Garin & Courtenay
[2024] FedCFamC2F 140
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Garin & Courtenay [2024] FedCFamC2F 140
File number(s): PAC 5999 of 2020 Judgment of: JUDGE MURDOCH Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – PARENTING – Where the subject children are 7 and 10 years of age – Where the only outstanding issues requiring determination are with whom the children shall live and whether the injunctive orders restricting the contact of the children with the mother’s new partner should continue - Where both parties have historically had issues with respect to illicit drugs – Where neither party asserts the children are at risk in the other parties’ care – Where the father is Aboriginal and very involved in the Indigenous community - Where the mother now spends unsupervised time with the children each alternate weekend – Where the Court Child Expert opines that the children should return to live with the mother – Where the Family Report is found to have significant shortcomings – Orders made for the children to remain living with the father and the injunctive orders relating to the mother’s new partner to continue for a further short period of time. Legislation: Evidence Act 1995 (Cth) s140.
Family Law Act 1975 (Cth) ss 60B, 60CC, 65D.
Cases cited: Whisprun Pty Ltd v Dixon [2003] HCA 48 Division: Division 2 Family Law Number of paragraphs: 155 Date of hearing: 20 to 22 November 2023 Place: Sydney Counsel for the Applicant: Mr Givney Solicitor for the Applicant: Marando Solicitors Counsel for the Respondent: Mr Blank Solicitor for the Respondent: Culleton Lawyers Pty Ltd Counsel for the Independent Children’s Lawyer: Mr Cooke Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
PAC 5999 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GARIN
Applicant
AND: MS COURTENAY
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The children X born in 2016 and Y born in 2023 (“the children”) live with the father.
2.Until 4:00pm on 8 April 2024 the mother is to do all things necessary to ensure that she is physically present at all times that the children are in the presence of Mr B.
3.The costs of each party including the Independent Children’s Lawyer are reserved for a period of 28 days.
4.All extant applications are otherwise dismissed.
THE COURT NOTES THAT:
A.Order 3 of 22 November 2023, being an interim Order, is discharged upon the making of these final Orders.
B.The final Orders made by the Court on 22 November 2023 remain in full force and effect.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
This matter relates to the parenting arrangements for the parties’ two children, Y who is ten years of age and X who is seven years of age. The parties separated on a final basis when the children were aged 7 and 4 years respectively.
Both children have had adverse childhood experiences arising from the care they received from the parties during the relationship and post separation. Both parties concede that historically they have had issues with drugs, requiring them both at different times to enter into drug rehabilitation clinics. The father also misused alcohol during the relationship. The children have been exposed to family violence both during the parties’ relationship and in a subsequent relationship of the mother.
The children have had to contend with major disruptions to their caregiving arrangements in their very short lives. They have lived solely with each of their parents and the maternal grandmother at different times, have had no contact with the other parent for extensive periods of time and for a period of nine months spent no time with the maternal grandmother who has been a significant person in their lives. The children have lived with the father continuously since September 2020; a period of three years and five months.
To their significant credit, both parties have now addressed their drug and alcohol issues and neither party alleges that the children are at an unacceptable risk in the other parties’ care. Despite their past difficulties in co-parenting in a child focussed manner, orders were made by consent during the final hearing that the parties be allocated equal shared parental responsibility and for the children to spend regular unsupervised time with the other on weekends and for block times during school holidays.
Remaining for determination is where the children shall live and whether the injunctive orders restricting the children’s contact with the mother’s partner should remain.
For the reasons that follow I have found that it is in the best interests of the children that they remain living with the father and for the next three months be restricted from spending time with the mother’s partner in the mother’s absence.
CURRENT CIRCUMSTANCES
The father lives with his wife Ms C in a home in Town D. The father has two children from a prior relationship, Mr E who is an adult and F who is 17 years of age. Ms C has two children from a prior relationship, G who is 13 years of age and H who is 11 years of age. The father and Ms C have one child together; J who is one year of age and they are due to have another child in 2024.
All of the children save for F live with the father and Ms C. F lives with his mother and sees the father regularly by agreement. All of the children living in the father’s household except G attend K School together. G is in Year 7 at L School at Suburb M.
The father is Aboriginal and a member of the N People. Ms C is Aboriginal. The father’s heritage is clearly of great importance to him and both himself and Ms C are very involved in the Indigenous community.
The father is a professional and major shareholder of a company. This requires the father to generally travel to City O every three months during the working week. The father and Ms C have also started a business called P Business.
