Eldar and Nunn
[2010] FMCAfam 1003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELDAR & NUNN | [2010] FMCAfam 1003 |
| FAMILY LAW – Parenting – competing residence applications – two boys aged 6 and 4 – siblings been separated for 3 years – family violence – immature parents – interim orders for 12 months before final orders can be made. |
| Family Law Act 1975, ss.60CC(2), 60CC(3), 60CC(4), 61C(1), 61C(3), 61DA, 65DAC |
| H v W (1995) FLC 92-598 R and R; Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS ELDAR |
| Respondent: | MR NUNN |
| File Number: | WOC 523 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 12, 13 and 26 August 2010 |
| Date of Last Submission: | 26 August 2010 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Barry |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| Counsel for the Respondent: | Mr D Alexander |
| Solicitors for the Respondent: | Hansons Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr M Powell |
| Solicitor for the Independent Children’s Lawyer | Maguire & McInerney Lawyers |
THE COURT ORDERS THAT:
This matter be listed for hearing before me for no longer than 1 day on 27 October 2011 in the Wollongong Registry of the Federal Magistrates Court.
Each party file and serve a short affidavit relating to the period of the adjournment only, no later than 21 days prior to the adjourned date, such affidavit to include details of that party’s engagement in therapeutic services and courses.
If the Father remains in a relationship with Ms J, the Father file and serve an affidavit from Ms J no later than 21 days prior to the adjourned date.
Pursuant to s.65L of the Family Law Act 1975, the parties attend upon Ms S, at times arranged between the Independent Children’s Lawyer and Ms S, on 3 occasions between the date of these Orders and the adjourned date to address any issues arising in relation to these Orders and to enable Ms S to advise the Court on the adjourned date as to the parties’ and the children’s progress.
Each party ensure attendance upon Ms S on the dates arranged, and the Mother ensure the children attend as requested by Ms S.
Ms S provide an updated report to the Court prior to the adjourned date, by way of memorandum.
I DIRECT the Independent Children’s Lawyer to ensure that Ms S is available to attend court on 27 October 2011 at 10.15 a.m.
The Independent Children’s Lawyer be at liberty to relist the matter at 5 days notice.
The Independent Children’s Lawyer issue subpoenas to the Contact Centre, the NSW Police, the Department of Human Services, [X]’s school and [Y]’s pre-school to be made returnable prior to the adjourned hearing date, and for the purpose of this Order, leave be granted for the Independent Children’s Lawyer to issue more than 5 subpoenas.
The Father submit to urinalysis (under supervision and chain of custody) upon request by the Independent Children’s but at least every 8 weeks, when the testing will take place within 24 hours of the request being made, such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001: Procedure for the collection, detection and quantitation of drugs of abuse in urine and the Father to meet all costs associated with such urinalysis.
The Independent Children’s Lawyer communicate such requests for urinalysis to the Father directly by mobile phone or by SMS text message.
The Father forward the drug test results to the Independent Children’s Lawyer, the Mother’s Solicitor and Ms S immediately upon receipt.
THE COURT NOTES that on the adjourned date, the court will re-consider:
(a)the changeover arrangements;
(b)whether or not the children’s time arrangements should be varied;
(c)whether or not it is in the children’s best interests for the parties to share parental responsibility.
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The children [X] born in 2004 and [Y] born in 2006, live with the Mother and for the purpose of this Order, the Mother collect [Y] at the end of the next school day following the making of these orders.
The Father deliver to the Mother’s solicitor’s office within 24 hours, any item belonging to [X], which the Father believes is special to [X], as well as some of [X]’s clothing, including his school uniforms and shoes.
The Mother be restrained from moving the children’s place of residence from the Illawarra region.
Until Order 18 applies, on condition that the Father remains living in the Illawarra region, the children spend time with the Father as follows:
(a)During school terms, each Saturday from 9.45a.m. until 4.45p.m.
(b)During the Christmas school holidays in 2010/2011, on each Wednesday and each Saturday (with the exception of Christmas Day) from 9.45a.m. until 4.45p.m.
(c)During other school holidays on each Wednesday and Saturday from 9.45a.m. until 4.45p.m.
(d)From 12 midday until 5.00p.m. on Christmas Day.
(e)From 11.00a.m. until 5.00p.m. on Easter Sunday.
(f)From 11.00a.m. until 5.00p.m. on Father’s Day.
Upon compliance with his obligations under Orders (26) (27) (28)(31), the children spend time with the Father:
(a)During school terms, on each alternate Saturday from 9.45a.m. until 4.45p.m. and on each other weekend from 9.45a.m. Saturday until 4.45p.m. Sunday.
(b)During school holidays every weekend from 9.45a.m. Saturday until 4.45p.m. Sunday.
(c)From 11.00a.m. until 5.00p.m. on Easter Sunday.
(d)From 11.00a.m. until 5.00p.m. on Father’s Day.
Changeover take place at the Contact Centre Wollongong, but in the event the Centre is closed or unavailable, changeover take place in the foyer of the Police Station.
The Father personally supervise the children at all times while the children are in his care.
Neither party have another person (apart from a family member and
Ms J) staying overnight in that party’s household when either child is in that party’s care.
Each party assist either child to telephone the other party at any reasonable time and the Father telephone the children each Tuesday evening at 6.00p.m.
Each party be prohibited from entering within the boundaries of the other party’s residence without the prior agreement of the other party.
The Mother be permitted to change [X]’s school enrolment from a Wollongong school to a school close to her residence at the commencement of the 2011 school year, but not before that time.
The Mother be responsible for any necessary medical decisions relating to either child.
The parties enrol both children in the Unifam SCASP programme immediately and facilitate the children’s attendance at Unifam in Wollongong for the period recommended by the programme manager. Each party participate in the SCASP programme as requested and in any other programme or counselling programme recommended by the SCASP programme manager.
The Father complete the Triple P parenting course commencing on
18 October 2010 and provide verification of completion of the course from the course co-ordinator to the Independent Children’s Lawyer within 4 months of the date of these Orders.
The Father attend upon a clinical psychologist within 28 days of the date of these orders, and thereafter, on at least a fortnightly basis, for a minimum period of 6 months, but longer if further sessions are recommended by his psychologist, to address his relationship issues with the Mother and issues raised by the Family Consultant in her report and in the Reasons for judgment.
The Independent Children’s Lawyer provide a copy of Ms S’s report to the Father’s psychologist before the sessions begin and a copy of these Orders and the Reasons for judgment.
The Father provide verification of compliance with Order (29) to the Independent Children’s Lawyer and Ms S prior to the adjourned date, with a report from his psychologist as to his response to treatment and progress with treatment.
The Father attend and complete a post-separation parenting course with Unifam and provide written verification of completion from Unifam to the Independent Children’s Lawyer, within 6 months.
The Mother continue her engagement with the Brighter Futures Programme and participate in all counselling, programmes or courses recommended by the programme.
The Mother complete the Triple P parenting course she is presently undertaking, and provide verification from the course co-ordinator that she has completed the course, to the Independent Children’s Lawyer.
Each party follow all recommendations of [Y]’s paediatrician and dietitian in relation to his nutrition.
Each party have parental responsibility for decisions as to the children’s day to day care, welfare and development during periods the children are in the care of that party.
The Mother advise the Father immediately of the name and contact details of the children’s general practitioner and each party ensure (unless an emergency) the children are taken only to that medical practitioner or that medical practice for general practitioner treatment.
Each party ensure the other party is informed as soon as possible of:
(a)Any serious medical issue concerning either child;
(b)Any medication that either child needs to take while in the care of the other party;
(c)Any specialist medical and therapist appointments relating to either child;
(d)Any adverse report from school or pre-school relating to either child;
(e)Any other significant matter relating to the welfare of either child.
The Mother be restrained from permitting her father from spending any time with the children or either of them when he is under the influence of alcohol or illicit drugs and the Mother be restrained from leaving either child in the care of her father unsupervised at any time.
Each party keep the other informed as to their respective residential address, residential telephone number and mobile telephone number and to advise the other within 48 hours of any change of address or telephone number.
The Mother authorise the school and pre-school attended by the children to provide to the Father copies of all school reports, school photographs, newsletters or notices to events involving parents, upon the Father’s request to the school.
The parties communicate by SMS or email about issues concerning the children and limit their communication to facts concerning the children.
Each party be restrained from using physical discipline on either child.
Each party ensure the children travel in any motor vehicle in a seat approved by the RTA for the children’s ages and weight, and each party be restrained from seating either child in the front of any motor vehicle at any time until the child reaches the age of 7 years.
Neither party make a negative comment about the other party or a member of the other party’s family or household in the presence or hearing of either child.
Each party’s solicitor read these Orders to his/her client within 24 hours of Order, to ensure each party understands his/her obligations under these Orders.
Pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Eldar & Nunn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 523 of 2009
| MS ELDAR |
Applicant
And
| MR NUNN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [X], aged 6 years and [Y] aged 4 years. The parties separated before [Y] was born. [Y] has always lived with the Mother. During the last 3 years, [X] has lived primarily with the Father. The Mother has another son by a subsequent relationship living with her, [Z], born in 2008.
