CLAYBURN & WARDLEY

[2018] FCCA 3623

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLAYBURN & WARDLEY [2018] FCCA 3623

Catchwords:
FAMILY LAW – Parenting – exposure of children to family violence – child’s views.

Legislation: 

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC,(2), (3), 61DA

Applicant: MR CLAYBURN

Respondent: MS WARDLEY

File Number: LNC 283 of 2018

Judgment of: Judge McGuire

Hearing dates: 22 & 23 November 2018

Date of Last Submission: 23 November 2018

Delivered at: Launceston

Delivered on: 17 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Higgins

Solicitors for the Applicant: Bishops

The Respondent appeared in person

ORDERS

1. That the parents MR CLAYBURN and MS WARDLEY have equal shared parental responsibility for the child [X] born 2013 (“the child”).

2. That the child live with the mother.

3. That the child spend time and communicate with the father as follows:

   (a)Each second weekend between Friday afternoon and Sunday evening at times to be agreed between the parties and with changeovers to occur at a mutually convenient midpoint between their homes;

   (b)For one half of each Tasmanian gazetted school holiday period as agreed between the parties but failing agreement then from the first Friday until the second Saturday at 12 noon in term school holidays and on a week-about basis during the Tasmanian summer school holidays;

   (c)On special days as agreed between the parties; and

   (d)Such variations of the above or other times as agreed between the parties from time to time.

4. That weekend time for the father with the child be suspended during periods of school holiday time.

5. That the mother comply with all directions from the Department of Child Safety and/or her housing provider in respect of any co-resident in her property.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 283 of 2018

MR CLAYBURN

Applicant

And

MS WARDLEY

Respondent

REASONS FOR JUDGMENT

Applications

1. These proceedings are in respect of the parties’ one child namely [X] born 2013 (aged five years).

2. The applicant is the father.  He seeks orders broadly which provide for [X] to move from living with the mother in Devonport to living with the father in Launceston.  Mr Clayburn suggests further orders whereby [X] spend time with the mother each second weekend from Friday afternoon until Sunday evening together with one half of each Tasmanian school holidays on a week-about basis together with time on special days.  Significantly, given the motivation for his application, Mr Clayburn proposes no conditions on [X]’s time with the mother, save and except that firstly, ‘neither party have a blood alcohol level in excess of.05 when [X] is in that parents care', and secondly, ‘that neither party expose [X] to family violence'.

3. [X] currently lives with the mother without the benefit or need of any Court orders. He has done so for four years since the parties separated.  He currently spends time with his father each second weekend and for half of school holidays. The mother proposes a continuation of the status quo.

4. The mother is a sole parent of [X] and his three-year-old half-sibling, [Y], living in Devonport.  [X] commenced school this year at the Suburb A Primary School.  He is in kindergarten.

5. The father is currently completing his second year of a [course] at the [University].  He is married to Ms A, who is also a university student and will be entering her [course] in 2019.  Mr and Mrs Clayburn live in Launceston, which is approximately one hour travel from Devonport.  They have no children of their relationship.

Background Facts

1. The parents met when they were 15 years of age.  It seems that Ms Wardley went to live for a time with the Clayburn family due to difficulties in her own household.  The mother and the father were young parents.  They are each just currently 24 years of age. They commenced their relationship in 2010.  [X] was born in 2013. They separated in August 2014.

2. Relevant to this application, is that the mother has endured at least two significant relationships with men following separation from Mr Clayburn.  One of those produced the child, [Y]. His father is a Mr B, who is currently in prison on either remand or conviction for allegedly assaulting Ms Wardley.  Her other significant relationship was also apparently highlighted by family violence.

3. Ms Wardley gives evidence that she is not currently in a domestic relationship. 

4. There is evidence of the at least one family violence incident between these parents but apparently circumstantial and at the time of their separation.  I agree with the family reporter in this matter that little turns on that incident in respect of my ultimate determination as to [X]’s primary place of residence.

5. The mother continues to live on the north-west coast of Tasmania. She cares for [X] and [Y].  She receives no child support from Mr Clayburn or apparently from [Y]’s father.  [Y] suffers a diagnosis of ADHD.

