CRUDEN & SACKITT

FAMILY COURT OF AUSTRALIA

CRUDEN & SACKITT

[2013] FamCA 999

FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – siblings to live in separate households – siblings to spend time with each other while each spending time with their non-resident parent - youngest child to live with the father – eldest child to live with the mother – children aged 12 and six of different developmental stages – eldest child’s wish to live with the mother given weight – both children have significant issues with deteriorating behaviour and non-attendance at school – mother has trouble disciplining the children – risks of varying degrees of harm are identified in both parent’s homes for various reasons – neither parent is found to have the capacity to have both children in their sole care – where the youngest child has a strong attachment to the father’s older daughter.

FAMILY LAW – CHILDREN – Parental responsibility – father to have sole parental responsibility for the youngest child - mother and father to each have equal parental responsibility for the eldest child – mother to have responsibility for day to day care and the father to have authority over long-term issues – presumption of equal shared parental responsibility rebutted by the evidence of substance abuse and family violence.

FAMILY LAW – INJUNCTIONS – Mother restrained from approaching the youngest child’s school for a period of 12 months and from allowing either child to have contact with the maternal grandfather – identified risk of sexual harm posed by the maternal grandfather.

Family Law Act 1975 (Cth) ss 60CC, 64B, 68B

APPLICANT:

Ms Cruden

RESPONDENT:

Mr Sackitt

INDEPENDENT CHILDREN’S LAWYER:

Denise Clark Solicitor

FILE NUMBER:

(P)NCC

1734

2012

DATE DELIVERED:

18 December 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

9, 10 & 12 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mooney

SOLICITOR FOR THE APPLICANT:

Jennifer Blundell & Associates

COUNSEL FOR THE RESPONDENT:

Mr Rugendyke

SOLICITOR FOR THE RESPONDENT:

Catherine Henry Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Denise Clark Solicitor

Orders

That all prior parenting orders in relation to the children R born … 2001 and Y born … 2007 (“the children”) are discharged.
That each parent shall have parental responsibility for R and may make decisions about long term issues for her, including but not limited to:
2.1Medical decisions about treatment of serious illness and injury;
2.2Decisions about education particularly any proposed change of high school.
The child R shall live with the Mother and the Mother shall make decisions about the day to day care and supervision of R.
The child R shall spend time with the Father, failing agreement otherwise as follows:
4.1During school terms:
4.1.1each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday such time to be suspended if falling on the Mother’s Day weekend, commencing on the first Friday of the first term in 2014;
4.1.2for one half of each school term and Christmas holiday period and failing agreement otherwise for the first half holiday period when the school holiday period commences in odd numbered years and the second half when the school holiday period commences in even numbered years, commencing with the Christmas holiday period in 2013;
4.1.3on Father’s Day each year from 6.00 pm on the Saturday evening prior until 6.00 pm on Father’s Day;
4.1.4on Christmas Day 2014 from 2.00 pm until 9.00 pm and each even numbered year thereafter; and
4.1.5at other and/or additional times as agreed between the parents.
4.2Time is suspended on Christmas Day in 2013 and each alternate year thereafter from 2.00 pm until 9.00 pm.
That the Father shall have sole parental responsibility for Y and shall communicate to the Mother decisions he makes concerning her long term care, welfare and development of Y, including but not limited to:
5.1Any change of school;
5.2Decisions about medical treatment for serious illness and injury.
The child Y shall live with the Father commencing today and the Father and/or Ms S is to forthwith collect Y from school and bring her to the Family Court to have the Family Consultant (Ms C) and the Independent Children’s Lawyer (if available) to explain the Orders to Y and answer any question she has.
The child Y shall spend time with the Mother as follows with the intention that the children will be together at weekends:
7.1During term on each alternate weekend (excluding the weekend of Father’s Day) from 9.00 am Saturday until 6.00 pm Sunday commencing on Saturday, 1 March 2014 and recommencing on the second Saturday of each term thereafter.
7.2On Christmas Day 2013 and on each Christmas Day in odd numbered years thereafter from 2.00 pm to 9.00 pm and on Christmas Day in 2014 and in even numbered years thereafter from 9.00 am to 2.00 pm.
7.3For four days in each school term holiday commencing at 9.00 am on the first Saturday of the second week of the holiday period and concluding 5.00 pm the immediately following Tuesday commencing in the holiday period after the end of Term 2 2014.
7.4For one week in the Christmas school holidays commencing on the second Saturday after Christmas in January 2015.
7.5On Mother’s Day each year from 6.00 pm on the Saturday evening prior the day until 6.00 pm on Mother’s Day.
The Mother is restrained pursuant to s 68B of the Family Law Act 1975 from approaching, entering or attending in any way at K Public School for a period of 12 months from the date of these Orders and thereafter may attend events to which parents are invited but for no other reason.
In the event of a Contravention of Order 8 being found, face to face time between the Mother and Y will be suspended for a period of two months from the date of the Court Order establishing the Contravention in addition to any penalty which may be imposed NOTING that this period of suspension provides time for any Application for Variation of Orders.
The Mother shall arrange a mutually convenient time for R to see the Family Consultant (Ms C, phone …) and the Independent Children’s Lawyer to have these Orders explained to her and any questions answered. In the event that the Mother fails to do so within 28 days then the Father shall make these arrangements.
The Mother is restrained from allowing the children or either of them to be in the presence of their Maternal Grandfather unless a responsible adult supervisor is present.
Each party is restrained from using illicit drugs.
Each parent is restrained from consuming alcohol at a level which would preclude that parent from driving if breath tested at any time whilst the children or either of them are in their care and 12 hours prior to that time.
Neither parent shall denigrate nor allow any other person to denigrate the other parent in the presence or hearing of the children.
Both parties are restrained from physically disciplining the children or allowing any other person to do so.
Each of the parents shall advise the other parent of a change of address or contact telephone number within 7 days of change in same.
The Father shall provide all necessary authorities to any school that Y attends and to any medical or allied health practitioner that provides assessment of or treatment for Y to permit such school and medical or allied health practitioner to provide to the Mother such information that she may reasonably request concerning Y’s progress, condition or treatment.
The Independent Children’s Lawyer shall provide forthwith a copy of the Family Report released on 26 September 2013 and a sealed copy of these Orders to the Manager of Child Protection Services at the K office of the Department of Family and Community Services.
The Independent children’s Lawyer shall provide a copy of these Orders to:
20.1the Principal of K Public School;
20.2the Principal of K High School;
20.3The Family Referral Service of X Organisation (Ms I);
20.4The K Family Support Service Inc. (Ms W)
NOTING that the Independent Children’s Lawyer may show (but not provide copies of) these Reasons for Judgment or parts thereof to any of the above listed persons.
That the appointment of the Independent Children’s Lawyer be extended for a period of 12 months from the date of these Orders.
That each parent shall do all things necessary to ensure that the paediatric assessment organised by X Organisation take place and that R and Y attend as required AND FURTHER that each parent follow any recommendations arising from the assessment.
The changeovers will be effected by the residence parent delivering a child at the beginning of a period of time and the other parent returning the child to the home of the residence parent at the conclusion of time.
The Mother is restrained from continuing counselling for the children or either of them at K Family Support Service until the conclusion of the paediatric assessment and thereafter such counselling to continue only if recommended by the Paediatrician conducting the assessment.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cruden & Sackitt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC1734 of 2012

