and revelation of a party’s true nature.

4. Mr W is taking the necessary drugs to control his schizophrenia and is under active, albeit intermittent, treatment.  I note in particular that he has two children of his own, with whom he has regular time and in respect of whom the relationship with their mother is sufficiently good that court orders have never been necessary.  This speaks substantially in his favour.  His driving while disqualified once again shows weaknesses, but in my view, all these parties have a certain irreverence for the finer points of the law.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(j) and (k)

1. These are important matters.  Nonetheless, I think they are already sufficiently dealt with above.  There is no doubt that there has been family violence in the past in the mother’s household.  There has also been family violence (although not physical assault) in that of the father, by Ms P.

2. Nonetheless, the Court is required to make orders about these children and must do so, even though there is an extant Intervention Order against Ms P.

Section 60CC(3)(l)

1. I am going to make orders for continuing drug screens by all the relevant parties.  I am going to maintain the appointment of the Independent Children’s Lawyer for a further period of six months, for reasons to which I shall come shortly.  Subject only to that reservation, however, the orders I propose to make are designed to bring these proceedings to a final conclusion.

2. This is the second major tranche of litigation between the parties.  The children do not need the insecurity engendered that their parents’ litigation unquestionably gives them.  They have been litigating since 2011, and it is time they stopped.

Section 60CC(3)(m)

1. There are no other relevant matters.

Conclusion

1. In my view, it is clear the submissions of counsel for the Independent Children’s Lawyer as to the primary residential care should be accepted.  There are a number of reasons for this.  First, the children want it.  Everyone agrees that this is what they say, and no one has suggested they are not saying what they mean.

2. Second, X is a very troubled child.  He needs all the help he can get, and plainly, in a household of seven children, it is far more difficult to provide him with help than in a household with two children.

3. Furthermore, the father’s attitude towards counselling (and, I would infer from the general inaction, that of Ms P also) is just not satisfactory.  The father’s evidence just simply did not illustrate an appropriate measure of concern with getting X into treatment.  The mother’s, by way of contrast, did.

4. Further, the mother has, as already said more than once, made significant endeavours to address the various difficulties in her life and, in my view, has done so successfully.  Given her massive previous drug use, her clean drug screens this year speak volumes.  The father continues to use drugs to an excessive extent and has done, in truth, thus far, nothing about it.

5. In all the circumstances, in my view, the children should live primarily with their mother.  This brings us to the vexed issue of Mr W.  I made very significant findings against him in my earlier judgment, but as noted, I had not seen him give evidence.  Now I have.  I formed a favourable impression of him.

6. Although counsel for the Independent Children’s Lawyer said that he should continue to be excised from the children’s life, I accept that as a matter of practical politics this will lead to the end of the relationship with the mother.  Mr W has provided a clean drug screen.  He clearly wishes to continue his relationship with the mother, which has been on the scene since 2011, a relatively lengthy period of time in the sort of chaotic lifestyle these parties have led.

7. He says he misses the children terribly and I accept that that is so.  Y has not said anything, as far as I can see, about Mr W, but X, despite the 2013 incident, expressed at least a partial liking for him.  The termination of the relationship between the mother and Mr W would clearly cause her distress, and this will not be in the children’s best interests.

8. In my view, and I stress this is a view formed having seen the parties give their evidence in court, the children’s best interests will be met by an order that the mother at no time leave the children in the care of Mr W.

9. I note that Mr W lives in (omitted), whereas the mother lives in (omitted).  I note furthermore that he sees the mother some two to three times per week and stays over only occasionally.  In these circumstances, the risks of violence to the children by Mr W are, in my view, insufficient to exclude him entirely.

10. I will be ordering ongoing drug screens for the mother, Mr W and the father for a period of a further six months.  This will give sufficient time for the Independent Children’s Lawyer to form a view as to the ongoing appropriateness of the orders made.

11. This course of action runs the risk of further litigation, something I have made clear is undesirable.  In the circumstances, however, it seems to me to be the appropriate outcome in the children’s best interests.

12. I have drawn draft orders to give effect to these conclusions and will hear from the parties before making the orders final. 

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  10 November 2015