Interim orders providing for [X] and [Y] to spend each weekend together were not followed by the parties. The children have spent only limited time together during their lives. [Y] has spent limited time with the Father during his life. [Y] has not spent overnight time with the Father since August 2009. The Mother asked the Father to take [X] into his care nearly 3 years ago and [X] has lived with the Father since. At the Mother’s instigation, [X] did not spend time with her for several months in the first half of 2010. The Mother says it has always been her intention to have [X] return to her care. She now wants both children to live with her and to spend limited day time periods with the Father. The Father wants the children to continue to live as they do presently, [X] with him, [Y] with the Mother, but wants the children to spend more time together. If the Court makes orders providing for [X] to live with the Mother, the Father says “I would want as much time as I could with him” and “time with [Y] but less time initially.”
Ms S, the Family Consultant who prepared the report in this matter, interviewed the Mother in January, April and July 2010. She interviewed the Father in January and July, as the Father was unavailable for the April interviews. She met the children in January, April and July. Ms S recommends that both children live with the Mother and that the change occur immediately. Ms S says [X] is fearful of the Father and that the children should only spend time with the Father unsupervised, if the court determines that they are safe in his care. The Independent Children’s Lawyer seeks orders providing for a graduated arrangement, with [X] initially spending more time than [Y] with the Father. The Independent Children’s Lawyer submits that [X] should spend 6 nights a fortnight with the Father within 3 months, and [Y] 5 nights a fortnight. After 9 months, the Independent Children’s Lawyer submits the Court should order both children to spend 6 nights a fortnight with the Father, as well as half school holidays. The Father supports an arrangement along the lines of this proposal.
The Mother alleges the Father is controlling, aggressive and abusive towards her and claims he drinks excessively and uses illicit drugs. A former girlfriend of the Father’s and now a friend of the Mother’s,
Ms A supports the Mother’s claims about the Father’s abusive conduct and his use of illicit substances. Ms A says the Father neglected [X] during the period of their relationship which ended only a few months ago.The Mother believes [X] is at risk in the Father’s care, and that the Father has shown little interest in [Y]. The Mother says the Father cannot manage the children together overnight. For his part, the Father contends that the Mother can only manage the children together for short periods.
Short history
The parties started living together in 2003 when they were 17 and 19 years of age. They never married and after an on off relationship, separated finally in 2005 when the Mother was pregnant with [Y].
In May 2006, when [X] was under 2 years of age and [Y] a few weeks of age, orders were made by consent for [X] to live with the Mother and spend time with the Father on alternate weekends, mid-week and on special days.
In November 2007, the Mother voluntarily placed [X] in the care of the Father.
In June 2008, interim consent orders were made providing for [X] to live with the Father and to spend time with the Mother.
In October 2008, the parties agreed to undergo parentage testing to confirm [Y]’s parentage.
In December 2008, the Mother gave birth to her third son, [Z], a half-brother to [X] and [Y]. The Mother does not live with [Z]’s father but [Z] spends regular time with him.
In February 2009, the parties agreed to orders providing for equal shared parental responsibility of the two children, for [X] to live with the Father, for [Y] to live with the Mother, and for each child to spend time with the other parent on alternate weekends for one night as well as other special days so the children would spend each weekend together. The orders provided for the parties to undertake a parenting course with Relationships Australia.
In August 2009 the Mother filed an Amended Application seeking orders providing for those interim orders to continue.
In November 2009, the Mother applied for an order that both children live with her, and the Mother kept [X] in her care, contrary to the Court orders. The Department of Community Services supported [X]’s return to the Mother’s care. On 22 January 2010, the Father filed an application for recovery of [X].
On 20 January 2010, at interview with the Family Consultant, the Mother told the Family Consultant she had concerns for the children’s safety in the care of the Father and was seeking orders for the children to live with her[1].
[1] Exhibit 9
On 28 January 2010, the Court ordered the return of [X] to the Father. The interim orders provided for [X] to spend alternate weekends with the Mother, and for [Y] to live with the Mother and spend time on two days a week with the Father gradually increasing to each Thursday all day and each alternate weekend from Saturday morning until Sunday afternoon.
In early February 2010, [X]’s time with the Mother stopped for a number of months at the Mother’s instigation.
On 10 March 2010, further orders were made by consent providing for a change in venue for changeover and for other restraints on each party. The Father alleges the Mother failed to make [Y] available to spend time with him. The Mother alleges the Father failed to attend changeover to collect [Y] in accordance with the Orders.
On 28 May 2010, the Father left [X] in the care of the paternal grandmother, the paternal great-grandmother and his girlfriend Ms J, and travelled by car to Western Australia. He did not notify the Mother.
On 6 June 2010, while the Father was away, the Mother collected [X] from Ms J, who was living with the Father, and kept [X] in her care.
On 11 June 2010, the Court ordered the Mother to return [X] to the Father, the Father was ordered to give notice to the Mother if he intended to leave [X] for any period in excess of 72 hours, and the Father gave an undertaking to return to the Illawarra region that day.
As already noted, the interim orders of January 2010 were not complied with and the children spent only limited time with the non-resident party, and only limited time with each other until I made further interim orders on 13 August 2010. Those orders provide for [X] and [Y] to spend regular weekly time together in each party’s care and have substantially been complied with by each party.
Current circumstances
The Mother is Aboriginal. She is 23 years of age and lives in a
3 bedroom rented house with a large backyard in [C] with her maternal grandmother, [Y] and [Z]. The Mother is a full time homemaker and is supported by Centrelink benefits. She hopes to study at TAFE in the foreseeable future.
The Father is 25 years of age and lives in a 2 bedroom unit in Wollongong owned by his mother with [X] and his partner, Ms J, aged 23 years. Presently, and for another few weeks, he tells the court he is working full time [in the retail industry] in his mother’s business in K while his mother is overseas. Until now, the Father has been substantially unemployed. At the time of interview with Ms S, the Father said he hoped to be accepted into the [omitted]. At hearing, he said that he may not apply for the [omitted]. His future plans were not clear.
[X] is in Kindergarten at W school. [Y] attends day care 2 days a week. [Z] usually spends each Saturday and alternate Saturdays overnight with his father but is otherwise in the care of the Mother.
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the children, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Credit issues
I was impressed by the Mother as a frank and open witness who endeavoured to give the Court an honest account of her past history with the Father and of her parenting role. She acknowledged her poor judgment at different times and acknowledged the assistance she has needed and received from Brighter Futures and the courses and programmes she has attended through that service. The Mother demonstrated an unwavering commitment to the children living primarily in her care and explained clearly why she believed such an arrangement was in the children’s best interests.
I found the Father less forthcoming than the Mother and for the most part, unprepared to accept responsibility for the many difficulties the children have faced in the past. He was quick to blame the Mother and others for past problems. He blamed his solicitors for failing to put his partner on affidavit; he blamed Relationships Australia for his failure to attend a parenting course; he blamed the Court for him missing the child dispute conference in January. In cross-examination in the face of compelling evidence against him, the Father conceded his affidavit evidence was false in part in relation to his relationship with Ms A. He also admitted he had lied to the Mother when claiming on Christmas Day last year that he was having his tonsils out, when he was drinking with friends on the coast and ended up in an ambulance after being injured in a fight. The Father presented as unremorseful and lacking in insight as to his role in these events. The Father has not engaged in any counselling or therapy, or attended any courses to help improve his parenting capacity or to improve his co-parenting skills with the Mother, despite a previous court order that he do so. Documents from Relationships Australia[2] reveal that the Father left the session with Relationships Australia before any feedback was given to the parties on 25 November 2009 and failed to attend an appointment for the Parenting Orders Programme on 4 February 2009. The Father failed to attend the pre-arranged appointment with the Family Consultant on
20 January 2010 because “I mistook the date.” In evidence the Father demonstrated a particularly poor memory for important events in the recent past. He had no recollection of his agreement to attend a parenting course and parenting orders programme, as recorded by Ms S in her Memorandum of 27 January 2010[3]. In addition, the Father said he was unaware of a number of the previous court orders with which he had failed to comply. A very recent example occurred at the end of the second day of hearing, when arrangements for [X] to spend time with the Mother the following morning were discussed in court at some length. The Father went to the wrong venue. Also, I was concerned by the Father’s inability in cross-examination to formulate a clear practical proposal for the children’s future care arrangements.
[2] Exhibit 2
[3] Exhibit 9A
When considering the evidence of Ms A, I have had regard to the fact Ms A has reason to have formed a negative view of the Father. I have had regard to the fact that she has befriended the Mother and may wish to help her in this case.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents.
[X] has spent substantial time with each of his parents during his life and there is no dispute that he has a strong attachment to each of them. However, the health of [X]’s relationship with the Father is an issue. Ms S assesses [X] to be fearful of the Father as a result of the Father’s failure to control his anger in front of him. She tells the Court that such a reaction in a 6 year old is unusual and the Court should find it troubling.
