FENTON & FENTON

[2012] FamCA 786

FAMILY COURT OF AUSTRALIA

FENTON & FENTON [2012] FamCA 786

FAMILY LAW – CHILDREN - With whom a child lives – with whom a child spends time – with whom a child communicates – allegations of violence – allegations of drug and alcohol abuse – Interim Orders that eldest child live with father and spend time with and communicate with the mother – Interim Orders that two youngest children live with mother and spend time with and communicate with the father

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC and 61DA

APPLICANT: Ms Fenton

RESPONDENT: Mr Fenton

FILE NUMBER: HBC 249 of 2010

DATE DELIVERED: 24 August 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 24 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE RESPONDENT: Mrs Kate Mooney

SOLICITOR FOR THE RESPONDENT: Legal Aid Commission of Tasmania

Orders

CHILDREN

1. All previous parenting orders in respect of these children are discharged.

2. Ms Fenton (“the mother”) have sole parental responsibility for J born … June 2005 and M born … February 2007.

3. Mr Fenton (“the father”) have sole parental responsibility for Y born … May 2002.

4. Each parent keep the other parent informed of any significant circumstance in respect of the health, welfare, development and education of the children and each parent is to follow and, in the case of J and M, the father to follow all reasonable written instructions given to him by the mother as to diet, routine and medication and in the case of Y the mother is to follow the father’s reasonable written directions as to diet, routine and medication.

5. Each parent is to inform the children’s medical providers, school and teachers that the other parent is a parent with whom the school, educationalist and medical service providers can share and give information.

6. UNTIL FURTHER ORDER during school term:-

   (a)The children live with the Father from Friday after school until Monday before school each alternate week, commencing 31 August 2012 for school term two and for subsequent school terms commencing the first week if the children were primarily with the mother in the last week of the preceding school holiday and commencing the second week if the children were primarily with the father the last week of the preceding school holiday;

   (b)The children live with the Mother from Friday after school until Monday before school each alternate week, commencing Friday 24 August 2012 and in respect of subsequent school terms to commence the alternate week to that set out in order 6(a) above;

   (c)That otherwise during school term Y live with the Father, and otherwise during the school term J and M with the Mother.

7. The children spend the first half of the mid term holidays and Easter with the Father in even numbered years and the second half with the Mother, and then the second half of such holidays and Easter with the Father in odd numbered years and the first half with the Mother.

8. In even years, the children live with the Father from the conclusion of the school year until 4.00 pm Christmas Day, and then live with the mother from 4.00 pm Christmas Day to 4.00 pm on 2 January.  The children live with the father from 2 January in each year until half way through the balance of the school holidays, and with the mother for the balance.

9. In odd years, the children live with the Mother from the conclusion of the school year until 4.00 pm Christmas Day, and then live with the father from 4.00 pm Christmas Day until 4.00 pm on 2 January.  The children live with the Mother from 2 January until half way through the balance of the school holidays, and with the Father for the balance.

10. BY CONSENT neither party physically discipline the children nor suffer or permit any third party to do so.  In that respect I NOTE AND ACCEPT the undertakings of the father, the mother, Mr W and Ms C that they will not physically discipline the children or permit others to do so.

11. BY CONSENT neither party criticize or denigrate the other or the other’s family or partner to or in the presence or hearing of the children.

12. BY CONSENT neither party assault, abuse the other party or members of the other parties family.

13. BY CONSENT neither party expose the children to cannabis use or use of excessive alcohol.

14. Changeover will occur at school where applicable and otherwise at an agreed location and failing agreement, outside N Shopping Centre.

15. BY CONSENT the parties will communicate by text message or email for the purpose will keep the other provided the other party with either or both mobile telephone number or email address upon which they may be readily reached at all reasonable times.

16. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS DIRECTED

1. The Independent Children’s Lawyer forward to the Secretary Department of Health and Human Services, the following documents in relation to the subject children:-

   (a)these reasons;

   (b)these orders;

   (c)the reports of Dr O dated 31 January 2011, 2 June 2011 and 11 July 2012;

   (d)a copy of the reports of Dr D in relation to:

   (i)     M dated 12 August 2010;

   (ii)    J dated 21 August 2010;

   (iii)     M and J dated 6 December 2010;

   (iv)   J dated 25 August 2011;

   (v)    J dated 31 August 2011; and

   (e)copy report from Dr P dated 22 August 2012.