The mother lives with her current partner Mr B in Town R, New South Wales. Mr B is Aboriginal. They have one child together, S who is two years of age.
Since September 2022 Y and X have been spending time with the mother on an unsupervised basis overnight each alternate weekend. The parties live approximately 150 km apart; being a drive of approximately 2 hours. Changeover of the children between the parties’ households occurs at Town T.
Pursuant to orders made by consent on 11 February 2022 the mother was restrained from allowing the children to come into contact with Mr B and thus prior to the final hearing the children have not had any contact with Mr B in any form save for a time he waved “hello” at the children when they were talking to the mother on a video link.
The mother is employed as a hospitality worker and works three to four hours a night, three nights per week. Mr B is engaged on a casual basis as a tradesperson.
It is uncontested that Y has attended the same school since she has been in the father’s care and is doing well academically and socially. She has been selected for representative sports and socialises out of school with her friends by attending birthday parties and sporting events with them. She is extremely proud of her Aboriginal heritage and background and is a school representative for school assemblies for acknowledgement to country. I accept the father’s unchallenged evidence that he has witnessed a growth in Y’s ability to express her feelings and emotions and that she is overall a happy and caring person. As at the date of swearing his affidavit Y was still occasionally wetting the bed and was attending counselling by agreement with the mother.
It is uncontested that X has been at the same formal school since commencing kindergarten in 2022. X socialises with his school friends and is learning about his Aboriginal background and heritage. He is also the school representative for the acknowledgement to country. The father conceded he has in the past received phone calls from X’s school for a number of issues. It is accepted that X has experienced some difficulties in adjusting to his current care arrangements. The father accepted that X has had some difficulty at school and that he has more generally “had a rocky road.”
After hearing submissions by all the parties and delivering short oral reasons, orders were made by consent on the last day of the final hearing that broadly: -
·The parties have equal shared parental responsibility for the children.
·The children are to spend time with the parent whom they are not living with each alternate weekend during the school term and for half of each school holiday period.
·The children are to have Facetime with the non-resident parent between 5:00pm and 6:00pm each Tuesday and Thursday.
·Changeovers between the parties’ households are to occur at Town T.
·The parties are at liberty to obtain access information from the children’s schools, treating medical practitioners and as to any extra-curricular activities.
·The parties are to keep each other informed of medical issues relating to the children.
·The parties are to keep each other informed of their current telephone number and email address.
·The parties are restrained from criticising or denigrating the other party or from allowing a third party to do so in the presence of the children.
·The parties are restrained from consuming illicit drugs or drinking alcohol to excess whilst the children are in their care or 24 hours prior.
·Without admissions, the parties are restrained from physically disciplining or threatening to physically discipline the children in any way or allowing another person to do so.
Orders were made pending further order restraining the mother from permitting the children to have face-to-face time with Mr B for a period in excess of six hours with the mother to ensure that she is physically present at all such times until 30 December 2023. As and from 31 December 2023 the six-hour restriction was lifted but the mother is to continue ensuring that she is physically present at all times the children are in Mr B’s presence.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties. The standard of proof with respect to such findings is the balance of probabilities: see s 140 of the Evidence Act 1995 (Cth).
The parties met in late 2012 and started living together in mid-2013. Y was born in 2013 and X was born in 2016. There were several short periods of separation during the relationship prior to the parties’ final separation in March/April 2019.
It is unchallenged that the father grew up in an abusive household and he began drinking alcohol when he was 13 years of age and using illicit drugs prior to the parties’ relationship.
During the relationship the father suffered lapses of his sobriety and admitted himself into a drug rehabilitation centre on four occasions being: -
·in 2015 for a period of three months;
·in 2016 for a period of three months;
·in 2017 for a period of six months; and
·from late 2018 until early 2019.
As between the parties the mother was solely responsible for caring for the children whilst the father was undergoing rehabilitation.
In January 2018 the mother attended upon her general medical practitioner and was placed on a mental health plan.
In December 2018 the father attended and completed an anger management course.
To his credit the father successfully completed his last rehabilitation program and has been drug and alcohol free since February 2019.
The parties separated in March/April 2019. At this time the children remained living with the mother in Town V. As between the parties the mother was the sole carer of the children from this time.
In mid-2019 the mother left the children with the father and failed to collect them for a few days. During this time the mother deposes that she overdosed on tablets and was taken to hospital before attending a mental health facility and prior to discharging herself after one week.