One of the issues in this case is how best to ensure the children can enjoy a safe and meaningful relationship with the Father, free of fear.
According to Ms S, [X] enjoys a safe and meaningful relationship with the Mother, though he has certainly suffered as a result of the Mother’s decision early this year to cut herself off from him for a number of months.
Consistently with Ms S’s assessment, both parties accept that [Y] enjoys a close and loving relationship with the Mother. [Y]’s relationship with the Father is still developing given their lack of regular and consistent time together.
Each party seeks orders providing for the children to spend time with the other party. On the Mother’s proposal, the children would spend only limited time with the Father because of her concerns about the children’s safety in the Father’s care. On the Father’s proposal, the children would spend substantial time with each party.
The Father’s counsel submits that on the basis of the Mother’s proposal for a limited daytime arrangement, [X] cannot maintain a meaningful relationship with the Father and [Y] will not develop a meaningful relationship with the Father. Counsel submits that the Mother has demonstrated her unwillingness to promote a strong relationship between the children and the Father, particularly as she seeks an order for sole parental responsibility. Counsel contends that the Father, on the other hand, demonstrates a willingness to promote the children’s relationship with the Mother by seeking an order for equal shared parental responsibility and for the children to spend substantial time with the Mother.
In cross-examination, Ms S said that the children’s safety must come before anything else. She raised concerns about the Father’s ability to control his anger in front of the children, his possible use of illicit drugs and said that the children’s best interests may be served at this stage by an order for supervised time only with the Father. Ms S believes the Father needs therapeutic assistance for “anger management, his relationships with his children, and any other issues identified by the agency involved.”[4].
[4] Paragraph 73 of Ms S’s report dated 29 July 2010
I give considerable weight to Ms S’s evidence on this issue.
The need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
A number of issues arise as to the children’s physical safety in the care of each party individually, and to their emotional and psychological safety in the care of the Father. In addition, it is common ground that the children have been repeatedly exposed to heated abusive exchanges between the parties. Neither party trusts or respects the other. The Father says 96% of the time, “we fight” and says “I hate her guts” (referring to the Mother).
Both children spoke of their distress about their parents’ conflict at interview with Ms S. [X] told Ms S that he would like his parents to “stop fighting” and was frightened something “bad” would happen when they are together. [Y] told Ms S “Dad always gets angry with Mum” and wishes he would stop being “mean” to her. In Ms S’s view, [X] is genuinely apprehensive of the Father and was worried about the Father’s reaction if he became aware of what he had said at interview about him. Ms S read texts from the Father to the Mother when the children were staying with him overnight in 2009 which said: “I will smash [X]” “they [the children] are fucked.” Ms S made a risk notification to the Department of Community Services.
Ms S says that [X]’s depiction of the Father as “angry” in his assessment at Relationships Australia[5] is consistent with the Mother’s reports of the Father’s anger and her assessment of [X]’s fear of his Father.
[5] Exhibit 2
The Mother told Ms S that the Father can be “lethal”, “controlling, disrespectful, dishonest, dominant, and moody and at times out of control towards her”[6] and that this kind of behaviour has continued since separation. She has been frightened and intimidated by the Father. Ms S says[7]
She gave as examples that he allegedly: verbally abuses her, including in front of the children and has said to her “you are dumb as dog shit” and called her “fat whore”; physically assaulted her in the presence of the children including grabbing her jaw, hitting the back of her head, punching her arm and spitting on her; sending abusive and disrespectful text messages to her about her and the children; inconsistently following parenting arrangements…
The maternal great grandmother described the Father to Ms S as an “arrogant pig” and that his mood can change from being polite to becoming “awful” without warning. She said “he yells, swears and threatens her and [the mother]”
and has said “If you don’t do as you’re told I will re-arrange your face” “you and [Ms Eldar] are as dumb as dog shit”.
[6] Paragraph 15 of Ms S’s report dated 29 July 2010
[7] Paragraph 15 of Ms S’s report dated 29 July 2010
As the Mother kept contemporaneous records of incidents involving the Father, she gave specific details of the Father’s frequent denigration and bullying of her in front of the children in her affidavit material. She has kept abusive text messages from the Father on her phone, which include: “you’re a dog” “fuck up slut” “you’re a slack parent” “fuckin dumb shit” “whore” “you’re a loser” “retard” “too fucking stupid to get your year 10 certificate” “fat slut” pathetic mother”. In June 2009 she obtained an Apprehended Violence Order against the Father. On 10 September 2009, she says the Father lost his temper when she rejected his advances. In November 2009, the Father was charged with assault of the mother and breach of the Apprehended Violence Order. The police record states that the Father pushed the Mother with two hands to get past her. He shut the bedroom door in the Mother’s face. [X] and [Y] saw the incident. The Father then grabbed the Mother by her arms with both hands and pushed her into the wall[8].
[8] Exhibit 12
The Father’s former girlfriend, Ms A claimed the Father was abusive towards her in early 2010 when she was pregnant to the Father and their relationship thereafter deteriorated. Ms A obtained an Apprehended Violence Order against the Father in mid-2010. The Father is currently facing charges of malicious damage to property and 2 counts of common assault, relating to his conduct towards Ms A.
Ms J, the Father’s current partner is not on affidavit in these proceedings. This omission is difficult to explain if Ms J could have contradicted the evidence given by the Mother and Ms A as to the Father’s usual conduct. Ms J told Ms S at interview, that she had never witnessed the Father behaving in an aggressive or controlling manner but later acknowledged the Father reacted angrily on one occasion when the police were called.
A number of documents produced on subpoena and tendered in evidence lend support to the Mother’s claim that she has been a victim of domestic violence. There are numerous entries for the Mother in the police documents as a “victim” of apprehended violence[9]. The Brighter Futures intake team refers to “domestic violence” as an “identified vulnerability” in May 2009 and notes “child expresses fear of father”[10]. Documents from the Police Commissioner refer to 36 events involving the Father between 2004 and 2010 including incidents of domestic violence, assault and fraud. From the time [X] was one year of age, there are numerous records of verbal and physical arguments over [x] between the parties in [X]’s presence.
[9] Exhibit 12
[10] Exhibit 7
The Father disputes Ms A’s allegations about his abusive behaviour towards her. The Father claims Ms A harassed him by repeatedly turning up to his home uninvited. Ms A concedes she did go to the Father’s home to talk to him, usually, but not always, at his invitation, but says he was giving her very mixed messages about his feelings for her. She was also pregnant to him. I prefer Ms A’s evidence on this issue to that of the Father. It is clear from the police documents[11] that the police were called on at least one occasion and the Father was charged in relation to assaulting Ms A and smashing her mobile phone on concrete. I find it hardly surprising that Ms A felt the need to talk to the Father given their intimacy over many months and her pregnancy to him.
[11] Exhibit 12
I am satisfied that the Father has often behaved in an aggressive manner towards the Mother and I accept the Mother’s evidence that at times, [X] has mimicked the Father’s abusive behaviour.
The Mother alleges that the Father has been using cannabis. The Mother claims that when she arranged to meet the Father on 5 February 2010, she noticed he was continually wiping sweat from his face and “the pupils of his eyes appeared enlarged”. She suspected he was using drugs and other people told her the Father was using.
Ms A claims that the Father owns 2 bongs, one of which was always kept in his kitchen. She alleges that the Father used the bong “a lot” both at his home and at the home of his friends Mr P and Mr G and that the Father’s friends came over weekly to drink and smoke cannabis. Ms A produced a photograph[12] the Father had sent to her mobile phone in December 2009, of the Father and two friends with a cross-joint.
Ms A said she last witnessed the Father using cannabis in March 2010, shortly before their relationship ended.[12] Exhibit 4
The Father’s mother reported to police in June 2005 that the Father was using drugs and she believed the Father was stealing items of her property to pawn them for drug money[13]. I accept the truth of the Father’s mother’s report to police.
[13] Exhibit 12
The Father acknowledges using crystal methamphetamine in 2003 when he started his relationship with the Mother but said he had not used ICE since then. The Father denies using cannabis in the past two years. The Father denies Ms A’s claim that he has owned bongs or ever used cannabis with his friends when in a relationship with Ms A. The Father says the cross-joint was made of tobacco, not cannabis, because he and his friends had been watching the film “Pineapple Express” in which a cross-joint featured. The Father undertook a supervised urinalysis test for drug use on 16 August 2010, which was negative[14].
[14] Exhibit 13
I agree with the Mother’s counsel that it beggars belief that the Father would have proudly forwarded a photograph of himself and two friends with a cross-joint to his then lover, Ms A with the words “We made a cross-joint. This is what ya grandchildren will be smoking. Boi!”[15] if the joint had been made of tobacco. I find the Father was smoking cannabis on that occasion. I take into account in reaching this finding that Ms S told the Court she had asked the Father to do a drug test early in 2010, “to get the drug use issue off the table” but the Father declined to do so. I am satisfied the Father was using cannabis in December 2009 and was prepared to give false evidence about it. The Father was equally prepared to give false evidence in his affidavit and to the police, about the nature of his relationship with Ms A. I prefer Ms A’s evidence to that of the Father about his regular use of cannabis between 2009 and 2010 and that he used on occasions when [X] was in the home. On the basis of his recent drug test result, I accept that the Father has not used cannabis in recent weeks.
