G and S and Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

G & S & ANOR

[2004] FMCAfam 286

FAMILY LAW – Children – there is no presumption in favour of a natural parent – violence – role model – risk of exposure to violence assessed – assessment of parenting capacity – attachment – status quo – long-term interests – residence/ residence orders made – parties to attend specific parenting programs – father to attend anger management program.

Family Law Act 1975

R and R Children’s Wishes (2000) FLC 93-3000
H v W (1995) FLC 92-598
Storie v Storie (1945) 80 CLR 597
Lovell v Lovell (1950) 81 CLR 513
Morrison v Jenkins (1949) 80 CLR 626
Gronow v Gronow (1979) 144 CLR 513
Braithwaite and Stocks [2002] FamCA 344
Drew and Drew: Lovett v Lovett (intervenor) (1993) FLC 92-360
Rice v Miller (1993) FLC 92-415
B v B: Family Law Reform Act (1997) FLC 92-755
Re Evelyn (1998) FLC 92-807
Williams v Lombardo [2002] 26 FamCA 382
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580

Applicant:

D G G

First Respondent:

J L S

Second Respondent:

R E

File No:

PAM 3063 of 2003

Delivered on:

5 July 2004

Delivered at:

Parramatta

Hearing dates:

9 & 10 March 2004; 6, 7 & 8 April 2004
and written submissions

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr A. Canceri

Solicitors for the Applicant:

R J Russell

Counsel for the Respondent:

Mr D Maddox

Solicitors for the First Respondent:

Dignan & Hanrahan

Second Respondent:

No appearance

Counsel for the Children’s Representative:

Mr D Dura

The Children’s Representative:

Browns The Family Lawyers

ORDERS

That all prior parenting orders are discharged.
“The children” Duncan born in 1997, Kyle born in 1998 and Oliver born in 1999 reside with the mother.
The first respondent father and the applicant mother have joint responsibility for making decisions about the long term care, welfare and development of the said children.
The first respondent father and the applicant mother have sole responsibility for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
Pursuant to s.69VA of the Family Law Act 1975 the court declares that the second respondent, R E, is the father of the child Duncan born
in 1998.
The mother shall forthwith complete all such documents as are necessary to cause a birth certificate to issue for Kyle identifying R E as the child’s father.
Subject to order 2 above, the children shall reside with the first respondent father as follows:
(a)From the conclusion of school/preschool Friday to 6.00pm Sunday for the first three out of every four weekends, commencing on the second weekend after the children are returned to the mother.
(b)For one half of each gazetted New South Wales school holidays as agreed between the parties AND failing agreement during the first half in years ending in an even number which shall include years ending in a zero and the second half in years ending in an odd number.
(c)In the years when the children are in their mother’s care for the first half of the Christmas Holidays from 2 pm Christmas Day until 2pm Boxing Day.
(d)On the children’s birthdays as follows:
(i)If the birthdays fall on a school day, from after school the evening prior to their birthday until the start of school the day of the birthday in years ending in an even number. In years ending in an odd number from after school on their birthday until the start of school the next day.
(ii)If the birthdays fall on a non-residence weekend for four hours from 9 am to 1 pm.
(e)For Father’s Day in each year if it falls on a non-residence weekend from 9 am to 5 pm.
(f)At such other times as agreed between the parties.
Weekend residence is suspended during school holidays.
Unless otherwise defined in these orders school holiday residence shall:
(a)Commence at 10 am;
(b)Conclude at 5 pm;
(c)Be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
After each school holiday the first respondent father’s weekend residence shall resume on the first weekend after school has resumed if he has had the children’s care during the first half of the holidays AND on the second weekend after school has resumed if the father has had the children’s care during the second half of the holidays.
If the first respondent father’s weekend residence occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday. If the public holiday is a Monday it shall conclude at the usual time on the Monday.
If either party intends to take the children on holidays or take the children away from their normal place of residence for a period of in excess of 48 hours they shall give the other party prior written notice of the intended date of departure; the proposed destination and address, mobile telephone or landline number where the child/ren can be contacted.
Unless the first respondent father’s residence period is starting at school/preschool the mother or her nominee shall deliver the children to the father at the start of his residence period.
The first respondent father shall return the children to the mother’s home at the end of each residence period.
The first respondent father’s residence periods are suspended:
(a)On the weekend that includes Mother’s Day;
(b)From 2 pm Christmas Eve to 2 pm Christmas Day in years ending in an even number and from 2 pm Christmas Day to 2 pm Boxing Day in years ending in an odd number.
(c)If a child’s birthday falls on a weekend that the children are in the father’s care, for four hours from 9 am to 1 pm.
Immediately upon the children returning to her care, the mother shall do all things necessary to re-enrol Duncan and enrol Kyle into speech therapy.
Each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the children including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health-related treatment being undertaken by the children.
The mother shall nominate a family general medical practitioner or medical centre, which will be the children’s primary treating doctor. To the extent possible the parties will ensure that the children attend this doctor for routine medical treatment.
Within twenty-eight days each of the parties shall register to complete a registered parenting program, such as the Triple P program. The parties shall each participate in the first available program and attend it until it is completed. Each party shall provide written confirmation to the children’s representative that they have enrolled in and later completed the program.
The first respondent father shall attend a registered anger management course within 28 days from the date of these orders and provide written confirmation to the children’s representative confirming such attendance.
Both the mother and the first respondent father are restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
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.
All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM3063 of 2004

D G G

Applicant

And

J L S

Respondent

REASONS FOR JUDGMENT

Introduction

These are proceedings about where three brothers Duncan born in 1997, Kyle born in 1998 and Oliver born in 1999 will reside (not their real names). The children’s mother, asks that the children reside with her whilst the father of the eldest and youngest children, asks that all three boys continues to reside with him. Kyle’s father, R E has not participated in the proceedings. Both parties agree that the children should have significant contact with the other party.

The applications

D G G (“the mother”) started these proceedings when she filed an application for final orders on 31 July 2003. In her initial application the mother sought orders that the children reside with her, that the parties have joint responsibility for their long-term care, welfare and development and an order that the respondent have supervised contact at Centacare Contact Service at Campbelltown. In written submissions the mother’s counsel indicated that, subject to order 4 being couched in terms of contact rather than residence, his client consented to the orders proposed by the children’s representative.
J L S (“the father”) filed his response on 5 September 2003. In it he proposed identical interim and final orders. Essentially, he contended that the three children should reside with him, that he have responsibility for decisions concerning the children’s day to day care, welfare and development, joint long term responsibility with the mother and that she have regular alternate weekend, half school holiday and other special occasion contact. The father proposed that the mother collect and return the children from his home for contact changeover. He sought a series of injunctions including an order restraining the mother from residing with or bringing the children into contact with R E, a mutual non-denigration order and a mandatory injunction requiring the parties to keep each other informed of their residential address and telephone number.