In mid-2019 the father moved to Town R after obtaining employment with U Company. The children had irregular periods of time with the father consisting of no contact for a number of months and then weekend time on a fortnightly to monthly basis.
The father commenced a relationship with Ms C in late 2019.
In late 2019 the mother advised the father she was in a relationship with Mr W.
In early 2020 the father introduced Ms C to the children. At this time the father refused to return the children to the mother for a period of time. Subsequent to their return to the mother she then refused to make the children available to see the father for a period of time.
In early 2020 the father observed Mr W wearing an ankle bracelet and became aware that he had convictions and had served a period of imprisonment. The mother separated from Mr W in mid-2020.
In mid-2020 the father commenced living with Ms C.
In late 2020 the father received a telephone call from Mr Z, the mother’s brother-in-law, advising him that the mother had “gone off the rails” and had left the children with the maternal grandmother, Ms AA. The mother’s whereabouts were unknown. The father agreed to take the children at the end of the school term. Prior to the school holiday commencing the father had a number of telephone calls with Mr Z who advised him that the mother had continued to not care for the children.
In the latter part of September 2020 the children came into the father’s care. It is uncontested that the children went through a period of adjustment to this significant change in their care arrangements as discussed below in these reasons.
The children have remained living with the father since this time. The mother alleges that this arrangement was to be in place only until the mother had dealt with her drug addiction. This is disputed by the father. I need make no finding in this regard to determine what is in the best interests of the children. The children did not spend time with the mother for a period of five to six months after coming into the father’s care.
In 2020 the mother was charged and convicted of drink driving.
In November 2020 the father filed an application in this court seeking both interim and final orders with respect to the children.
In late 2020 the mother was involved in a police incident in Town BB with her former partner Mr CC.
In early 2021 the mother was charged and convicted of theft.
On 17 February 2021 interim orders were made on a defended basis that: -
·The children live with the father.
·The mother undertake a drug hair follicle test within 21 days.
·The mother advise the father of all her treating medical practitioners and a list of medications prescribed to her in the preceding twelve months.
·Subject to the mother undertaking the required drug test, the children spend time with her supervised by a private supervision agency for a period not to exceed five hours once a fortnight with her to complete urine drug screening tests when requested to do so by the father.
·Upon the mother providing six consecutive clean drug tests the children’s time with her move to unsupervised time at the maternal grandmother’s home each alternate weekend from 9am Saturday to 4pm Sunday together with electronic face-to-face communication twice a week on Tuesdays and Thursdays.
On 10 August 2021 orders were made by consent joining the maternal grandmother as a party to the proceedings, for the children to spend time with her every fourth Saturday from 11:00am until 3:00pm and restraining her from bringing the children into contact with the mother.
The mother purchased a new car with an interlock device installed in early 2022.
On 11 February 2022 orders were made by consent restraining the mother and the maternal grandmother (who was a party to the proceedings at that time) from allowing the children to come into contact or communicate with Mr B.
To her credit the mother has remained sober in terms of her substance abuse for a number of years.
On 8 September 2022 orders were made by consent for the children to spend unsupervised time with the mother each alternate weekend from 5pm Friday to 3pm Sunday. In the event the mother ceased to spend time with the children then the children would recommence spending time with the maternal grandmother on the third weekend of each month from 5pm Friday until 5pm Sunday. The injunction with respect to Mr B remained.
On 2 December 2022 the maternal grandmother filed a Notice of Discontinuance with respect to the relief sought by her and she was removed as a party to the proceedings.
The mother’s interlock device on her motor vehicle was removed in early 2023.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The applicant father relied on the: -
·Application for Final Orders filed on 10 November 2020;
·Case Outline document filed on 17 November 2023;
·Affidavit of the father filed 6 February 2023;
·Affidavit of Ms DD filed 6 February 2023; and
·documents tendered during the course of the hearing.
The respondent mother relied on the: -
·Amended Response filed 2 December 2022;
·Affidavit of the mother filed 7 February 2023;
·Affidavit of Mr B filed 16 January 2023;
·Affidavit of Ms AA filed 7 February 2023; and
·documents tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the: -
·Family Report of Ms EE dated 10 October 2022; and
·documents tendered during the course of the hearing.
