CHANDLER & TENNANT

[2013] FCCA 496

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANDLER & TENNANT [2013] FCCA 496

Catchwords:
FAMILY LAW – Parenting dispute – both parents suffering terrible childhoods – both parents having major problems with drugs and significant criminal histories – children neglected by both parents – two family report writers agreed that the case is about which parent represents the lesser risk – conclusion that father represents lesser risk despite mother’s endeavours to seek assistance.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CC(2), 60CC(3)

Goode & Goode [2006] FamCA 1346

Applicant: MS CHANDLER

Respondent: MR TENNANT

File Number: MLC 9467 of 2011

Judgment of: Judge Burchardt

Hearing date: 8 & 9 April 2013

Date of Last Submission: 9 April 2013

Delivered at: Melbourne

Delivered on: 19 June 2013

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Glaister

Solicitors for the Independent Children’s Lawyer: Septimus Jones & Lee

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 is a parenting dispute about two little boys, [X] born [in] 2003 and [Y] born [in] 2005.

2. The parents have mirror image applications.  The applicant mother seeks that the children live with her and spend each alternate weekend and half school holidays with the father and the father’s proposal does the same in reverse. 

3. Family reports have been prepared by Mr A and Dr K and both the counsellors agree that this is a matter of calibrating risk.  There are risks in the children being with either parent and it is a matter of which is the less unacceptable. 

4. The Independent Children’s Lawyer submits that the children should live with the father and spend with the mother, but that hopes the parties may cooperate in the future in producing a more flexible arrangement with more time for the mother.  For the reasons that follow, I agree, although there will need to be further submissions about some matters I will indicate.

Background History

1. Much of the facts in this case are not in fact controversial.  The mother was born [in] 1982 and the father [in] 1984.  Both had exceedingly troubled childhoods.

2. In the case of the mother, her parents separated when she was two.  Her mother repartnered with a stepfather and both of them were drug addicts for many years while the mother was young.  The mother’s education was fractured by the discord in her life and at the age of 13 she went to live with her father.  By the age of 18 she had entered into a relationship with Mr Tennant who was, of course, then only 16 years old.

3. The mother’s father, in later years, has repartnered with the mother’s former best friend.  She has no relationship with her half brother Mr D who has an extensive criminal record and who at one stage threatened to burn down the maternal grandmother’s home while both the maternal grandmother and the mother were in it.

4. The father’s childhood was not much better.  Although he said his childhood was no worse than anyone else’s, he revealed that his brother had done time for murder.  Both Mr A and Dr K regarded the childhoods of the parents as extremely difficult and I entirely agree.

5. The mother and father lived predominantly in Adelaide up until separation in 2005.  Both now agree that their drug use at that time was extensive and continuing.  They had a short experience with ecstasy but a larger one with speed and with cannabis.  It is clear that the children’s upbringing and care would have been compromised by this and both parents, I think, conceded that this was so.

6. The father relocated to Melbourne, in December 2005 and was thereafter largely excised from the children.  The mother’s life went from bad to worse following a series of abusive relationships.  In February 2008 the children were taken over by the mother’s parents and were removed by the father to Melbourne shortly thereafter.

7. The mother’s parents relocated to Melbourne in June 2008 to be closer to them.

8. There is a factual controversy as to whether or not the children were given to the father by the maternal grandmother consensually.  It does not matter for these purposes.  The grandmother said she was coerced into giving the children over and the father says that the grandmother gave them to him voluntary.  On either view, they transferred into his primary care in 2008.

9. In July 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.

10. In July 2010 the mother was able to relocate to Melbourne and in April 2011 the children returned to the primary care of their mother.

11. There is little direct evidence about how this came to pass, but the mother’s evidence given before the Court was that the children wanted to stay with her because they were scared of the father’s new partner Ms P who they said was behaving unpleasantly to them.  Whatever the reason the children have lived predominantly with the mother since.

12. In October 2011 the father overheld the children and their schooling was disrupted for a while.  Their school had already been disrupted because [X] had been bullied at an earlier school and had to change schools.

13. Following the father’s overholding, a recovery order was issued and the children have essentially lived with their mother until now. A family report was compiled by Mr A in August 2012 and a further family report was prepared by Dr K on 14 February 2013.