The Issues

1. The primary issue for the Court’s determination is whether [X]’s best interests are served by moving to live primarily with his father in Launceston or remaining living with his mother in Devonport?

2. There are important collateral issues as to the need to protect [X] generally from family violence and primarily in the mother mother's household together with the mother’s insight into prioritising [X]’s needs in respect of exposure to family violence and a further connected issue as to the mother’s recent historical poor choice of male partners.

3. Mr Clayburn and also the family reporter raised issues as to [X]’s asserted preference to live with his father, albeit acknowledging that [X] is just five years of age. 

4. There are, of course, issues to consider on the father's proposal which would see [X] separated from his sibling, [Y].

The Evidence

1. The father was represented by solicitors throughout these proceedings, and by Counsel at the trial.  He provided a recent and comprehensive affidavit.  He gave evidence and was cross-examined, albeit briefly, by the mother although in a jurisdiction where the Court is obliged to investigate and determine a child's best interests, it fell upon the Court to assist the mother to a large degree in the testing of the father's evidence.

2. Mr Clayburn was an impressive witness and young man.  He impressed as mature beyond his tender years.  He impressed as child focused and undoubtedly has a close and loving relationship with [X].

3. Mr Clayburn was an honest and forthright witness. Significantly, he was able to acknowledge considerable credit to the mother, Ms Wardley, for assisting, facilitating and encouraging his own relationship with [X] and for her contribution to the current high level of attachment in that relationship.

4. Mr Clayburn placed some degree of importance on what he saw as [X]’s preference to live with him. He understandably expressed concerns as to the mother’s poor relationship-choices of late and the fact of family violence in her home and the actual and potential impact on [X].  Nevertheless, and despite these legitimate concerns, Mr Clayburn seemed unable to reconcile his concerns as to [X]’s safety with his own application which, as set out above, effectively has an unconditional (save and except for some clauses in general terms) proposal that would see [X] spending substantial and significant time with his mother for periods of up to one week but without any specific conditions to address the father's concerns.  Further, the evidence given by Mr Clayburn in the witness box leads me to conclude that his focus on the matters of family violence have caused Mr Clayburn to relatively neglect consideration of other possible ramifications of the orders he seeks, such as [X]’s potential separation from [Y] and also potentially the impact of these proceedings themselves and the orders he seeks on what is clearly and surprisingly a current excellent relationship between he and Ms Wardley and, indeed, Ms Wardley and Ms A.

5. Generally, however, Mr Clayburn impressed and presented as a fine male role model for his son and a father who is both devoted to and protective of his son.

6. Ms A gave evidence and was cross-examined on her affidavit. She was also extremely impressive in her role as 'stepmother'. It was extremely gratifying to hear Ms A volunteer to the Court that she has enjoyed an excellent relationship with Ms Wardley to the stage where the two women have been able to enjoy a trip together to the circus with [X] and [Y].  Indeed, it is rare in this jurisdiction to come across such a mature, objective and child focused relationship between a mother and step-mother and particularly in two women so young.  Undoubtedly, [X] benefits from the presence of and his relationship with Ms Clayburn. 

7. Ms Wardley also gave evidence. Unfortunately for her, she has of late received a family report which makes recommendations for a change of residence for [X] from the mother to the father. Inevitably and within the financial constraints of legal aid, Ms Wardley was left to conduct the trial herself and without the benefit of legal assistance and where the application being prosecuted is for a change of residence for a five year old child from a status quo of four years duration. The Court file shows that the mother's solicitors formally withdrew from assisting her on 20 November 2018. The trial in this matter commenced on 23 November 2018. As such, Ms Wardley was left without recent affidavit material. She is a young single mother and, although of some obvious intelligence, out of her depth in family law proceedings. As such, she was afforded a detailed exposition of the procedure in this Court with an invitation to seek assistance as to procedure at any time. Given the primary issue here and the complexities of the law in respect to Part 7 of the Family Law Act together with the historical authorities which give guidance in respect of change of residence of children, it fell upon myself to an unusually high degree to intrusively inquire of Mr and Mrs Clayburn and the family reporter.