Whilst I have read and considered all of the material relied upon by the parties and the Independent Children’s Lawyer in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
Despite the written evidence of the parties, the final hearing of this matter was conducted in a child focussed and respectful manner. This is to the credit of both the parties and all legal counsel appearing. All counsel appearing in this matter assisted me significantly through the manner in which they conducted their client’s case, not only in their cross examination but their relevant and helpful submissions and I thank them for their assistance.
THE ISSUES
There remains two discrete issues for determination: -
·Should the children remain living with the father as sought by him and supported by the Independent Children’s Lawyer or move to live with the mother as sought by her?
·Should orders be made as sought by all the parties that all restrictions upon the children’s contact with Mr B be removed as and from 26 February 2024?
These determinations will require a consideration of the following: -
·Are the children at risk of harm arising from family violence, abuse of neglect in the parties’ care or Mr B?
·Are each of the parties able to promote a meaningful relationship with the other party?
·What are the parenting capacities of each of the parties?
·What are the children’s relationships with each of the parties and other significant persons?
·What are the children’s expressed views, and how much weight should they be afforded?
·What is the likely effect of any changes in the children’s circumstances?
·What orders will ensure that the children maintain a connection to their culture?
THE FAMILY REPORT
A Family Report was prepared for the purpose of the final hearing by Ms EE.[1] Ms EE has a relevant qualification and was employed in several positions relating to foster care for several years. There was no challenge to her expertise, and I am satisfied she is suitably qualified to provide her opinion to the court.
[1] Ms EE is Family Consultant engaged by the Court pursuant to Regulation 7 of the Family Law Regulations 1984.
The Court Child Expert interviewed the mother via video conference on 23 June 2022 as a result of the COVID-19 pandemic. The father and Ms C were interviewed via video conference on 24 June 2022. The mother and Mr B were interviewed via video conference on 28 June 2022. On 5 September 2022 the following observations took place in person at the court registry: -
·The father and the children;
·The father, Ms C and her children together with X and Y;
·The mother and the children; and
·The maternal grandmother and the children.
The Court Child Expert conducted an interview of the children on the same date. No observation took place between the children and Mr B.
It is recorded that a brief follow-up interview via telephone occurred with the mother on 4 October 2022. No follow up telephone interview was conducted with the father.
The Court Child Expert inspected some material produced under subpoena.
The Court Child Expert opined in her written report that the advantages in the children remaining in the father's care are that: -
·there would be no further changes in the current arrangements for the children which may impact on their sense of safety and stability; and
·the children's current structure and routine adopted by the father including regular attendance at school and recreational activities and access to therapeutic services can provide children with the greatest sense of safety and stability.
The disadvantages identified by the Court Child Expert of the children remaining in the father's care and spending alternate weekend time with the mother are that:
·The opportunity for the children to repair the disrupted relationship they currently have with the mother would be impacted by the relatively minimal amount of time that the children spend with her. The Court Child Expert opined that limited time with a parent identified as the primary carer for the majority of the children's lives could result in ongoing emotional and developmental delays.
·Maintaining the current arrangements for the children having limited opportunities to spend everyday time with the mother reduces her involvement in activities including recreational and homework support.
·The opportunity for the children to have a meaningful relationship with extended maternal family members could diminish.
·It was the Court Child Expert's opinion that within the paternal household Ms DD takes on a significant parental role and could be considered the primary carer of the children.
The advantages identified by the Court Child Expert of the children moving to live with the mother are that:
·The children would have greater opportunities to redevelop a positive bond with their mother who was the primary carer of the children during their early years.
·The children would no longer be longing for their mother and the emotional issues the children developed from the separation from their mother are more likely to be resolved if they are returned to the mother's care.
·The children's emotional development would be better supported by the mother as she demonstrated a stronger level of emotional warmth and attunement with the children than the father.
·The children would have greater opportunities to strengthen relationships with extended maternal family members.
The only disadvantage identified by the Court Child Expert in the children moving to live with the mother is the significant change that would be in the current arrangements of the children and the time spent with their father which may impact on their sense of safety and stability. Paradoxically to the Court Child Expert’s opinion that alternate weekend time with the mother is a “relatively minimal amount of time”, the court child expert opined that alternate weekend with the father is “significant and substantial time” [2] and would be sufficient to continue to support family relationships.
[2] Family Report, paragraphs 234 and 237.
In her written report the Court Child Expert recommended that: -
·If the court does not find that the mother poses an unacceptable risk of exposure to drug misuse or family violence the children should be returned to the mother’s care.
