Davis and Calvert

[2011] FamCA 497

FAMILY COURT OF AUSTRALIA

DAVIS & CALVERT [2011] FamCA 497

FAMILY LAW - CHILDREN – Presumption of parental responsibility rebutted – family violence perpetrated by the father against the mother – where the children suffered psychological harm from exposure to family violence – where mother suffered from mental health issues – where mother attempted suicide – mother has taken steps to manage her mental health issues – where father suffers from alcohol abuse – where father failed to properly facilitate the children’s relationships with the mother – parental conflict– sole parental responsibility allocated to the mother – children live with mother – children have meaningful relationships with both parents – substantial and significant time with father

Family Law Act 1975 (Cth), s 60CC, 61DA, 64B(2)

APPLICANT: Ms Davis

RESPONDENT: Mr Calvert

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2407 of 2007

DATE DELIVERED: 30 June 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 14, 15, 16, 17 and 24 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: Oliver Campbell Heslop

COUNSEL FOR THE RESPONDENT: Ms Burns

SOLICITOR FOR THE RESPONDENT: Nicholas Moir & Associates

SOLICITOR/ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Rourke

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all prior parenting orders are hereby discharged.

2. That the mother have sole parental responsibility for the children B born … August 1995 and J born … September 2002, together known as “the children”.

3. That the children live with the mother.

4. That subject to Order 5 the children spend time with the father as follows:

   4.1during school terms, each alternate weekend from after school Thursday to before school the following Monday;

   4.2for one-half of each school holiday period and failing agreement, the first half in odd numbered years and the second half in even numbered years;

   4.3in odd numbered years commencing 2011, between 11.00 am on Christmas Day and 5.00 pm on Boxing Day, and in even numbered years commencing 2012, between 5.00 pm on Christmas Eve and 11.00 am on Christmas Day;

   4.4on the weekend of Father’s Day each year, from 5.00 pm on the day prior to Father’s Day until before school on the following Monday;  and

   4.5at such other and/or additional times as are agreed between the parties.

5. The time between the children and the father shall be suspended and the children will spend time with the mother as follows:

   5.1If Mother’s Day falls on a weekend that the children are spending time with the father, then that time is suspended from 5.00 pm on the Saturday before Mother’s Day until the end of the period;

   5.2In odd numbered years commencing 2011, between 5.00 pm Christmas Eve and 11.00 am on Christmas Day, and in even numbered years commencing 2012, between 11.00 am on Christmas Day and 5.00 pm on Boxing Day.

6. That each parent shall permit and facilitate reasonable telephone contact between the children or either of them and the other parent.

7. That the mother shall authorise the school authorities, teachers or any other person having responsibility for the children’s school, education or extra-curricular activities to provide to the father copies of school reports and other documents relevant to the children’s welfare and progress at school and extra-curricular activities, and the provision of a certified copy of this order is sufficient authority for that purpose.

8. That the applicant mother be permitted to move J from Town 1 Public School to Town 2 Primary School.

9. That each party keep the other informed as to any illness or injury suffered by either of the children which requires treatment by a medical practitioner or other suitably qualified health professional.

10. Each party is restrained from making critical or disparaging remarks about the other parent within the presence or hearing of the children or either of them and further, each parent shall do everything possible to ensure that members of the children’s extended family refrain from criticism in the same way.

THE COURT NOTES:

A.B will turn 16 years of age in August 2011.  After that date time spent between B and his father can be varied after consultation between B and each of his parents and the variation communicated by the mother by letter or email to the father.

B.There is an Apprehended Violence Order in place for the protection of the mother until 2015.  Nothing in these orders prevents either party from attending at any school activity including graduations, parent/teacher conferences or assemblies or any sporting or other extra-curricular activities participated in by either or both of the children irrespective of whether or not the other parent will also be present.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)NCC 2407 of 2007

Ms Davis

Applicant

And

Mr Calvert

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are parenting applications by the parents of two boys, B born in August 1995 (15 years old) and J born in September 2002 (8 years old).  The applicant mother was aged 34 years at the date of hearing.  The respondent father was aged 45 years.