8. Nevertheless, Ms Wardley was equally as impressive a witness as were Mr and Mrs Clayburn.  She too seems mature beyond her years.  She showed clarity in her understanding of the need for [X] to have a successful and meaningful relationship with his father and it is to her great credit that she has objectively fostered that relationship. As mentioned above, her personal relationship with Ms A is unusual in its friendship and ultimately beneficial to [X].  All three of these young adults should be applauded accordingly.

9. Ms Wardley presented a case whereby the Court should consider the benefits of the status quo.  She admits her poor choice of partners post her relationship with Mr Clayburn.  She says that she understands the need to prioritise the safety of her children and to avoid relationships which bring with them family violence to herself and exposure to her children.  She says that she has received assistance from various government and non-government facilities in the community.  She asked the Court to consider the benefits to both [X] and [Y] of a continuing sibling relationship. 

10. The mother adduced evidence from the father’s own father, Mr B, whose affidavit is filed 22 November 2018.  Mr Clayburn’s evidence is of little assistance and unremarkable save and except to confirm an unfortunate estrangement between the father and his own parents through some innocent reason.  They do, however seem supportive of the mother who, consistent with my positive observations of her, seems to maintain a relationship for [X] with his paternal grandparents.  

The Family Report

1. The Court had the considerable benefit of a family report dated 24 September 2018 prepared by family consultant, Ms S.  That report was prepared after interviews with the mother, the father and Ms A on 11 September 2018.  Ms S also had the benefit of observing [X] with each of his parents (and Ms Clayburn) but unfortunately the mother was unable to bring [Y] to those interviews in Launceston.

2. Ms S observed generally that [X] had established, good and loving relationships with both his parents.  She observed the positive relationship for [X] with Ms Clayburn.

3. Ms S noted and seemed to place some importance on [X]’s stated preference to live with his father.  She noted that [X] was insecure around his preferences being disclosed to his mother.  Ms S was of the view that [X]’s relationship with his mother was something of an unusual protective one in a five-year-old perhaps underlying an exposure to family violence in the mother's household and hence his perceived need to protect his mother or to assume the role of the 'man of the house'. 

4. Ms S expressed some concern as to the mother's capacity to care for [X] to the same degree as is the potential in Mr and Mrs Clayburn given Ms Wardley’s need to provide a high level of time and attention to [Y] given his young age and his so special needs.

5. Ms S was also critical of the mother’s historical poor relationship choices and what she saw as the mother’s inability to avoid situations of family violence and therefore expose the children to violent men.  

6. Significantly, counsel for the father also asked the Court to read and rely upon a previous report of Ms S prepared pursuant to section 11 F interviews conducted with the parents as recently as 20 June 2018.  In that report Ms S recommends a continuation for [X] living in the primary care of the mother, 'provided the mother’s lifestyle remains stable, and she is seen to be proactive regarding [X]’s emotional and physical safety'.  In that initial report Ms S was notably as positive and complimentary of the father's attitude and circumstances as she was in the latter report.  It seems, subject to matters of emphasis, that the same issues were raised, addressed and considered by Ms S at the initial report as they were some 12 weeks later in the second and more comprehensive family report and yet the recommendations differ to the point that she now recommends a move for [X] from the mother's primary care into the primary care of the father.

7. When asked in cross examination, Ms S confirmed that she had considered the issue of separation for [X] from his brother [Y].  She was of the view, however, that the relationship with [Y] was not such a significant one for [X] in that he had not made any or any considerable mention of [Y] during her interviews with him for the family report.  Ms S also placed some emphasis on what she perceived to be [X]’s need to be protective of the mother within her household and hence [X]’s emotional health generally.  It is clear from her answers in cross examination that Ms S also placed a degree of weight on what she thought was the mother’s continued inability to protect her young children from the mothers own poor relationship choices.  These appear to be the factors that underlie Ms S’s move from a recommendation in June 2018 for [X] to remain living with the mother to a recommendation in the September that he move to live with the father. 

Relevant Law

1. These are parenting proceedings and, as such, I am to have [X]’s best interests as my paramount consideration in determining his living and parenting arrangements and pursuant to section 60 CA of the Family Law Act (1975) (as amended) “the Act”. 

2. Section 60B of the Act sets out the objects and principles of the legislation and provide a fundamental grounding for the Courts to suit determination. Those objects and principles are as follows.