1. The appointment of the Independent Children’s Lawyer is extended for a period of eight (8) months from the date of this order or such longer or shorter period as is otherwise ordered.

2. The Independent Children’s Lawyer shall:-

   (a)within fourteen (14) days inform the children of these parenting orders and undertakings; and

   (b)at the expiry of six (6) months and subject to legal aid extending aid for this purpose, request an updated assessment of the children in terms of the parenting arrangements from Dr O.

3. Leave is granted to the Independent Children’s Lawyer to have this matter re-listed for an expedited fresh hearing in respect of the residence arrangements for the children, such leave to operate for a period of eight (8) months from the date of this order.

PROPERTY

1. BY CONSENT the property proceedings between the parties are withdrawn and dismissed.

2. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

3. All outstanding applications be dismissed except any costs applications.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 249 of 2010

Ms Fenton

Applicant

And

Mr Fenton

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. I commence my reasons by saying this.  It is not my task to determine whether people are good or are bad.  It is not my task to reflect on the lifestyle that various people adopted in one form or another.  My task is to ensure that children have a relationship with both of their parents and those families are around them, provided that the children are protected from violence, abuse and neglect.  Sadly for these three children, they have been subjected to violence, abuse and neglect for the whole of their lives, and both parents, at various levels, need to take responsibility for this parenting failure.  There is little I can do with regard to events of the past, but there is something I am able to do into the future.

2. These proceedings relate to the parenting arrangements of Y, age 10, J, age 7, and M, age 5.  The children’s parents are Ms Fenton (“the mother”) and Mr Fenton (“the father”).  Fortunately for this Court, an independent children’s lawyer, Mrs Mooney, has been appointed, and she assisted in the preparation and running of these proceedings over the last two days. 

3. I am very conscious that both of the parties were unrepresented.  I am particularly conscious that the mother was unrepresented and in circumstances where she has been, over many years, a victim of domestic violence.  I have had regard to these circumstances in terms of the presentation of the parties’ respective cases.

4. The Independent Children’s Lawyer sought orders, first of all, that wherever the children reside, that parent have parental responsibility.  It seemed to me that each of the parents supported that view, (although as parts of their submission and views were unclear) I have made the parental responsibility order on the basis that it was not by consent.  The parties acknowledged that they were unable and unwilling to communicate in any effective way with regard to the parenting of these children.  During the hearing I watched the interaction between them; they cannot communicate civilly with each other even in a structured court setting.  Having regard to the evidence and it application to the relevant factors set out in these reasons it is clearly in the children’s best interests that I make orders that, with whomever the children reside, that parent will have parental responsibility, subject to informing the other.

THE ISSUES

1. There is no issue that J and M should live primarily with their mother; the issue with regard to those two children is how much time they should spend with their father.  Whether it should be for two weekends in a row or every second weekend, supervised as suggested by the mother, or whether it is every alternate weekend from after school, Friday, to the commencement of school, Monday, and half the school holidays, as submitted by the Independent Children’s Lawyer and the father.

2. In respect of Y, the Independent Children’s Lawyer seeks orders that he live primarily with his father during school term and that he live with the parties for equal time during school holidays.  This is different from the proposal submitted by the Expert, who suggested that Y should spend week about.  I have been conscious, in these reasons, about splitting siblings, and there is more than one sibling to which I have to have regard.  There are, of course, J and M, and there is T (a child of the mother and her present partner) who is aged two and has been a member of this family for all of her life.  This relationship is significant to all three of the children, as it is to T.

3. These proceedings were initially listed for hearing before a Federal Magistrate.  However, the mother called her sister as a witness shortly before the trial was due to commence, and there were issues raised as to whether the Federal Magistrate should hear the matter, and she transferred the matter to the Family Court, as I happened to be available and could hear the matter.  The proceedings have been conducted over two days, the second day being a particularly long day.