Ms Cruden

Applicant

And

Mr Sackitt

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are contested parenting proceedings for two children, R aged 12 and Y aged six. The applicant is the mother Ms Cruden (“the mother”), aged 37. The respondent is the father Mr Sackitt (“the father”), aged 46.
The parties began living together in April 1999. The parties disagree as to when the relationship ended. The mother says it was in January 2011, although conceding that she and the children continued to live in the house with the father for another 18 months or so, at least periodically. The father says the final separation was 27 June 2012. The two children were born during the course of that relationship in 2001 and 2006.
By her amended application filed 6 November 2012, the mother seeks orders for equal shared parental responsibility, residence of both children with her and in the absence of agreement otherwise, alternate weekends, holidays and other special times with the father.
By his response amended by the minute of order contained in his outline of case document dated 15 August 2012[1] the father seeks orders for sole parental responsibility, residence with him and that the children spend time and communicate with their mother failing agreement otherwise, each alternate weekend, holidays and other special times with the mother.
[1]Exhibit 14
The Independent Children’s Lawyer reserved her position until the conclusion of the evidence.

Short history

On 27 June 2012, the date the father alleges the parties separated, he retained the children and applied for an Apprehended Violence Order (AVO) against the mother for his protection and theirs.
On 29 June 2012 the mother quickly responded with an initiating application in the Federal Magistrates Court for the children to live with her and to be urgently returned.
On 2 July 2012 there was a child dispute conference with Family Consultant, Ms C, who has subsequently prepared two full family reports. In the child dispute conference each parent alleged that the other had smacked the children in anger. The father alleged family violence by the mother towards him and there was an allegation of a charge of assault by her on the father. The mother alleged that the father had been verbally abusive towards her and behaved in a manner which isolated her from family and friends.
Both parties conceded a history of mutual intravenous amphetamine use early in their relationship. Both conceded ongoing and recent marijuana use. The father stated at that time that he was quitting marijuana and had brought his habit of 25 cones of marijuana per day down to three cones on each of the previous two nights. The father denied any impact on his parenting of his high level use of marijuana each day. The mother conceded drug use, but at a lower level.
The father alleged that the mother abused alcohol and became aggressive when she did so. At that time the mother was taking medication for anxiety and the father expressed concerns about the interaction of her anti-anxiety medication with other drugs. The mother alleged that the father was unstable and delusional due to an under-active thyroid.
At that time concerns were raised that the children had not been attending school. There was also an active issue that the mother’s daughter from a previous relationship, Miss J, now aged 19, had been sexually assaulted by her maternal grandfather. Although an order had been made for Ms J to live with her own father for her safety, she had returned to live with the mother who was then living with the maternal grandparents at the time of interview.
The issues identified by the Family Consultant caused her to make a Risk of Harm report to the Department of Family and Community Services (DoCS). On that same day an Independent Children’s Lawyer was appointed.
On 6 July 2012 the father filed his Response seeking final and interim orders that he have sole parental responsibility and residence. An order was made urgently for the preparation of a family report and the parties reached terms of settlement for the children to spend equal time with the parents from Sunday to Sunday week about.
On 18 July 2012 an interim AVO was made for the protection of the father against the mother.
By August 2012 both parties had filed Applications in a Case seeking to vary the orders for week about time.
On 15 August 2012 the first family report was released recommending:
a)That the Court be wary of an order for shared parental responsibility given the lack of communication between the parents and their allegations of family violence;
b)That the children live with the mother in the interim, if the Court believed that the mother was able to mitigate risk to the children. This was a reference to the risk from the maternal grandfather, who was part of the children’s household at that time and if not, that the children live with the father;
c)That the matter be transferred to the Family Court; and
d)That both children undergo urgent psychological assessment and any intervention recommended from such an assessment.
The observations of the Family Consultant of each the children were unusual and extremely worrying. The child R was described as having a fairly flat affect and describing herself as generally unemotional. Her parents had been contacted by the school in relation to a significant deterioration in her behaviour at school. R described frequent physical punishments by both parents and expressed a wish as follows:
All I wish would change is that mum would not say bad stuff about dad and dad would not say bad stuff about mum.[2]
[2]Report of Family Consultant dated 15/08/2012, par 78
R observed accurately in my view that the parents seemed to not really trust each other and to dislike each other. R had seen both her parents smoking marijuana and was able to give an accurate description of the equipment that they used. She thought her mother smoked more than her father. R said that she did not really feel emotions, but she sometimes feels happy, usually at school. It is this observation that is of particular concern to the Court about R.
The child Y, who was then four years and 11 months old, presented as chatty and articulate. She too described regular physical punishment; smacking by both parents. She made the following statement about her father:
I just want to kill him but I don’t want to have to. My mum might kill him if he comes to her place because she’s got a new home.
And further:
That she wanted to kill her father ‘because he’s mean and stuff.’
And further:
That her mother might kill her father because she might hate dad.[3]
[3]Report of Family Consultant dated 15/08/2012, par 88
In answer to a question Y was asked what she thought about the then current week about arrangements she said this:
A:       I hate being with my mum and dad because they are mean.
Q:       Who would you rather live with?
A:Someone else who is nice. She said that the only nice person she knew was ‘[O’s] mum [T] (sic).’
Q:       Which parents she would prefer to live with?
A:       “ ummmm [T] (sic)”.
This is the most concerning observation to the Court about Y. This reference to “[T]” is a reference to Ms S, the father’s oldest daughter aged 24 who has a young son called O.
On 15 August 2012 the matter was transferred to this Court and the interim week about shared time was continued by consent. Specific orders were made for the protection of the children from their maternal grandfather and both parties were ordered to undergo drug urine analysis. A note to the orders was that the mother was changing her residence to live with her sister Ms Z effective from 16 August 2012.
On 18 September 2012 the matter was listed for final hearing in December 2012. There was also an order that each of the parties do all acts and things necessary to ensure that an urgent appointment was obtained from the children’s GP Dr H for the purpose of obtaining a referral from him for the children from CAMHS, the Children and Adolescent Mental Health Services for the purpose of urgent psychological assessment and recommended intervention.
On 21 September 2012 Dr H provided the relevant referrals for each of the children.[4] Provision was made for Dr H to have a copy of the family report, to understand the basis for the request. Both parties expressed a willingness to participate in a Parenting After Separation program and they were directed to enrol accordingly.
[4]Exhibit 1
On 22 October 2012 directions were made for the hearing dates which had been established in December 2012.
On 3 December 2012 orders were made to address the fact that neither party had complied with the orders. The parties were directed to prepare a short affidavit setting out the details of their living arrangements, care arrangements for the children, time that the children had spent with each parent and an explanation for why the children had not spent time with the father.
A request was made to the Department of Family and Community Services to intervene.
An interim hearing took place on that day and on 20 December 2012 interim orders were made, which provided for equal shared parental responsibility, residence with the mother, time with the father each weekend except for the first weekend of each calendar month, ongoing urinalysis and other specific orders. The hearing dates were vacated.
On 12 February 2013 the matter came back before the Court. The children had not been connected to counselling through CAMHS or the K Mental Health Unit.
Contact had been made with the mother who did not take the opportunity to take up an appointment. When contacted by the Service she answered all questions asked (relating to bedwetting and other standard indicators) in the negative, not providing any further information about the urgent need for the children to have an assessment. The mother was in my view concerned to avoid the proposed intervention.