·If the court finds that the mother poses an unacceptable risk of exposure to drug misuse or family violence the children should remain in the father’s care.
·If the court finds that Mr B poses an unacceptable risk of exposure to family violence the children not be left in his sole care.
·If the court finds that Mr B does not pose an unacceptable risk of exposure to family violence the children be afforded the opportunity to develop a relationship with him through a staged introduction plan.
Thus the Court Child Expert’s written recommendations pivoted on the finding of unacceptable risk in the mother’s household.
Prior to her oral evidence the Court Child Expert confirmed that she had read the updating trial affidavits of each of the parties. She was asked by the Independent Children’s Lawyer if there was anything in the trial material that caused her concern. Her response was: -
I guess I was a little affronted by the response to my report, and that he didn't agree with some aspects of it. But I guess people have different opinions...
Although not stated, I assume that the “he” the Court Child Expert was referring to in this response is the father.
In her oral evidence the court child expert did not pivot her recommendations on the findings of the court as set out in paragraph 67 above. Ms EE clearly opined that the children’s emotional and psychological wellbeing would be improved in the care of the mother as:
…she was the primary attachment figure of the children in their early childhood, and therefore that has had a rupture and needs a level of repair. And that’s maximised through living with the mother.
The foundations of the Court Child Expert’s opinions and recommendations will be discussed in further detail below.
THE LEGAL PRINCIPLES
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. In deciding whether to make a particular parenting order the court is to regard the best interests of the children as the paramount consideration. The children’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act. The primary considerations are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In balancing these considerations, the court is to give greater weight to the need to protect the children from harm.
In reaching my decision I have considered all of the relevant sections of the Act. I am not required as a matter of law to specifically address each such consideration.
CONSIDERATION
Are the children at risk of harm arising from family violence, abuse or neglect in the care of the parties or Mr B?
It is uncontested that neither household presents an unacceptable risk to the safety of the children. In contrast to the written evidence, neither party was critical of the other party in their oral evidence. Neither party sought to be overly critical of the other party during the course of cross examination.
Despite the written evidence of each of the parties and their assertions made as to the past conduct of the other and their reported allegations to the Court Child Expert, neither party sought any findings be made as to the perpetration of family violence. Whilst it is uncontested that the children have been exposed to family violence both during the parties’ volatile relationship and in a subsequent relationship of the mother, neither party asserts that the other party or their household presents a risk of harm to the children arising from family violence. I accept this uncontested position and find that neither party presents an unacceptable risk of harm to the children arising from the perpetration by them of family violence.
Both parties accept that the other party has been sober in term of their substance abuse for a number of years. It is uncontested that both parties have an extensive social network of family and friends who support them in their sobriety. I accept and find that this is so and further accept and find that neither party presents an unacceptable risk of harm to the children arising from substance abuse issues.
I thus accept and find that the children are not at an unacceptable risk of harm arising from family violence, abuse or neglect in the father’s care.
I accept and find that the children are not at an unacceptable risk of harm from abuse, neglect or family violence perpetrated by the mother.
Both parties submit that there is no evidence that the children are at risk if they are exposed to Mr B.
In relation to events which took place between the mother and Mr B in mid-2021, it is uncontested that on this day: -
·Both the mother and Mr B were drunk.
·Mr B assaulted the mother, yelled at her, punched her in the head and face, causing injuries to her face.
·Mr B was charged with assault offences.
·Mr B was found guilty of assault offences and ordered to enter into a community correction order and undertake domestic violence counselling.
·In mid-2021 a final Apprehended Domestic Violence Order naming Mr B as the perpetrator and the mother as the protected person was made for a period of two years.
The mother conceded in cross-examination that she did not advise the father of her relationship with Mr B, the incident set out above, or that she was due to have Mr B’s child, until 2021 being some months later.
The mother deposes that there have been no further instances of domestic violence between herself and Mr B. I accept this unchallenged evidence.
The joint agreed chronology filed by the parties further records the following as agreed facts with respect to Mr B: -
·In early 2016 a COPS report from the New South Wales Police Force indicates that Mr B had caused a fight, kicked his sister in the face and used foul and abusive language.
·In late 2016 a COPS report from the New South Wales Police Force indicates that Mr Q smashed a glass door at the FF Club.
·A conviction in mid-2021 for stalk/intimidate intend cause fear physical harm etc arising out of an incident in early 2021 for which he received a community corrections order and ordered to undertake service treatment programs and domestic violence counselling.