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 61DA of the Act offers a presumption that it be in children's best interests for their parents to exercise equal shared parental responsibility for those children.  In the matter now before me both parents propose an order for equal shared parental responsibility for [X] and quite properly so. ‘Parental responsibility’ should not be confused with the responsibilities for the day to day care of children.  Rather, it is usually defined as the obligations that parents have for making long-term and important decisions for children in respect of matters such as their religion, education, medical procedures and the like.  In this matter I have no hesitation in endorsing the order that the parents seek for them to exercise equal shared parental responsibility. They have each shown a high level of communication, mutual respect, and co-operative parenting.

4. Importantly, if the presumption of equal shared parental responsibility applies then the Court is obliged to enter into a course of statutory and intellectual consideration as to the children's best interests.  Firstly, a Court could should consider whether it is in the child's best interests and reasonably practicable for the child to live in an equal time arrangement between the parents.  In the matter now before me and purely on the basis of geographical limitations, such an order would not be reasonably practicable.  That being the case, the Court is then to consider whether it then be in a child's best interests for the child to live in a regime of 'substantial and significant time' between the parents which involves time for a child with both parents on both weekends and weekdays and mutual enjoyment of significant events for the child.  Again, given the current living arrangements for the parents, it is inevitable that [X] will need to live primarily with one parent and spend shared weekend and holiday time between the parents as indeed is the proposal of each of the parents. 

5. The Court considers and determines the best interests of the child by reference of the parties’ proposals and the probative evidence to the numerous considerations set out in section 60CC(2) and (3) of the Family Law Act.

Section 60CC Factors

Section 60CC(2)(A) - the benefits to the child of having a meaningful relationship with both parents

1. The family report and the evidence of each of the parents unambiguously demonstrate that [X] has a developed an attached relationship with both of his parents.  Again, this is to the great credit of these young parents that, despite their own personal relationship difficulties, they have each been able to encourage [X]’s relationship with the other parent.  Firstly, the father has delegated [X]’s primary care to the mother for the three or four years following separation until this application. Secondly, the father concedes that the mother's contribution has been important in [X] and he developing the successful relationship that they currently enjoy.  Consequently, the orders that I am asked to make, whilst potentially bringing a change to [X]’s living arrangements, should be able to maintain for him that successful and meaningful relationship with each of his parents.

Section 60CC(2)(B) – the need to protect the child from physical harm, from being subjected to, or exposed to, abuse, neglect or family violence

1. This consideration is at the crux of the father's application for a change of primary residence for [X] and also grounds to a large degree the change in the family reporter’s recommendation from June to September of this year being now that [X] move to live primarily with the father.

2. As mentioned above, there is some evidence of family violence between the parents but at the time of their separation and certainly not since.  I accept that such an incident, if it occurred at all, was circumstantial within the tensions of separation and is certainly contrary to the good character of each of these parents subsequent to their separation.

3. Undoubtedly, the mother has entered into two relationships with men following separation from the father which have been of poor choice by her. Both of those relationships have been highlighted by family violence.  She has obtained numerous Police Family Violence Orders in respect of both men.

4. The father, by implication, and the family reporter, more directly, question the mother’s insight in not prioritising the safety of her children over and above her own personal relationships.  The family reporter in the witness box questions the veracity of the mother's claims that she has removed herself from the most recent of those violent relationships given that she has taken up with at least one of these gentlemen on more than one occasion and when well aware of that man’s violent disposition and also the mother’s propensity to perhaps re-enter similar potentially violent relationships.

5. The mother herself gave evidence to the contrary.  She says that she understands the need to prioritise her children's safety.  She says that she has been candid in her admissions to both the family reporter and [X]’s father in respect of her poor decisions.  She says that she has enlisted assistance within community organisations to both protect her and to educate her in better relationship choices.  She acknowledges that she is under the scrutiny of the Child Safety Department who she understands might act to remove her children should she again expose them to poor relationships and family violence.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views

1. Both parents and the family reporter acknowledge that [X] has for some time expressed a preference to live with his father.  The evidence suggests to me that both the father and the family reporter place some weight on [X]’s views although the family report is more equivocal in somehow relating [X]’s stated preferences perhaps to some emotional insecurity in respect of his relationship with the mother.  [X] is just five years of age.  [X] enjoys a close relationship with both of his parents.  The fact, however, is that he lives primarily with his mother.  He does so in a sole parent household together with his three-year-old brother who suffers from ADHD and who obviously requires some high level of attention from the mother.  Ms Wardley exists on a Centrelink benefit.  She receives no child support from either of the children's parents.  She attempts to provide a weekly routine for [X] who is only now negotiating the first year of his schooling.  Undoubtedly the mother’s household operates under some financial constraints.  