The evidence

The applicant mother relied on the following:
·Her affidavit sworn 2 March 2004 and her oral testimony.
·Statement of the maternal grandmother, P K,[1] dated 10 March 2004 and her oral testimony.
·Statement of the maternal grandfather, B K,[2] and his oral testimony.
·Statement of the mother’s brother, M K[3], dated 10 March 2004 and his oral testimony.
·Statement of, the mother’s associate, C F[4] and her oral testimony.
[1] Exhibit C
[2] Exhibit D
[3] Exhibit E
[4] Exhibit F
It appears that the reason so many of the mother’s witnesses gave their testimony by statement rather than by affidavit is that her case was somewhat inadequately prepared. Initially the mother presented her case reliant only upon her testimony. This is a complicated and finely balanced case in which there are series allegations made by both parties against the other. If the mother was advised that she did not need corroborative evidence where it was available she was poorly advised. Because the court was concerned about the paucity of evidence in the mother’s case, her counsel conferred with relevant witnesses and prepared the statements identified. Apparently he had no difficulty conferring with these witnesses and all were willing to participate in this hearing. All counsel took a pragmatic approach to the late introduction of this evidence and in my opinion dealt appropriately with the situation. Because the matter involved the welfare of children the late material was allowed. In one sense the mother’s solicitor is fortunate that the matter was adjourned part heard and that it was not necessary to consider costs issues because of the state of preparation of her case.
The respondent father relied on the following:
·His affidavit sworn 19 February 2004 and his oral testimony.
·His statement of oral evidence[5] and his oral testimony
·Affidavit of his partner, L B, sworn 19 February 2004 and her oral testimony.
·Affidavit of the paternal grandmother, G M, sworn 19 February 2004 and her oral testimony.
·Affidavit of the father’s associate, A K, sworn 20 March 2004 and her oral testimony.
[5] Exhibit H
Both parties and the child’s representative tendered documents that became exhibits.
On 20 October 2003 pursuant to s.62G2 of the Family Law Act 1975 the court ordered that a family report be prepared. Ms Veronica Seres, a psychologist and regulation 8 officer, prepared the report. Her report[6] is dated 2 March 2004. Ms Seres interviewed the parties on 16 February 2004, interviewed the children, L B, the maternal grandmother and M K on 24 March 2004 and also conducted the observation sessions that day. Under the heading “Counsellors assessments and recommendations” Ms Seres summarised her recommendations. These were based upon her observations and review of material then contained in the court file and a cursory examination of subpoenaed documents. She recommended as follows:
“The three children at the centre of this residence dispute have undoubtedly been exposed to several stressful life events and are part of a complex family. They have witnessed violence between the parties, also between the father and R E, the biological father of Kyle. They have endured the separations and reconciliations of the parties and also, the mother with R E. They have also experienced a change in residence from their mother to their father. Furthermore, Duncan has had to endure ongoing surgery and therapy for his burns injuries.
Given the above factors, it is hardly surprising that the older two boys, Duncan in particular, have experienced some speech delays and some behavioural difficulties. Nevertheless their attachment to both parents was strong and positive. The circumstances under which the boys were placed in the father’s care relate to allegations that the mother’s partner at the time, R E, physically abused all three children. This assessment indicated that the dislike all three boys expressed about R E was genuine and that a continuing order preventing any form of contact between R E and the boys may be necessary. At least until the results of an investigation of the allegations comes to light.
The father, with the support of his partner and the paternal grandmother, appears to have been able to establish a daily routine for the boys which has enabled them to cope well with the change in residence last July. He has been able to provide them an environment that supports both play and learning. He has also become involved in their schools and continued to ensure that Duncan attends follow up appointments for treatment and therapy at The Children’s Hospital.
The mother’s anger and grief of the loss of the daily care of the three boys are understandable, given that until July last year she was their primary carer. The boys undoubtedly missed their mother and benefit from the physical affection and love that she provides them. She also indicated that her mother would continue to support her in the care of the boys should they be returned to her care. Nevertheless, by being placed back into the mother’s care, the boys will be forced to endure yet another change in housing arrangements and daily routine. While the boys, and Oliver in particular, may nevertheless cope with yet another change, it may threaten the progress in their cognitive and psychological wellbeing that has been established in the past few months since in the father’s care.
A cursory examination of the subpoenaed documents indicated that although the father has an extensive police record, dating back to when he was a juvenile offender, there have been no new charges since December 2001. The father does seem genuinely committed to caring for all three boys. Nevertheless, should the court order that the boys remain with the father, then it would be important for the children to have some form of additional contact with their mother apart from alternate weekends and half of all school holidays. Perhaps one evening during the week or alternatively, one day of the weekend where they have previously remained with the father.”
[6] Exhibit A
Ms Seres placed considerable reliance on the efficacy of the information given to her, particularly by the father and his partner. Although she thought that she understood the extent of the father’s criminal antecedent’s, particularly domestic violence, Ms Seres was surprised to learn that seven people, including the father’s mother had sought and obtained apprehended violence orders for their protection from him. She did not appreciate that he had changed the children’s school and that he misled her when he told her that Duncan continued to see a speech therapist. The father told her there was a continuing Department of Community Services/JIRT style investigation concerning physical maltreatment of the children by R E, when there was no such investigation. The father did not reveal the children’s true living arrangements during 2003 and the full extent of his mother and L B’s involvement in the children’s care. These were all matters that materially influenced the court counsellor’s opinion. During cross-examination Ms Seres distanced herself from the recommendations made in her report to the extent that it appeared that she recommended that the children reside with their father. By the end of her testimony she was clearly concerned about both parents capacity to take of the children, expressing real misgivings about either parties capacity to parent the children without significant assistance from others.
In his written submissions counsel for the children’s representative identified the orders that the children’s representative invited the court to order. These are set out in the paragraph below:
1.That all previous orders relating to the children of the relationship, namely: Duncan born in 1997; Kyle born in 1998; and Oliver born in 1999 be and are hereby discharged.
2.That the said children reside with the applicant mother at all times subject to order 4 below.
3.That each of the parties have the sole responsibility for the day to day care, welfare and development whilst the children are in their respective care.
4.That the children reside with the respondent father at the following times:
(a) For three out of every four weekends from the conclusion of school/pre-school Friday to the commencement of school/pre-school Monday commencing Friday, 7 May 2004;
(b)From 4 pm Saturday, 17 April to 4 pm Sunday 25 April 2004;
(c)For one half of all school holidays as agreed between the parties, however failing agreement for the first half in 2004 and each alternate year thereafter and the second half in 2005 and each alternate year thereafter;
(d)From 2 pm Christmas Eve to 2 pm Christmas Day in 2005 and each alternate year thereafter and from 2 pm Christmas Day to 2 pm Boxing Day in 2004 and each alternate year thereafter;
(e)On the weekend that includes Father’s Day in accordance with the times set out in (a) above;
(f)At any other time/s as agreed between the parties.
5.That the respondent father’s periods of residence with the children shall be suspended at the following times:
(a)On the weekend that includes Mother’s Day from the conclusion of school Friday to the commencement of school Monday;
(b)From 2 pm Christmas Eve to 2 pm Christmas Day in 2004 and each alternate year thereafter and from 2 pm Christmas Day to 2 pm Boxing Day in 2005 and each alternate year thereafter.
6.That unless otherwise agreed the children are to continue to attend the schools/preschool they are currently enrolled in.
7.That the parties are to do all acts and things and sign all necessary consents and authorities to re-enrol Duncan, and enrol Kyle, into speech therapy within 28 days from the date of these orders.
8.That each of the parties are to keep the other notified of any medical emergency, accident and/or illness suffered by the children whilst in their care as soon as practicable or within 12 hours and/or any medical appointments any of the children are required to attend at least 14 days prior to such appointment.
9.That each of the parties provide all necessary authorities to the children’s treating medical practitioners, including speech therapist, sufficient to allow each of the parties to speak with and obtain information in relation to each of the children’s medical progress and/or treatment.
10.That each of the parties provide all necessary authorities to the children’s school/preschool sufficient to allow each of the parties to speak with and obtain information in relation to each of the children’s education and obtain copies of reports, newsletters, etc.
11.That each of the parties keep the other informed as to their current residential address and phone number, if available, and notify the other of the details of any changed at least 7 days prior to such change.
12.That each of the parties attend a registered parenting course within 28 days from the date of these orders and provide written confirmation to the Children’s Representative confirming such attendance.
13.That the respondent father attend a registered anger management course within 28 days from the date of these orders and provide written confirmation to the Children’s Representative confirming such attendance.
14.That each of the parties are hereby restrained from the denigrating the other parent in the presence or hearing of the children and are to use their best endeavours to ensure that no other persons denigrates the other parent in the presence or hearing of the children.

The issues

The primary issues at trial included the following:
·The nature of the children’s relationships with the parties.
·The children’s wishes and the weight that should be attached to them.
·The parties’ capacity to meet the children’s intellectual, emotional and psychological needs.
·The nature and extent of family violence.
·The father’s capacity to be an appropriate role model for the children.
·The mother’s capacity to protect the children from exposure to family violence.
·The extent to which the parties will maintain and promote the children’s relationship with the other parent.
·The effect on the children of again changing their living arrangements.
·The parties attitudes to the responsibilities of parenthood.

Credit

This is one of those unusual matters in which it is necessary and proper to make credit findings. The father’s evidence in a number of material respects was unsatisfactory, not as a consequence of inadvertence, but rather because I am satisfied he deliberately attempted to mislead the court. The father is obviously intelligent. I do not accept important differences or omissions in his evidence on significant matters are mistaken. For example, the father completed a statement submitted to Campbelltown Local Court[7] in which he said, “During the pregnancy, I was incarcerated for a period of six months”. He did not disclose an extensive criminal history, nor that the reason for his incarceration was that he assaulted the mother. In the same statement he said, “I am very concerned about Duncan’s next operation, which is booked in for the 22^nd of July at Westmead Hospital. I have my doubts as to whether his mother will take him… I believe that I am best suited to supervise his treatment and recovery”. He did not reveal that hitherto the mother had been primarily responsible for Duncan’s medical treatment, that under her care he had never missed an appointment and that she was the parent who always remained with him at hospital.
[7] Exhibit J
Where there is a conflict in the evidence between that given by the paternal grandmother, G M, and the evidence given by the father and L B, I prefer the paternal grandmother’s evidence. She impressed me as doing her best to give an accurate and honest account of events as she recalled them. G M revealed that after the recovery order Duncan lived with her full time, while the other children shared their time living with their father at L B’s home and her home. The father and his partner gave a very different picture suggesting that all three children had lived with him. The father and L B asserted that Duncan had continuing speech therapy, implying that he still attended speech therapy with a speech therapist. In fact he had only one visit to a speech therapist and L B was doing some sounds work with him. She is not a trained speech therapist.
There were inconsistencies in the mother’s testimony particularly concerning dates and times of events. However she appeared to be really trying to give an honest account. Unlike the father she was willing to make appropriate concessions in his favour and appeared to be trying to cooperate with the hearing process so that the court had as accurate a picture of the family as possible. It was plain that at times the mother did not understand some of the language used by counsel and she also appeared to struggle in order to understand relatively straightforward concepts. Some of her inconsistencies appeared to emanate from memory deficits rather than deliberately misleading the court. Fortunately all counsel persevered with her and in the end there were areas where her evidence was credible and core consistencies on major issues apparent.