14. The father has been in a relationship with Ms P who has two children, [name omitted] aged five and [name omitted] aged three by another father and two children with Mr Tennant, namely [name omitted], two years old and [name omitted] six months according to the affidavit of Ms P dated 7 December 2011.

15. The mother was in an on again, off again relationship with Mr M for about three years until the final sundering of that relationship in February 2013.  On 5 February 2013 an extremely disturbing incident took place in the presence of the children.  The ultimate outcome was that Mr M severely assaulted the mother, told [Y] that he was the source of the breakup of another relationship on the part of his mother, and it would appear tried to reverse his car over both the mother and possibly [X] who was certainly nearby.

16. Another matter of note is that in 2012 [Y] suffered an episode of concussion following an accident at a swimming pool.  At that time he was in the care of his father and Ms P who had a broken leg.  All six children had gone to the pool and the mother amended her application before the Court to excise both Ms P and, to an extent, the father from the children’s lives as a result.

17. Both mother and father have significant criminal histories involving matters that would touch directly upon the safety of the children.  The mother has, on occasion, driven unlicensed and unregistered cars with the children in them.  The father has a history of violent offences. 

18. It is readily apparent that the assertions by Mr A and Dr K that this case is about an assessment of risk are correct. 

The Evidence Given Before the Court

1. I do not propose to traverse the parties’ affidavit evidence in great detail.  It is largely summarised above.  Each parent had much to say by way of criticism about the other, but in the light of the way the case has panned out it is not necessary to deal with those affidavit criticisms in any great detail.

The mother

1. The applicant mother gave evidence first.  She confirmed in evidence-in-chief that she wishes the children to live with her and see the father every other weekend and for half school holidays.  She confirmed that there is approximately 45 minutes travel from where she lives and the father’s home near [omitted].  Under cross-examination by the father, which touched upon the alleged assaults and accidents while the children were in her care, she gave what seemed to me to be believable answers about the natural conflict that takes place from time to time between [X] and [Y] who, as brothers, tend to fight from time to time. 

2. She confirmed that she had sought an Intervention Order against Mr M but it was not available.  She said that Mr M’s violence to her was not ongoing.  There had not been violence at the start of their relationship.

3. Under cross-examination by counsel for the Independent Children’s Lawyer, the mother confirmed the unfortunate history that I have paraphrased above.  She confirmed that she has no relationship with her half brother Mr D, but a good relationship with her half sister [name omitted] who is 20 years old.  She confirmed that her relationship with her mother is on and off again.  She accepted that there had been neglect of her as a child because of her own mother’s heroin use.

4. She confirmed that she had seen a psychologist, [name omitted], for mental health counselling for some six months having commenced in August 2012.

5. The mother confirmed that she has not been able to stop smoking marijuana and smokes each night as she has done for the entirety of the childrens’ lives.  She confirmed her use of amphetamines in South Australia and conceded that the childrens’ care and upbringing had been damaged by her drug use.

6. She did not challenge counsel’s description of her police record and confirmed that her half brother, Mr D, had threatened to incinerate her mother’s home while both the mother and her own mother were there.  Fortunately the children were not there at the time but were with their father.

7. The thrust of the mother’s evidence was that she had significant difficulty with the father’s partner.  She accepted that Mr M had been extremely detrimental to her children.  She confirmed that Mr M was schizophrenic and unpredictable but asserted that he was all right if he was properly medicated.  She said that she had not told Mr A about

   
   

   Mr M’s schizophrenia but asserted that Mr A had not asked.  She had told Mr A that she had a good relationship with Mr M and that the failure of the relationship took place even though she had taken her time before she had commenced the relationship with him in a serious way.

8. The mother said that she had taken steps to improve her circumstances and referred to the exhibits that she tendered from Child First (exhibit A1), CatholicCare (exhibit A2) and her family support worker (exhibit A3).  It should be noted that all these documents date from March or April 2013.

9. It was the mother’s position that she was not going to enter into another relationship and would concentrate solely on bringing up the children.  Nonetheless she confirmed that she continued to smoke cannabis every day albeit at night when the children have gone to bed.

10. The mother was cross-examined about school absences on the part of the children, but I should record that I found her answers believable.

11. When cross-examined about an incident with the father in 2001, she said that she had had a lot of fights with the father and did not remember this one.