The Independent Children’s Lawyer had made every effort to connect the children to counselling and assessment, but had been unable to do so.
On 28 June 2013 a further request was made for the Department to intervene and again the request was declined.
On 19 July 2013 an order was made for an updating family report, the matter was given further hearing dates on 9 and 10 December 2013, with trial directions for updating affidavits to be made on 15 November 2013.
The Court noted on that day that the mother was absent from Court, despite the expectation that she would be there and that in the event the matter became undefended, it would proceed on that basis on 9 December 2013.
On 26 September 2013 the second family report by Ms C, Family Consultant was released.
The Family Consultant highlighted the following matters:
For the father:
He had continued his abstinence from marijuana and had completed a PPP parenting course in November 2012; also a Parenting After Separation course with Unifam. The father expressed concerns about the mother’s alleged drug and alcohol misuse ongoing. He expressed the view that regardless of the children’s wishes he believed they would benefit from living with him:
It would be a good impact it could only be a positive change, I think [R] would go pretty well because she would be earning her rights – you do good things and good things happen for you.[5]
For the mother:
The mother denied any drug misuse. She said that she last used any drugs about a year ago. The mother acknowledged to the Family Consultant that she had missed a number of requested drug screens and said that this was because she could not meet the cost of the drug screens.[6]
[5]Report of Family Consultant dated 26/09/2013, par 34
[6]Report of Family Consultant dated 26/09/2013, par 38
I note that the mother gave different explanations in her oral evidence before me. What the mother did not tell the Family Consultant was that in January 2013 she had been charged and pleaded guilty to driving with a low range PCA and that on 18 April 2013 she had been charged with and pleaded guilty to possession of a prohibited drug.
The mother stated that she had been involved with the school in an attempt to address the children’s poor behaviour in the educational context and denied that there were any issues in relation to the children’s school attendance, with the exception of periods of suspension. This proved not to be the case.
Further, when confronted with subpoenaed material about her father’s mental health, the mother first of all said that she had not known about her father’s admission to hospital by way of being scheduled, and when her attention was drawn to the fact that she had reported that 2011 admission to emergency department staff, she said she must have forgotten. In her oral evidence the mother conceded that her father had a history of mental health problems and had now been diagnosed tentatively with bipolar disorder.
The observations of the children continued to be extremely unusual and worrying.
In relation to R, the Family Consultant noted that R said she wanted to attend K High School in 2014 and that if she was enrolled at the Christian school which her mother was considering she would:
Do whatever it takes to get expelled from that school.
She went on to say:
That she wasn’t concerned about attending [K] High School as she already had mates there who would protect her from getting bashed.[7]
[7]Report of Family Consultant dated 26/09/2013, par 49
R reported that she loses her temper and becomes abusive about twice a week. She did not see the need to address that behaviour, rather she felt that other people needed to learn not to call her names or make inappropriate comments to her. There was a confirmation that R is a capable student, capable of performing above average academically, but was not completing homework tasks. Again, the school counsellor commented on R’s “low affect” and other teachers indicated this was her normal presentation.
R is said to have no concerns about her low attendance at school. By September 2013 R had been absent on 22 whole days and late on 13 occasions. That pattern has continued for the balance of the year. R said she had no worries or concerns in either household. She expressed a preference for living in her mother’s household, “as her friends live nearby and she has more freedom to spend time with them.” She said there are none that live near the father and her father prefers her to remain within the confines of the house and backyard.
R wishes to live with her mother and see her father on alternate weekends or depending on what else she had planned for the weekend. There is every indication that R is moving swiftly out of her mother’s control.
By the date of interview, the mother had managed to arrange counselling for R on two occasions out of three which was scheduled. That is the full extent of counselling arranged.
In relation to Y, the mother, the father and R all provided the Family Consultant with an account Y’s behaviour where she becomes angry, destructive and verbally abusive, including swearing, if anyone attempts to make her do something she doesn’t wish to do. The mother described Y as reluctant to go to school and defiant. She does what it takes to be able to leave school, including hitting, swearing and spitting. She had been recently suspended at the time of interview for hitting and kicking a teacher and swearing at her.
Y too had had 22 full days absent from kindergarten and 19 late attendances. She left early from school on seven occasions. Y made the unprompted statement, “My dad’s an idiot[8]”. She explained that school was going badly because she had been swearing, but that was because people were mean to her. In exactly the same way as her sister, Y blames others for her rude and uncontained behaviour.
[8]Report of Family Consultant dated 26/09/2013, par 62
In relation to Ms J, there is a strong inference that Ms J was put under pressure by her mother to retract statements of sexual assault on her by her maternal grandfather.
The Family Consultant also referred to a conversation on Facebook between R and her older sister Ms S, where R made statements about the mother using drugs and R’s fear that the mother would be put in prison. This conversation is attested to by Ms S in an affidavit in support of her father’s case.
The Family Consultant noted that her concerns in relation to both children were heightened since the last report. She said this:
Currently both children are on an alarming trajectory whereby they are heightening their use of maladaptive emotional and behavioural responses. This indicates that there is a heightened likelihood that the children will continue to engage in increasingly anti-social behaviour and increased risk taking activities.[9]
[9]Report of Family Consultant dated 26/09/2013, par 81
The Family Consultant noted with alarm the children’s poor pattern of attendance at school.
The evidence for the almost three months since the interview with the Family Consultant has aggravated the concerns about the children. Suspensions have increased and attendance has worsened.
On 15 November 2013 directions were made for each party to file updating affidavits by 29 November 2013. The mother failed to file her material. Extraordinarily, without proper reference to her own solicitor, she attended the Registry to file an affidavit out of time. That affidavit was brought to the attention of all parties on the first day of the hearing. Her solicitor and counsel had no knowledge of it. Counsel for the mother sought leave for reliance on the updating affidavit, and leave to lead further evidence.
The mother gave evidence on the topic of the lateness of the affidavit. She said she knew she should have seen her solicitor to have an affidavit prepared, that she had done it herself and delivered it to her solicitor by email, but it had bounced back. She said the delay had been caused by sickness; impetigo which was contagious, that she had been sick and both children had been sick in the previous week and that she had had some really bad behaviour out of both of the children.
Leave was granted for reliance on the affidavit which was filed in Court on 9 December 2013. Leave to lead further evidence was opposed and not granted.