BACKGROUND

1. The father is aged 29 and the mother is aged 26.  They commenced cohabitation in 2001 when the mother was aged about 16. The parents had formed an association about a year before, when the mother was 15; the father was 17 or 18 at the time.  The parties married in April 2008 and separated in September 2009.  The mother has now re-partnered with Mr W, and T is a child of that relationship.  The father has re-partnered and lives with Ms C.  She has the care of her five children, from two previous relationships, namely H, age 12, E, aged 11, L, age 7, X, age 5, and C, age 4.

2. In these reasons, any statement of fact is to be regarded as a finding of fact unless the contrary intention is clear. 

THE PROCEEDINGS

1. These proceedings were commenced in the Federal Magistrates Court in March 2010, and as I said, were transferred to me yesterday.  There have been numerous interim applications between the parties.  Early after their separation and on two occasions, the father forcibly removed the children from the care of the mother.  This was followed by a period of about 10 to 12 months when the children did not see the father.  In recent years the children have been spending alternate weekends with the father, with the pick up and collection being at the Hobart Children’s Contact Centre.

2. The significant issues in these proceedings reflect on the violence asserted in both households, particularly the violence inflicted by the father on the mother and consequently, exposing the children to that violence during the time that he was in the relationship and for some time thereafter. 

3. There is also the issue of the mother’s abuse of alcohol and her reaction to violence.  The father has asserted that he was attacked on many occasions by the mother.  I have some accuracy of that evidence.  There are also questions about the father’s use of cannabis and his reaction to it.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. When determining orders, the approach to parenting is governed by Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of the Act and the principles underlying them are set out in ss 60B (1) and (2) which provide:-

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

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

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

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

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

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

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

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

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

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

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

2. I have had regard to those principles and I have mentioned them in a generic form earlier. Subject to the presumption of equal shared parental responsibility under s 61BA, the Court exercising jurisdiction under the Act must make such parenting orders as it considers appropriate. The children’s best interests are the paramount consideration in deciding what orders should be made and in determining those interests, the Court must consider the factors that are set out in s 60CC.

3. If the Court makes an order for equal shared parental responsibility, there are certain consequences that follow in relation to that.  I can say now that I will not be making an order for equal shared parental responsibility, but not withstanding that, I have considered equal time and significant and substantial time in the light of the evidence.  I note that these proceedings were commenced before 7 June 2012, so the recent family violence provisions do not apply.  That does not mean that I have not had significant regard to family violence because I have.

THE EVIDENCE

The Mother

1. In addition to having regard to the mother being unrepresented during the hearing I also had regard to the diagnosis that Dr O made as to her mental health and her depression together with her emotional fragility.  In saying this, the mother was surprisingly robust in her answers in cross-examination.  She had applied some effort and thought to that task and in her case preparation.  She relied upon her affidavit filed 28 May 2012, which was prepared with the assistance of a solicitor.  

2. The mother was not an impressive witness, she dissembled, obfuscated, and avoided some questions, and at times was untruthful (such as her evidence about her continuing use of alcohol) as a consequence her credibility suffered.   An example of this was when her sister, Ms S, inadvertently disclosed to the Court that there had been a violent incident between the mother and her partner, Mr W, in February 2012.  The mother did not inform the father or the Independent Children’s Lawyer of that incident, nor did she inform the Court or the father that she has been charged with a criminal offence.

3. In respect of that incident the mother said that she was intoxicated at the time. Mr W also says that the mother was intoxicated, but minimised the level of her intoxication.  There was an argument and their evidence was that Mr O, her partner, received a self-inflicted knife wound to the chest.  Mr W called it a ‘nick’ arising from his cutting of a piece of meat for cooking.  The ‘nick’ was serious enough that there was blood flowing from it and he needed two, possibly three, stitches to repair the wound.  Mr W disclosed that there was a scar as a result of the incident.  The impact of that incident must have been traumatic for these children, having regard to what they needed to endure with the behaviour of their father in the past.  That is, police attending at the home, an ambulance, blood, and the need for the mother’s elder sister, Ms S, to attend and take the children into her care at her home in the middle of the night.