12. She had also had fights with her grandmother.  She admitted being disingenuous to Mr A about her use of marijuana.

13. The mother conceded that [Y] was not as worried as [X] about staying with the father.  She said that [Y] likes Ms P and likes to see his brothers and sisters, whereas [X] does not do so as he does not like them.  She said that [X] is singled out by Ms P. 

14. She did, however, concede that the children now like seeing their father and that their relationship with Ms P had also improved.

15. The mother conceded that she had been depressed as recently as August 2012, and has had hepatitis C for the last couple of years.

16. The mother had asserted that she had worked all her life but it rapidly emerged that she had been out of work for nine years. 

17. In response to questions about the interview with Dr K the mother complained that it was a tiny room with no space to play and that the children did not wish to be there.  She explained the various difficulties noted by Dr K as arising from this circumstance.

18. She did not accept that the children might want to be with her in order to keep her safe but said that the children feel safe with her.

19. The mother conceded that she had made extremely poor choices in the past but said she now had the support of her family, her doctor and her support worker.  She wanted the children to live with her.

Ms F

1. Ms F, the maternal grandmother, was called next.  She and Mr Tennant had a dispute as to the extent to which permission was given for the children to be removed in 2008.

2. Under cross-examination by counsel for the Independent Children’s Lawyer, some of Ms F’s evidence was disconcerting.  She initially sought to deny that Mr D had sought to burn down her home but eventually conceded it.  She conceded that Mr D has a considerable record with the police. 

3. She also conceded that she had never approved of Mr M and knew that he was a bad hat from early on.  Her daughter had refused to listen.  She recalled an assault committed by the mother upon the maternal grandmother.

The father

1. Mr Tennant made an opening address in which he confirmed that the orders he seeks are the exact mirror image of those sought by the mother.

2. I have dealt with the mother’s employment above.  Neither of these parents appear to me to have done much by way of paid employment throughout their lives.

3. Cross-examination by the mother was relatively unremarkable and simply emphasised some disputation between them.

4. Under cross-examination by counsel for the Independent Children’s Lawyer, the father conceded his significant criminal record.  He conceded that he had at times assaulted the mother, albeit some time ago. 

5. He confirmed that the maternal grandparents had had regular contact with the children once they had moved to Melbourne in 2008.  He had a slightly different spin on the basis upon which the children went to the mother in April 2011.  He said that he had agreed that the mother keep the children until when he was next due to see them which was not until September.  He said the only way he could see the children was to over-hold even though he appreciated this was disruptive. 

6. He gave evidence, which in my view was believable, that upon return of the children to his care he took such steps as he was able to enrol them in school within a reasonable time.

7. He said that [Y] feels that [X] bullies him but they still love each other and get along most of the time.  He said he just did not have problems at his house.

8. He said that the children dislike their stepmother at times but that is normal and that he puts all the children on the wall if necessary.  He confirmed that he still uses marijuana occasionally. 

9. He gave evidence about the incidents in May 2012 when [Y] was injured in the swimming pool.  He said that [Y] seemed happy but was sick at school the next day.  He had not seen [Y] hit his head even though he was watching him.

10. It is clear in this regard that the father’s supervision of the children was inadequate and Mr A was right to say that to take six children, effectively, on your own to a swimming pool when they are all young reflects poor judgment.

Mr A

1. Mr A was called to give evidence.  It emerged that the mother had not told him that Mr M was schizophrenic.  It also emerged that the mother had downplayed her use of drugs and given Mr A the impression she had given up cannabis.

2. Neither parent had done drug screens at the time that Mr A saw them. 

3. Mr A confirmed that while the children do say they want to live with their mother the important thing is to keep them out of harm’s way.  The children’s views are not decisive.  The main priority is to avoid risk.

4. He confirmed that, in any event, [Y]’s views about where he wishes to live are ambivalent.

5. Mr A confirmed under cross-examination by the mother that there were no suggestions from the children that she had ever actually been violent to them herself.  He confirmed that the children have had confusion throughout their lives, and that they need consistency and continuity.  They have been with the mother for two years and there is a good school in [omitted] for children from disadvantaged backgrounds.

Ms P

1. The next witness called was Ms P.  Under cross-examination by the mother, she confirmed that the boys have bunks and a trundle bed and the girls likewise.  She said her relationship with [X] and [Y] was good and that they are not treated differently to the other children, and it is a blended family.  She said that she left all discipline of all of the children to the father.  She confirmed that having six children is hectic but said, “I love it”.  She does not have postnatal depression, although she was depressed 10 years ago. 

2. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms P confirmed that she has good relationships with all the children who generally get along all right.  How she would respond if [X] and [Y] were to live with her would depend upon the issues.  She suggested the children might see a counsellor if there were difficulties or call their mother more often if they were missing her.  She said there were no issues at the moment and that they are pretty good kids.  She suggested there might be more flexibility about time with the mother in the future.

Dr K

1. Dr K was called and was cross-examined by counsel for the Independent Children’s Lawyer.  He said it was a risk assessment case and that both parents involve risk.  He said that the incident on 5 February 2013 was one he was aware of and the fact that [Y] had been targeted by Mr M was extremely disturbing.  He saw the children seven days after this incident and they were still terrified.  Upon being made aware of some aspects of the police records of the parties, including the issue about Mr D seeking to burn down the maternal grandparent’s house, Dr K said that the issues were not just about the mother’s relationship with Mr M.  There was a broader pattern of conflict and family disruption. 

2. In response to criticisms of the environment in which he had interviewed the mother he pointed out that the facilities were used with both parents, that he has conducted over 600 evaluations in that office and that the evaluation time of half an hour or so was enough.  He said that changing school and home was a risk factor that needed to be balanced against other risks. 

3. He confirmed that there may be difficulties in changing but that the pattern of conflict over time in the mother’s family and life was a major concern.  He said that while the children could stay with the mother it was clear there were other risk factors and those risk factors were more important.  The fact that the mother had taken steps more recently did not change his views. 

4. Cross-examination by Ms Chandler did not shake Dr K’s position.  He confirmed that the mother’s difficulties are long standing, involving family members, drug problems and consistently bad relationships with partners.

5. It should be noted that I have not dealt in terms with the two written family reports prepared by Mr A and Dr K because in a sense their oral evidence is more important.  Mr A was clear that things had changed since he saw the parties last year.  The central conclusion expressed by Dr K which was entirely consistent with his oral evidence is at paragraphs 42-43 of his report where Dr K said:

   “Both parents have had serious difficulties with substances and the children have had periods of time living with both parents with some inconsistency in the care arrangements over time.

   The central issue in this matter relates to risk factors in relation to the children.  Based on this evaluation and the results of the FSNA, the risks associated with the care of the children are greater with the mother, based on historical and also current risk factors.  This primarily relates to a combination of her history and current difficulties with domestic violence, drug use and dependency and parenting difficulties.  Although the father presents with vulnerability to substance abuse and there is uncertainty about his current substance abuse, this evaluation showed fewer risk factors with the care of the father.”

1. At paragraph 45, having recommended that the children live primarily with the father, Dr K went on to say:

   “These recommendations are undertaken with the children’s statements taken into account, nevertheless risk factors in this case are particularly relevant and need to be seen as the highest authority.”

Submissions of the Parties

1. Counsel for the Independent Children’s Lawyer submitted that both witnesses were truthful as were the others called.  It was submitted that the case was all about the risk of harm and that both households had them.  The Independent Children’s Lawyer submitted that it was best that the children live with the father and spend alternate weekends and half school holidays with the mother.  It was pointed out that the parents may be able to cooperate in the future and that the father should be cooperative if the children wanted more time with their mother. 

2. Counsel submitted that it was important that both parents improve and counsel noted that Ms P said she would facilitate phone calls in the transition period.

3. Counsel reviewed the history of the parties which traversed the matters I have set out in the commencement of this judgment.

4. Counsel noted that it was concerning that the mother had not been fully frank with Mr A about Mr M and noted also with concern that the maternal grandmother had never approved of him.  The police records about Mr M which constitute ICL-4 give good grounds to support this concern. 

5. Counsel was opposed to a six month trial as the issues were more long term.  It was submitted that there was no evidence that the mother was really addressing her drug problems and that there was a pattern to the way in which she had lived her life. 

6. Counsel submitted that stability in the father’s household was important, that the children need certainty and that while the mother had taken steps to improve, these were taken very late in the day.

7. The mother submitted that the Court should take account of the positive steps she had taken.  She had obtained an Intervention Order against Mr M.  She had sought counselling and involved herself with a social worker and a parenting course.  She submitted she had the support of her family and of a cousin who is a drug and alcohol counsellor. She pointed to regular treatment from her GP.  She pointed, correctly enough in my view, to the fact that the father has not yet started his parenting course despite having plenty of time to do so.