The evidence

The parties relied on the following documents:
(a)Amended Initiating Application filed by mother on 6 November 2012;
(b)Affidavit of mother filed in Court 7 December 2013;
(c)Affidavit of mother filed 15 August 2012;
(d)Response to Initiating Application filed 6 July 2012;
(e)Affidavit of Father filed 29 November 2013;
(f)Affidavit of Ms S filed 29 November 2013;
(g)Family Report of Ms C dated 15 August 2012;
(h)Family Report of Ms C dated 26 September 2013.

The mother, Ms Cruden

The mother presented as both an unresponsive and an unreliable witness. She gave contradictory evidence on significant matters. Just as she had said nothing to the Family Consultant about charges and subsequent bonds imposed by the Local Court in relation to driving whilst affected by alcohol and possessing a prohibited drug, she did not refer to either of those events in her affidavit signed on 5 December 2013. In circumstances where she has failed to complete most of the random drug tests that were asked of her, it was an especially significant matter. The mother was dismissive on the topic. Rather than make concessions the mother’s response was to deny and confront.
The mother was fortunate to obtain a section 10 Bond in respect of both charges. She referred to that circumstance as the charges having been dismissed. She made that statement in a tone of contempt. Her response to what the drug was that she had pleaded guilty to possessing was that “she didn’t know.” She would only go so far as to say that she thought it had been described in court as “white powder”.
The mother was invited to obtain the police facts and court notice of attendance from the solicitor acting in the criminal matters, during the lunch break. She did not do so. Absurdly in my view, the mother referred to “little packets of white powder having been dropped into her car through a broken window.” In fact she said that “she’d had to go and buy a new car to stop this happening”.
In respect of the other charge, the mother was equally dismissive. She said she had had a few drinks the previous day and had been pulled over at 3.00 pm on the stated day and she had “blown 0.06.” Sobriety and drug use have been issues in this case throughout and the mother was aware of it. I am satisfied that she said nothing about the two criminal charges hoping that they would not be brought to the Court’s attention. The impact of that conduct, on this issue and others such as the behaviour of the children, is that I have no confidence in any of the evidence that the mother gave.
The mother also did not refer in her affidavit to her estrangement now from her daughter Ms J, who is living with her paternal grandmother and has been for at least five months.

Affidavit of the mother

Annexed to the affidavit of the mother were a series of letters of support and the provision of information.
The first two annexures, both labelled Annexure A, from Ms B and Ms F, are material that I can give no weight to. More particularly, the letter from Ms F which was typed by the mother on her computer and compiled by her through her neighbour’s conceded inability to do it herself.
Annexure B provides the information that the children were referred to the Family Referral Service of X Organisation by their school, K Primary School, as part of an educational neglect pilot program currently operating in the area. The school had raised concerns regarding the behaviour of the two girls causing significant issues in relation to their school attendance.
The Family Referral Service, in particular Ms I, noted that X Organisation is in the process of organising paediatric assessments for both Y and R. The Court expects that X Organisation will continue to work with the children irrespective of their residence to ensure that these assessments are undertaken. The matter is critically urgent and important for these children’s future.
Annexure C noted that the mother had been offered a place in 2014 for two parenting programs. The mother has been directed in the past to attend parenting programs and has chosen not to do so. I have no confidence that she will undertake these programs.
Annexure D from K Family Support Service was a letter from a family worker who repeated a social history given to her by the mother. She concluded that appropriate referrals had been made for the two children to attend therapy with a qualified psychologist as “they are both showing a number of indicators of trauma brought on by their father’s abuse.” I attach no weight to this assessment which was given without reference to the father’s version of events, or to objective material. Accordingly there is no proper basis for Ms W’s conclusions.

Behaviour of the children - mother’s version

The mother was defensive of herself and the children throughout her evidence. For instance when asked about a 10 day suspension for R, the mother immediately explained that another child had hurt R and that “[R] was retaliating by throwing a rock.” She was quick to say that she had been told that both children might have Oppositional Defiance Disorder and that she was getting onto a private psychologist about that.
Most significantly the mother attributed a range of violent, aggressive, anti-social and completely unacceptable conduct by the two girls to the fact that they did not want to spend time with their father.
Absurdly the mother insisted that the children’s behaviour had improved remarkably when they spend alternate weekends with their father, but deteriorated when there was compliance with the order that they spend three weekends out of four. I reject the mother’s evidence in particular about this topic. My impression is that it is convenient for the mother to attribute all of the children’s behaviour to the father, partly because of the very poor relationship between them, but also because she does not want to accept responsibility for their current misconduct.
More than once she said that she had no difficulty getting the children to school and at home they did not misbehave. When asked about R having been late on 13 occasions, the mother said that the Principal of the school had asked her not to send the children if they were moody after visiting their father.
It seems to me that the children have probably protested about aspects of spending time with their father because he has attempted to set boundaries such as having a bed time, expecting Y to stay with him when they were shopping and expecting R to stay within the home during her time with him.
The mother regularly gave more than one explanation. For instance when she was asked why she had not attended any parenting programs as she had been directed to do, she said that the girls’ behaviour was so bad that she couldn’t, and also that she had cancelled the parenting program because of a suspension for one of the children.
Another example was when the mother was asked why she did not tell the Family Consultant about R’s comments about the mother’s drug use on Facebook to her sister, the mother said:
She had so many things on her mind that day talking to the Family Consultant and also that she had been very ill.
The mother was especially evasive in relation to the drug testing. She was taken through the list of requests MFI “1” which became Exhibit 8.
There were five occasions when the mother did not comply with a request for a drug test:
a)      7 February 2013 - she said that she believed she had done the test.
b)      21 May 2013 - she was not too sure but she believed that she had done the test.
c)      8 August 2013 - she said she had not undertaken the test because she was working on that day doing … work, she was too far away to do it because they were in E (a short trip from K), that she hadn’t known that she had until the following day to do it and that the work she was doing was one day only, on the day that the test was requested to be undertaken. I had the very clear impression that the mother was inventing responses.
The mother asked her doctor on 11 November 2013 to provide a certificate “unfit to attend for drug test on 8 August” and he quite properly declined.
d)      26 September 2013 - the test was done late, which the mother attributed to the fact that her IPhone had been broken and that the new facility for drug testing had an earlier cut off time than the old one had.
e)      10 October 2013 - the mother conceded that she had not done the test.
f)      7 November 2013 - she again said “not too sure about that”.
The mother was invited to produce the drug screens that should have been undertaken and apparently were not. I infer that the mother did not undertake the tests because she feared that the result would not assist her in these proceedings.
The mother was most unimpressive in terms of her failure to obtain assistance for the children to have them assessed and to improve their conduct at school.
The child Y, in kindergarten, has been suspended for swearing, throwing pencils and a chair, disruptive behaviour, destruction of school property and causing the class to be evacuated. Y was suspended on the first day of this hearing and was in the care of her maternal grandmother on that account.
The mother said that she was “very very very concerned” about Y’s conduct. She was then asked whether there was personal responsibility accepted by her to any extent. Her answer was instructive:
I’ve looked at the way I am parenting. They have a stable secure loving family, animals, hens, we’ve put up a Christmas tree, they have friends.
I take this response to mean that the mother does not accept that she has any personal responsibility for the gross misconduct of her children. The furthest she would go was to say:
I do take a little bit of the responsibility for the separation between her father and me.
The mother continued to deny that she saw any misconduct by the children at home. I do not accept this evidence. Both children freely told the Family Consultant of regular slapping and smacking for misconduct by both their parents by way of punishment. Further the mother has referred to her own difficulties in coping with their conduct. That was one explanation given in oral evidence by the mother for failing to file her updating affidavit in time.
In 2013 the child Y in total had 69 partial absences from school and 40 whole days. Further at times the Principal has rung the mother to come and pick Y up after she has arrived on time. The mother said that some of those absences would relate to dental appointments. She did not appear to be willing to concede the likely failure of Y’s education with such a pattern of non-attendance.
The mother’s attempts to attribute blame for the children’s behaviour to the father were unsustainable. She said that the children’s behaviour deteriorated from the Thursday before the weekend when they would be seeing their father and that they were moody and tired when they returned from that weekend. However, no explanation was forthcoming for the extremely high non-attendance rates for both children over 2013, deteriorated even from high non-attendance rates for R in the previous two years.
In relation to R, the mother conceded that she is assessed to have high academic potential; the mother would like to send her to a different school. The mother raised that possibility with R who said she wouldn’t go. Despite the mother’s denials, the evidence suggests that the mother simply left the matter there rather than force R to do something she was unwilling to do.