2. Each parent seeks sole parental responsibility with mirror orders for time spent with the other parent during extended alternate weekends, half school holiday periods and at other special times.  During the course of his evidence the father stated that his true position was for equal time on a week about rotation.  That continued to be his position to the conclusion of hearing and submissions were made accordingly. The orders sought by the Independent Children’s Lawyer were set out in a tendered Minute of Order. The Independent Children’s Lawyer supports the mother’s application for sole parental responsibility, for the children to live with her and spend extended alternate weekends half school holiday periods and other special occasions with the father.

3. Despite the fact that the respective applications are an objective acknowledgement by each parent that the children should spend substantial time with the other parent, the proceedings ran for a total of five days.

History of the matter

1. The parties started living together in 1992.  The mother was approximately 15 years of age.  The father, who had two sons from his first marriage, was aged 27.  B was born in 1995.  In October 1999 the parties married. 

2. In late 1999/2000 the mother injured her back at work.  The mother gradually developed a dependence on prescription drugs to alleviate pain. 

3. In September 2002 J was born.

4. On 23 January 2007 the parties separated.  One month later the mother moved with the children from the family home to rented accommodation in Town 2.  The following four years were characterised by violence, alcohol abuse, mental illness and despair.  The parties are unable and unwilling to communicate with each other, even through a communication book.  For very different reasons on the part of each party, there is deep bitterness between them.  The mother is currently protected from the father by an Apprehended Violence Order (AVO) until August 2015. 

5. There had been prior protective orders.  In March 2007 the father was charged with assaulting police and damaging property.  An ex-parte interim ADVO was granted to protect the mother from the father.  The father says he was unaware of its restrictive provisions until he was changed and gaoled for a breach of that order.  There were further breaches.  The father in his affidavit blamed the mother for the breaches[1].

   [1]   Father’s affidavit filed 21 January 2011, pars 5-17

6. In cross-examination the father adopted an aggrieved tone, blaming the mother for police involvement in the life of the family, saying, “She managed to obtain an AVO”. 

7. On 13 April 2007 the father was taken into the Town 3 Mental Health Unit pursuant to s 24 of the Mental Health Act by police.  He had left a note for the mother[2] in the letterbox of a mutual friend of the parties, Ms S.  The note could be interpreted as an intention to commit suicide.  The father was held in the Mental Health Unit for two days and then released.  The principle diagnoses of the father contained in the hospital notes are as follows:

   Mood (affective) disorder – depression disorder of adult personality and behaviour – narcissistic traits. 
   Behaviour and emotional disorder – suicidal note. 
   

   [2]  Exhibit ‘M5’

   Substance related disorder – alcohol abuse.

8. In early May 2007 the father was convicted in the Local Court of assaulting an officer in execution of duty, destroying or damaging property, and knowingly contravening prohibition restriction in an AVO.  The father was fined, ordered to pay costs and put on a 12 month Bond, the condition of which was to strictly comply with the current AVO which was also on that day against the father for a period of 12 months.  Included with the terms of that order was an agreement that the parties would communicate through a third party, Mr D, in relation to arrangements for the children and that Ms S would assist in the changeovers of the children.  This agreement was reached on 18 April 2007 but was incorporated into the final AVO in early May 2007.

9. In late May 2007 the father was again dealt with at Town 4 Local Court for contravention of an order.  His Bond was called up.  He was directed to comply with the directions of probation services, especially for counselling in relation to relationship breakdown. 

10. On 31 August 2007 orders were made by consent in the Federal Magistrates Court.  The thrust of the orders was that the parents would have equal shared parental responsibility and that the children would live with their parents on a week about basis from after school Monday until 5.00 pm Sunday.