Mother’s circumstances and proposals

On 3 February 2004 the mother moved in with her brother, M K, at Campbelltown. The mother’s other brother moved out so that she could move in and have sufficient accommodation for the children during contact. This is where the children come for contact. In the event the mother has residence of the children, she and her brother intend to rent a larger home in the same vicinity. M K explained that he is primarily responsible for maintaining the exterior of the property while the mother takes care of the interior. M K works full time, leaving home at 4.30 am and returning at 7.00 pm, Monday to Friday. The mother prepares the meals and he helps her with household tasks such as vacuuming and wiping up. M K explained that work is very important to him. He evidenced a good work ethic, was calm and considered in the way he gave his evidence and impressed the court as being a pleasant young man who provides a decent role model for the children. The children enjoy his company and call him “Uncle M”. M K loves the children dearly and is committed to providing for the children to the extent that he can. This includes offering financial support, having them share his home and assisting the mother in the children’s day to day care.
The mother completed her higher school certificate at Airds High School. When she was nearly 19 years old she had her first child, Claire who was born in 1993. The mother married Claire’s father, R G, not long after her birth. They separated before Claire had her first birthday. At separation Claire remained living with the mother and continued to do so until she was about 5 years old. When Claire was five years old her parents agreed that she would live with her father. The mother sees Claire regularly. Claire’s grandparents live nearby. Claire comes to the mother’s home most afternoons after school and her father collects her at about 8 pm after he has finished work. The mother also sees Claire some weekends. Claire is fortunate in that her parent’s have a flexible and easy approach to contact. The mother’s parents also live nearby and are happy to assist her in any way necessary with her care of the children. As her father works full time, her mother is more available. The mother has a good relationship with both of her parents and they have long been actively involved in helping the parties care for the children. They provide important support that will continue for as long as the mother needs it.
Presently, the mother works as a volunteer, sometimes during the week and also on weekends. She does not work when she has the children. Provided she can balance work and caring for the children, the mother aspires to take part time work, which will supplement her supporting parents benefit as well as providing a role model for the children. She intends to ensure that the children continue to attend their current schools and pre/schools. About three or four months ago the mother met and established a friendship with D R. He has returned to Queensland where he works as a French polisher. The mother enjoys his companionship however has no plans to start a relationship with him or anybody else for the foreseeable future. The children have not met D R.
Unless a court orders that R E has contact to Kyle she intends that the children will not be exposed to him.

Fathers circumstances and proposals

The father lives in a rented home at Leumeah. This is a three bedroom home which is sufficient for the children’s accommodation needs. The home is neat and appropriately furnished[8]. Having moved into this home in late December 2003 the father changed Duncan’s school and commencing this year Duncan and Kyle attend his local area public school. Oliver is enrolled at the local preschool three days per week, which he enjoys. The father supports himself from a Centrelink parenting payment and family allowance. The father is available to take care of the children on a full time basis and is keen to do so.
[8] Exhibit L
When he was 19 years old the father had a daughter Chloe who was born in 1995. Chloe’s mother left the father whilst he was in custody. He has not seen Chloe since she was six months old. He plans to seek contact with Chloe when these proceedings are over. Counsel for the children’s representative explored this ambition in an attempt to have the father consider the situation from Chloe’s perspective. The father was quite unable to contemplate that Chloe may find his reappearance confusing and may well not welcome it. Although the father says he will pursue contact, having done nothing about it for so many years it is unlikely he will proceed as he claims.
By the time the father was 14 years old he committed his first criminal offence and thereafter was continually in trouble. Because of his behaviour, he could no longer live at home and left home and school before he obtained his school certificate. He has completed a number of skills based programs, however does not have any formal qualifications. Putting aside work done because it was a condition of a bond or court order, the longest period of time the father has worked is six weeks at the Brisbane Motor Show. The father is skilled at computers and does some paid work at home designing web sites and similar work for the music industry. It does not appear that this work produces sufficient income to interfere with his entitlement to a Centrelink benefit and family allowance. From this I infer that the paid work done designing web sites and playing in a band is minimal. At the time of the hearing, he and L B were about to do some casual work at the Royal Easter Show. The father has done charity work; basically playing in a band on fundraising days at Mt Druitt hospital and at Campbelltown. The voluntary work has been very limited.
The father enjoys music and plays lead guitar and performs vocals in several bands. It is through his interest in music that he met his partner L B. They have known each other for about five years. Recently, they became engaged, and have yet to set their wedding date. They live nearby to each other and spend significant amounts of time at each other’s homes.
The father has a significant criminal record. Recently, he discovered that the Roads and Traffic Authority has made application for an order that because of his repeat driving offences, his current period of disqualification be extended. Although the father intends to resist the application to have him classified as a habitual offender, it seems likely that the extension sought by the RTA will be granted. Presently the father is disqualified from driving until 2006. If classified as a habitual offender he will have an additional five years added to this disqualification which will be added concurrently. This means that the father would be disqualified from driving or from holding a driver’s licence until approximately 2009. The father is able to manage the children’s care notwithstanding his inability to drive. Fortunately, he has friends, including L B, who assist him in his care of the children and when he needs assistance with transport.
Because the father does not have a driver’s licence, he considers that the mother should take greater responsibility for her contact changeover.
The father is determined that the children shall not have contact with R E. He has sought an AVO for his and the children’s protection. An interim order has been made, but the matter remains before a local court, as service of the application has not yet been effected. The father agrees that the children need to see their mother and says that she can have regular contact. Is he is unsuccessful retaining their primary care, he wants to have extensive contact.

Chronology

The mother was born in 1974 and is 30 years old.
The father was born in 1976 and is 27 years old.
The father has an extensive criminal record. As well as repeat offences relating to break, enter and steal, larceny and the like, there are numerous driving offences and violence matters. His first offence was when convicted as juvenile on 22 November 1990 for malicious damage. He was ordered to live in a supervised facility, Anglewood Training School, and entered a recognisance to be of good behaviour for twelve months. Within the period of the recognisance, he was convicted of four counts of break, enter and steal and one of stealing. On 19 March 1991 he was placed on two years probation and on 6 June 1991 a two-month control order. On 26 February 1993 he was convicted of assault and offensive language in relation to which he was placed on a twelve-month bond which required him to accept supervision of Juvenile Justice. It appears that he assaulted a worker at Unanderra Boys Home where he was living. On 5 March 1993 he was convicted of malicious damage and received a further two months control order. On 12 March 1993 he was convicted of assault and escape lawful custody. Further convictions followed on 13 August 1993, 18 February 1994, 6 April 1994, 29 July 1994, fifteen of which did not involve violence. One was for resisting arrest. In relation to this raft of convictions the father received a mixture of community service, control orders, probation and disqualification from driving. His next assault conviction occurred on 14 December 1994. He believes that he assaulted a boy at the remand centre in Port Kembla.
The parties commenced cohabitation in May 1995. The mother was 21 years old and the father was 19 years old. When they commenced cohabitation Claire lived with them and was having regular contact with her father. The father’s criminal and AVO record[9] reveals that after the parties commenced cohabitation he had relationships with other women. From this it appears likely that in the early stages of their relationship the parties separated and reconciled on a number of occasions.
[9] Exhibit I
The father has seven further convictions entered on 17 May 1995, which resulted in fixed term sentences and further disqualification from driving. On 16 April 1996 he was convicted of resisting arrest and sentenced to 60 hours community service. In addition he was convicted of assault and breaching an apprehended violence order. In relation to the assault he received periodic detention for six months. The father was uncertain who the assault related to, and postulated that it could have been his mother. The breach of the apprehended domestic violence order related to another girlfriend’s parents. On 28 October 1996 the father was convicted of committing an act of cruelty on an animal for which he received a one-month sentence. He was convicted of breaching an apprehended violence order on 13 August 1996 for which he received a two-month fixed term. Because he failed to complete periodic detention, on 13 February 1997 his periodic detention was cancelled and he was returned to custody full time.
At Campbelltown Court on 20 March 1997 the father was convicted of assaulting the mother for which he received a six months fixed term of imprisonment. In addition he was convicted of malicious damage and breaching the community service order. He unsuccessfully appealed all convictions and his sentence commenced on 17 June 1997.
The parties’ first child, Duncan was born in 1997. The father was in prison when Duncan was born. Whilst he was in prison the mother commenced a relationship with the second respondent, R E. R E is an associate of the father’s and his family.
When the mother heard that the father had been released from prison she contacted him so that Duncan could have contact. The mother believed that gaol may have changed the father’s attitude towards her and hoped that his violence was a thing of the past. When they seemed to be getting along well and there were no further assaults, about two or three months before Kyle was born the parties reconciled.
Kyle was born in 1998. R E is Kyle’s father. The parties agreed that the father’s details would be included on Kyle’s birth details and his birth certificate thus identifies the father and not R E as the child’s parent.
Not long after Kyle was born Duncan was badly burned in a bath. The mother had run a hot bath and left the bathroom unattended. The father and children were downstairs. Without either parent realising it, Duncan climbed into the hot bath and was seriously burnt. Duncan was admitted to Westmead Hospital as an emergency patient and remained there for about 5 weeks. The mother stayed overnight with him at the hospital. She and her mother took it in turns to remain with Duncan during the day. Kyle was a new born baby who appears to have been primarily cared for by the maternal grandmother, with some assistance from the father and less involvement by the mother during this period. When Duncan was discharged from hospital the Department of Community Services placed him with the maternal grandmother. Duncan lived with his grandparents for about six weeks. The mother visited Duncan at least every second day, whereas the father visited once. He was unemployed and proffers no explanation for his failure to have regular contact with Duncan during this time. While he was in hospital the mother learned how to dress Duncan’s wounds and manage his care. While Duncan lived with her parents, the mother and maternal grandmother attended to the child’s injuries and dressings. Upon the child’s return to his parents, the mother was overwhelmingly responsible for doing so. She maintained all necessary medical and hospital appointments and stayed with Duncan whenever he was readmitted.
The father has further convictions on 9 September 1998 and