The child R has exhibited extreme verbal abuse, thrown a rock at a teacher and sworn in foul language at the Principal. She has made sexually suggestive comments to other students. The week before the hearing commenced R commenced high school at the end of term 4 of primary school. She is about to embark on her high school education with an attitude that nobody can tell her what to do and that she will arc up and retaliate if she does not like the behaviour of others. She is extremely unlikely to succeed at high school unless something changes.
The mother took a self-righteous tone through most of this evidence, blaming the father, exonerating herself and defending her daughters. I came to the conclusion that although she loves her children, the mother lacks capacity to meet their needs. She cannot direct them or set appropriate rules and limits so that they are adequately socialised. She is also unable to meet their educational needs by ensuring their attendance at school, their completion of homework and a level of conduct that makes them acceptable class mates.

The father, Mr Sackitt

The father gave his evidence in a tentative way, often giving short even monosyllabic answers. He made concessions about his own areas of ignorance as to the conduct and trouble that his girls have been in. He impressed as honest and straightforward and beginning to be aware of the consequences of having withdrawn to a great extent from the lives of his children after separation from their mother; also not having made his own independent inquiries at the children’s school about their progress and welfare.
I have the very clear impression that the father is a person who avoids conflict and argument if he can and withdraws from situations and conversations which head in that direction.
During the course of his cross-examination, as the father sometimes searched for answers, the mother whilst sitting quietly, rolled her eyes and regarded him with undisguised contempt.
The father learned a great deal about his children’s behaviour and misconduct at school during the course of this hearing. I accept that after the first day he gave thought to how he could manage the children. For instance, that he would keep in contact with their schools often and would try to develop parenting skills with professional assistance and advisers such as the Department of Family and Community Services, the school Principal, psychologists and counsellors. He had also come to the conclusion, correctly in my view, that at least for an initial period if his daughters lived with him, he would either have to go down to part-time hours, or more likely give up his job entirely.
In early September 2013 Ms J had told the father that R had been in touch with her to say that the mother was selling drugs and using speed, that R had stolen drugs from her mother, that R was talking about killing herself and that she had put nude photos of herself on Facebook.[10]
[10]Affidavit of father filed 29/11/2013, pars 24 - 29
The father said that when he received this information from Ms J he discussed it with his older daughter Ms S. She then felt prompted to tell her father of a Facebook conversation that she herself had had with R on 28 July 2013.[11]
[11]Affidavit of Ms S filed 29/11/2013
In that conversation R told Ms S that:
[Ms J] was calling the cops on mum for some stuff and mum could get locked up.
Well she does some drugs and shit, don’t tell anyone please.
And amongst other things, R also said:
That she had taken some of mum’s weed and she found out and she thinks I smoke weed. I honestly don’t. I don’t know why I took it, though I didn’t really know what I was doing.
Prior to that conversation Ms S had been protecting the confidence with her young sister, but when the father raised the matters he had learnt from Ms J she volunteered them.
The father was sufficiently concerned to ring his solicitor to make an appointment and to go down and discuss with the Principal what was happening for R at school. Unfortunately he clearly felt helpless or unable to do any more about it. He certainly did not discuss with the mother what he had learnt. I accept that it would have been difficult. The mother was dismissive of the evidence relating to these conversations, providing the explanation that she had spoken to R about it and that R had explained that her Facebook page had been hacked and that she “had not written any of that stuff”.
I do not accept the mother’s evidence about that, but that evidence does give some indication of how unlikely it was that a conversation between the parents over R’s welfare and worries would have been completely unproductive.
I accept that in 2013, during the course of this litigation, the father has stepped back from the school entirely to avoid conflict. Prior to that he had attended most of the assemblies, school concerts and sports days for R. Unfortunately 2013 has been Y’s first year at school so she has not experienced her father’s engagement with her school at all.
The father denied that he had lacked interest in his children this year and I accept his evidence that he did think it would cause conflict for him to go to the school and that he was trying to “make things as stable as possible”.
The father gave evidence of R’s attitude during contact visits during 2013; that she was hard to engage and wanted to do nothing other than talk to her friends, either on Facebook or through her IPod.
He gave thoughtful evidence about what he would do to engage her if she was living with him. She had previously enjoyed a particular sport and he thought of joining a sports club with her and arranging for Y to be cared for by his daughter at those times. An aim that the father has is to change R’s friend base and to try and encourage her to find “better kids to hang around with”.
His idea to “get her into sports and Out- of- School activities” is a positive one. However I accept the evidence of the Family Consultant that R may have passed the point of being engaged in that family way. She has become robustly defiant.
Since September 2013, when the father had a frank conversation with the Principal and particularly now having heard the evidence in these proceedings, I accept the father is highly motivated to take on the care of his children and help them. The difficulty for R is that it may be too late for her to comply with her father’s directions. He has difficulty engaging her.
I accept the evidence of the Family Consultant that he has not established a base for compliance with her. For example on the previous weekend, R threw a knife at her father and he smacked her on her bottom in response. Given the dangerous and wildly defiant act that R had performed, the father’s reaction was understandable enough. However he does not have the sophisticated skills referred to by the Family Consultant in interpreting R’s behaviour, managing it by anticipating it, and constantly engaging with her about the reasons for behaving differently.
As it happened, the father had to then call around to the mother’s home with some medicine for Y which he had forgot to pack in her bag. The mother mentioned that R had told her about being smacked. The father did not discuss the incident with the mother, “When I explain things, abuse accusations and blame starts”.
Sadly in the past, the father had gone with R on a school excursion to the university and she had “seemed inspired by it.” In 2013 she had a change of attitude; had become defiant making such statements as, “You can’t tell me what to do.” Puberty, in combination with emotional neglect, has made R almost unreachable.
It is quite apparent that R will defy her father and make every effort to return to her mother if she is compelled by orders to live with him. It is also apparent that the mother would support R in her defiance and take some satisfaction from defeating the father in that way. It is an impossible situation for R.
With Y, the father is able to enforce bedtimes and compliant behaviour and to engage Y in a range of activities as well as regular family visits to Ms S and O, to whom Y is strongly attached.
The father himself acknowledged the difficulty of his proposed orders. He said of their behaviour this year:
I knew they were being disruptive at school but did not know they were swearing, being disruptive, striking teachers etc.
He was asked whether he was confident he could keep R with him. His honest answer was, “Not sure” and in relation to Y, “might be difficult but she’ll stay.” That is my own assessment of the situation.
The father described Y acting up when she had not wanted to leave visits with Ms S, “[Y] got cranky, stomped her feet, walked away from the car.” The father picked her up and carried her into the car. He agreed she sometimes struggled and on occasions at the shopping centre, she had walked off and he had had to hold her by the arm. He explained to her it was so he would not lose her.
I accept his evidence that after a couple of minutes from the explanation and the holding of her arm that Y began to behave and walked beside him.
It seems the father has been prepared to overlook or disregard a lot of Y’s behaviour; for instance the time she slammed the door in his face when he came to collect her from the mother’s home. He thought she was just being silly and perhaps she was on that occasion.
However, the school principal Ms N described why Y’s classroom had to be evacuated on 22 November 2013, not for the first time. The reason was that on that day Y refused to obey any direction, she called her teacher a “cunt” and told her to “fuck off cunt”, she tried to pull over a bookcase and when asked by a teacher with a sore back not to push against her, Y deliberately shoved that teacher in the back. The class was evacuated to avoid any further exposure to Y’s language and violence. The father looked profoundly despondent during the course of this evidence.