11. On 17 December 2007 the mother received a letter signed by Ms N.  Ms  N was the father’s partner at that time.  This was a prescriptive document requesting that the mother not attend J’s pre-school graduation event and that the mother also not attend B’s primary school graduation.  The mother did stay away from J’s pre-school graduation event.  I accept she did so to protect J from exposure to conflict over her attendance and resulting distress and embarrassment for him[3].  The mother did attend B’s farewell assembly at his public school, where she learned that both boys had been instructed not to speak to her during “the father’s time”.  I accept this evidence.

    [3]   Mother’s affidavit filed 31 January 2011, par 32

12. Over the following five to six months the father failed to return the boys to the mother pursuant to orders on approximately eight occasions.

13. On about 2 August 2008 there was a violent incident at the father’s home.  Those present were the father, Ms N, her adult daughter and her daughter’s boyfriend.  In his affidavit[4], the father asserted that there had been an incident at his house where Ms N became angry and struck him several times: 

    I estimate that she punched me about eight times.  I defended myself and hit her to stop the attack…I was set upon by all three people and assaulted when I attempted to prevent [Ms N] from driving away.

    [4]   Father’s affidavit filed 21 January 2011, par 20

14. The account of this incident in the police records[5] is as follows:

    The accused [the father] was up in the face of the victim standing over her.  The accused was continually pushing the victim in the chest with both hands.  This caused the victim to step back each time.  The accused continued to stand in the face of the victim and pushed her until she was up against a table on the verandah.  The accused then said, ‘You’re not getting out of here alive’.  When he said this to the victim the accused was standing over the victim. 

    …..  The victim then hit the accused to the face with a closed fist. 

    …. The accused said ‘Is that all you’ve got’.  Ultimately the accused is said to have hit the victim in the face with a closed fist causing her to fall to the ground with a bleeding mouth.  One of her front teeth had fallen out and was dangling out of her mouth by its roots. 

    The accused went back inside the house.  He then returned to the back yard area holding a large sword and is reported to have said something along the lines of, ‘Fuck you you’re all going to die’.  The victim attempted to leave the house.  She and the two members of her family attempted to leave in her vehicle.  The accused opened the left rear door and attempted to pull her out of the vehicle.  The father was later arrested but was unable to be interviewed as he was ‘too intoxicated to fully understand his rights’. 

    [5]   Exhibit ‘F3’

15. In these proceedings the father denied that version of events set out in police records and asserted that he had hit Ms N by accident.  He made this denial despite acknowledging intoxication on the day in question and that he had pleaded guilty to the charge on the facts as described.  The father was charged and bail was refused on that day. 

16. The mother attended the Court in late August 2008 and provided a letter to the Court[6].  She wrote the letter on behalf of the parties’ two children and said this:

    [B] is mostly aware of what is happening and what may happen and is having weekend access (1 x visit) with his father at [Town 4] Correctional Centre.  I feel that if [the father] is sentenced to a term in gaol that this will greatly affect his most crucial years of growing up. 

    [J] is not aware at this stage where his father actually is,  He has been told he is away working.  [J] has now sunk into a deep state of separation anxiety and is having problems with being away from me and I am having great trouble in getting him to school each day, which he has had no problem with before this alleged incident occurred. 

    [6]Mother’s affidavit filed 31 January 2011, par 36 and annexure ‘L’ 

17. The evidence of the provision of the letter was unchallenged. It is an impressive testament to the mother’s ability to separate her interests from those of her children.  The mother had been contacted by Ms N after the assault on 2 August 2008.  Ms N told her that she and her daughter had been attacked and threatened by the father and that she was ringing to warn the mother that at that time the father was, in her view, unpredictable.  Nevertheless, the mother moved in a considered way to protect the boys’ relationship with their father. She did so by continuing to facilitate regular weekend time between B and the father, and by protecting J, who was aged 6 at the time, from knowing about the father’s incarceration.

18. On 15 September 2008 there was a serious assault on the mother in a hotel car park at night.  The mother believes that the father arranged third parties to assault her.  The father denies any knowledge of or involvement in the assault.  I am unable to make a finding about this incident.