7 December 1998 relating to theft which resulted in a community service order and a recognisance.
On 28 January 1999 the father was convicted of driving offences relating to charges laid 14 October 1998 and on 19 February 1999 further driving offences relating to charges laid 15 January 1999. These resulted in additional driving disqualifications and court costs.
On 9 August 1999 Oliver was born.
In early 2000 the parties and children went to Queensland. Claire asked to stay behind with her father because she was frightened by the violence in the home. Although she felt sad about leaving her daughter, the mother realised that Claire was unhappy living with the father and agreed that she could live with her father.
Upon their arrival in Queensland, the parties and the children moved in with the father’s mother and her then partner. A short time later they took over her lease. They remained in Queensland for about three or four months. I accept the paternal grandmother’s evidence that the children’s needs were neglected, with inadequate attention to hygiene, nutrition and routine. During cross-examination she fairly conceded that responsibility for this situation fell not only on the mother but also the father. The mother was 26 and the father was 24 years old. At that time the children were three and a half, two and a half and a few months. The mother agrees that she was not coping at that time. It is for this reason that she telephoned her father requesting that he pick Oliver up. The maternal grandfather had recently returned from a family holiday Tasmania and immediately left by train for Queensland. He collected Oliver and returned with him to New South Wales. Oliver remained with his maternal grandparents until the parties returned from Queensland. Upon their return the mother and children moved in with her parents while the father moved in with his sister. Within no more than a few months the parties resumed cohabitation in the Campbelltown area.
Because he failed to comply with the terms of his community service order the father was charged on 4 April 2001 and convicted of failing to comply on 19 April 2001. This resulted in a one-month sentence, which commenced on 19 April 2001 and concluded on 18 May 2001. He had further driving offences on 19 April 2001 and on 10 April 2002. The latter resulted in a six-month suspended sentence, which required the father to accept the supervision of Probation and Parole.

Duncan started school in 2002 at the local public school. He repeated kindergarten at the same school in 2003. In terms one and two 2003 he was absent 24 full and 6 partial days. This may have included the period he was in hospital. There is no evidence from the school concerning his attendance in terms three and four.
In early 2003, about six weeks prior to their final separation the mother obtained paid employment sorting clothing at a charity store. This was her first paid employment since Claire’s birth and, possibly, since she had left school. This was a terrific opportunity for the mother and the family. Potentially it gave the family the opportunity to break away from reliance on the public purse, obtaining private rental accommodation (going private is the phrase used by the mother) as well as providing the children with a worthy example of a good work ethic. In order to work the mother needed the father’s support with the children. After she had worked for six weeks, the father’s constant complaining about being at home caring for the children made it impossible for the mother to continue working. This replicates the situation that occurred when the mother was ill with ovarian cancer. Although the father was not working, the mother needed to arrange for her mother to take care of the children.
The father appeared to try and create the impression that he had worked part time as a musician and that he also took other work on a reasonably regular basis. However, it became clear that most work, including volunteering, was predominantly by way of community service orders. Depending on whether he was answering questions concerning his care of the children or concerning his work history, the frequency of his work as a musician changed. He appears to have worked no more frequently than one, rarely two, Saturday evenings a month on and off over the years. The longest period of paid work he has done was six weeks at a motor show in Brisbane.
The parties separated on 24 March 2003.
At separation the father moved in with L B and the mother and children remained living in a Department of Housing home at Ambarvale. After separation the father had regular contact with the children by agreement with the mother. The mother enjoys netball and plays competition sport on Friday evenings. Each Wednesday she would telephone the father and ask if he would mind the children while she was at sport, also making arrangements for him to have weekend contact. On at least four weekends prior to July 2003, the father had the children for the entire weekend. In addition, he had contact during the day on weekends and most weeks saw the children at least once.
By April 2003 the father and L B had commenced a sexual relationship.
Having lived in Queensland for about five years the paternal grandmother returned to Sydney in early 2003. In February/March 2003 she moved in with her daughter and son-in-law. Between February and June 2003 R E was staying with the paternal grandmother. G M explained that the father and R E have had a difficult relationship over many years, describing it as having, “A lot of ups and downs”. The paternal grandmother said that while he was there, R E was drinking to excess and used marijuana. Nonetheless, over the years she said he had never done anything that particularly concerned her and she was not bothered when R E started visiting the mother and the children.
From both parties’ perspective, it appears that they were content with their own and the children’s arrangements after separation until the father discovered that R E had made contact with the mother
In June 2003, R E arrived at the mother’s home in the early hours of the morning. He was drunk and rather than turn him away, the mother allowed him to sleep in the spare room. Thereafter he came and went from her house on and off during June 2003. When the mother allowed him to stay she knew that there was an outstanding warrant for his arrest. Although aware of it, neither she nor members of the father’s family did anything about it. Eventually the children told the father that he was there. For reasons that are not clear the father and R E loathe each other.
Following a disagreement with her son-in-law the paternal grandmother moved in with the father and his partner on 19 June 2003.
After he had contact with the children on the first weekend in July 2003, the father telephoned to speak to the children. R E answered the telephone and refused to allow the father to speak to the children. The father kept ringing and each time R E hung up on him. On the Sunday morning, at about 4 am R E went to L B’s home. He was drunk and banging on doors and windows. Refused entry he threatened the father and left. He returned to the mother’s home. The mother had previously made arrangements to spend the school holidays with a friend, L C, at his home in Claymore. Because she allowed R E to stay at the house the father had been telling the mother to leave the Ambarvale home. It was her plan to stay with L C and his teenage son in order to escape the developing dispute with the father concerning the home. The father and L C have been best friends for years.
On 6 July 2003 the mother, children and R E left the Ambarvale home, and went to L C’s home. The mother did not tell the father or anyone other than her daughter and a neighbour where she had gone. Apparently L C went along with her request not to disclose her whereabouts to the father.
Although he had had contact overnight on the Friday night, the father rang the mother’s home throughout Sunday. Unable to contact her he became increasingly agitated. On Monday 7 July 2003 the father filed an application at Campbelltown Local Court seeking a recovery order and residence of the children. Because R E had threatened that he would never see the children again, the father feared that this had come to pass.
Having issued process the father went to the Ambarvale home so that his mother could serve his application. He also took L B and A K to the Ambarvale home. When they arrived, Claire was feeding the dogs that were locked in the laundry. Claire told the paternal grandmother that she did not know where her mother was explaining that her mother had telephoned and asked her to feeds the dogs for an unspecified period. The father spoke to the applicant’s mother and neighbours in attempt to locate the mother. No one was able to help him and the father was increasingly afraid that the mother had run away with R E and the children.
A considerable amount of time was taken up concerning the father’s evidence that the mother’s house was filthy. Although the mother denies it, I accept the father’s evidence that the house was dirty and in disarray. While some of the mess would have been created when the mother and children packed up, the photographs taken by the father’s associate, A K, reveal a basically dirty home. However the father and his mother had attended one of the children’s birthday party on 19 June 2003 at which time the paternal grandmother said the house was untidy but not dirty. Thus the neglect apparent in the photographs[10] appears to have taken place over about three weeks. Complaints made by the father concerning stained carpets and holes in the walls and door are mischievous as these predate his departure from the home. During the period immediately prior to separation the mother was working at Lifeline and he was at home during the day. Thus both parties are responsible for the state of the carpets and walls.
[10] Exhibits G1 and G2
On 15 July 2003, notwithstanding that the application had not been served, the Campbelltown Local Court issued a recovery order. Curiously the proceedings were not given a future hearing date, nor was provision made for the mother to apply to vary or set aside the recovery order.
On 21 July 2003 the Australian Federal Police located the mother and children and made arrangements for her to return the children to the father at her mother’s home. Upon the father reclaiming the Ambarvale home and the children coming into his care, he and L B said that this is where he and the children resided. The paternal grandmother, G M, gave a different account. I accept her evidence that after the father resumed the Ambarvale home he shared his time between that home and L B’s home. G M took primary responsibility for Duncan’s care. It was she not the father, who took him to and from the school bus stop. Duncan lived with her at the Ambarvale home full time. The father kept the other boys with him and it appears spent more time with the boys at L B’s home than he did at the Ambarvale home.
On 22 July 2003 Duncan was admitted to Westmead Hospital where he underwent annual surgery on his left hand to release the pressure on his skin as he grows. The mother visited Duncan during the day and the father stayed with him overnight. This is the first time that the father and not the mother stayed with Duncan overnight. The father unfairly criticised the mother because she did not remain overnight. I accept her evidence that she could not contemplate being in the same place as the father and withdrew rather than provoke the opportunity for further disharmony.
On 31 July 2003 the mother filed her residence application. Although she sought interim residence it appears that this application was not pressed. Counsel for the children’s representative and also the father’s counsel criticised her, submitting that this demonstrated a lack of interest in the children. Given the lack of attention to her case apparent from the paucity of affidavit evidence I am not satisfied that her failure to pursue her interim residence case reflects adversely on the mother. There is no doubt in my mind that at all times the mother has wanted to have the children returned to her.
Thereafter the father placed conditions on the mother having contact to the children, insisting that she only have contact supervised at her mother’s home. He claimed that he had a residence order and basically dictated to the mother concerning the children. Although the mother was legally represented it appears that she was expected to make these arrangements herself. She is no match to the father. Even though the arrangements for contact were manifestly inadequate, nothing appears to have been done for her to improve the situation.
R E remained at L C’s house for between two and four weeks after they first arrived in early July 2003. I accept the mother’s evidence that she did not resume her relationship with R E. After R E left L C’s home, the mother remained living there until shortly after Christmas.
On 5 September 2003 this court ordered that a separate representative be appointed for the children.
On 9 December 2003 the father formally gave up the Ambarvale home moved with his mother to the Leumeah home. The pattern of dividing his time between his home and L B’s home continued. In December 2003 Duncan remained in the care of the paternal grandmother whilst the father took the other two children to Melbourne for L B’s family’s holiday celebrations. During the period that the paternal grandmother lived at the Ambarvale home and until she stopped living with the father in March 2004, I am satisfied that she was primarily responsible for Duncan’s care. Thus, his approved attendance and behaviour at school is primarily attributable to her care, rather than the father’s.
During Christmas 2003 school holidays the mother has contact to the children for two one-week periods.
Not long after Christmas 2003, the mother moved in with a girlfriend Vicki at her home at Claymore. Vicki is R E’s ex-girlfriend. R E visited his daughter by Vicki, Nula, about twice a week. The mother suggested that he might take a similar interest in Kyle, but it appears that with four children by four mothers, R E is disinterested in Kyle.
In early February 2004 the mother commenced alternate weekend contact, Friday evening until Sunday evening.
On 5 March 2004 the father’s mother left his Leumeah home.
This matter was adjourned part heard on 10 March 2004. That day, pending further order the court ordered as follows:
“ 1. That the “children” Duncan born in 1997, Kyle born in 1998 and Oliver in 1999, live with the mother after school/preschool on Friday to the start of school Monday on the weekends commencing 12 March 2004, 19 March 2004 and 2 April 2004. 2. At all other times the children shall live with the father.
3. That the father shall authorise all medical practitioners, therapists, education and welfare practitioners attended by any of the children, to provide copies of all reports and information provided to him, to the mother.
4. That the father is to notify the mother in advance of any attendance by any of the children by a medical practitioner, therapist, counsellor or other welfare professional.”