4. I am not convinced that the mother was frank to the Court in terms of that evidence, and I am not convinced that Mr W has been frank to the Court in relation to that incident which occurred earlier in 2012.  The mother has been charged with an offence in respect of that wounding

5. The mother was also cross-examined in relation to an event in February 2010, when she asserted to the police that she had been the subject of violence, when newly pregnant. She claimed she was assaulted by Mr W.  During the hearing the mother asserted to this Court that her statement about the assault by Mr W was wholly fabricated and that he did not assault her.

6. In his evidence Mr W conceded that facts, including the assault in similar terms to that asserted by the mother, in direct contradiction to the mother’s evidence on that point.

7. I have treated the mother’s evidence with great care, and I have doubts about that evidence.

Ms I

1. Ms I gave evidence in accordance with her affidavit[1]. It appeared from her behaviour/appearance/demeanour in the witness box that she was frightened of the father.  Having regard to the history that the father acknowledged and the history that the mother asserts, I have no doubt that she (Ms I) had reason to be frightened of the father at that time and is still  frightened of him.  The question I need to determine is whether or not the father is now the changed person he asserts.

   [1] Filed the 21 August 2012.

Mr F

1. Mr F provided evidence in accordance with his affidavit, sworn 21 August 2012.  He gave evidence of the father physically disciplining M some years ago.  He also gave evidence of the father screaming at the children.  That evidence was not challenged, and I accept that evidence, although it must seen in the context that this was before the events of 2010 which the father said made such a change to his life.

Ms S

1. Ms S gave evidence in accordance with her affidavit sworn 21 August 2012.  She is the mother’s sister. Ms S’ evidence was at time frank and at other times less than frank.  She sees her sister through rose coloured glasses and I have assessed her evidence in that regard, as she is aligned to the mother’s cause. 

2. In terms of frank evidence Ms S disclosed to the Court that there had been a violent drunken incident between the mother and her current partner, Mr W, earlier in 2012.  This was also evidence contradicting Ms S’ evidence.  Ms S said that the mother’s alcohol difficulties effectively ceased with the end of the relationship with the father, which was not frank.

3. She has been, in many ways, supportive of the mother, and provided a crutch for the mother as things became tough.

The father

1. As to the father, he gave evidence in accordance with his affidavit filed 20 August 2012.  He conceded there was significant violence between he and the mother during the course of their relationship and for a period of time after the relationship.  He said it was not to the extent asserted by the mother but acknowledged that he was double the mother’s size and she was frightened of him.  He said he physically disciplined the children and used a loud voice.

2. I was troubled by his evidence, from time to time, as to whether he was trying to persuade the Court about what he was and what he was not.  However, I think he was endeavouring to tell the truth, but he was also being cautious not to cast himself in too bad a light.  He had been untruthful in affidavits in earlier proceedings and had been untruthful to Dr O in terms of earlier parts of the proceedings, but he now appears to be acknowledging his violent and controlling behaviour.

3. The father says that the change in his life was brought about by Ms C and by the events of not seeing his children for some time.  With some reservations, I accept that evidence.  What troubles me is his continued use of cannabis, and the mother raised that quite properly in her submissions.  It may well be that the father is not troubled by the impact of cannabis upon him, but I am concerned about its impact on the children.

4. I believe that the father endeavoured to be frank, and as I said, I accept his evidence, but cautiously. 

Ms C

1. Ms C relied on her affidavit filed 22 August 2012.  Her evidence was a breath of fresh air.  Ms C was frank, to the point and acknowledged the pain that the mother must be suffering in terms of these proceedings in a very positive way.  Ms C said, to her credit, when asked about the mother, what she thought of her was that she was a mother fighting for her children and expressed no doubt as to this mother’s love of these children.  Having regard to the conflict that has gone on between these parties, that was a positive way to deal with it.  Ms C has five children in her household, and she impressed as an organised but calm parent.

2. She is not passive in terms of her parenting and is assertive in her care of the children and her relationship with the father.