19. In late October 2008 the father was convicted at Town 4 Local Court of assault occasioning actual bodily harm.  He was sentenced to 12 months imprisonment, suspended on entering into a Bond, conditions of which were 12 months supervision, not to consume intoxicating liquor and to strictly comply with the current AVO.  He spent approximately 24 days in jail when bail was refused after his arrest.  The father was dismissive of the events which gave rise to his conviction and punishment and generally dismissive of the proposition that he was violent and abusive.  There was no acknowledgement by the father of the aggression and defiance revealed by his criminal record[7].

    [7]   Exhibits ‘M2’, ‘M3’, ‘F3’, ‘F4’, ‘F7’, ‘F11’, ‘ICL 2’

20. In November 2008 the father attended at J’s school and spoke to his teacher.  The father was told that “[J] suffers from anxiety and his legs shake”.  The father’s statement in his affidavit in reaction to the advice from the teacher is instructive.  He said, “I had not witnessed any of this and had not been informed of any such condition from [J].”[8]  The father was dismissive of the teacher’s opinion.  He reveals an unrealistic expectation that his then six year old son should have been able to understand that he was anxious and to tell his father that he was sufficiently anxious to cause his legs to shake.

    [8]  Father’s affidavit filed 21 January 2011, par 38

21. In January 2009 the father failed to return the children to the mother, but the parties were able to resolve this matter through their legal representatives.

22. In March 2009 the parties attended mediation and agreed to vary the consent orders so that the children would spend three weekends with the father from Thursday after school to Sunday evening, or Monday morning, in each four week cycle.

23. On 27 June 2009 the mother attempted to commit suicide while the children were away spending time with the father.  She notified a friend at the time by text message who attended at her home.  She was then removed by ambulance to Town 3 Hospital and consented to a voluntary psychiatric admission.  The mother was discharged from hospital the next day and returned on 29 June for a consultation with a psychiatrist before formal discharge.  This was a turning point in the lives of the parties and the children.  From this date the father steadfastly refused to comply with orders or to allow the children to spend time with their mother.

24. The father did not permit J in particular to spend any face-to-face time with the mother.  The father allegedly offered the mother periods of time with J, such time to be supervised by the father.  On balance I consider it is likely that that offer was made.  However, the state of the parental relationship and the existence of a protective order made such an arrangement untenable and both parties must have understood that.

25. The central fact is that between the last week in June and mid December 2009, J did not see his mother at all.  He had sporadic telephone contact with her.  B was able to visit his mother on a few occasions on his own initiative and to speak to her by telephone. 

26. On 11 December 2009 interim orders were made providing for the children to live predominantly with the father and spend time with the mother for four hours each Saturday and two hours each alternate Tuesday, supervised by Ms C.  Both parents were to commence drug and alcohol counselling and complete a parenting after separation course.

27. On 16 December 2009 a provisional ex-parte AVO was put in place to protect the mother. 

28. In December 2009 the father was charged with stalking and intimidating the mother (“the stalking charge”).

29. On 6 January 2010 an interim AVO was granted to the mother.

30. On 16 February 2010 a Children and Parents Issues Assessment was prepared by family consultant Mr W (“the Family Consultant”).  The report highlighted the poor relationship between the parents, the past violent conduct of the father, the mental health issues which had given rise to the mother’s suicide attempt in mid 2009 and the possible drug and alcohol abuse by the father.

31. In March 2010 the father was convicted of the stalking charge in relation to the mother.  He was sentenced to imprisonment for 21 months commencing in March 2010 and concluding in December 2011, and a non-parole period was set.  Also in March 2010 the final AVO was granted to protect the mother from the father for a period of five years.  The father was imprisoned following his conviction.  During the father’s time in gaol B lived with the mother while J lived with the paternal grandparents and spent supervised time with the mother each Saturday and alternate Tuesday.  There is evidence to suggest that J was unhappy in this circumstance being separated from his brother and his mother and found his paternal grandfather rather angry and difficult to deal with. 