·A conviction in mid-2021 for contravening an Apprehended Domestic Violence Order arising out of an incident in mid-2021 for which he received a fine.
In evidence are interim consent orders made by this court on 7 September 2023 in proceedings instituted by Mr B seeking parenting orders with respect to his two children GG born in 2013 and HH born in 2018. Such orders provide that: -
·The children will spend supervised time with Mr B on four occasions for a period of three hours and thereafter supervised for a period of six hours each alternate Sunday.
·Mr B is to undertake drug urinalysis testing and CDT when requested to do so by the Independent Children’s Lawyer with such requests to be no more than once per calendar month.
·Mr B is to continue to attend upon his treating general practitioner, treating psychiatrist and any other mental health professionals that he is currently engaged with as determined by them to be reasonable and to keep the mother in those proceedings and the Independent Children's Lawyer informed of the details of such treating medical practitioners.
·He is to enrol and complete a men's behaviour change course.
·On a without admissions basis, he is restrained pursuant to section 68 B of the Act from initiating contact with the mother in those proceedings by any means, approaching any place where the children or the mother might reside or attend school from time to time. The injunctive order is for the personal protection of the mother and the children.
It does not appear that any detail with respect to the current family law proceedings of Mr B was disclosed to the father or the Independent Children's Lawyer prior to the commencement of the final hearing.
The Court Child Expert accepted during the course of her oral evidence that she did not record as a potential disadvantage of the children moving to live with the mother any potential risk of harm that may arise from Mr B as she does not have any concerns or place any weight on Mr B being a potential risk to the children. The Court Child Expert stated in her report that the risks of family violence in the mother’s household appear to be mitigated by the willingness of the mother and Mr B to abstain from drinking alcohol and their expressed commitment to not expose the children to family violence. She noted that the mid-2021 incident did not occur in the presence of the children.
Whilst neither the father nor the Independent Children's Lawyer seeks a finding that the children are at risk of harm from coming into contact with Mr B, the factual circumstances of the incident in mid-2021 is a serious act of family violence involving the perpetration of non‑lethal strangulation. Mr B has been convicted of further acts of violence. Whilst making no findings, he is by consent exercising only supervised time with his children. I can reasonably infer from such consent orders that Mr B accepts that at least at an interim stage it is in the best interests of the children that their time with him be supervised. Whilst I have confidence that the mother will act protectively, I cannot be satisfied having regard to the above that there is no potential risk of harm for the children from spending time with Mr B, although such a risk is not unacceptable and can be sufficiently ameliorated as discussed later in these reasons.
Are each of the parties able to promote a meaningful relationship with the other party?
Despite the Court Child Expert’s opinion that there was some resistance from the father in supporting the children’s time with the mother, both parties conceded they have not acted in a manner in the past that best promoted the children’s relationship with the other. The father expressed his concerns as to the mother’s involvement in drugs as his rationale for the children not seeing the mother. The mother criticised the father for requiring the parties to conform with the orders as to the time the children spent with her. The father presented as a respectful person during the course of cross examination.
Having observed the father giving oral evidence, I am not satisfied that his actions in this regard arose from him wanting to limit or not promote the children’s relationship with the mother but rather a desire to ensure his compliance with orders.
The mother conceded to the Court Child Expert that she had in the past allowed her resentment and bitterness towards the father to impact on her willingness to support the children spending time with the father.
I accept the concession in any event made by the parties that they both have not acted in a manner in the past that best promoted the children’s relationship with the other.
Both of the parties agree that the children will benefit from maintaining a relationship with the other party and orders have been made by consent for the children to spend alternate weekend and holiday time with the parent with whom they do not live. They are to be commended for their child focused manner in this regard. I do not accept that there is some resistance from the father as to the children having a meaningful relationship with the mother as evidenced in the orders made by consent during the hearing. I am satisfied and find that both parties are able to promote a meaningful relationship with the other party.
What are the children’s relationships with each of the parties and other significant persons?
It is uncontested that prior to September 2020 the mother was the primary carer for the children.
At the time of the children’s observation with each of the parties the children had lived with the father for a period of two years. They have now lived continuously with him for over three years. The children did not see the mother at all for a period of five to six months after coming into the father’s care. At the time of the interviews the children were still spending supervised time with the mother for a period of five hours a fortnight. By 4 October 2022 when a follow up interview was conducted with the mother she had spent two periods of unsupervised time with the children with the first period of unsupervised time occurring on 17 September 2022.