[15] Exhibit 5
There have also been concerns raised about the Mother’s role in exposing the children to harm. The Department of Human Services raises serious concerns in October 2007 about the Mother’s failure to protect the children from exposure to domestic violence and serious long term drug and alcohol use by the maternal grandfather[16].The Department also raises serious concerns about the children’s general standard of care at that time. There is no dispute that the Mother’s father assaulted her and as a consequence, spent time in gaol. I find the Mother made a serious error of judgment in allowing her father to live with her for 2 weeks in April 2010 after his release from gaol, given the presence of [Y] and [Z] and their potential risk in his presence. However, I do accept the Mother’s evidence that she has gained confidence over the past 12 months and has learned to say “no” to her father. I accept that the Mother now understands that her father can never be in the presence of the children unsupervised, and cannot come into her house if under the influence of drugs or alcohol, however much the children may enjoy time with him.
[16] Exhibit 7
In light of Ms S’s assessment and the reports received from Brighter Futures, I find that the Mother has now arrived at a better general understanding of her duty and capacity to protect the children from harm. I am not satisfied the Father has yet done so. I give significant weight to these findings.
THE ADDITIONAL CONSIDERATIONS
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the child’s views.
In her second assessment in April 2010, [X] presented to Ms S as more “anxious and cautious” than he had been earlier in the year[17]. [X] made it clear to Ms S that he wanted to spend more time with his two brothers. Ms S said[18]:
[X] identified happy and safe feelings when with his mother. He said that he would like to see his mother more often, misses her, feels sad when he is away from her and offered that he has often thought that he wants to live with her. He said that this would allow him to see his brothers, [Y] and [Z], more often. When he was asked if he thinks he would still want to live with his mother if [Y] lived with his father, he said that he would probably want to live wherever [Y] was living.
[17] Paragraph 44 of Ms S’s report dated 29 July 2010
[18] Paragraph 47 of Ms S’s report dated 29 July 2010
In observation, Ms S observed [X] being “eager to please his mother.” [X] expressed some fear of the Father to Ms S. Ms S said[19]:
[X] said that he has sad and frightened feelings about his father and identified his father as being angry, sad and upset as well as, at times, happy. He believes that his father is sad because his mother does not allow his father to see [Y] and angry because his father fights with his mother and because [X] has made his father angry. He said he is frightened of his father when he is angry. [X] is concerned that his father will become aware of his feelings about being frightened of him.
[19] Paragraph 48 of Ms S’s report dated 29 July 2010
The Mother deposes to [X] telling her that he wants to be with her. “I want to stay at your house Mummy” and to saying to the Father “I don’t want to come home with you Dad. I want to stay here with Mum and [Y].” The Mother believes [X] is unhappy and at times frightened living with the Father.
When [X] spent the weekend with the Mother on the weekend of 14/15 August 2010, by order of this Court, the Mother says [X] did not want to return to the Father’s home on the Sunday night. When his paternal grandfather told him to get into the car to go home, [X] ran up the street shouting “I hate you Mummy for making me go there.” The Mother followed him and coaxed him back. On the following weekend, the Mother learned from the Father that [X] was “too upset” to travel in the car with [Y] when [Y] was returned to the Mother, as [X] wanted to return to the Mother too.
During the period of her relationship with the Father from March 2009 to April 2010, Ms A said [X] regularly became upset and asked for his Mother and [Y]. The Father gives similar evidence. Ms A observed [X] to cry and ask the Father whether he could go to the Mother’s house.
The Father’s counsel said any fear [X] expressed could only be referable to acknowledged physical chastisement because “there has never been physical evidence of anything more concerning.”
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
“including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
Ms S said[20]
Although [X]’s level of maturity is not sufficient to place significant weight on his views, they are useful for the assessment of his feelings and provide information about his relationships with significant others.
[20] Paragraph 48 of Ms S’s report dated 29 July 2010
Ms S said it was unusual for a child of 6 years of age to express fear of living with a parent as [X] has. I accept her view that there must be a palpable source of this fear. Although I have given them limited weight, I have had regard to [X]’s expressed views in reaching my decision.
[Y] made it clear to Ms S he wanted more time with [X]. He also said he wanted more time with his Father but was “worried” about spending more time with him[21]. Although [X] is only 4, I have not disregarded his remarks.
The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).
[21] Paragraph 53 of Ms S’s report dated 29 July 2010
As already noted, [X] has a close and loving relationship with the Mother. I have also noted Ms S’s view that [X]’s relationship with the Father is complicated by [X]’s fear of him which is likely to continue until the Father learns to regulate his behaviour.
There is no dispute that [Y] has a close and loving relationship with the Mother. Ms S said[22]
[Y] consistently identified his mother as a central figure in his life with whom he identifies as safe and sensitive. He identifies her as being able to settle him when he is frustrated and as a person who can sooth his sad and negative feelings.
[22] Paragraph 54 of Ms S’s report dated 29 July 2010
According to Ms S, [Y]’s relationship with the Father is a distant one. [Y] said to her “[X]’s Dad is my Dad” and that while his Mother loves him “very much” his Father loves him “not much”[23]. It is noteworthy that the Father has a large tattoo “[X]” on his forearm and that initially the Father did not accept that [Y] was his child. In Ms S’s view, [Y] has not spent sufficient quality time with the Father to establish a more than ‘distant’ relationship.
[23] Paragraph 51 of Ms S’s report dated 29 July 2010
Ms S assesses the Mother’s grandmother as a background figure in the children’s lives, though supportive of the Mother.
The Mother says the children have a good relationship with the maternal grandfather, but accepts that his significant drug and alcohol dependency issues must put limits on the time they spend with him.
In Ms S’s view, the paternal grandmother is defensive and protective of the Father, is “not an ally for the children” and should not be around them. I find it noteworthy that the Father himself does not see his mother as a support to him or the children.
I find it likely [X] has a good relationship with the Father’s partner, Ms J. She told Ms S that [X] is a “gorgeous boy” and they get on well together.
It is common ground that the sibling relationship between [X] and [Y] is significant to them both. The parties and Ms S agree that they “crave time together” despite the fighting each party reports they have when together. Ms S says this sibling relationship is very important to the children as it can build resilience in the children to help them deal with the inter-parental problems and “the deficiencies in each party’s household.” In her opinion, with which I concur, the sibling relationship is at the point of “make or break”.
I give considerable weight to my findings under this factor.
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
The Mother claims the Father has made it difficult for her to remain involved in [X]’s day to day life because the Father chose to use [X] to create opportunities to denigrate and abuse her. The Mother claims the Father has shown no interest in [Y], despite her efforts to facilitate [Y] spending time with him. In particular, the Mother complains:
i)The Father has not informed her, nor invited her to significant events for [X] at either day care or school.
ii)The Father has not given her his mobile phone details.
iii)The Father left [X] in the care of his mother and girlfriend when he travelled to Western Australia in May 2010, without informing her.
iv)The Father chose to include his mother and Ms J, rather than her, as emergency contacts for [X] at the Day Care centre and failed to complete the Mother’s details on the enrolment form.
v)The Father chose to name his mother, rather than the Mother as the emergency contact on [X]’s enrolment form at W school[24].
[24] Exhibit 8
The Father could see no good reason to include the Mother’s name as an emergency contact, given the Mother does not drive and therefore could not easily get to the school in an emergency, and because the Mother had shown no interest in [X]’s education. The Father says he did not tell the Mother about his trip to WA because the Mother had chosen not to see [X] during that period.
For his part, the Father claims he has endeavoured to facilitate [X]’s time with the Mother and the Mother has obstructed the establishment of his relationship with [Y]. In particular, the Father complains that the Mother has been “overly and consistently critical of him” and that whenever he has disagreed with the Mother, she has denied him time with [Y]. While acknowledging that orders made in January 2010 for [Y] to spend time with him on two days a week were followed for less than a fortnight, the Father said “we were fighting and it fell apart” blaming the Mother alone for the fact that [Y] spent only 3 periods of contact with him this year.
Ms S says that the Mother had kept [X] in her care in late 2009, in contravention of Court orders, because she believed [X] was not being appropriately cared for by the Father and that he was better off with her. When the Court determined to return [X] to the Father in January 2010, the Mother could see no other way to eliminate the fighting between them, than to stop the Father using [X] to continue the conflict with her. This meant denying [X] the chance to spend time with her. While she did not endorse the Mother’s decision, Ms S says the Mother’s actions were understandable in this context.