1. On 23 June 2010 Dr A, a Consultant Psychiatrist appointed as single expert by the Court (“the single expert”), prepared a report on the mother’s mental health. His opinion was that the mother had a history of unipolar major depression, now in remission. The single expert has special expertise in many areas, including drug and alcohol abuse. He supervises a specialised program for substance dependent individuals suffering from psychiatric disorders such as anxiety, depression and schizophrenia within the Area 1 Mental Health Services. He is a member of the section for drug and alcohol, and a member of the section of Forensic Psychiatry with the College of Psychiatrists. He is a member of the American Academy of Addiction Psychiatry.

2. The single expert concluded that the mother had recovered from a serious episode of major depression, which occasioned the serious suicide attempt in mid 2009.  He said that the suicide attempt occurred on a background of interpersonal distress. But, based on the mother’s presentation during the interview with him and assuming the mother’s ongoing compliance with treatment, the prognosis appeared to be good.  Dr A sounded this warning in his report about the use of prescribed narcotics: “The consumption of narcotics is extremely problematic.  Individuals who are consuming narcotics in abusive doses become intoxicated and involve themselves in drug seeking behaviour”. While the single expert’s view was that the mother minimised her consumption of narcotics and benzodiazepines, he identified that there was risk of addiction to narcotic painkillers, which the mother had been in the habit of taking to reduce pain arising from the injury to her back. 

3. On 27 July 2010 interim orders were made by consent.  These orders provided for the implementation of the recommendations of the single expert that the mother continue to seek assistance to manage her depression, and pending further order, provided for the children to live with their father and spend time with their mother for limited periods of time, day time only, progressing to a period of four consecutive nights each fortnight by September 2010.  The mother’s time with the children was conditional upon her taking steps to engage with professional counselling services to manage hers and J’s mental health.

4. In August 2010 there were two orders made in the District Court in relation to the father. 

   1.District Court at Town 5:  The father was convicted and directed to enter into a Good Behaviour Bond for two years which he did on that day.

   2.The District Court at Town 4:  The AVO for the protection of the mother was extended to five years from that date and a condition addition to the standard orders was imposed namely:

   The defendant must not approach, contact or telephone [the mother] by any means except through legal representative or as mentioned by a parenting order under the Family Law Act 1975)[9].

   [9]  Exhibit ‘3’

5. On 8 December 2010 both parties and the two boys were interviewed by the Family Consultant.

6. On 10 December 2010 the parties’ divorce became final.

7. On 24 December 2010 the Family Report prepared by Family Consultant was released.  B very clearly stated that he wanted equal time with both parents.  Both boys had been spending time with the paternal grandparents whilst the father was working.  The paternal grandmother had provided an affidavit but was unavailable for cross-examination.  There was no evidence from the paternal grandfather, nor did the father’s girlfriend participate by way of affidavit or oral evidence.  J reported that he did not like staying with the paternal grandparents because his paternal grandfather was “a bit angry”.  J also referred to the children of his father’s girlfriend, who he found rather difficult to tolerate.  What came clearly from J was that he wanted to be with B, live where B lives, and spend time with each parent as B does. 

8. The recommendation of the Family Consultant was that the children should live predominantly with one parent and spend time with the other and that whichever parent the children lived with should have sole parental responsibility.  Despite J’s young age, Mr W felt it was important for orders to be made to provide authority for the children in this situation.

9. The father spoke about his current relationship of six month’s standing and his hopes of commencing a de facto relationship.  The father’s future partner has three children who have spent time with the subject children.  In his oral evidence the father said he had chosen not to include this lady or her children in the reporting process.  I accept the assessment of the Family Consultant that this was a limit to the Family Report.

10. I am satisfied from hearing the oral evidence of the father that he made a considered decision about keeping his partner out of the proceedings.  However, the inevitable result is that the Court has no independent information about the father’s household, especially the nature of relationships between the children and the father’s new girlfriend and her children[10].

    [10]Family Report , par 54

Children’s Best interests

1. These are applications for parenting orders pursuant to s 64B(2). 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 Court determines what is in a child’s best interests by considering the matters set out in s 60CC(2) and (3).