Drug use

The father has conceded a heavy level of marijuana in the past. Since mid- 2012 when he said he has given up he has had clear drug screens. He has also undertaken drug and alcohol counselling at K hospital on at least three or four occasions over two months. There may have been other counselling. I place significant weight on the way the father has addressed his drug dependence.
The proposition was put to the father that if he was successful with his application, the stress of managing his two daughters might tempt him to using marijuana. He was asked whether he could say anything to reassure the Court that he would not do so. I was impressed by his spontaneous honest answer, “I can’t say anything to do that. Time will prove that”.
The father has participated in the PPP parenting course and was able to discuss techniques that he had learnt from that course, particularly around consistency in response to behaviours and trying to think of the child’s perspective when setting boundaries.
The father has made himself responsible for the care of the girls at times when they have been in his care. On the one occasion he arranged for someone else (his daughter Ms S’s mother) to look after the girls, R lied to her and went off with friends and was injured.

Ms S, the father’s adult daughter

Ms S is the 24 year old daughter of the father. She lives with her partner about seven kilometres from the father’s home. She has a child from a prior relationship O (five) who will commence at Y’s school in 2014. She described her son and Y as best friends.
Ms S is expecting a baby to her partner in May 2014. She intends to take 12 months maternity leave from work.
I am quite satisfied that Ms S loves her two sisters R and Y, and her father, and is committed to helping them. She has cared for them alone at times and has imposed appropriate discipline if they played up; for example, taking IPods and turning off the television.
She is prepared to take Y to school and collect her, together with her son, every day. She is prepared to go very early to her father’s home when he works morning shifts. She drives, has a car and spare car seats.
Ms S was a straightforward and in my view, honest witness. Her relationship with R has fallen away very recently. On the Saturday previous to this hearing, R had come to Ms S’s home, walked in the front door, put her headphones in and refused to speak.
R no longer communicates with her on the fortnightly basis that she previously did. R knows from her mother that her Facebook conversation about the mother’s drug use is known. She may feel betrayed.
Ms S said she had deactivated her Facebook page which had been hacked and she accepted that it was possible that R’s Facebook had also been hacked; that somebody other than R had communicated with her in the way that was described on 28 July 2013. However I conclude that Ms S believes it was R.
Ms S frankly conceded that she does not enjoy a reasonable relationship with the mother. Their last conversation was three years ago. However I accept her evidence that she would communicate with the mother if necessary in the interests of her two younger sisters.
Ms S in my view will be a source of strength and assistance for her father.

Ms N, Principal of K Primary School

Ms N gave evidence in response to a request from the Court for her to do so. She said she dealt with the mother who always came down to the school when asked. There had been no decision not to work with the father; it was a matter of school practice to work with the primary carer.
Many techniques had been trialled for each girl, peer teachers, buddy classes time out and ultimately suspension. I accept without reservation that the Principal suspended Y, a kindergarten student “with a heavy heart.” Both girls were described as bright and (academically) competent.
The Principal advised that the level of absences from school in 2013 for Y was high,[12] but the real problem for her learning was the amount of time Y spent sitting in the Principal’s office for the safety of herself and others.
[12]Exhibit 9
Likewise, R in 2013 had a total of 77 absences, whole days and partial. The Principal readily agreed that neither child was reaching her potential, that R’s behaviour and progress had deteriorated, but that it was Y’s first year, so there was no benchmark.
The Principal had accessed a pilot program “Risk of Educational Neglect” as a way of getting the girls to a paediatric assessment:
I always suggest medical review, paediatric assessment and counselling for anger in these situations.
The way of accessing their inclusion was through the concern around attendance, but there was no doubt the Principla was looking for an explanation for their extraordinary conduct, especially Y’s.
The Principal was also behind the referral to K Family Support for both children and the mother. When she was asked about the mother’s stated repeated position that she did not see bad behaviour at home, the Principal said she was surprised by that response and she said this:
For children as young as Y their behaviour is a mirror of the life going on around them.
The Family Consultant agreed with that perspective. My own observation is that either the mother was simply being untruthful about not seeing bad behaviour; that is a real possibility given that much of the mother’s evidence was untruthful. The other possibility is that there are so few restrictions, rules or boundaries in the mother’s home; that the children are simply permitted to do whatever they want. Either way the children are at an unacceptable level of risk in the mother’s home.
The Principal tactfully said, “[Y] has not embraced school routines yet.” I take that to mean that Y simply never does what she is told, reacting with defiance to all instruction. R was labelled as vulnerable for the transition to high school. She certainly is.
I have no doubt whatsoever that the Principal is hopeful of effecting some improvement for Y in 2014. “We employ all that we’ve got every day.” The willingness of the Principal to give evidence on short notice is a further indication, beyond the evidence that she gave, of her commitment to these most difficult children and to all her students.