2. To the contrary, [X] spends each second weekend and block periods during school holidays with his father and Ms Clayburn.  There are no other children in that household.  Although both students, it seems that Mr and Ms Clayburn have a higher disposable income (the evidence being that they have been able to save some $8000 towards the purchase or building of the home.).  Importantly, I asked the father for his motivation as to bringing this application.  He offered me three broad reasons, one of which was that 'we can provide for [X]’s needs over and above basic needs, including extracurricular activities.'  As such, I have no doubt as to [X]’s experiences in his father’s household being more superficially attractive for this five year old and where he does not have to compete with a high-need younger brother for a parent’s attention. 

3. Whilst children's views and preferences should always be taken into account, I believe that I should be extremely cautious in providing any or any considerable weight to [X]’s preferences and certainly I cannot give his views and preferences the same weight as apparently afforded him by the father and the family reporter. 

Section 60CC(3)(b) – the nature of the relationship of the child with each of the parents and other persons (including any grandparents or other relatives of the child)

1. All indications are that [X] has a developed, attached and loving relationship with each of his parents.  The family reporter, however, suggests [X]’s understanding of his own personal safety might be related more to his father than the unfortunate circumstances in his mother's home where he has quite clearly been exposed to family violence perpetrated on her or, at least, the ramifications for Ms Wardley.  Further, the family reporter suggested that [X], at just five years of age, might see himself as a male-protective role-model in his mother's home with indications that he is hesitant in the company of males.

2. Nevertheless, by reason of [X] living for the last four years primarily with his mother, she is likely to be seen by him as his primary attachment and he might see himself more as a ‘visitor' to his father's home.

3. [X]’s relationship with Ms A is developed, loving and successful.

4. It is the mother who currently offers [X] a relationship with the paternal grandparents given an estrangement between Mr Clayburn and his parents since early this year. 

5. As indicated to both of the parties during their cross-examination, it is not insignificant on the basis of both proposals that [X] will, in any event, continue to share his quality time on weekends and school holidays equally between his parents.  The relatively discrete argument between the parties is whether he lives during the school week with his father or continues to live with his mother. 

Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in relation to the child and to spend time with and communicate with the child and the extent to which each of the child's parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. [X] has enjoyed a regular and frequent relationship between his parents.  This has obviously been to his ultimate benefit.  By reason of the applications now before me, each of the parents wants to maximise their time with [X] and to be or continue to be his primary parent. 

2. There was some evidence as to the father taking [X] on a trip to Melbourne with his wife and his wife's parents and not advising Ms Wardley.  This occurred during the father’s allocated time with [X] and frankly I see little problem save and except it is always courteous and proper to advise the other parent if a child has been removed from the state even for a short period of time.  It seems that this event caused some angst to the paternal grandparents and may have been the catalyst for the above-mentioned estrangement. 

3. The father is not currently paying child support.  He is not assessed to do so given his level of income (although I expect there should be a statutory minimum payable?). He has previously paid child support although only a relatively minimal amount.  He has contributed at times by the purchase of clothing or items for [X].  The mother, however, was critical in her evidence of the father's lack of immediate response to some of her requests for financial assistance as, for instance, in [X] obtaining a school uniform. The mother has, therefore, taken on almost totally the responsibility for financial support of [X].  I expect she does so with some real difficulty.  Nevertheless, neglect of [X]’s physical needs does not feature in the father’s case nor is there any evidence or any complaint against the mother from external forums such as [X]’s school.

Section 60CC(3)(c) – the practical difficulty and expense of the child spending time with and communicating with the parents

1. Again, the applications are preferred in mirror-form whereby each parent is desirous of being primary carer of [X] but propose that [X] spends each second weekend with the other parent together with half of school holidays and special days.  As such, issues of practical logistics and expense are not at the fore here, although it is noted that neither parent is a person of means and that some co-operation as to effort and expense for weekend and holiday transportation will be required. 