Y is recorded as describing the father to the Court Child Expert as: “funny, cares about us, helps [was about] what we do when we grow up and gives us chores.” [3] X is recorded as describing the father as “funny”.
[3] Family Report, paragraph 16.
Y is recorded as describing the mother to the Court Child Expert as “funny, helps us” and then added: “I can’t remember much.” X is recorded as describing the mother as: “a nice lady”. When interacting with the mother X is recorded as saying to the mother: “I love you.”
Whilst agreeing during the course of her oral evidence that the children have a loving relationship with both parents, the Court Child Expert did not provide an opinion as to the children’s relationship with the father and Ms C. She only commented that the father and children appeared relaxed and comfortable sitting in chairs around a coffee table. [4] I find this to be a significant limitation to her report.
[4] Family Report, paragraph 180.
The Court Child Expert opined that the children have a positive attachment with their mother and maternal grandmother. This is also uncontested and I accept and find that this is so.
It is however, uncontested between the parties and I find that the children have a loving relationship with the father.
The Court Child Expert conceded in her oral evidence that her report and its recommendations are based on the assumption that a child’s primary carer will be their primary attachment figure. Thus as the mother was the primary carer for the children in the early years of their lives she is the children’s primary attachment figure. The Court Child Expert opined that the disruption of a child’s primary attachment is:
very serious and may result in very significant negative developmental consequences. The writer is aware that the attachment of the primary carer and child relationship is the breeding ground for the child’s brain growth and development and mental health. [5]
[5] Ibid, paragraph 232.
Despite the Court Child Expert’s evidence as to the importance for the children of safety and stability in their lives which will be discussed further below, the Court Child Expert opined that the children’s emotional and psychological wellbeing are best served by them returning to live with their primary attachment figure, the mother.
I guess for me attachment starts in those first five years of a child's life, and so that's often a more significant period of time about that relationship that that has with the primary parent.
The Court Child Expert conceded that dependent on the quality of love and nurturing, a child can for example form a primary attachment to a foster parent, and attachments of a child can change. To the proposition put by the father that it would not be possible at the present time to ascertain if the children are primarily attached to the father, the mother or their stepmother the Court Child Expert responded:
I can only relate to the time when I saw the children. And so, from my observation, the excitement of spending time and seeing their mother would indicate that that was a strong attachment.
It appears that the Court Child Expert has resiled somewhat from her position that the children's primary attachment is with their mother to a position that the children have a strong attachment with her.
The Court Child Expert recorded the children’s excitement at seeing their mother on several occasions in the report. She did not make any comment as to what, if any, effect on the children’s behaviour there would be with the mother in circumstances where at the time of the observation they were living with the father and only seeing the mother on a supervised basis and for short periods of time every two weeks. The Court Child Expert accepted in her oral evidence that the difference between a resident parent and a “contact” parent is that the resident parent has to engage with the children as to the daily humdrum of life – getting the children to get out of bed, go to school and do their homework and the “contact parent” is able to be the fun, happy parent.
Despite the children being observed with their paternal step siblings and paternal half sibling, the Court Child Expert did not provide any opinion as to the nature of the children’s relationships with them. The Court Child Expert’s oral evidence was that this was not an area of her focus. I find this to be a significant limitation to her report.
The Court Child Expert did not observe the children with their maternal half-sibling nor opine as to the nature of this relationship in circumstances where the children have had limited time with him. I find this to be a further significant limitation to her report.
Having regard to the concessions made by the Court Child Expert during the course of her oral evidence I do not accept that I can make a finding that the mother is the children’s primary attachment figure. I am unable to make a finding as to who the children’s primary attachment figure is, save that the children have a loving relationship with both their parents.
The Court Child Expert gave no independent evidence as to her opinion of the relationship between Ms C and the children save that the children appear to have a positive relationship with her and that she has no significant concerns in relation to Ms C and the children.[6]
[6] Family Report, paragraph 55c & 141.
The Court Child Expert appropriately did not observe the children with Mr B in circumstances where the mother was restrained from allowing the children to come into contact with him and the children have never met him face to face. There is accordingly no relationship at all between the subject children and the person with whom the mother lives. The Court Child Expert did not address in her report any potential issues that may arise for the children moving to live with someone they have never met; “the status of the children’s relationship with the mother’s partner [Mr B] was not considered.”[7] She conceded during the course of her oral evidence that there is a possibility that, for example, the children do not get along with Mr B and this may cause an issue in the future. I find that this issue not being addressed at all by the Court Child Expert a significant limitation to her report and the recommendations made by her.