Ms C, Family Consultant

Ms C expressed the opinion with which I agree; that there is unacceptable risk for the children in each household, that there was no cooperation between the parents and that is would be most unlikely that the mother support a change of residence for the girls.
Ms C thought that the father was able to recognise some of his limitations, particularly his limited ability to effectively manage deteriorating behaviour. She saw it as a positive that he knew he needed some assistance and was not simply denying the situation. I also hold that view.
Ms C confirmed that the mother had said nothing to her of the criminal matters of possessing a prohibited drug and driving with a prescribed content of alcohol.
In her second report, Ms C expressed the view that the key consideration in determining which parent was most capable of providing a safe and consistent level of care to the children was drug misuse of either of the parents, as well as the ability of each parent to respond to the children’s heightened emotional needs.[13]
The possibility that the mother is using or even dealing in drugs and has been at least since April 2013, cannot be excluded. It is more probable she has been, given the statements R was making this year to her adult sisters Ms J and Ms S.
[13]Family Report dated 26/09/2013, par 93
Ms C said that for these children programs of education for the parents were far from enough, it was deeper than that and they needed consistent intervention by a psychologist. They also needed firm boundaries, but more significantly, emotional responsiveness by a parent and an understanding of what a child had experienced. It would not be a matter of “just do as you’re told.”
The father’s approach in the past has been what he described as an authoritarian one, that is, he expected compliance. The mother’s approach has been to allow the girls to have what they want and is now no longer able to enforce anything. They are critical of each other and in particular, the mother is critical of the father. Issues from their past relationship appear still to be a primary focus, as opposed to the dangerous risky behaviour of their children right now.
I raised with Ms C the possibility of separating the children, with Y living with the father and R remaining with the mother. Ms C expressed the view that it would be unusual but in these circumstances, where the parents’ capacity was limited and there is no prospect of intervention by the Department of Family and Community Services, having one girl in each household with sole parental responsibility to that parent, might be effective.
Ms C said, and I accept, that the children would experience a sense of loss from being separated from each other but that their most urgent need was “the experience of being parented, of having their emotional needs met.” Ms C was also concerned about the impact of R’s role modelling on Y, who in her view has a limited time to change, despite her very young age of six years. Ms C expressed caution about regular time together in the event that they were in separate households because of the risk of heightened exposure to conflict. I share that concern.

The law

The objects of the Act in relation to parenting Orders are to ensure that :
a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests
b)     To protect children from physical and psychological harm
c)   To ensure that children receive adequate and proper parenting to help them achieve their full potential
d)     To ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children

These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3).
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents

The children do have a relationship with each of their parents. R said she has no worries or concerns in either household.[14]
[14]Family Report dated 26/09/2013, par 54
During the years when both parents were high level users of drugs, the children probably had quite a limited erratic relationship with both their parents. Ms C expressed the view that Y has her primary attachment to the mother, who has mostly cared for her, but it may be an insecure attachment.
In any event both girls are thoroughly familiar with both of their parents and there is no one else who has taken responsibility for them.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence

Undoubtedly in the past the children have been exposed to psychological harm from exposure to family violence. There has been an Apprehended Violence Order made for the protection of the father from the mother. The mother has convictions for using offensive language, assaulting police, contravening an AVO and the more recent offences of driving with a low range PCA and possessing a prohibited drug.
The father has past drug offences, driving with a PCA, but nothing since 1990.[15]
[15]Exhibit 5, NSW Police Criminal Records
The conduct of the children and their obvious emotional disturbance suggests that they have been exposed to parents who have been unable to care for them due to their drug and alcohol dependence and unable to protect them from the violent confronting scenes that occurred throughout the relationship.

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

The child R is 12, she will be 13 in 2014. She has already begun the transition to high school. She has expressed a view that she enjoys the fact that her father has spoken to her more since her parents separated and she enjoys spending time with him, but she only wants to spend each alternate weekend, mainly so that she can spend more time with her friends.
R’s school performance has deteriorated, as has her conduct. She has been regularly suspended for up to 10 days at a time. In March 2013 she was observed by Dr A to be withdrawn and depressed. The Family Consultant considered that R had a very low affect. R herself described herself as not feeling anything.
R wants more independence. That is predictable given her age and moving to high school, but the evidence suggests that she wants independence from both her parents and is focused on spending most of her time with a group of friends about whom both parents have reservations.
R wishes to remain living with her mother and to spend regular time with her father.
The child Y, now aged six, strongly expressed the view at age four, that she did not wish to live with either of her parents, who were “mean”, but did wish to live with her adult sister Ms S and Ms S’s son, O.[16]
[16]Family Report dated 15/08/2012, par 91
At a time when she was having week about shared care, Y was quite clear to say that she hated both her parents.
In 2013, Y, walked in to see the Family Consultant and unprompted, stated “My dad’s an idiot.”[17] However she appeared to be comfortable and relaxed throughout her observation with each of her parents. She asked to stay with her mother, but was not distressed when she moved to the care of her father.
[17]Family Report dated 26/09/2013, par 62
To some extent Y’s strong view that she most wanted to be with her sister Ms S can be properly accommodated by Y living with her father. Ms S may have provided Y with her most positive parenting experiences. She would be in regular contact with Ms S, through the cooperative care arrangements between the two households and in daily contact with her best friend O, her sister’s son.
I do give weight to R’s views and also take into consideration the strength of her will in opposing any attempt by either of her parents to set boundaries. I also take into account R’s enjoyment of spending time with her father and the need to ensure that she feels free to spend time with him, not particularly as often as she wants to, but whenever she might need to.

Section 60CC(3)(b)- the nature of the relationship of the children with each of their parents

The children complain about their father and their mother for having used corporal punishment. They have had important relationships with their sister Ms J, the mother’s older child, who has now moved away and whom they no longer see.
They also have important relationships with their father’s two adult daughters, Ms S and Ms L. R has had that relationship damaged with Ms S, but it is likely to be capable of restoration once they have the opportunity to talk over what has happened.
The children apparently enjoy a good relationship with their maternal grandmother.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship

The father has been reluctant to engage with the mother since separation, due to the conflict that arises and an aggressive response from the mother. I consider that his conduct in stepping back from the mother’s household and the children’s school was an attempt to promote the children’s relationship with their mother and to save them from further exposure to events they had experienced during the time when the family was together. However it was also to protect himself from hostility.
The mother has very little willingness to promote a relationship between the children and their father, although she has the ability to do it. Whilst this litigation has been on foot, the mother has not been inclined to promote the relationship.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