Section 60CC(3)(d) – likely effect of any changes in the children’s circumstances including the likely effect on the child of any separation from either a parent or any other child 

1. [X]’s understanding is of his mother as his primary parent. Orders in the terms of the father's application will inevitably change the nature of his understanding of his relationship with each of his parents.  Mitigating against any difficulties here is the fact that these parents have relatively successfully co-operated in their parenting of [X] and that he has enjoyed regular and frequent contact with his father.  The issue of his proposed separation from [Y] is more problematic.  These two boys are siblings.  They know and experience each other in their households.  They are relatively close in age.  [X] at just five years of age would probably have no experience of being an only child in a household or indeed being separated from [Y].  Normally, one could conclude that these children would glean support from each other and particularly where the mother’s household has experienced some practical and emotional difficulties for all involved.  Nevertheless, the mother painted an altogether different picture of [Y].  He is clearly a child with quite severe and particular problems.  He requires a disproportionate amount of the mother's attention.  She says that [Y] is violent to herself and to [X].  There is no indication that this situation is to be rectified in the near future.  Further, the family reporter noted a lack of comment or reference by [X] to his younger brother during the interviews for the family report albeit unfortunate as it was that [Y] could not attend with the mother.  It is of some import in this consideration that for some time now [X] has spent each second weekend and apparently other block periods of time with his father and away from [Y].  My understanding is that [Y], at least of late, has not enjoyed any substantial time away from Ms Wardley given the apparent imprisonment of his father.  That being the case, the boys have some understanding of being separated for periods of time and then reuniting and this must be seen against the proposals of each party that [X] would spend half of this quality time being on weekends and school holidays with each of the parents.

Section 60 CC(3)(f) – the capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. In practical terms and given her personal circumstances, it seems that Ms Wardley has provided reasonably well for [X]’s physical needs.  There is no argument that he is a clean and the well clothed and fed.  He seems to attend school on a regular basis.  She provides accommodation for [X] and his brother.  She does so with limited finances and little practical support.

2. The criticism aimed at the mother by the father and the family reporter is in respect of her insight into the need to protect [X] from the emotional distress of family violence in the household.  Whilst it is accepted that many young adults might make poor relationship and other lifestyle choices from time to time, it is the understanding of the impact on children of those choices and the rectifying of the situation which is the significant consideration.  Undoubtedly the mother has entered into at least two relationships since separation from the father in which the males have been of extremely violent disposition.  She has been assaulted.  There have been family violence orders.  Indeed, one of the perpetrators is currently imprisoned and apparently for a period of two years due to violence against the mother.  The difficulty for the Court, the father and the family reporter is a suggestion that the mother has not completely, either physically or emotionally, extracted and removed herself from those relationships.  Indeed, she only reluctantly conceded that she has effectively herself breached family violence orders by inviting one or other (or perhaps both) of these gentlemen back into her home.  Similarly, she has breached contracts with her housing provider that she not permit or invite perpetrators of family violence into the home.  Of equal significance, is that each of these perpetrators appear to be recidivists, at least in respect of their violence towards Ms Wardley.  Similarly, and of equal relevance, is that Ms Wardley in her evidence in Court was reluctant to admit that she had engaged in yet another a sexual relationship with a Mr C, albeit for a short period of time, but where Mr C appears to be of similar violent disposition as the other two men. 

3. The father in his affidavit annexes numerous extracts from the mother's Facebook page which are enlightening as to her own relationship difficulties but, even more so, to the difficulty she has endured as a young single parent of two children and within a climate of regular family violence being inflicted upon her.  Any reading of those posts leaves one only to conclude that at times this mother has been at her wits end in dealing with her two young children one of whom suffers ADHD. Other posts give a more graphic detail of the violent environment in which she unfortunately found herself at least for a period of time. 

4. In her evidence in Court, the mother volunteered the manifestations of [Y]’s apparent diagnosis of ADHD.  She volunteered that this three year old boy is frequently violent to both herself and to [X].  She painted a picture of a child who suffers obsessions and as such requires a high level of adult attention.  The results for [X] are most likely to be an exposure to this behaviour as well as some direct involvement by being assaulted by his younger brother but also understanding his mother having to give and prioritise unequal attention to this young boy. 