It is common ground that [X] has spent very limited time with the Mother this year and that [Y] has never spent more than limited time with the Father until the Court made further orders for contact during the course of this hearing. I am not persuaded either party has facilitated or encouraged the children’s time with the other party or with each other this year, but it is pleasing that both children still remain keen to spend time with the other party. In relation to [X], there is no dispute that the Mother told the Father to keep [X] to himself and not to bring him to see her anymore, nor that the Father did not support the Mother’s decision. However, I am not persuaded this is all credit to the Father. I find the Father was not prepared to address the underlying problem, which was his inability to control his anger when in the presence of the Mother. In relation to [Y], I accept the Mother’s evidence that the Father failed to comply with court orders by not attending at changeover at the appointed times, but that I also find that the Mother did not take adequate steps to ensure [Y] spent regular time with the Father. However the Mother’s present proposal for [Y] to increase time spent with the Father during the week appears to be exhibiting a slight improvement in her willingness to facilitate contact between the children and the Father. Overall, I find the parties’ relationship is so acrimonious and their capacity for constructive communication so poor, that the prospect of each party supporting the children’s relationship with the other party, is unlikely, unless the Father accepts the need for long term therapeutic assistance, as the Mother has.
I give considerable weight to my findings under this factor.
The likely effect of any changes in the children’s circumstances, including the likely effect on each child of any separation from either of his parents, or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.
If [X] lives primarily with the Mother, in accordance with her proposal, [X] will see the Father weekly, rather than every day, and he will be required to adjust to a change in school next year. However, [X] will live with his brothers [Y] and [Z] and with the Mother, on whom he depended for his first 3 years, and with whom he has a strong and loving relationship.
The Mother says [X] will be relieved to live away from the Father, will be much happier living with her and with his two brothers, and will have very little difficulty adjusting to a new school. She says [X] makes friends easily, knows children in the area who attend the school, and will enjoy being at a school local to her home. The Father says [X] would find it very difficult to spend so much time away from him. On the Father’s proposal, [X] would remain living primarily with him, but would spend substantial time with the Mother and the two children would spend the majority of their time in the same household.
In relation to [Y], on the Mother’s proposal, [Y] will spend weekly daytime with the Father, more time than he has ever spent with him. The Mother believes this will have a positive impact on [Y]. On the Father’s proposal, [Y] will gradually increase his time with him over a few months until he is spending substantial time with him, and will gradually spend less time with the Mother and [Z]. As already noted, the boys will spend most of their time together in one or other household.
The Mother’s counsel submits that the Father’s proposal is unworkable given the high level of acrimony between the parties. Counsel submits it is unrealistic to consider a substantial or equal time arrangement given the parties’ inability to work together cooperatively. Counsel submits it not sustainable to leave [X] at his present school if he is living at [C] with the Mother, given the Mother has two other children to organise in the mornings, and would have to rely on two buses to get [X] to W school.
Both the Father’s counsel and counsel for the Independent Children’s Lawyer submit that given [X] is settled at W school, the court should not permit a change of school for him. Both counsel submit that [X] would also suffer on the Mother’s proposal, as he would miss the Father. Neither counsel realistically addressed the impact on [Y] of spending substantial time with the Father, with whom he has a distant relationship, away from the Mother and [Z], to whom he is so attached.
Ms S says it is possible that if the Mother’s proposal were accepted [X] would miss the Father, despite her concerns about the health of that relationship. However, Ms S believes [X] is so comfortable in his relationship with the Mother, and in such need of living with his two brothers, that he would suffer no lasting ill effects. In relation to a change of school, while Ms S acknowledged that the arrangement would not be ideal, she believes [X] would readily adjust to a change of school next year. Ms S says that [Y] could not cope with more than limited time away from the Mother and would need regular quality time with the Father over a significant period before he could spend more than limited time with him. I accept Ms S’s opinion on these issues.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
If the Father remains living in the Illawarra region proximate to the Mother, this factor does not apply.
However, the Father told Ms S at interview that he hoped to join the [omitted] which would involve a posting to South West New South Wales initially. The Father did not know how he would see [Y] if he relocated from the Illawarra, but said he would return [X] to the Wollongong area each alternate weekend to spend time with the Mother.
When questioned at hearing about this issue, the Father said he had given up the idea of joining the [omitted]. However, he gave me the impression he had not made final plans, and I am not satisfied he has considered the practical implications of moving from the Illawarra, or given serious thought to how such a move would impact on [X] or on [Y]. However, I am satisfied the Father’s accommodation arrangement is most likely to remain as at the present.
I give no weight to my findings under this factor in reaching my decision.
The capacity of each of the child’s parents and any other person (including grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Each party’s capacity to parent is a significant issue in this case. Due to insufficient evidence about their involvement, I am unable to make findings as to the capacity of any other adult to provide for the children’s needs, including the maternal great grandmother, the paternal grandmother or Ms J, though evidence suggests all of whom have assisted and continue to assist in the care of the children. The Court would have been particularly assisted by evidence from the paternal grandmother and Ms J.
The Mother claims to be managing well and to have [Y] and [Z] in a good routine. She says [X] fits into their routine very well when he stays with her. She has noticed a significant improvement in [X]’s behaviour recently. The Mother believes her capacity to parent has improved markedly since she has been supported by a case worker at Brighter Futures, and undertaken various courses through that programme.
The Mother is further availing herself of professional advice on parenting skills. She now understands that [Y], at 42.5kg, needs to lose weight. She says she has stopped buying soft drinks and water has become his drink of choice. Although she still allows him fast food approximately weekly, the Mother says she intends to follow the advice of the dietitian she has voluntarily contacted.
The maternal great grandmother, with whom the Mother and the children are living, says the Mother has the children in a good routine, is committed to their care and “is doing very well.” The Brighter Futures caseworker told Ms S that the Mother was willing to listen and acted on advice. The Brighter Futures Programme identifies the Mother “as a capable and dedicated parent”[25].
[25] Paragraph 66 of Ms S’s report dated 29 July 2010 / Exhibit 6
The Mother presented to Ms S as “calm and considerate of the children’s position and feelings.” Ms S was encouraged by the Mother’s voluntary engagement in services, trying to achieve more stability for the children. Ms S observed the Mother to be child focussed and was impressed by her ability to encourage and contain the children appropriately when they played together at interview. Ms S assessed the Mother as a capable parent.
The Mother describes [X] and [Y] having a lot of fun together, riding their bikes and scooters, playing soccer and playing in the rock pools at the beach. While she acknowledges they fight with each other, and need firm management at times, she says their behaviour together has improved. The Mother says they both relate well to [Z]. The Father denies the boys play well together for more than short periods. He says the boys’ behaviour when together has been diabolical. [X] has returned from time with the Mother with scratch marks and bite marks from fights with [Y]. During a weekend in July this year, the Father says the Mother asked him to collect [X] early, because the children were fighting.
I accept the Father’s evidence that [X] and [Y] have behaved badly at times, and have needed a firm hand. However, the Father has not had the boys at his home together for over 12 months, and has not had the opportunity to witness their behaviour together in his home, since then. However, I accept Ms S’s view that the children will need the assistance of the SCASP programme in Wollongong to adjust to living in the same household. I also accept Ms S’s view that their behaviour is likely to be extremely challenging at times. It is yet to be seen whether the Mother has gained the skills necessary to manage [X] and [Y] together in the longer term.
Serious questions arise about the Father’s capacity to provide for the children’s needs as a result of his health, his lifestyle, his emotional regulation, his standard of care, and his past reluctance to seek help and guidance from parenting support services. The Father himself acknowledges that he has been depressed, that he has found it difficult to cope at times, that he has lost his temper with [X] and with [Y] from time to time. He acknowledges leaving [X] in a day care centre 5 days a week, despite at the same time, being unemployed for lengthy periods. Ms A deposes to the Father putting [X] in front of X-box for “hours at a time”. I find it noteworthy that although the Court does not know the source of all except one (the notification made by Ms S) of the notifications to the Department of Human Services since [X] has been in the Father’s care, there have been 19 notifications about [X] to the Department in that period.
In relation to the challenges of caring for [X] and [Y] together overnight, which he says has happened on 4 or 5 occasions, the Father said “bedtime can be difficult” “I can get frustrated, never angry.” “they are very rough children” “I have become angry and frustrated with the 2 children.” The Father acknowledges sending a text message to the Mother on the last occasion [X] and [Y] stayed overnight with him in August 2009 saying: “I’m going to smash [X] one day”. The Father says “I was venting as I was stressed out at the time”; “they were throwing things at each other.”
The Mother believes [X], and [Y] at times, has been physically and emotionally abused by the Father and that both boys have “witnessed their Father’s explosions of anger.” She reports to Ms S that she has observed the Father “clip [X] over the ears” “yell at [X] as he was unsettled coming out of an anaesthetic”. The Mother has noticed bruises on the children where the Father has hit them. Ms A describes an incident early this year when the Father became very angry with [X] who was “being a bit silly”. The Father yelled at [X] to get into the paternal grandmother’s care and then slammed the car door. He said to his mother: “I’m sick of this shit. Why don’t you just give him back to [Ms Eldar] or dump him in the salvos bin for all I care.” [X] was crying[26]. I have already referred to Ms S’s observation that [X] fears the Father when he gets angry.