The children lived with both parents until mid-2012. They were then retained by their father and there has been conflict between the parents and litigation since.
The children have experienced week about care, three weekends out of four with their father and slight variations on that theme.
A separation of the children will have the effect of an experience of loss for each of them of the relationship with the other sister. This will be hard given the falling away of the relationships from their older sisters from each of their parents’ earlier relationships. However the impact on each child of having the undivided attention of a parent might just be a positive one.
The child Y does respond to her father setting limits on her, keeping with him with he is shopping, going to bed at a regular time, ceasing an activity she enjoys because she is told to. Y at age six is running out of control. She has absorbed enormous amounts of school time in an attempt to modify her behaviour sufficiently for her to actually spend time in the class room to learn. So far she has spent very little time there. The likely effect of being in her father’s household is that she will go to school every day and on time, unless she is genuinely ill. She will have the benefit of being taken to school and collected from school with O. She will no longer be exposed to her mother’s probable abuse and dealing in drugs and any people associated with that activity. She would no longer be exposed to her older sister’s role modelling of defiance and lying to get her own way. Her language, which is presently profane and unacceptable, is likely to be modified in the father’s household.
Likewise for R, there will be the loss of her little sister on a fulltime basis, but they can spend weekend and holiday time together. The order for the children to live separately is designed to maximise the time they spend together by alternate weekends and some school holiday time.
Y will be upset about being separated from her mother, but is likely to adjust given her knowledge and comfort level with her father. R is likely to take advantage of the situation by spending more of her time away from her mother’s household. However the ability to regularly spend time with her father in his household with Y, is likely to create that platform for communication and negotiation which is needed.

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs

The father has a capacity to meet the children’s financial and intellectual needs. He also has a capacity to meet their emotional needs, but it is a limited one.
When the relationship between the parents was on foot, the father was a rather withdrawn and absent presence in the household. The child R’s comment that her father hardly ever spoke to her reflects that. He has underestimated the impact of withdrawing from the children in this way, but since mid-2012 has been making a concerted, even comprehensive effort, to change his own approach and to learn more about meeting the needs of his children.
The father has five children, these two are the youngest. He has not raised any of them to adulthood, although his two older daughters have come back to him after their teenage years and restored relationships.
The mother has some capacity to meet the needs of the children when she is not affected by drug and alcohol abuse. However she has an aggressive and confrontational even anti-social approach to life and the two girls may have modelled her responses of blaming others for their difficulties and excusing their own violent and aggressive behaviour.
The mother knows that R needs a firmer hand and that academically she would do better if she attended another school with a fresh start and away from those who would lead her into trouble. In a household of just the mother and R, the mother may be able to find it within herself to impose some guidelines on R’s conduct and to be more protective and less inclined to give R what she wants.
Of course it would be preferable to keep the girls together. However I do not consider that either parent has sufficient capacity to provide a safe consistent disciplined life for both children together.
It would be preferable for the girls to grow up together as sisters. However I consider that leaving the children in the mother’s household together is likely to lead to ongoing failure to attend school and violent, defiant, confrontational behaviour at school and socially.
To move both children into the household of the father is most likely to overwhelm him. Y would be exposed to her sister’s undoubted defiance of an order that she live with her father, with the consequential running away and dramatic scenes.
It does seem to me that the best chance for each child, given the limitations in the capacity of each of their parents, to be in separate households and to draw the most that each parent has to offer.

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

The girls are aged 12 and six. They are at very different stages of development. R is starting to move into adolescence and starting high school. Y has just finished kindergarten and at this stage, is a child who other children are likely to avoid.
The parents have had a lifestyle involving drug and alcohol abuse and under-employment.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

Since mid-2012 the father has ceased taking drugs, has sought some educational assistance and therapeutic assistance for himself; he found employment, which has been enjoyable and constructive for him; he is willing to reduce his hours, even to give up the job he enjoys in order to focus on his children.
The mother has failed to take responsibility for the children’s regular attendance at school and their punctuality. They have missed an extensive number of days, whole days and partial days. She has not communicated to them the significance of completing their education, although she knows they are both bright, academically competent children.

Section 60CC(3)(j) - any family violence involving the children or a member of the children’s family

There has been family violence in the household during the parents’ relationship. There has been police involvement and an AVO has been made in favour of the father and breached by the mother.
Both children have been violent towards other children; R with a pair of scissors and more recently, trying to attack her father with a knife, Y by trying to pull over furniture and assaulting a teacher who she knew to be injured. The children themselves are at risk of perpetrating family violence on each other and as adults, on partners in relationships.

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

It appears to me to have Y living with her father and spending time with her mother after a two month period of settling in, which would see her spending her time exclusively in the extended paternal family, but regularly spending time with her sister.

Section 60CC(3)(m) - any other fact or circumstance that the court thinks is relevant

An order is required to ensure that the mother does not come to Y’s school to unsettle her arrangement with her father, or to undermine her confidence in the stability of that relationship. Accordingly an order will be made for the mother to stay away from the school for a period of 12 months and to thereafter to attend only on those occasions when parents are invited.
This is a matter of special significance for Y. Her best chance of settling down at school and settling into the new arrangement where some rules and expectations are created in the father’s household is that she has limited contact with her mother, limited strictly in accordance with a routine established by these orders.

Parental responsibility

In relation to parental responsibility, the evidence of family violence, drug and alcohol abuse and parenting which has not kept the children safe easily rebuts the presumption that the parents should share parental responsibility. There is no prospect that the mother would consult and compromise with the father over important issues.
In the event that conflict flared, the father would likely withdraw and whatever the matter was would remain unresolved. However it is appropriate that the father have sole parental responsibility for Y, who at six can still be contained and educated in terms of her behaviour and attendance at school. Sole parental responsibility to the father with an obligation to keep the mother advised of decisions made, will allow Y to maintain a relationship with her mother unshadowed by parental conflict over matters of education, health and religion.
R is in a rather different position. The mother has not been able to enlist R’s cooperation and does not have control over R’s conduct. Indeed, she is inclined to be indulgent towards R and reluctant to cross her. The risk of R defying her mother, running away and truanting from school is high. If she does behave in that way it is essential that the father has authority to rise to that situation and for R to come to live with him if necessary in future. In particular I have in mind the emergency of R leaving her mother’s home and being picked up by police. In those circumstances the father would simply be able to bring R into his home and make an application if necessary.
These are children who would have benefited from being removed from their family into care, so that interventions could take place for their benefit. In particular a paediatric assessment should long ago have been made. It may be that there is an organic basis, a psychological basis, or a psychiatric basis for some or all of the children’s conduct. Until that is known the nature of the therapeutic interventions needed is unknown. For that reason the counselling that the girls have been having as victims of the domestic violence perpetrated by their father on their mother must cease.
The responsibility for ensuring that both girls undertake the paediatric assessment which has been put in place by the Principal of K Public School is crucial. For that reason orders are made for the Independent Children’s Lawyer to provide copies of these orders to all relevant stakeholders, including X Organisation who will be undertaking those paediatric assessments.
For all those reasons an order has been made for the mother and the father to have parental responsibility for R, although not shared on an equal basis. The mother will make most of the day to day decisions for R, but each parent will have that authority for parental responsibility for the longer term issues. The father has sole parental responsibility for Y, but also authority to become involved in R’s circumstances, education and supervision as necessary.
Orders are made accordingly.

I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 18 December 2013.

Associate:

Date: 18 December 2013

[2013] FamCA 999

18 December 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Jurisdiction

Procedural Fairness