8. Mr Tennant in his final submissions was brief.  His main concern was ongoing violence.  He confirmed that he would make and facilitate phone calls to the mother if changes were made.

Conclusions About The Facts

1. As I have already indicated, in many ways there is little factual dispute in this case.  Both the father and the mother were palpably honest witnesses.  The mother, in particular, made numerous concessions as to her own misconduct.  This went so far as to readily concede of calling her own mother a “cunt” and a “mole” on one occasion.  She was palpably honest.

2. The father, likewise, did not quibble with his police record and past misdemeanours.  His assertion that his own childhood was no worse than anyone else reflects a lack of insight but was not given dishonestly.

3. Ms P was a good witness.  If she was being untruthful, she was too good for me.  I thought she was open and honest and I accept that she enjoys having the six children in a hectic environment.  I do not find that either parent is activated by desire for statutory benefits in their desire to have the children live with them, but rather a genuine affection.

4. The evidence given by Ms F was likewise believable and acceptable but in many ways it only went to enforce the picture of the potentially rather turbulent relationship between the mother and herself.

The Statutory Pathway

1. In Goode & Goode [2006] FamCA 1346, the Full Court of the Family Court set out the relevant statutory considerations:

   “65. In summary, the amendments to Part 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 s 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 s 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” (ss 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.”

2. Little was said by way of formal submissions about joint parental responsibility.  It is clear that there has been substantial family violence and there is a continuing need to protect the children from the risk of abuse and of family violence.

3. Nonetheless, in the particular circumstances of this case, in my view it is in the children’s best interests for an order for joint parental responsibility to be made.  In a sense, this is all the more so because each parent represents a risk to the children.  Both parents need to be actively involved in making long-term decisions for the children.  And subject to submissions that persuade me to the contrary, I am minded to make such an order.  I will, however, give the parties and in particular counsel for the Independent Children’s Lawyer an opportunity to make submissions about this.

4. Assuming an order for joint parental responsibility is made, the Court has first to consider equal time.  No one has suggested that equal time is in any way appropriate or practicable in this case.  It is not appropriate both because neither parent has wanted it, nor is it recommended by the Independent Children’s Lawyer.  Everyone agrees that these children need stability and some form of shared care, equal time arrangement is not likely to provide it.  That is all the more the case when the parents have such a poor capacity to cooperate.

5. Furthermore, the parents live a substantial distance apart and equal time is plainly impossible in terms of schooling arrangements and the like.

6. The next consideration is substantial and significant time within the meaning of the Family Law Act. Once again, the question is whether it is consistent with the best interests of the children and reasonably practicable for them to spend such time.

7. It is not in my view appropriate to consider more time than the parties themselves have identified.  After school Friday until Sunday and half school holidays is not substantial and significant time but in the circumstances of this case, it is all that is practicable.

8. It thus becomes a question of what is in the children’s best interests, with the matter being at large but determined by reference to the objects in s.60B and, more particularly for the present purposes, the considerations in s.60CC.

Section 60CC(2)

1. It is clearly to the benefit of the children to have a meaningful relationship with each of their parents.  But it is also necessary to protect the children from physical, or psychological harm from being subjected to or exposed to abuse, neglect or family violence and this latter consideration is to be given greater force than the former.

2. The submission of the Independent Children’s Lawyer accords with the evidence of both of the family reporters.  This is a case about risk minimisation.  The children must be placed in the household where they are at the least risk of harm and, more particularly, of ongoing disruption.

Section 60CC(3)(a)

1. The children have expressed a view that they would prefer to live with their mother.  This view has been more clearly articulated by [X] who appears to have a less enthusiastic view about living with his father.  I do not regard these views as having been in any sense coached and indeed there is no evidence to suggest that they have been.  It should be remembered, of course, that [X] is only nine years old and [Y] seven.  Their relative youth must be taken into consideration.

Section 60CC(3)(b)

1. It is difficult to evaluate the nature of the children’s relationships in any detail.  Clearly their parents love them and I think that Ms P does too.  Grandparents and extended family are for these purposes, in my view, much less relevant as they are far less close to the children.