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

1. Both children have a meaningful relationship with each of their parents.

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.

1. The children have experienced psychological harm from being exposed to family violence.  Both children are aware that their father spent time in gaol as a result of violent and aggressive conduct towards women, including their mother.

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

1. B was aged 15 years at the time of his interview with the Family Consultant and has expressed a strong view in favour of equal time between his parents.  The Family Consultant has expressed the view that there should be some caution in simply implementing B’s views despite his age.  The basis for this reservation is B’s conflicting needs, to please his father and not to appear to be favouring one parent over the other.  Both B and J, but particularly B, are well aware of the bitter conflict between their parents.  J has expressed a view that he wants to spend as much time with each parent as B does.  I take this to be more of an expression of the strength of affection J has for his brother than a real choice about the time to be spent with each parent. So while I repose some weight in the children’s views, that weight is not significant. 

2. J did not particularly enjoy spending extensive periods of time with his paternal grandfather, although he no doubt loves his grandparents..

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons (including any grandparent or other relative of the child).

1. Both children love each of their parents.  Given the lack of evidence about the father’s new girlfriend, the Court was not in a position to assess whether there is a significant relationship between the children and the father’s girlfriend, or with her children.  There are close and important relationships with extended family.

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

1. Between June 2009 and December 2009 the father failed to understand and meet the children’s need to spend time with their mother.  To cut J off at aged six years from daily contact with his mother after she was hospitalised overnight for a serious suicide attempt, was insensitive to the point of cruelty. 

2. The father’s oral evidence was that he continued to hold concerns that the mother would attempt suicide in the presence of the children and that the children were therefore at risk and might even be killed themselves.  I do not accept that there is a possibility of the children being physically harmed at their mother’s hands, nor that the father genuinely held such a fear.  However, I do accept that the father was shocked by the mother’s suicide attempt and fearful, at least for a time, that the children, especially J, would suffer psychological harm through exposure to the mother’s mental health issues.  However, he failed to reasonably address those fears for the benefit of the children.

3. The mother has supported the relationship between the children and their father.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:

1. either of their parents; or

1. any other child, or other person (including any grandparent or other relative of the children), with whom they have been living.

1. The orders provide that the children will continue to spend substantial and significant time with both their parents, including extended alternate weekend and holiday time.  This will be an increase of time with their mother who will be available to care for them.  This change will be a benefit to the children, especially J, restoring the quality of the relationship which was in place prior to June 2009. 

2. B will turn 16 in August 2011 and will increasingly negotiate to vary the arrangements to suit his own emerging personal commitments relating to school, friendships and interests outside the family.  J is at an age where he requires stability. He will benefit from having one established residence, a place to call home and a settled arrangement through which he will spend time with the father. Given the strength of his attachment to B, J will also benefit from spending the same amount of time with each parent as his brother does, most of the time.

3. Both boys will continue to see their paternal grandparents regularly.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. Since the parties live in close physical proximity to one another there will be no practical difficulty in the children moving between their parents’ homes.  J can be collected from and returned to school.  B is capable of making his own arrangements to travel to and from each parent’s home.

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

1. The mother has suffered from depression and had a crisis in June 2009.  She has experienced abusive and destructive relationships through her life, and her relationship with the father was no different.  She has now significantly addressed issues of her mental health.  She gave evidence of having commenced a small business and is hopeful of achieving financial and emotional independence.  There is no doubt that she is committed to the needs of both children, both emotional and intellectual.

2. The father may also have suffered from depression.  His personality creates difficulties for himself and those he loves.  His capacity to meet the needs of the children is reduced by alcohol abuse and a loss of focus when angered.  His hostile and defensive attitude affects his ability to observe and listen to the children.  The interview at school in relation to J is one example of this.[11]

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant.

[11]  Paragraph 23 of these Reasons

1. The children are boys aged 15 and eight.  In a little over two years B will become an adult and make his own choices about education, employment, residence and associations.  I have no doubt that both his parents will continue to be significant in his life. 