3. I generally accept her evidence as reliable.

Mr R

1. Mr R was one of Ms C’s previous partners and is the father of her three youngest children.  He says they separated amicably, and he visits and at times stays at her home.  He has observed none of the violence which was clearly a factor of the home in which the father lived with the mother.

2. Mr R was somewhat partisan in his evidence.   

Dr D and Dr P

1. I had the reports[2] of Dr D in relation to the children.  I have had regard to them and the special needs of, particularly, the two younger children.  This evidence was admitted unchallenged, as was the evidence of Dr P.[3]  I note that Y was referred to a specialist paediatrician some months ago but the mother has not as yet found time to arrange for Y to see the paediatrician.

   [2] Exhibit ICL2.

   [3] Exhibit ICL3.

Ms A

1. Ms A gave evidence in accordance with her affidavit filed 3 August 2012.  It was essentially the business records of the Hobart Children’s Contact Service as to the interactions at changeover.  Most of that evidence was confirmed by the witnesses, in one form or another.  I treat it as being accurate. 

Dr O

1. Dr O has prepared three reports in terms of these children, in January 2011, June 2011 and July 2012.

2. Her qualifications were not challenged, and her approach has been longitudinal.  She gave evidence and was cross-examined for some time.  I accept her evidence, and I accept her significant involvement with the children.  I accept her recollections of reporting and discussion between herself, the children and the parties.  The mother raised some issues of errors in the reports which were relatively innocuous.

3. I am satisfied that her reports are generally accurate and that her conclusions are soundly based. 

Mr W

1. Mr W is the mother’s current partner.  At the commencement of the trial, I raised with the mother the question of whether Mr W was going to give evidence, and she said he was not and asked that he remain.

2. It was clear that Mr W provided her with support during the course of the hearing, and having regard to the mother’s difficulties and what the mother has suffered over many years, it seemed appropriate that he remain.  Unfortunately, by the end of the trial, it was clear that Mr W was needed to give evidence.  He was cross-examined.

3. Mr W confirmed the police version of what happened in February 2010.  He denied any injury to J which the school reported.  He gave an innocuous explanation about what happened in February 2012.  I have some concerns about the quality of his evidence given the nature of the cross-examination and the nature of his response, particularly when challenged about what happened in February this year and at the Children’s Contact Service.

DISCUSSION

1. This is a case where there ought not to be an order for equal shared parental responsibility and I will not make that order.  Irrespective of that determination I have considered equal time and I then considered significant and substantial time with each child and each parent.  From the evidence of Dr O, it’s clear that these children have a meaningful relationship with each of their parents and I find that there is a benefit for those relationships to continue.  Dr O was clearly concerned about the mother.  She acknowledged what the mother had endured in the past, but was concerned that the mother’s household still had violence in it and that the mother was not coping particularly well.  Dr O said that the children (particularly the younger two) were closely attached and bonded to the mother.  I have had significant regard to that evidence.

2. I have also had regard to the evidence of the children being bonded to the father, despite not seeing him for some considerable time, and their welcoming of him, when they see him.  The longitudinal study provided by Dr O also gives me some confidence that the father’s assertion that his behaviour now is much better may well have a ring of truthfulness.  So it is important that these children continue to have a meaningful relationship with both of their parents.  It is the next level that is the need to protect the children from abuse, from physical or psychological harm or being subjected to or exposed to abuse, neglect and/or family violence that causes me concern. 

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The home in which the parties lived together was marked by violence.  Predominantly that violence came from the father.  I am satisfied that there was some violence by the mother and sometimes that violence was not reactive but arose out of her abuse of alcohol.  Following separation the controlling and intimidating behaviour of the father continued, as did the alcohol fuelled behaviour of the mother.  In terms of the father this is shown with regard to his removal of the children from the mother in a forceful way.

2. As to the mother, she continues to abuse alcohol.  She engaged in an alcohol fuelled incident in February 2010 at which time she was pregnant with her youngest child T.  The mother must have been aware or ought to have been aware, at that time, as to the impact of alcohol on an unborn child.