[26] Paragraph 31 of Ms A’s affidavit sworn 28 July 2010
In addition, the Mother says the Father has not properly addressed [X]’s health needs. In October 2009, the Mother deposes to the Father failing to manage [X]’s urinary tract infection appropriately which resulted in a worsening of his symptoms. The Mother said [X] was screaming with pain as he passed urine, so she sought medical advice for him herself. The GP prescribed further antibiotics and ordered an ultrasound. When the Mother inquired of the Father the following day as to results of the ultrasound, the Father said “How’s about you go fuck yourself.” The Father later permitted the Mother to care for [X] while he remained unwell, but when he delivered [X], an altercation ensued in front of the three children which resulted in the Father being arrested and charged with assault the following day. The Father removed both children after the incident and the Mother required both police and Department of Human Services intervention to have [X] and [Y] returned to her[27].
[27] Annexure E of Mother’s affidavit sworn 27 January 2010
Ms A deposes to the Father complaining about his poor physical health. She says[28] that the Father told her he needed a liver transplant, was positive for Hepatitis C, had diabetes and was taking anti-depressants. In mid-2009, the Father’s GP records that the Father had a needle stick injury on a train. The records also confirm that he has suffered from depression[29], chlamydia and liver problems in 2009.
[28] Paragraph 15 of Ms A’s affidavit sworn 28 July 2010
[29] Exhibit 11
I have already made a finding that the Father has been using illicit substances, at least until March of this year. I am not satisfied a parent has the capacity to meet a child’s physical or emotional needs while under the influence of any illicit substance. It may be that [X] has been safely in the care of another adult when the Father has consumed drugs though he does not explain how [X] was cared for in this event. Given I do not accept the Father’s denial as to his illicit drug use, I am not satisfied on the evidence available that [X] has not witnessed his drug use and I find there must be a question of [X]’s safety because of lack of evidence to the contrary.
I find a number of examples of the Father’s lack of empathy, including his decision not to give [Y] a present on his 4th birthday and the manner in which he managed [X]’s distress about not seeing the Mother earlier this year, using remarks such as “your mum doesn’t want to see you.”. Ms A observed the Father’s parenting over the many months she was in a relationship with him. She says the Father had limited empathy for the children’s feelings. By way of example, he would not engage with [X] when [X] asked for help with his X-box game, and could not handle [Y] soiling himself when staying with him overnight. On that occasion, Ms A deposes to the Father yelling at [Y] (then aged 3) while he cried and called for the Mother. The Father provided [Y] with no comfort: he did not touch [Y], did not help him take his clothes off, but made him stand in the shower and wash himself without assistance. He yelled to her “I fuckin can’t deal with this shit. It’s like looking after the neighbour’s kid or a random kid off the street. I don’t even know him.” Ms A said it was [X] who helped [Y] get dressed after the shower and [Y] cried himself to sleep. While the Father denies this reaction to [Y]’s toileting accident, I prefer Ms A’s version of the incident.
Further in relation to his standard of care of [X], the Father did not challenge the Mother’s evidence that he has placed [X] in the front seat of his car without a child restraint. He did not deny that [X] became lost when they were camping together. I do not find his explanation credible that [X] left the camp toilet block by one exit as he waited for him outside another. I find it likely that the Father allowed [X] to go to the toilet block unaccompanied as [X] reported to the Mother.
Ms S said the Father presented to her as at times child focussed and at other times “insensitive.” Ms S observed the children to be competitive when observed with the Father and “their ability to play together was minimal”.[30] The Father told her he had been depressed earlier in the year and had been prescribed anti-depressants, though ceased his medication in May 2010. The paternal grandmother told
Ms S she was concerned about the Father’s depression and said at times he is “not lucid”. The Father reported suffering significant stress from his former girlfriend Ms A stalking and abusing him but to feeling better since an Apprehended Violence Order has been in place.
[30] Paragraph 56 of Ms S’s report dated 29 July 2010
In Ms S’s view, which I accept, the Father is isolated and unsupported by his mother and has been so overwhelmed by his circumstances that he has not taken the steps necessary to learn parenting skills or to help himself change his lifestyle and manage his anger. The Father gave
Ms S a sense of powerlessness though was unwilling to share his sense of vulnerability directly. In her view, the Father needs a drug and alcohol assessment, and counselling.
For the reasons outlined, I find the Mother’s capacity to parent superior to that of the Father. I find the Father’s present lifestyle incompatible with the demands and needs of young children. In my view, to gain the skills and insight necessary to become an effective and involved parent, the Father must commit to participating in a range of parenting programmes and to long term counselling with a clinical psychologist experienced in substance abuse and mental health issues.
I give significant weight to my findings under this factor.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The children are still very young, at only 4 and 6 years. They have been living separately for 3 years. I accept Ms S’s opinion that if [X] and [X] do not live together from now on, they are unlikely ever to develop a close sibling relationship.
This is a finding to which I give considerable weight.
If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right.
The Mother is Aboriginal. She grew up with her Aboriginal grandfather who introduced her to her culture, including aboriginal paintings and cultural excursions. She says she has had less involvement in the aboriginal community since he died in 2007, though [X] plays his grandfather’s didgeridoo and attends the Aboriginal medical centre in [omitted]. The Mother takes the boys to NAIDOC activities.
The Father is not Aboriginal. He said he has not engaged [X] in any aboriginal services or activities but would “seek guidance from the Mother” if this was considered necessary.
I am satisfied the children will learn something of their aboriginal heritage from the Mother and her family whatever the parenting arrangements. I therefore give minimal weight to my finding under this factor.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The high conflict nature of the inter-parental relationship has and will continue to adversely impact on the children. It has been so serious that [X] and [Y] have never been given the chance to develop a strong sibling relationship. Ms S believes “it is unlikely that the parental relationship will improve in the future”. I find the continuation of this high level conflict reflects poorly on each party’s attitude to parenting. In addition, I find a number of particular examples of each party’s poor parental judgment.
The Mother has made a number of decisions which could be seen as reflecting poorly on her attitude to her responsibilities as a parent. In particular:
i)The Mother handed over her responsibility for [X] to the Father when [X] was 3 years of age, separating him from his only sibling. [Y] was then a baby, and the Mother had recently lost her maternal grandfather who had played a significant role in her upbringing. She says she felt overwhelmed by her responsibilities. She says she intended taking [X] back when she felt stronger.
ii)In January 2010, the Mother decided to cut off all contact with [X] for a period, to stop her own and the children’s exposure to the fighting between them. She said she could no longer tolerate the arguments and abuse she experienced at changeovers with the Father and could see no other way to prevent the children’s ongoing exposure to the conflict. She says[31]:
It was an extremely difficult decision for me to make. … I felt that it was better for [X] to protect him from ongoing conflict between [Mr Nunn] and myself. I also was so worried for [X] in [Mr Nunn]’s care that I didn’t know if I would be able to return him to his father if I continued to spend time with him. I also needed a circuit breaker when it came to my ongoing dealings with [Mr Nunn]. I was physically and emotionally drained from the constant harassment, belittling, abuse and aggression from [Mr Nunn] and I was concerned that it would negatively impact on my ability to parent my other children [Y] and [Z]. … I had to put my trust in these proceedings. I knew that the matter was heading towards a final hearing.
iii)Next, the Mother allowed her own father to stay in her home earlier this year at the end of his prison sentence for assaulting her, knowing he had a long history of alcohol and drug abuse.
iv)In addition, the Mother has chosen to befriend Ms A, the Father’s former girlfriend, in the full knowledge that her friendship with Ms A could only serve to inflame the already troubled relationship between her and the Father.
[31] Paragraph 12 of the Mother’s affidavit sworn 3 August 2010
Ms S was critical of the Mother for allowing her father into her home and critical of the Mother for befriending Ms A, knowing the effect this was likely to have on the Father and their already difficult relationship. She did not however, judge the Mother adversely for handing [X] over to the Father’s care, or for stopping all contact with [X] in early 2010, given the circumstances in which she found herself.
The Father has made a number of decisions which in my view, reflect poorly on his attitude to his responsibilities as a parent:
i)He has shown a careless disregard for Court orders, by claiming to have been unaware of them, or to have forgotten them. As already noted, I find he has been unable or unwilling to adhere to contact arrangements in accordance with Court orders, causing disruption and disappointment to both children.
ii)I accept the evidence of the Mother and Ms A that he has allowed a friend, Mr R (sometimes with his partner Ms C) to live in his home for a lengthy period and take over the use of [X]’s bedroom without regard to the likely adverse impact on [X]’s stability and without regard to the suitability of this particular friend being in the household with [X]. On 4 January 2010 after waiting some hours for the Father to collect [X], I accept that the Mother arranged to take [X] back to the Father’s residence. When she arrived, the Father was not at home but his friend Mr R, who was then staying with the Father, offered to care for [X] until the Father arrived. The Mother left [X] with Mr R. Shortly afterwards, the Father rang the Mother, yelled insults at her and said Go back and get [X] from Mr R. He’s probably stoned and drunk and he’s not fit to look after a goldfish. ….
iii)He has left [X] in the care of his mother, his girlfriend Ms A and with Ms J to pursue his own recreational interests, without regard to the impact on [X] or the need for [X] to have a stable, age appropriate routine.
iv)In early February 2010, he took [X] to the Mother’s home the day after she told him that she had decided she could not see [X] for a while. His decision to do so placed [X] in the centre of the parties’ conflict. The Mother asked the Father to leave but he refused. This resulted in [X] becoming very distressed at not being able to see the Mother. There is no dispute that [X] was exposed to a very distressing exchange[32]:
[X]: why can’t I come in Mummy?