The relevant law

The question of whether there is a presumption in favour of natural parents in residence disputes has been addressed in numerous cases. Many early cases supported the view that in a custody dispute between a natural parent and a non-parent, the natural parent is preferred. In Storie v Storie (1945) 80 CLR 597 at 603 the High Court, per Latham CJ said, “prima facie the welfare of the child demands that a parent who is in a position, not only to exercise parental rights, but also to perform parental duties, should have the custody of the child as against a stranger. The fact that a stranger can also provide as good (or even, I should say, a better home is in the circumstances an element of only slight, if any weight”.
This statement was grounded upon the idea that considerations other than the child’s welfare could be relied upon when making a parenting order. This position was maintained in Lovell v Lovell (1950) 81 CLR 513 when the High Court emphasised that the welfare of the child is not the only consideration and cannot “elbow out all other considerations”. According to this view there must be other considerations, besides the welfare of the child, that need consideration in custody proceedings. Latham CJ concluded that these other considerations could exist as independent determinants and rejected the idea that other considerations were relevant only to the extent that they were linked to the child’s welfare. The gist of this argument is that “exclusive attention to the welfare of the child would allow rich men to adopt children against the will of poor parents”[11]. See also Morrison v Jenkins (1949) 80 CLR 626 see for example Dixon J at 641.
[11] Lovell v Lovell. Ibid
Storie v Storie and Morrison v Jenkins were displaced by the High Court in Gronow v Gronow (1979) 144 CLR 513.In Gronow v Gronow the court impliedly rejected recourse to any presumptions in residence or similar proceedings relating to children “… even in a community of unchanging social conditions, hard and fast rules or presumptions, based only upon matters of common but invariable experience, provide a poor basis for the assessment of human behaviour compared with detailed investigation of the individuals in question. In times of rapid social change their inadequacy will be greater”.[12]
[12] at 522-24
In cases decided later one sees a growing body of jurisprudence supporting a preference for natural parents in custody cases. Numerous cases appear to have been decided upon the basis of a presumption that children have a prima facie right to be raised by their parents. See Braithwaite and Stocks [2002] FamCA 344, Drew and Drew: Lovett v Lovett (intervenor) (1993) FLC 92-360. However, in Rice v Miller (1993) FLC 92-415 the Full Court of the Family Court made it clear that custody disputes between a natural parent and a non-parent for a child, must be decided solely on the basis of the child’s best interests. The court must not apply any “presumption in favour of the natural parent” when determining custody or similar matters. The Full Court firmly stated that there is no preferred position of parenthood “it is incorrect, in a custody dispute as between a natural parent and a non-parent, to state that the role of the natural parent is to be “preferred”, or to have recourse to a “presumption” that the welfare of a child will best be served by an order in favour of a natural parent.” The Full Court upheld the trial judge’s decision that “the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour if the natural parent from which the court commences its decision making process in the adjudication of custody disputes. Each case should be determined upon an examination of its own merits and of the individuals there involved.” per Lindenmeyer J.
From this decision it was made clear that it was the court’s duty to arrive at a decision which is in the overall best interests of the child. Thus each case must be determined on its own facts with the welfare (now the best interests) of the child being the paramount consideration.
What effect, if any, has the Family Law Reform Act 1995 had on the decision in Rice v Miller? By the Family Law Reform Act Part VII was substantially reframed. It introduced new concepts of residence, contact and parental responsibility with the aim of eliminating the idea that in contested child proceedings there were winners and losers, which many commentators suggested, carried the implication that parents had proprietary rights in their children. Section 65E conforms to the new language of the Family Law Reform Act and states that the court, in deciding whether to make a parenting order, must “regard the best interests of the child as the paramount consideration”. This provision replaced s.64(1)(a) of the Family Law Act 1975 which stated that in proceedings relating to custody, guardianship or welfare of, or access to, a child “the court must regard the child’s welfare as the paramount consideration”. The change from the term welfare in previous legislation, to the best interests of the child in s.65E, had no bearing on the interpretation of the provision. Its purpose was to bring the Family Law Act in line with the United Nations Convention on the Rights of the Child. Accordingly, the interests of the child should be interpreted to mean the same as welfare, that is, in its broadest sense.
Section 60B sets out the objects of Part VII and the principles that underline these objects. Section 60B(2)(a) provides “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.” Clearly sub-paragraph 2(a) emphasises the right of a child to know and to be cared for by both parents, regardless of whether they are together or separated. The question is whether in affording children this right, it has changed the position laid down in Rice v Miller. That is, whether the objects section and therefore a child’s right to know and be cared for by a parent should be given predominance over the principle that the child’s interests is the paramount consideration.
This issue was resolved by the Full Court in B v B: Family Law Reform Act (1997) FLC 92-755. It was argued that the objects section is to be given predominance over the paramountcy of the best interest principle in s.65E. Writing extra judicially Nygh J supported this view arguing that a hierarchical approach to relocation cases should be taken.[13] This would mean that s.65E must be set against or read down in light of the s.60B objects. Accordingly, the court must first consider the rights in s.60B, secondly the best interest principle and finally apply s.68F.[14] This argument is compatible with the view that in making a parenting order under s.65E, considerations other than that of the interests of the child can be considered.
[13] See Nygh, P. "B & B: Family Law Reform Act 1995" (1997) Australian Journal of Family Law(11)
[14] Young, L. "Are Primary Residence Parents as Free to Move as Custodial Parents Were?" (1996) Australian Family Lawyer (11) 3 p33.

The Full Court rejected this argument. It determined that ss.60B(2) and 68F are subject to the child's best interests. According to B v B: Family Law Reform Act 1995 the best interests of the child in proceedings under Part VII is the paramount or pre-eminent consideration “all other considerations are subservient to that”. This represents the current law. The Full Court held “a court which is determining issues under Part VII of the type which we have referred, starts from that essential premise and it remains the final determinant”. Therefore whilst children have a right to be cared for by both parents this is subject to the child’s best interests. Hence the Family Law Reform Act has had no effect on the principle laid down in Rice v Miller. Importantly, the Full Court stated that in parenting proceedings no question of a presumption or onus arises “the Act contemplates individual justice…any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children’s best interests to legal issues relating to burdens of proof”.
It is therefore apparent that there continues to be no presumptions or preferences in favour of a natural parent in a residence dispute as against a stranger. Other significant post Family Law Reform Act decisions support this view. For example in Re Evelyn (1998) FLC 92-807 the Full Court decided: “there is no presumption in favour of a biological parent nor any presumption of the biological mother where the child is female.” So too in Williams v Lombardo [2002] 26 FamCA 382 unreported the Full Court held: “there is no presumption (in relation to residence issues) in favour of a natural parent. Each case must be decided upon its facts, according the (sic) child’s best interests. While the fact of parenthood is an important and significant factor in considering which proposal best advances a child’s welfare, the fact of parenthood does not establish a presumption in favour of a natural parent.”