3. I find that the home in which the father now lives is a violence free home.  I conclude this based upon the evidence of the father about which I have been cautious. There is the evidence of Ms C of which I find reliable, the inspection of the premises by Dr O, the evidence of Mr R who is satisfied for his children to remain in that home.  In addition there is no indication of police visits to the home or reports to the Child Protection Authorities.

4. The home of the mother, on the other hand, is problematic.  There is indication of violence between the mother and Mr W.  Complaints by Y and J (those complaints by J include complaints to teachers and observations of marks on him), the interaction with the police in February 2012.  I am not convinced that that home is either alcohol free and/or free of violence.

5. Had the father presented himself to this Court as he was in early 2010, I would have contemplated making an order that he spend no time with these children at all, such was the level of his violence and such is what he put his children through.  To the father’s credit and to Ms C’s credit, he has turned his life about or is trying to turn his life about, apart from the question of cannabis.  There is no evidence of present violence in that house.  I am confident, giving weight to the evidence of Ms C, that if there is violence in that house, it would not be hidden, as she would not stand for it.  Ms C willingly gave me an undertaking, which she need not have done, which means that if the children are subjected to violence and she doesn’t report it and she is caught, she will go to gaol.  It would separate her from her five children. 

6. I still suspect that the father has some distance to travel in his rehabilitation.  He can sometimes be arrogant, and I saw that in the witness box; and he can sometimes be dominant, and I saw him try and achieve that with the mother when she cross-examined him from time to time and I directed him away from that approach to protect her.  But he has made enormous steps in that regard and the children have clearly flourished in his care and in the home of Ms C. 

7. The mother is recovering from an awful relationship.  I am not sure that she has not gone from one controlling relationship to another.  I have some concerns this present relationship and the role of Mr W. 

8. I am concerned that J went to school and complained that he had been hurt by Mr W.  There may be an innocent explanation.  I am also concerned that Y, whilst he is torn between these two parents by whom he deeply loved, from time to time, does not feel safe in his mother’s home.  I am concerned about the concealment by the mother of the events in February 2012.  I am also concerned about the denigration of the father in the mother’s household. 

9. There is nothing I can do to force the State Protection Authorities to monitor these households, although I intend to do something; that is, to have forwarded to the State Protection Authorities a copy of these reasons, the orders I am making and the reports of Dr O and the reports of the medical practitioners, so that if anything arises in the future, they will have some history of what has happened with these children so far.

10. The way in which I can protect these children, is to ensure that they spend significant time in both households, as they can report concerns to the other parent and to Ms C and Ms S.  Into the future it is less likely that the violence can be hidden. 

11. However, as both households have a history of violence I do not intend to make final orders at this time.  By doing this I am not inviting the parties to come back to the Court.  In fact, the proceedings will be brought to an end.  But if parents again expose these children to violence it will be open for the Independent Children's Lawyer to bring the matter back before the Court.  In addition I will request that an updated family report be provided in about eight months or so, so that I will know whether these children are safe. If there are any signs of violence or other antisocial behaviour for these children, those various things may offer these children protection from violence.

12. I am not sure that the mother has addressed her issues with alcohol.  I am not sure that this is easily done.  She used, I am sure, alcohol as a method of protection, having been brought up and made to grow up so early in her life, with children at such young age and living in those circumstances.  I suspect it will take a while, if ever, for her to overcome that.  But that’s for her to deal with and not for her children to deal with. 

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

1. I am concerned about the anger that exists between the parents and, hopefully, these orders may militate against that in some respect.  I am obliged to consider the views of the children.  And I worry about Y.  He wants to have a good relationship with his mum and his dad.  That’s all he wants.  He doesn’t want to be caught up in this dispute between them.  The way he had to express himself in the final report for Dr O, where he said he didn’t feel safe but then had to use his hands to express himself, was quite chilling.  I take it that, at the moment, he wants to spend more time with his father and I have given that desire some weight.  I am concerned that he does not feel safe in his mother’s home and I accept that he does not feel safe in his mother’s home. 