5. It was evident from her own case and despite her difficulties in preparation for this trial without legal assistance, that the mother suffers a lack of informal support such as a family network.  She has had a difficult relationship with her own mother who lives some distance from her.  They communicate only about once per fortnight although perhaps more regularly by telephone.  She gives no indication of other informal support networks although she relies heavily on government and non-government agencies.

6. It is difficult to assess the capacity of the father.  He presented as mature and child focused.  His wife presented likewise.  Nevertheless, each of them are untried as full-time parents.  The parties here separated when [X] was just one year old and the father has effectively delegated the primary care of [X] to the mother ever since. 

7. The father and his wife are both full-time university students.  They try to support themselves by part-time work during what might not be child friendly hours.  Nevertheless, they generally impressed as committed and organised young adults.  They have the benefit of rent-free accommodation provided by Ms Clayburn’s parents.  They have managed to accrue some savings.  They are each pursuing tertiary qualifications in order to better support themselves.   

8. It is clear that the father's application is motivated to a large degree by his understanding of the above mentioned family violence environment in the mother's home together with something of a naïve emphasis on the five year old [X]’s stated preferences.  To this end, and despite a mostly academic understanding of that violence, he appears to show a high degree of insight. Of some concern, however, is perhaps his own recent course of communications with one of the prime perpetrators of violence on Ms Wardley although it appears that this correspondence has ceased. 

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

1. [X] is still a young child.  He is just five years of age.  He has lived with his mother since he was one year old.  He has little or no experience of any other person being his primary carer.  His relationship with his father thus far has been against the background of his understanding that he would on each occasion be returning to his primary residence with his mother. He is a young boy in the process of socialization and has just successfully negotiated his first year of school.

Section 60CC(3)(h) – if the child is an aboriginal child or Torres Strait Islander child

1. Not relevant.

Section 60CC(3)(i) - the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child's parents

1. The evidence here suggests to me that both these young parents have demonstrated a mature and co-operative attitude towards their parenting of [X] and often under difficult circumstances.  I do retain, however, some concern in respect of the burden of financial support for [X] falling on the mother whereas the father candidly comes to this Court and suggests that he might be better able to provide [X] with extras 'above his basic needs'.

Section 60CC(3)(j) & (k) - matters of family violence

1. These matters have been dealt with in detail above. 

Section 60CC(3)(l) -  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Whatever order I make it, it is unlikely that there should be further proceedings in respect of [X].  As mentioned above, these young parents have demonstrated an unusual degree of maturity and co-operation in their parenting of [X]. Each offers orders which would effectively share [X]’s quality time between them for weekends and school holidays. 

Findings and Conclusions

1. I have little difficulty in finding that [X] has an established, attached and loving relationship with each of his parents.  That attachment extends to the father's current wife.  It is to the credit of these young parents that they have been able to mutually foster [X]’s relationship with the other parent.  Such a high degree of mutual respect and co-operative parenting suggests that [X]’s relationship with both his mother and his father will continue to flourish.

2. Undoubtedly, there have been issues involving family violence in the mother’s home. She concedes that she has made poor relationship choices and has therefore exposed [X] to violence inflicted on her.  I accept the views of the family reporter that this has had an effect on [X] in that he has become overly protective of his mother.  Nevertheless, and having the opportunity to see and hear Ms Wardley give her evidence, and despite some reluctance in her to make all candid admissions, I generally accept that she acknowledges those failings and has acted positively to ensure that she makes better choices, protects herself, and protects her children from exposure to violence in the future. She has engaged with supportive government and non-government organisations. There is no indication of her being in any current relationship or even communication with her previous partners.  She understands that she is scrutinised by the Department of Child Safety and apparently under threat of removal of the children should she return to those or similar relationships. Further, and of course, she now understands that she is scrutinised also by [X]’s father in the sense that, despite delegating primary care of [X] to her, he has now felt the need to bring this application. In summary, however, and again, Ms Wardley impressed by her maturity and her previous poor relationship choices seem out of character to that general maturity and her historical good care of [X].