Mother (crying): Mummy loves you [X]. Settle down baby boy. Mummy loves you.
[32] Paragraph 14 of the Mother’s affidavit sworn 3 August 2010
Father: (screaming and yelling) “cause she doesn’t want you [X], She doesn’t love you.”
v)He used [X] to punish the Mother. On 8 April 2010, the Mother went to the Father’s home with some new clothes for [X] and asked to speak to [X]. The Father would not accept the clothes and would not allow [X] to speak to the Mother. The Father continued to deny [X] telephone communication with the Mother, in the full knowledge that [X] was finding it very hard not to be in communication with the Mother.
vi)In May/June 2010, he left [X] with Ms J and his mother for an extended period to travel to Western Australia, without giving [X] the opportunity to stay with his brothers and be cared for by the Mother.
vii)He has not ensured his own regular contact with [Y].
I agree with Ms S that the Mother was not child-focussed when she allowed her father to live with her after his release from prison. However, I also accept that she understands her mistake and agrees to comply with an order placing conditions on the children’s contact with her father in the future. I also agree with Ms S that the Mother should defer her friendship with Ms A until the parties can improve their relationship. I am satisfied the Mother has gained considerable insight since early this year as to the adverse impact on [X] and [Y] of her decision to separate them 3 years ago, and her decision to separate them again at the beginning of the year. I am not persuaded the Father yet appreciates the impact of the decisions he has made, to which I have referred. These are matters to which I give considerable weight.
Any family violence involving the child or a member of the child’s family.
I have earlier addressed these issues and have nothing to add under this factor.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested.
In November 2009, the Mother obtained an Apprehended Violence Order against the Father which is due to expire in November 2010. The order prohibits the Father from having any contact with the Mother except through solicitors or as a result of parenting orders. I have already made findings about the impact of the Father’s conduct on the children and have nothing further to add under this factor.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I have determined to make only interim orders at this stage. Assuming each party complies with those orders over the next 12 month period, I will make final orders on the adjourned date with the benefit of the additional information. I am satisfied it is less likely there will be further litigation between the parties if I give the parties a further
12 months to improve their communication and parenting skills.
Any other fact or circumstance that the court thinks is relevant.
A question arises as to which school [X] should attend from 2011. He is presently in Kindergarten at W school. His report for first semester 2010 shows his attendance has been excellent. The report states[33]
[X] is a popular student amongst his Kindergarten peers. He has settled into the routines of the school and enjoys the social opportunities that being at school offers him. [X] is developing satisfactorily in his academic abilities…. It would also benefit [X] to pay close attention to instructions being given. He is often easily distracted… [X] is gaining confidence in his own abilities… He enjoys all sporting activities and is a keen participant in weekly fundamental sporting skills.
[33] Annexure C of the Father’s affidavit sworn 3 August 2010
However, the Mother tells the Court that she spoke to [X]’s teacher in or around April this year to explain [X]’s circumstances. The teacher raised concerns about [X]’s behaviour at school and his lack of cooperation. While I find it a credit to the Father that [X] has an excellent school attendance record, I do not accept that [X] is “thriving” as submitted by the Father’s counsel, given the comments of his teacher to the Mother and his presentation to Ms S.
The Mother does not drive, nor does her grandmother though the Mother hopes to obtain a driver’s licence and to buy a car in the future. The Mother plans to send [Y] to C school, 3 minutes from her home, and would like [X] to change to that school in 2011. It is common ground that the Mother needs to take two buses to reach W school from her home, and there is a walk at both ends. She would like the children to go to school together and if at a local school, she would be able to walk them to school. She believes [X] will adapt to a new school as he makes friends easily. For the remainder of the year, the Mother says she would take [X] to and from W school on the bus, and the grandmother would take [Y] to and from pre-school on those days. She says such an arrangement would not be sustainable in the long term.
The Father is opposed to [X] attending C school which he believes has “junkie’s kids” as students. He says he researched the schools in the Illawarra area on the internet before selecting W school, located a few minutes from his home. He says it is one of the top 5 schools in the area and he is keen for [X] to remain there. It is noteworthy however, that at interview, the Father said he was relocating to South West New South Wales or Sydney with the [omitted] which would have inevitably involved a change of school for [X].
Mr Alexander, counsel for the Father, says the Mother has shown no interest in [X]’s education, nor shown any empathy for what it would mean for [X] to be forced to change schools. He points out that the Mother had not even seen [X]’s school report even though it was attached to the Father’s affidavit. Counsel submits that the Father, on the other hand, has shown an interest in [X]’s education by researching on the internet, to find the best school in his area.
The Independent Children’s Lawyer’s counsel submits that [X] should stay at W school and that [Y] too, should start school there. In relation to the obvious logistical problems, the Mother would face managing [X]’s transport to the school, with two other children in her care, counsel says “if the Mother can do it this year, why can’t she continue?”
Ms S said [X] should not change schools until he has completed the current school year. As already noted, she assessed [X] as resilient and capable of making new friends and coping with such a change. She said it would be impractical for [X] to remain at his present school after the end of this year, if he were living with the Mother in [C], given the Mother has two other children, one of whom attends pre-school near the Mother’s home and will attend C school in 2012.
While I agree with both counsel for the Father and the Independent Children’s Lawyer that it is not ideal for [X] to change schools after only one year of schooling, I accept Ms S’s opinion that if [X] were living with the Mother, because of the logistics, a change of school would be inevitable and in [X]’s best long term interests.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent… and fulfilled or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing to add under this factor.
PARENTAL RESPONSIBILITY
The Mother seeks an order for sole parental responsibility. She accepts the importance of keeping the Father informed of any decisions she makes and of notifying the Father if either child suffers a medical emergency. The Father seeks an order for equal shared parental responsibility. As already noted, the Independent Children’s Lawyer supports the Father’s position.
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to 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. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the 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.
In the present case, the presumption does not apply because of the findings I have made about family violence. In any case, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. I am not satisfied it would be in [X] and [Y]’s best interests for the parties to have equal shared parental responsibility. I have regard in particular to these findings:
i)In January 2010, the Court made an order with the consent of both parties for the parties to share parental responsibility equally. The parties have proved themselves incapable of working together for the benefit of the children. Each party has been making decisions unilaterally.
ii)The parties are presently unable to communicate constructively.
iii)It is common ground that the parties “fight” on most occasions they have contact with each other and that the children have been repeatedly exposed to their conflict. If the parties were required to share decision-making, the children are likely to be exposed to further conflict.
The Independent Children’s Lawyer’s counsel could not point to any evidence to support his position that the parties could share parental responsibility in an effective way in present circumstances. In my view, no such evidence exists.
The Father’s counsel submits that if the Court excludes the Father from major decision making, he will be effectively marginalised from their lives, which would ultimately damage their well being. I accept that there is a risk that the Father will feel excluded from the children’s lives if he is not involved in major decisions and I have considered this problem in reaching my decision not to finalise the question of parental responsibility at this stage.
Ms S says it would be impracticable for the parties to share parental responsibility, given the present state of their relationship and the high unlikelihood of any improvement in their relationship in the future. The parties rarely communicate without fighting, have no trust in each other, have never been able to cooperate in the past and have demonstrated an incapacity for constructive child-focussed discussion. Although the Mother demonstrated a conciliatory attitude toward the Father when at interview with Ms S, the Father demonstrated an inability to accommodate the Mother’s opinion. In Ms S’s view, the Father holds strong opinions and the Mother is overly accommodating, so unless the Mother backs down, there is no resolution of the issue.
I agree with Ms S. I find that an order for equal shared parental responsibility would place the children at risk of future exposure to family violence. I have decided to discharge the previous order for equal shared parental responsibility and to make no order for parental responsibility at this stage. I am hopeful that once the Father has undertaken certain courses and engaged in therapy over a reasonable period, and the Mother has had more time in the Brighter Futures programme, the parties may learn strategies to enable them to work together for the benefit of the children.
Conclusion
[X] aged 6 and [Y] aged 4 are vulnerable children. Their parents are immature, and neither child has had the benefit of consistent, competent and stable parenting. Their difficulties have been complicated by the Mother’s decision in 2007 to hand [X] to the Father where [X] has remained for nearly 3 years. As a result of the ongoing inter-parental conflict, [X] and [Y] have been living separate lives and have not been given the chance to form a meaningful sibling relationship. [X] has never had the chance to develop a relationship with his half-brother [Z]. [Y] has never established a strong bond with the Father. Both parties believe the children miss each other. I share Ms S’s strongly held opinion that these boys need to establish a strong sibling relationship with each other and must live together for that to happen. Even the Father said he could see benefits for the boys living together and is aware that “they really miss each other”. Inevitably the Father found it difficult to reconcile this position, with his application for [X] to remain primarily in his care. The Father’s difficulty is understandable. He does not want to lose primary care of [X], and knows [Y] would not manage much time away from the Mother, at least until he has developed a much better relationship with him. The Father therefore resiles from a position of the children living together on a full time basis.