2. J is eight.  He must have greatly suffered in the second half of 2009 when the father, without explanation, prevented him from spending time with his mother.  On the evidence of both parties and the paternal grandmother, J suffered when his father was in gaol.  J needs stability and emotional support to the extent that it is possible, given the violence and the stress he has experienced since his parents separated.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander.

1. Not relevant.

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

1. Each of the parents have had lapses of judgment in relation to the children.  The father has failed to address his alcohol abuse despite knowing from his own history that when intoxicated he is prone to violence which leads to arrest, conviction and imprisonment.  He knows the impact of that conduct on his children, but denies responsibility for it.  At other times the father shows appropriate interest in and concern for his children.

2. The mother has historically under-estimated her need for therapeutic support.  She did not appear to embrace the advice of Dr A about the risks of addiction to pain killers.

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family.

1. There is a current AVO for the protection of the mother from the father until August 2015.  By the time that order expires, B will be 20 and J almost 13.  The boys have to live with the knowledge that their father was considered by the Court to be a risk to their mother and a five year protective order was put in place.  The father has not expressed any remorse for his conduct towards the mother or the other women in respect of whom he has been convicted for assault.

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 in relation to the children.

1. In the event that the parents enjoyed a good relationship and were able to communicate directly with each other in the interests of the children, there would be no need to make a defined order in respect of B, given his age.  However in the circumstances, where the children love their father and may fear provoking his anger towards themselves or their mother, an order regulating the children’s time with the father, is preferable.

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

1. The mother is moving to become financially independent.  She is particularly concerned that J needs to be nurtured academically.  Both boys enjoy a variety of sports and outdoor recreational activities.  They will benefit from the emotional support and availability of their mother and the stability in her home.  Their father’s interest in engaging the children in a variety of outdoor activities, when he spends time with them, will also be valuable to them.

Parenting Orders

1. Section 61DA states that:

   (1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

   (2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) has engaged in: 

   (a) abuse of the child or another child who, at the time, was a member of the parent’s family or that other person’s family;  or 

   (b) family violence.

2. In this matter the father has engaged in family violence.  There is an AVO in place until 2015.  The father has been dismissive about the extent of his violence and the fact that he is subject both to the AVO and a Bond to be on good behaviour in respect of an assault.  These matters alone are sufficient to rebut the presumption.  I also take into account that the parents have had the benefit of an equal shared parental responsibility order in the past which has been entirely unworkable because of the intractable conflict between them. 

3. The parents do not communicate and are bitterly angry and disappointed with each other.  There is no prospect of there being productive conversation about the long term issues relating to children such as health, education and religion.  Both parents were deeply adversely affected by separation.  They had been together since the mother was 15.  Effectively she grew up in the relationship.  The father had the utmost difficulty accepting that the relationship was over.  He was admitted to hospital under the Mental Health Act shortly after separation on the basis of a concern that he was suicidal.  He may have been, or this may have been a manipulative attempt to restore the relationship.  He was as dismissive of this incident in his oral evidence as he was of past violent conduct generally.  Even if the father’s attitude ameliorates, given the length of the AVO, equal shared parenting is simply impractical. 

4. For these reasons I accept the recommendation of the Family Consultant that one parent or the other should have sole parental responsibility.  I am satisfied that the children are not at risk of harm in the mother’s household and  I consider that the mother is better able to promote the relationship between the children and the father than the father is able to do in reverse. The mother will have sole parental responsibility.  I am confident that the mother will do her best to keep the father advised of decisions that she makes.

5. The question of parental responsibility is inextricably linked with the question of where the children will live. Since the mother has sole parental responsibility, the children will live with her.

6. The children love their father and enjoy meaningful relationships with him. For the reasons discussed above, the children will benefit from continuing to have the father in their lives and they will spend substantial and significant time with him.

7. I am satisfied that the orders at the start of this judgment are in the best interests of the children.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 June 2011.

Associate: 

Date:  30 June 2011.