1. Both the father and the family reporter place some weight on [X]’s stated preference to live with his mother. [X] is just five years of age and not of sufficient maturity to be able to properly rationalise his own best interests. Nevertheless, he has stated those preferences consistently to his father, his mother, and to the family reporter. On reflection, however, and given the tenor of some of the father's evidence, I think it unremarkable that [X] might express a preference to live with his father where he has enjoyed the benefit of being both an 'only child' in the household and also some extra indulgences not likely available to him in his mother's home. Also I find some merit in the family reporter’s view that [X]’s preferences might be based to some degree on a reaction to his exposure to family violence in the mother's home.

2. The father's application would effectively separate [X] and [Y] as siblings although, of course, the father's proposal would (like the mother’s) have [X] sharing equally his quality out of school time during weekends and holidays between his parents. However, and despite their difficulties and the special needs of [Y], I expect that these two young boys acknowledge each other as siblings.  They are close in age.  They are both young. They have shared their experiences in their mother's home and their primary parenting by Ms Wardley. To separate the siblings but to continue their weekend and holiday time together might well have a significant effect on their understanding of each other and perhaps negatively so.

3. I am generally satisfied as to the capacity of each of these parents to attend to [X]’s needs. Ms Wardley has the additional responsibility for caring for [Y].  He requires a deal of her attention. His special-needs cause some difficulties within the household.  Nevertheless, save and except for the views of the family reporter as to the initiative for [X]’s express preferences, the empirical evidence suggests that [X] is happy and settled in his school and that Ms Wardley provides adequately for his day-to-day needs.  His sense of being protective of his mother should also be seen for its positives in demonstrating the strength of and supportive nature of this relationship between mother and child.

4. The question in respect of Ms Wardley is as to her insight into the emotional needs of [X] in preventing his exposure to family violence.  As mentioned above, I am satisfied that generally Ms Wardley has acknowledged her prior indiscretions and she impresses me as a parent who now prioritises both her children's emotional and physical needs. In any event, it is difficult for either party to argue or impeach the capacity of the other parent when their proposal is for [X]’s weekend and holiday time to be shared unconditionally between the parents.

5. There are some possible advantages for [X] on balance in moving to live with his father. He would have the undivided attention of both the father and his wife as opposed to sharing the attention, and perhaps unequally, in his mother's household with [Y].

6. Mr Clayburn and his wife might be more able to financially indulge [X] although they are both students working part-time to support themselves and notably Mr Clayburn has not apparently been able to contribute financial support for [X] of late.

7. The father's proposal would maintain and foster [X]’s relationship with his mother and [Y] by weekend and holiday time being shared between the households thereby arguably freeing up Ms Wardley to concentrate her parenting on the needy [Y].

8. Nevertheless, I find some negatives in the father's proposal and hence some positives for [X] in his mother's proposal.  Essentially, [X] has lived with his mother all his life and with his mother as his sole primary parent since he was just one year of age. Save and accept Ms Wardley’s indiscretions in relationship choices, she has presented as an excellent parent for [X]. She can also provide him with a continuing relationship with his brother [Y]. In this sense a strong status quo of a mutually and consistent family unit of the mother, [X] and [Y] has operated relatively successfully. The mother's proposal continues that regime with [X] and [Y] understanding themselves as siblings within that primary household.

9. In conclusion, the strength of the father's case is that [X] has been exposed to family violence perpetrated on his mother by reason of her poor relationship choices on at least two occasions. Should the mother show a propensity to continue such lifestyle choices and lack of insight in respect of the emotional needs of [X], then undoubtedly [X]’s best interests would be served by moving to live primarily with his father.  However, I repeat that I am satisfied on hearing and seeing the mother give evidence that she has acknowledged those difficulties and is unlikely to relapse.  In all other respects, and evidenced by the father delegating the primary care of [X] to the mother for the last four years, she is a demonstrably good parent.  It is worthy of emphasis also that the nature of the competing Applications impacts only directly on from which home [X] would attend school.  There is no evidence from his current kindergarten that he is progressing other than satisfactorily both academically and socially.

10. Taking all of these matters into account, I am of the view that [X]’s best interests are served by remaining living primarily with his mother and there will be orders accordingly.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 17 December 2018