Section 68F(2) determining the children’s best interests

One of the issues the court must consider is the manner in which a child’s expressed wish concerning his or her welfare are to be treated. The Full Court of the Family Court considered this issue in R and R Children’s Wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. Their Honours held, “The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children”. Once a child’s wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child’s welfare. The process is described thus: “There are many factor that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately, it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of children and applying it in a common sense way as of one of the factors in the overall assessment of the children’s best interests”.
When the court counsellor interviewed Duncan he was 6 years and 8 months. The court counsellor reports, “Duncan stated that he wanted to stay living with his father, “Because I love dad”. He stated that he also liked L B and “Nan” (the paternal grandmother). He explained that although he loved “mum too” and missed her, he also missed his father when staying with [his mother]”[15]. The father’s counsel submitted that Duncan’s wishes as expressed to the court counsellor should be given considerable weight. It appears that the court counsellor was unaware that this year all three children had been asking the father for their mother within increasing frequency. All three children tell him, “I want mummy” although the child who does so most frequently is Oliver. Coinciding with the introduction of regular contact questions such as “where is mum” and “I want mummy” has become almost a daily event. The father conceded that the children miss their mother and disclosed that all children count the days until they see their mother.
[15] Page 6
Kyle told the court counsellor that he wished to live with his mother, “Because mum is sad”. Having made this pronouncement, he then stated that he wished, “to live with dad more”. The court counsellor reports, “Later in the interview he stated that he would like to live with his mother, on his own without Duncan or Oliver”[16].
[16] Page 7
At 4 years and 6 months, Oliver seemed as confused as Kyle. Oliver was unable to voice a preference and told the court counsellor that he wished to live with both parents. The court counsellor reports, “He also stated that he liked staying with his mother and playing there and that he missed her”.[17]
[17] Page 7
The children’s representative submitted that the court should accept the court counsellor’s opinion that the children are confused and not of an age or of sufficient maturity to understand the nuances of the parties’ competing proposals. From the children’s perspective this has been a volatile family break-up. The children do not have the necessary life experience to weigh up the advantages and disadvantages of the parties’ application. The real significance of the children’s wishes is that they indicate an emotional attachment to both parents and that all children emotionally need more time with their mother than they presently have. Their wishes contribute to the court’s understanding of the nature of the children’s relationship with the parties and the parties’ capacity to meet the children’s emotional needs. Insofar as the children’s representative submitted that the court would treat the children’s wishes cautiously. I accept those submissions.
The parties agree that the children are strongly attached to each other and that they should not be separated. There is no presumption that siblings should live together. However, there are obvious advantages to children of doing so. Living together maximises their sense of identity as siblings. Sibling relationships are of lifelong significance. By living together, children have shared experiences that enhance the intimacy and strength of their attachment to each other. Hence the quality and significance of their relationship as siblings. In troubled families, including those where the parent’s capacity to meet the children’s needs are somewhat limited, siblings can find extra support from each other. I agree with the parties’ approach that the children should stay together. It reflects well on the mother that although J L S is not Kyle’s father, she submits in favour of keeping the children together. It demonstrates child focussed rather than possessive parenting. The father’s desire to have Kyle reside with him also reflects well on his commitment to the children. In similar circumstances many step-parents walk away from their stepchildren and sibling relationships are rent asunder. In this instance the father also demonstrates child focussed rather than possessive parenting.
All three boys love their mother and the father. They are loved dearly in return. The court counsellor observed strong and positive interaction between the children and both parties. I accept the children’s representative submission that the factual circumstances support a finding that as at separation the mother was the children’s primary carer. This appears consistent with the court counsellor’s acceptance of the mother’s claim “that until July last year she (the mother) was the children’s primary carer”. Until separation as between the parties, the mother was part of the children’s daily lives. The father was gaoled on three occasions and during their separations the children remained with the mother or members of her family. Thus, until July 2003 the children experienced their mother as a reliable, constant presence.
Although the father was substantially present, he was not as significantly involved in the children’s day to day care as the mother. The father’s involvement increased when the mother was working, during contact and since July 2003. The children’s interaction with the father during the observation session was relaxed and happy. As the session continued the court counsellor noted, “Their interaction progressively became louder and [the mother] teased them playfully, also correcting their speech when necessary”[18]. Their interaction indicated good communication between the children and the father. He came prepared with sandwiches and all three boys sat happily and quietly when eating their lunch. This interaction demonstrates that the children are used to receiving guidance and having limits set by their father.
[18] Page 8
The children’s relationship with both parents is essential to their sense of well being, happiness and security. The children need regular and significant interaction with both parties. Although the children are primarily attached to their mother, their attachment to their father is strong. The difference in the quality of the relationships the children have with their parents centres upon the mother’s constant involvement and her substantially greater parenting role until July 2003. The effect of the mother’s evidence is that she was with the children day in, day out and overwhelmingly responsible for their care. If she asked him nicely, the father assisted. Although she was probably a fairly disorganised parent and her housekeeping somewhat lax, personally the mother was committed to the children and emotionally involved with them more than the father or any one else was. Because the children were young they would not have worried that their home was untidy and not as clean as it might have been. The important factor from their perspective was that she did more for them than anyone else and emotionally connected with them. Hence although aspects of her parenting were properly criticised, these factors did not influence the nature of the children’s attachment to her. The strength of the children’s attachment to the mother is clear from their desire to spend more time with her notwithstanding the father’s claim that he meets their emotional needs and hitherto was equally involved in the children’s care. Whilst the past twelve months living with the father will have diminished the strength of the children’s attachment to their mother, the whole of the evidence persuades me that she remains the children’s primary attachment figure. The children’s primary attachment to their mother is a factor to which I attach considerable weight.
After the children came into his care the father unreasonably restricted the children’s contact with their mother. At that time their relationship with her was far stronger and had greater primacy than with anyone else. He demonstrated a complete lack of insight into the effect on the children of firstly removing them from the mother and later failing to facilitate regular contact on reasonable terms. If the children reside with the mother I have no doubt that she will ensure regular contact between them and the father. Although she went to Claymore without telling the father, she did not plan to terminate contact between the children and the father other than for a short period. During all of their separations the mother has facilitated good contact between the children and the father, demonstrating a strong likelihood that she will continue to do so. However it has only been in the period leading up to this hearing that the father relented and gave regular contact on reasonable terms. There is real doubt about whether absent the shadow of a court hearing the father will facilitate regular contact. He has not demonstrated significant regard for the rule of law thus far in his life and the fact that there are orders requiring that he gives contact is not likely to measurably influence his willingness to facilitate the children's relationship with their mother. As between the parties I have far greater confidence that if the children live with their mother they will have a continuing relationship with both parents. Because I am strongly persuaded that the child need their relationships with both parents to continue in a meaningful way this is a factor that weighs significantly in favour of the mother’s application.
All three boys specifically mentioned their paternal grandmother and L B with affection to the court counsellor. Until she moved to Sydney last year, the children had very limited contact with their paternal grandmother and their relationship with her is of comparatively recent duration. The paternal grandmother has had significant responsibility for Duncan’s care in the latter half of 2003, during which period she probably established a companionable and easy relationship with Duncan. Unfortunately for both of them, they have only had limited contact this year which is likely to have the effect of diminishing a potentially important relationship. The younger children have not had the same extended contact with their paternal grandmother as their older brother has, but nonetheless are relaxed and settled in her company. Because of tensions in the father’s family he has not been motivated to ensure that the children have frequent contact with their paternal grandmother now that she no longer shares a home with him. Hampered by his lack of a driver’s license the father appears disinclined to make the effort to have the children see his mother with any frequency. While weekend time is constrained because of the children now have regular contact with their mother, they are predominantly in their father’s care and more could have been done to nurture their relationship with their paternal grandmother. After separation the mother ensured that the children had contact with the paternal grandmother, inviting her for example to a birthday party. The mother clearly values extended family relationships and if the children live with her she will ensure that they spend time with the paternal grandmother at least to the same extent that they would if they lived with their father. Although there are other more critical factors, this weighs slightly in favour of the mother.
All three children appear to have established an easy and companionable relationship with L B. She has assumed a significant carer’s role with the younger two children in particular and they have come to enjoy her company. Although the father and L B have known one another for about five years, their relationship as partners is only relatively recent. The father has had numerous relationships. L B has been married twice before and has two children by each of her two former husbands. L B is 45 years old and there is an 18 years age difference between her and the father. Relevantly there are other significant differences which indicate that while she and the father are confident about their relationship and its longevity, I am not persuaded that the court could find that it is likely to be long lasting. For example L B said that she insisted on routine in the home and would not tolerate foul language. She will not tolerate family violence or anti-social behaviour. L B has a good work ethic and even though she brought all of her children up alone, she managed to balance work and home life. These are standards that hitherto have evaded the father. While he presently appears to acknowledge that these are a good blue print for successful child rearing, his recognition is of short duration. The changes that L B demands from him if their relationship is to succeed are profound. The risk that the father will fail to abide her notions of citizenship and responsibility in relationships is high. Asked about the father’s criminal record, L B explained that she knew its details and that she was not concerned about it. However once she saw the actual record it became clear that L B either knew more about the extent of the record than she was prepared to concede to the court or contrary to her claim that the father never lied to her, its contents were indeed news to her. The significance of this is that although the children have established a good relationship with L B, there are too many uncertainties about the future of her relationship with the father for the court to give the continuance of this relationship considerable weight. If the relationship does last, whether the children live with the father or see him for contact, their relationship with L B will be valuable to them. More relevantly, however, the court cannot be confident that L B will continue her valuable contribution towards the father’s care of the children.
M K made it as plain as anybody could just how deeply attached he feels to the children. When he joined the observation session, the counsellor reports, “All three boys continued to remain relaxed and happy. Oliver enjoyed the undivided attention of M K in a ball game”. I accept the mother and her brother’s evidence that the children relate happily to M K. They appear willing to accept his guidance and are comfortable and easy in his company. He is a good role for the children and they can only benefit from his example. Although none of the children mentioned them, the children have a strong relationship with their maternal grandparents. The maternal grandparents have been part of the children’s lives since their birth. During separations and times when the mother or parties were unable to care for the elder two boys, they resided with their maternal grandparents. Other than R E, no doubt for good reasons it does not appear that the court counsellor attempted to explore the nature of the children’s relationship with people who did not attend upon her. Thus her failure to comment on these relationships is understandable. Both maternal grandparents impressed me as keen to provide active assistance to the parties and the children. They have demonstrated a continuing commitment to the children’s welfare. By a combination of affection, substantial involvement with the children and the children’s apparently free and easy nature, it is highly likely that the children share important and close relationships with each of them. It is likely that after their parents and each other, these are the relationships of greatest significance for the children. Although the mother ensures that the children see her parents when on contact, these relationships will be maximised if the children live with the mother. While this is not a weighty factor, this factor weighs slightly in the mother’s favour.
The children all explained to the court counsellor that they do not like R E. Kyle knows that R E is his biological father but accepts the father as his true father. In spite of the mother’s encouragement to him that he establishes a relationship with Kyle, R E has never done so. Other than the few weeks in July 2003 when he stayed with the mother, he has only had contact with Kyle on about six occasions. He has never paid child support or accepted any responsibility for Kyle. Other than a biological connection Kyle has no relationship with R E.
Changing the children’s circumstances is an important issue in this matter. The court counsellor emphasised the children “have experienced several stressful life events and are part of a complex family.”[19] Constant changes in accommodation and their parents numerous separations and reconciliations before a change in residence from their mother to their father means that they have a heightened need for stability and security. In her report she concluded, “by being placed back into the mother’s care, the boys would be forced to endure yet another change in housing arrangements and daily routine. While the boys, and Oliver in particular may nevertheless cope with yet another change, it may threaten the progress in their cognitive and psychological well-being that has been established in the past few months in the father’s care.”[20] The gravamen of her written evidence was that these children have a particular need to be protected from exposure to unnecessary changes in carer and routine. In this case it is the long-term effects of any changes that have greater relevance. If there are long-term advantages of change these outweigh any short-term disruption.
[19] Exhibit A page 8
[20] Exhibit A page 9