2. The children obviously love their mother and that finds clear expression in the views they have expressed.  Nonetheless, at the time they were seen by Dr K, they were, naturally enough, terrified of the mother’s household with Mr M in it.  Mr M, I accept, has gone and will not be coming back but the mother’s relationship history over time suggests that this is an ongoing problem.  The father clearly loves the children and it would appear he has a sufficiently developed relationship with them to judge by the observations made by Mr A and Dr K.

Section 60CC(3)(c)

1. As is quite clear from the evidence as a whole, both parents are open to considerable criticism in this regard. They have both made very poor judgments about long-term matters to do with the children’s future and their own involvement with them. The father decamped from South Australia in 2005 and only re-entered the children’s lives in 2008. He gave the children up to the mother in 2011 for reasons that are really only poorly explained. The mother’s chaotic lifestyle and inadequacies do not require further detailing. They are self-evident from the materials.

Section 60CC(3)(ca)

1. Once again, both parents are open to considerable criticism.  Both have failed to fulfil their obligations to maintain the children from time to time.

Section 60CC(3)(d)

1. This matter is, of course, relevant and I accept that if the children are sent to live with the father there will be a measure of disruption.  There may be an ongoing measure of disharmony caused by [X]’s desire to live with his mother and the possible difficulties he feels about living in the father’s household and, in particular, with Ms P and her children.  This is a matter to which weight must be given.  Nonetheless, as I find, the father’s household in a general way is a more settled and secure one, so the change, while it will involve the various risks I have referred to, has in my view clear benefits also.

Section 60CC(3)(e)

1. I have already dealt with the matters concerned with the difficulty and expense of spending time above.  The fact is neither family is well off and there are real cost difficulties associated with travel.  Certainly it is not practicable for the children to continue their education while spending more than from Friday until Sunday with the parent with whom they do not primarily live.

Section 60CC(3)(f)

1. Neither of these parents is an optimal provider for the needs of the children.  Their past history shows as much.  There is no other family member other than Ms P who can provide for their needs and it is clear that Ms P defers this matter primarily to the father.

Section 60CC(3)(g)

1. Once again, these matters really have already been canvassed.  Both these parents have shown considerable immaturity and made very poor lifestyle choices in the past.  These have necessarily impacted upon the children and I note that it is certain that the children have suffered as a result.

Section 60CC(3)(h)

1. Irrelevant.

Section 60CC(3)(i)

1. This matter has already likewise been dealt with.

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

1. These matters have already been dealt with.

Section 60CC(3)(l)

1. It is clear in my view that this litigation should come to an end.  It is not in the children’s best interests that the parties remain enmeshed in the court system.  The matter needs to be settled down and the parties need to get on with it.

Conclusion

1. I announced at the commencement of this decision that I would make orders that the children live predominantly with the father as recommended by the Independent Children’s Lawyer.  It is a case about risk and I accept that the risk is lesser in the father’s household than in the mother’s.  The mother struck me as being patently sincere but her endeavours to reform, so to speak, have come very late in the piece.  Indeed, the conclusion is inescapable that had not Mr M lost his self-control in February, it is at least as likely as otherwise that she would still be in a relationship with the man whom her own mother identified from an early stage as a disastrous choice.

2. It is said in other contexts (for example, refugee protection claims) that our understanding of the past informs our appreciation of what is likely to occur in the future.  So much is common sense.

3. Through no fault of her own and as a result of, no doubt, her own terribly unfortunate early life, the fact is that the mother has had a tumultuous and disastrous adult life.  She has made serial disastrous mistakes in her choice of partners, not excluding the father in this case.  Although she says she will not have another relationship, one must approach that assertion with considerable caution.  She still uses drugs daily.  Her endeavours to contact support services are commendable but have only occurred in very recent times.

4. For all his faults, and as identified by Dr K and to a lesser extent Mr A, it is clear that the children are at less risk in the father’s care. 

5. I also accept that the risks in the mother’s household, even if she has not repartnered, are simply that much greater than those in the father’s household that it is appropriate that the children live predominantly with him and spend time with her.

6. Nonetheless, I note the encouraging concessions made by Ms P in evidence that she would contemplate counselling and, in effect, increase time in the event that the children do not transition well into her and Mr Tennant’s care.

7. I will give the parties an opportunity to consider these reasons for judgment and hear any further submissions that they may wish to make. 

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  19 June 2013