When at interview with Ms S, the Father had difficulty formulating a proposal for the future. Ms S says that he proposed [X] live with him and spend time with the Mother
but was unsure of any further arrangements given his belief that everything tried so far has failed…[34]
[34] Paragraph 30 of Ms S’s report dated 29 July 2010
The Father says in evidence that the children together, are difficult to manage for longer than short periods. He says there would be “less bruises in separate household”; there would be “more one on one time in each household”; it would be “hard for [Ms Eldar] to manage 3 children”. His counsel suggests a way forward might be to leave [X] primarily with the Father, to leave [Y] primarily with the Mother but with each child spending, say, 5 nights a fortnight in the other party’s care, with [Y]’s time with the Father gradually increasing over a period of a few months.
I find that this proposal fails to take account of the Father’s expressed misgivings about such an arrangement to Ms S and seriously underplays the deficiencies in the Father’s parenting capacity. The proposal largely ignores the expert’s evidence in relation to the children’s need to live together, and fails to acknowledge [X]’s repeated requests to live with [Y]. The Father’s counsel submits that the Father has a proven track record because “[X] has been in his care and [X] is thriving.” Counsel submits that the same cannot be said of [Y] in the care of the Mother. As will be clear from the findings I have made throughout this judgment, I am not satisfied counsel’s submissions are supported by the evidence.
While I find some basis in the evidence for the Father’s remarks about the possible problems the Mother will face with the two children in her care, I am not persuaded the shared arrangement he and the Independent Children’s Lawyer propose, could possibly work at this stage in the circumstances of this case. Nor do I find the Father has seriously thought through how such an arrangement would be workable.
I agree with Ms S, that “the siblings are becoming an extension of the parental split”[35] and that if [X] and [Y] are not given the chance of developing a relationship now, it will never develop. Ms S says[36]
Sibling relationships are one of the most important relationships people experience. When children have close, meaningful sibling relationships, their relationship can act as a protective or resilience factor for them including children who are experiencing parents undergoing difficult separations and/or parents who have inadequate post separation relationships. Their common experience can provide them with emotional and physical support for each other.
[35] Exhibit 9A
[36] Paragraph 63 of Ms S’s report dated 29 July 2010
In my view, the outcome proposed by the Father would be a recipe for unhappiness for both children, who would remain living apart for considerable periods, and would once again be exposed to high level inter-parental conflict. In addition, as I have already noted, I am not satisfied the Father has yet developed the capacity for quality parenting he will need before the children spend overnight time with him.
As the Independent Children’s Lawyer’s counsel submits that I should make orders in accordance with the Father’s proposal, it follows that I do not concur with his view. I am not persuaded the Independent Children’s Lawyer has had adequate regard to the evidence of the expert or to the evidence relevant to the Father’s capacity to provide for the children’s needs. I am not satisfied the Independent Children’s Lawyer has had adequate regard to the likely adverse outcome for the children if they were to spend substantial time with each party in an atmosphere of high parental conflict. Counsel did not address any of this evidence in submissions.
As already noted, I am satisfied the children have a positive and loving relationship with the Mother. I am satisfied the Mother has gained insight into the children’s needs from being engaged in the Brighter Futures programme. The Mother’s caseworker says in her letter of 10 August 2010[37] that
…Ms J has been able to identify the strengths and needs of her family and to develop a plan to minimise the risk of hard to her children. She is very committed to protecting her children and she has been able to demonstrate positive parenting practices.
[37] Exhibit 3
I find the Mother has more support than the Father in her family and in addition, has engaged constructively in the Brighter Futures Programme. The Mother has voluntarily completed a course to improve her self-esteem and resilience and is presently participating in the parenting skills’ programme known as Triple P. I agree with Ms S that the children’s interests will best be served if the Mother is their primary carer and that [X] should be moved quickly and without a graduated increase in time. I accept her view that [X] has the resilience to manage the change. I have therefore made orders providing for the children to live with the Mother.
The question then is how best the Court can give the children the opportunity to develop a strong and healthy relationship with the Father. I have come to the view that the question as to whether or not this outcome can be achieved, will largely depend on the Father’s preparedness to markedly improve the quality of his parenting.
The Mother wants [X] and [Y]’s time with the Father to be during daytime hours only for 6 hours a week. The Father wants as much time as possible with the children, if the Court orders that they live with the Mother.
Ms S questions whether the children should spend time with the Father unsupervised, given she has concerns for their physical and emotional safety in his care. I share Ms S’s view that the Court needs to balance the children’s need for time with the Father against their need to be safe. Ms S said if unsupervised, [Y] could not manage more than limited time with the Father initially, and the time should occur during daylight hours. She was not opposed to [X] spending more time with the Father than [Y]. In determining the children’s time with the Father, I have particular regard to my finding that the children need to be together, and to my findings about the Father’s conduct which has caused [X] to be fearful of him. I am not satisfied the Father can safely care for the two children overnight. I take into account that [X] has been unsettled for a prolonged period. I have decided the children will remain together from this point onward and will only be separated if one or other of them is too ill to spend time with the Father. I have decided the children will spend time with the Father unsupervised, but only during the day until the Father has engaged in the programmes and therapy I have ordered. The children will then spend some limited overnight time with him until the arrangements are reviewed. I would anticipate the children’s time with the Father increasing if the parties’ conflict markedly diminishes, the parties comply with the orders, and the arrangements over the next 12 months work well.
I agree with the Father’s counsel that the parties are immature and need the opportunity to grow up and improve the manner in which they communicate with each other. This is one of the reasons I have decided it is not in the best interests of these children to finalise the proceedings now. I intend to bring the matter back in approximately
12 months to see whether the orders I have made have been complied with, to what extent each party’s parenting capacity has improved and how the arrangements are working.I have concluded that if I made final orders now, it would close options which may be available in the foreseeable future, options which have the potential to provide significant benefits to the children if it were practical to implement them. In coming to this decision, I am mindful that neither party’s counsel nor counsel for the Independent Children’s Lawyer, addressed me specifically on this question, despite it being raised during the hearing. It is however, noteworthy that the Father’s counsel spent some time in submissions grappling with the problem of how the court could make an order for the children to live together while not significantly reducing [X]’s time with the Father, given the distant relationship which presently exists between [Y] and the Father. In coming to the view that the orders I have made will be interim only, I am also mindful of the possibility that legal aid will not be available to the parties for a further hearing, that the Independent Children’s Lawyer may not be permitted to remain in the case, and that each party may be unrepresented on the next occasion.
The Father acknowledges that he has never undertaken any parenting programmes nor engaged in any therapy to help him parent. However, at hearing, the Father says he is prepared to undertake any therapy ordered by the Court. The Independent Children’s Lawyer submits the Father should undertake therapy with a psychologist. I want to maximise the Father’s opportunity to become a capable and involved parent, and have made orders requiring him to undertake long term counselling with a psychologist, and to do a parenting skills course and a parenting programme. The purpose of these orders is to address the underlying causes of the Father’s propensity to aggressive and abusive behaviour, to teach the Father new ways to approach child discipline and to better understand the needs of his children, and to help him to better appreciate the impact of inter-parental conflict on [X] and [Y]. Given the Father’s attitude to accepting assistance in the past, it remains to be seen whether the Father will comply with these orders for intervention or gain any insights from them. I have decided it is in the children’s best interests for him to be given that chance.
I am satisfied the Mother’s engagement with Brighter Futures, her participation in the Triple P parenting course, is helping to improve the quality of her parenting, and I have ordered she complete the Triple P parenting course and continue to cooperate with the Brighter Futures programme. The Mother’s caseworker, [omitted], told Ms S the service would provide ongoing support to the Mother for at least
2 years[38]. However, a question mark remains over the Mother as to her capacity to manage 3 boys full time over an extended period. The position should be clear after the next 12 months.[38] Paragraph 57 of Ms S’s report dated 29 July 2010
I accept the recommendation of Ms S that [X] and [Y] participate in counselling to help them to adjust to their new living arrangements. I take into account that the Department of Human Services will also provide funding and support for therapeutic intervention for the sibling relationship and support the Mother and children with settling in issues. The children’s involvement in the Supporting Children After Separation Programme (SCASP) will involve both parties to some extent.
I have made other orders which were agreed by the parties at hearing. The Mother will be restrained from permitting the children to be left unsupervised with her father or from allowing her father into the home while under the influence of either illicit drugs or alcohol. As recommended by Ms S, the parties will not have face to face contact at changeover wherever possible, to avoid the children being subjected to further conflict, but if unavoidable, changeover will occur inside the police station.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X] and [Y] at this time.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 20 September 2010
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