If the children live with the father there is a high risk that they will be exposed to violence, anti social and aggressive behaviour. I do not accept that abusive, aggressive and antisocial behaviour is in the past. Although he has not been charged with any offences since 2001 or violent offences for seven years, he demonstrated that he still uses abusive language as a means to intimidate others. Living with him full time, it is highly likely that the children will see their father abuse, possibly also assault other people with whom they come into contact. The risk is too high to have the father take primary responsibility for the children’s understanding of acceptable social interaction and reasonable behaviour. In his care, notwithstanding his recent lack of criminal charges there is a much greater risk that the children will learn that aggression is an acceptable way to behave. This is likely to undermine their capacity to maintain friendships and as they are older form healthy relationships. The father was scornful of questioning concerning the facts behind his criminal convictions for violence matters and domestic violence orders. Far from demonstrating insight into his behaviour, he appeared mocking of his victim’s complaints. If he commits further offences the father probably fears that he will be jailed. While this may be the reason the more extreme aspects of his behaviour have changed, his attitudes and values remain antisocial and aggressive. I have grave reservations about his capacity to teach the children to compromise with others or to take into account other people’s feelings and attitudes. This is a matter to which I give considerable weight.
In answers to questions from counsel for the children’s representative concerning his attitudes to contact and the mother the father explained, “I am in charge” and that in the past contact depended upon how he was feeling at the time. Concerning his decision to take the younger boys to Melbourne in December 2003 he explained that he was going regardless of whether the mother agreed. At a point during his oral testimony when the father appeared to be seething, speaking of contact, he said, “She will get the same medicine back. I am not going to forget”. He did not dispute that he sent the mother an SMS message to the following effect: “I am moving on Tuesday. I am leaving all of your stuff in the garage, with your dog and when you sleep around try using a condom. There’s a rumour going around that you’re a CUM slut. You’ve been sleeping with all the blokes and letting them blow inside you. Wake up to yourself. Lucky you can’t fall pregnant”. Later the same month he sent another SMS message, “The courts will believe the kids before they believe you, you fat slut”. Concerning contact the father told the mother, “You can’t take the children anywhere but your mother’s house”. “You can’t take the children out when they’re with you, they must stay at your mother’s at all times”. “The children fucking live with me and you’ll have them when I want you to”. He offered no apology for his language or the substance of the evidence.
These communications demonstrate clearly the father’s poor attitude to the mother. It corroborates the mother’s fear that the father has no regard for her as a person or as the children’s mother. The difference between the parties use of bad language is a matter of degree and purpose. While I accept that the mother uses bad language, her use of it is nowhere near as pervasive as it appears to be with the father. He appears to use it not only as every day expression but also as a form of aggression. Exposure to it is likely to be more extensive and confronting in the father’s milieu than while the children are with the mother. Late last year there was an incident between the mother and G M when the mother attended to collect her personal belongings. Both participants give a different account of how a physical melee developed. The issue was not well explored during cross examination and I have difficulty makings findings about it. Even if G M was the aggressor, which seems unlikely the mother overstepped the mark and her behaviour was unnecessarily antagonistic. Whilst concerning about the mother’s limitations as an appropriate role model, this is aberrant behaviour on her part and not her usual mode of behaviour.
The father considers it is his parental responsibility to protect the children from risky situations: in this regard I agree with him. When the children are returned from contact he discusses the events during contact with them and specifically questions whether they have seen R E. The father claims that R E assaulted the children hitting them with a belt. Last year the father contacted the Department of Community Services and has tried to have them take action, however they have not done so. This is because when the children were recovered L B says that while bathing Oliver she saw a bruise on the child’s bottom and noticed several bruises on Duncan and Oliver. The father said that L B asked Oliver how he got the bruise and was told that R E hit him with a belt. After their return the father asked “How did R E treat you?” The children said “R E hit us with a belt”. Asked why he was told “Because we wouldn’t go to sleep.” When pressed during cross examination it became clear that when first asked how he got the bruise Kyle told the father and L B that he had fallen out of a tree. The adults refused to accept the child’s version until he told them that he had been belted by R E. The reason they continued to question the child was explained by the father as not wanting to “go off me nut for no reason”.
The next day Duncan was admitted to Westmead hospital for his burns treatment. No-one at the hospital expressed concerns about the child’s bruise or his physical condition. Nor did the father ask the hospital to investigate any concerns that the child had been mistreated. If he really believed that the child had been neglected and physically abused I would have expected him to raise it with the hospital. The fact that he did not do so indicates that the bruising was as innocuous as the mother claims and that there were no signs of neglect.
The mother denies that R E beat the children with a belt. She claimed that the children were never alone in his company and that he did not have the opportunity to assault them. However the opportunity did arise when he was outside playing with the children and in daily interaction whilst he was living with her and the children. However the children made no complaint to the mother that any of them had been beaten nor did she ever see anything other than normal childhood bruising.
The father effectively agreed that he is hyper-vigilant in matters that concern the children and their mother. He has a poor view of her and now searches for signs that she may neglect or mistreat the children. I have no doubt that the children are acutely aware of their father’s distrust of their mother’s relationship with R E and that their parents are in serious dispute about him. For example when the mother left one of the children with her mother in October 2003 while she delivered the other children to the father at a dental surgery, the father called the police. This is because he thought the child could have been with R E. The child was with his maternal grandmother. L B was involved in this incident and fully supported the father’s intemperate actions. I consider it most unlikely that the father is able to talk to the children about matters concerning R E in a calm, neutral fashion. The conversations are likely to be emotionally charged. In this instance the father and L B gave an incomplete and thus inaccurate account of the child’s alleged disclosure. Given the father’s attitude to R E and the questions concerning his presence that appeared to have started in June 2003 it is highly probable that he created an environment that in itself suggests to the children that they should make a complaint of some type about him.
Since the children have lived with him the father has continued to question them about R E. By the time they saw the court counsellor Duncan complained that he too had been hit by a belt and all children complained that he had hit their father. They had not seen him do so and this information is likely to have been given to them directly by the father or as a result of overhead conversations conducted by the father. I am comfortably satisfied that it is highly likely that the children have absorbed their father’s harsh opinion of R E. The children’s statements concerning being belted are too heavily contaminated by the father’s and L B questioning and the father’s criticisms of R E to be given real weight. To the extent that the father tried to persuade me that there is an unacceptable risk that the children may be physically abused by R E in their mother’s care he has failed. Oliver’s statements were made by a child exposed to an environment hostile to R E. It is an environment that fuels criticisms and complaint by the children, which statements in turn are accepted without judgment. There is a real risk that this pattern will continue. There is also a real likelihood that the father and L B will continue to misinterpret and report the children’s statements to agencies required to investigate the children’s circumstances. The father is unlikely to trust the mother to abide her promise to keep the children away from R E, a problematic scenario whether they live with her or with him.
Both parties have a deep desire to be competent parents and are committed to their children's success. The extent of any deficiencies in their capacity to do so is already identified and does not need restating. It is unfortunate that the parents have been unable to achieve a compatible approach to parenting. The benefits to the children are obvious. Indeed their own lives would be easier. The parties could problem solve parenting issues together. Both parents need to try and recover a relationship that might allow them to trust each other as parents. Were they ever able to do so, they and the children would reap enormous benefits. It is their responsibility as parents to try. Individual counselling may assist in this regard.
Both parties complained that the other did not pay adequate child support. Although a significant issue for them I was not provided with sufficient evidence that the non payment of child support was inadequate by reference to their income. These parents have both had a difficult time financially since separation. This is not a case where I am persuaded I should conclude that the provision of child support by the non-residence parent is so inadequate that it demonstrates a poor attitude to the responsibility of parenting.
Parenting proceedings are never final in the sense that children and their circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, a court should make parenting orders that minimise prospects for further disputation. Litigation is costly in emotional and financial terms. Because of both parties’ limitations as parents, there is a prospect that there will be further litigation. The father’s domineering attitude towards the mother may prompt him to bring further parenting applications. If the children reside with the father, further litigation is less likely, predominantly because the mother is a more passive individual who tends to accept what is delivered up to her. I take this into account.