Section 60CC(3)(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

1. The children are primarily bonded to the mother, but have a strong bond with the father.  I had considered, at one stage during the trial, as to whether I would take the younger children, in particular, and have them spend most of the time with the father.  However, the evidence of Dr O was such that I was convinced I ought not to do that at this stage.  Accordingly, I will not be doing so because of that strong bond that they have with their mother.  With Y, I am not so sure. 

Section 60CC(3)(c) 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.

1. The parties do not have a respectful relationship.  As I said earlier, I watched them interact in these proceedings.  The mother quite properly is frightened of the father and does not respect him or what he has done to her.  I don't know whether she will ever overcome that and I don't know whether she could or should be expected to overcome that.  The father, perhaps, has little insight into the impact of his behaviour on the mother, although Ms C does and, I suspect, will ensure a neutral, at best, view of the mother’s home and hopefully a positive view of the mother’s home.

Section 60CC(3)(d) The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. If the younger two children are removed from the care of their mother, and I am saying this in the context of the effective changes, I am concerned about their health.  They have serious challenges, these children, and the mother, despite what she has gone through, has tried to manage those as best she can.  I am concerned that if there was a substantial change from where they live at the moment that may have some detrimental effect on their health.  In terms of Y, again, I repeat, I am not so sure.

Section 60CC(3)(f) the capacity of:

(i)each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. The mother has the capacity to care for the children, although that has been significantly circumscribed as set out in the reports of Dr O.  The father had little or no capacity to parent in 2010.

2. The father, with the assistance of Ms C, has improved his parenting.  The mother, as assessed, has some difficulties with that.  The father uses cannabis; the mother uses alcohol; and I refer to the comments of the Independent Children's Lawyer. 

3. I note and adopt the submissions of the Independent Children's Lawyer in relation to ss 60CC(3)(g), (i), (j) and (k).  The father was not supporting the children appropriately immediately after separation, but has taken steps to put that into place.  The mother has better financial circumstances with which to care for the children, as both she and Mr O work full time. 

CONCLUSION

1. In summary, I am satisfied that it is likely that the father has changed and I am not satisfied that the children are at risk of violence or abuse in the father’s home.  I have concerns about the mother’s home.  However, I must weigh that up with all of the other factors to which I have alluded to earlier.  I have, and in that regard, I note the comments of the Independent Children's Lawyer in relation to all of the children, including the February 2010 and 2012 incidents and the Children’s Contact Centre denigration.

2. The father continues to use cannabis and there is a risk that this could impact on the children.  This is not a matter where there ought to be supervision and it seems to me that the younger children should spend time with the father each alternate weekend and half the school holidays; and I intend to make those orders.

3. The younger two children have had significant health difficulties which the mother has endeavoured to address.  However, she is clearly struggling with that task as is highlighted in the reports of Dr O, the events in February this year (which she did not share with the Independent Children’s Lawyer or the Court until forced to do so), and her use of alcohol.  I am not convinced that the mother has her alcohol difficulties under control.  She is not currently obtaining broader health professional help in that regard.

4. Y is clearly struggling in terms of his divided loyalties to each parent and his feeling of being unsafe in the mother’s home. 

5. In terms of Y, I swung between the recommendation of Dr O and the Independent Children's Lawyer.  I agree with Dr O that a significant change needs to be put in place in that regard so that Y can settle down and start addressing the issues to which Dr O referred to in her reports.

6. It is also important that he maintain a close and loving relationship with his siblings, including his very young half sister, T.  The orders proposed by the Independent Children’s Lawyer address these concerns.  I have considered the impact of the splitting of the siblings; however, bearing in mind the facts, including the need to relieve the stress on Y and his need to feel safe, it is in the best interests of these children.  They will spend every weekend together.

7. During school holidays they will be together for the whole of the time, they will be together for the whole of each weekend and it is during school days that they will be apart.  I anticipate and expect that the children will be attending the same school so that they will see each other during the school day.

8. The orders will lessen the practical burden on the mother which will enable her to better parent the younger two children and will enable more detailed focus to be placed on the parenting of Y.

9. Whilst Ms C has five other children, I am satisfied from her evidence, the evidence of Mr R, and from Dr O that she manages that in a very effective and efficient way.

I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 August 2012.

Associate:     

Date:              24 August 2012