Conclusion

This is a difficult and finely balanced case. Both parties love the children and genuinely desire that the children have a happy childhood. Both parties have significant limitations concerning their capacity to meet all of the children’s needs. Neither parent is capable of meeting all of the children’s needs without assistance from other people.
In early 2003, the mother took the opportunity for paid work, giving her and the family a chance to break away welfare dependency. By doing so, she saw the chance to enhance her self-esteem and to give the children insight into a different lifestyle. Because the father was unwilling to accept family responsibility to the extent needed if she was to work, she gave up her job and the family’s opportunity was lost. At least in the short term. When the parties separated not long afterwards, the father was content that the children live with the mother provided he could have contact with them. Thus, in spite of the many criticisms he has of her parenting ability and examples relied upon prior to separation, his actions reveal that the mother was better able to provide full time care for the children than he was. Implicit in his decision to leave the children in her unchallenged care, is a degree of recognition that she was the children’s prime care giver. His concession does not detract from my findings that the mother’s capacity to take care of the children prior to separation was at times insufficient for the task. She did not have the personal maturity nor life skills to deal with an abusive partner and three small children, two with special needs.
At a young age, the mother established a significant relationship with the father aware that he was involved in repeated criminal conduct. Although she was not involved in it with him, she was not sufficiently insightful or motivated to protect herself and the children from exposure to the father’s antisocial behaviour. The mother demonstrated significant lack of insight into the foolhardy way that she allowed R E back into her life. Whilst she had a notion that this may allow Kyle to have a relationship for the first time with his father, she gave scant thought to the consequences of having an erratic, aggressive and often drunk man in the house. In doing so she undermined a living arrangement that was working and which enabled the children to have good contact with both parents whilst living in a reasonably settled environment. To an extent this demonstrates the mother’s lack of discernment with others and a somewhat limited ability to put her own and the children’s needs first.
The father is capable of providing for the children’s intellectual needs and aspects of their physical needs. Whilst he has a deep emotional attachment to the children, he has limited insight into the emotional needs of others. His aggressive behaviour towards others seriously impinges upon his capacity to meet the children’s psychological and emotional needs. At present, he is in an apparently healthy relationship, which contributes to his capacity to behave in a more reasonable fashion. However, the future of his relationship with L B is uncertain and I have great reservations that without her substantial care of the children and personal support, that the father may revert to his old ways. As this hearing drew closer, the father’s unacceptable limitations upon the mother’s contact with the children moderated. However, his attitudes to the mother in terms of the language he uses towards her and his past aggressive behaviour severely compromises his capacity to meet the children’s emotional needs. This is because the children may come to appreciate their father’s disdain for their mother, something that is likely to be confusing and painful.
Once the proceedings are over, there is real uncertainty that the father will maintain the children’s relationship with their mother to the extent needed. Should the children live with the mother, however, there is a far less risk that she will attempt to exclude him from their lives. The children’s physical, intellectual and emotional needs are best met by the joint efforts of both parties and the mother’s family. If any good has come out of these proceedings it is the mother’s gradual recognition that she needs the assistance of her family in order to provide a stable home life for the children. Emotionally, she has made a great investment in the children’s wellbeing. Eventually, she appeared to recognise that in order to provide for the children she needs to live with her brother and accept her mother’s active support. I am satisfied that she will do so long term.
Although further change is undesirable, the children’s long term interests require that they live with their mother and have contact with their father. The court counsellor accepted that the father was committed to providing a stable home for the children. Yet, she was unaware that he had changed Duncan’s school and that the paternal grandmother was no longer actively involved in Duncan’s and to a lesser extent, the other children’s care. Changing residence re-establishes the children’s opportunity to be cared for by the person to whom they are most strongly attached. Although they will leave their father’s home, they have only lived there for about six months and will move into a home with which they are familiar. Duncan and Kyle will remain at the same school and Oliver at the same preschool. Whilst this change may be confusing, any confusion is likely to dissipate and within a reasonably short space of time the children should settle back into their mother’s full time care. Whilst their mother is not as ordered as L B, nor as capable as the paternal grandmother, living with M K the children are likely to have reasonable routine and a good enough standard of hygiene and care.
I have continuing concerns for the children and appropriate role models. The difference between the two parties is primarily that in the father’s care my concerns relate directly to his attitudes and behaviour. In the mother’s care my concerns relate to her judgment in terms of the people with whom she associates and as a consequence to whom the children are exposed. M K impressed me with his work ethic and socially responsible attitudes. Living with him, the children will have a practical example of responsible social behaviour and work ethic. It is highly unlikely that he would accept anti-social behaviour from others in his home. This moderates the risk to the children as a consequence of the mother’s lapses in judgment. Choosing between the two options available to the court, the risk to the children of anti-social behaviour being inculcated by example is less in the mother’s home than in the fathers.
For these reasons I am satisfied that the children should live with the mother and have contact with the father.
The parties will have joint responsibility for the children’s long term care, welfare and development. Although R E is Kyle’s father, he has never exercised parental responsibility for the child. The father is committed to Kyle’s wellbeing and both parties agree that they will be able to make necessary decisions for the children. Although the effect of my orders will be to extinguish R E’s parental responsibility for Kyle, this does no more than reflect reality. Reality also requires that Kyle’s birth records are rectified. Thus, R E will be included as the child’s father, an outcome that does not require the parties to change the child’s surname. Kyle identifies J L S as his true father and changing the child’s surname would only be distressing and confusing for him. R E is aware of these proceedings and has chosen not to participate. He has clearly demonstrated that he is unconcerned about Oliver. Aware that the father sought residence and other parenting orders he has simply walked away from the child and these issues. The orders that will be made will ensure that the two people who stand in loco parentis for the child have the necessary parental authority without any restrictions imposed by a totally disinterested parent. If ever he wants contact with his son, R E will need both parties consent or an order.
The children need regular and substantial contact to the father. The mother needs the children to have regular contact with the father so that she can have a break from them. The children’s representative proposed that contact will continue so that weekend contact would occur three weekends in four, from after school/preschool Friday until Monday morning. This reflects the pattern of contact introduced in March this year. Those orders, unlike these, were of short duration. They were specifically designed to give the children contact with their primary care giver without undermining their routine too extensively. I have carefully considered whether that arrangement is an appropriate one long term and do not believe that it is. The parties and children have limited organisational skills and delineating weekday and weekend responsibility may make organising the children’s lives easier. Returning to the mother on Sunday evening makes for a consistent routine on school mornings and may make school attendance more reliable. Irrespective of whether contact finishes on Sunday evening or Monday morning, the children’s relationship with their father will be maintained. Although I have used the word contact here, it is not used in a technical family law sense. Because the father will spend considerable time with the children and to create a notion of equality between the parties, the orders will be framed as residence/residence orders.

The orders provide for special occasions to be shared with both parties and school holidays are divided equally. This gives the parties and children the chance to enjoy themselves without the demands of school.
Where possible contact will start from school. On these occasions the father shall collect the children, which will give him the chance to meet the children’s school friends and teachers. This will enhance his understanding of an important part of the children’s lives. Although the father does not have a car, the parties do not live far apart and he will be required to return the children to the mother’s home at the end of contact. Although this means he will do more of the travel associated with contact, the demands of it are not great. He will have fewer demands on his time than the mother will and as he has the available time this is a contribution to the children’s care that he can reasonably make.
It is imperative that the mother re-establishes speech therapy for Duncan and enrols Kyle as well. Therapeutic and health intervention should be consistent and thus both parties shall be entitled to obtain information concerning the children’s health, welfare and education. Consistent with the need for continuity of health care the mother shall nominate a medical practice that both parties shall use for the children’s assessment and medical treatment.
I accept the children’s representative’s submission that the parties must attend a registered parenting program, the purpose being to enhance their parenting skills. The father has a significant difficulty with managing his anger and, not withstanding that he has completed anger management programs in the past, he is ordered to enrol and complete a further program. This is essential if he is to gain insight as well as the skills necessary to deal with others in a consistently reasonable way. Although I am not concerned that the mother speaks about the father in an offensive fashion, I am concerned about the father’s attitude towards the mother. He should be restrained from speaking about her or allowing any other person to do so within the children’s hearing in a negative offensive or unpleasant fashion. In case she or others lapse, the mother is similarly restrained. At present the father has obtained an interim AVO that restricts the children’s contact with R E. By virtue of s.114AB the father is unable to bring an application for an injunction pursuant to s.68B or s.114 in respect of the matter unless the proceedings have lapsed, been discontinued or dismissed. Or the state orders have been set aside. As the orders are current and the proceedings are continuing, this court cannot grant him the relief sought. However the court has noted the mother’s agreement that the children will not be brought into contact with R E whilst in her care.
For these reasons I make the orders identified at the start of this judgment. They are in the children’s best interests.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 5 July 2004

[2004] FMCAfam 286

5 July 2004

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Res Judicata

Standing

Specific Performance

Restraint of Trade

Unjust Enrichment

Equitable Estoppel

Constructive Trust