[7] Family Report, paragraph 55c.
The extent of each parties’ capacity to meet the children’s needs –
The Court Child Expert records the following with respect to her two observations of the children with the father and Ms C: -
·During the first observation the father appeared attentive and maintained close proximity to the children. He frequently took on an educative role with the children in his discussions about culture, school, food, sport, health and the children helping in the home. The father provided guidance to the children in spelling out the words that the children were writing on birthday cards they were making for the mother.[8]
·During the second observation session the father was observed to sit on the lounge for the majority of the session and did not engage in any play activities with the children. Ms C moved around the room and maintained proximity and engaged with the children as they played.[9]
·During the session Ms C was observed to use praise and smile, laugh and maintain eye contact when playing with the children. The Court Child Expert noted in particular two occasions the first being when X in playing a game turned to Ms C and said “hey [Ms C] I got the five on.” Ms C was observed to look at X, smile and nod her head. On the second occasion the Court Child Expert noted that X commenced drawing on the whiteboard and checked in with Ms C saying, “is that good?” followed by “O”. Ms C responded “yes” and noted that it was a “big O”.[10]
[8] Family Report, paragraph 190.
[9] Ibid, paragraph 192.
[10] Family Report, paragraph 194.
Ms C did not challenge the evidence contained in the report as to her interactions with the children during her observation although conceded that X may have been looking for acknowledgement in these moments.
The Court Child Expert stated that: -
The writer was left wondering if [Mr Garin]’s limited engagement during this session was reflective of the family environment. The writer is aware that [Mr Garin] works full time, and that [Ms DD] is involved in the morning and school routines…. Taking [Y] to counselling and that [Mr Garin]’s mother transports the children to and from the contact arrangements between the children and their mother.[11]
[11] Family Report, Paragraph 200.
From her observations the Court Child Expert formed the opinion that, whilst the paternal household is “going well” it appeared to her that the children are mainly cared for by Ms C who could be considered the primary carer of the children due to her involvement in the children’s activities recorded in paragraph 111 above.[12]
[12] Family Report, paragraph 234(d).
The mother and the Court Child Expert both appear to criticise the father for an apparent lack of warmth to the children. The Court Child Expert stated that it appeared to her that the father had a directive and education stance with the children in direct contrast to the “emotional warmth and attunement that their mother demonstrated with their children during her observation session.” [13] The Court Child Expert observed during the session affectionate interactions between the children and the mother including kisses and cuddles. The mother and children were observed to display affection easily through words and physical actions. The mother was observed to remain in good proximity to the children by sitting on the floor with them and engaging in play activities, praising and encouraging them through words and statements. The Court Child Expert ultimately opined that the mother demonstrated emotional warmth and attunement with the children to a greater extent than the father.[14]
[13] Ibid, paragraph 200.
[14] Ibid, paragraph 208.
The father deposes that he and Ms C share equally the duties for the children equally, which includes: -
·Preparing and cooking meals;
·household laundry;
·assisting the children with homework;
·transporting the children to school;
·transporting and engaging in extracurricular activities; and
·transporting and attending with the children at medical appointments. [15]
[15] Father’s Affidavit filed 6 February 2023, paragraph 136.
The contents of the report were put to the father in cross examination. He was clear and unequivocal in his evidence that: -
·It is not true that he is not affectionate with the children and if they are reporting that no one cuddles them in his household, it is untrue:
I’ve got [2 years] old up to 19 years old – every one of my children brush their teeth, my girls take their medicine that they need to take, and each and every child comes and gives us a kiss and a cuddle goodnight, and we tell them we love them every day and every night.
·There are lots of children in his home and they manage their needs with routine.
·Whilst Ms C does a lot of the “nuts and bolts” of parenting, he assists wherever he can to help:
But the glory of my job and career – I rise at 4am every morning so I don’t bother my children and if I have a spare hour in the morning I help with ironing, make the lunch. So, wherever I can tie in, I will tie in to help. Because that to me is a privilege as a father.
·He makes the children's lunches at least one to two times a week, he assists the children in getting ready in the mornings for school, he transports them from school in the afternoons, and in the mornings approximately 2 to three times a week he transports them to either the school or bus stop.
·On Monday afternoons he drives from his office to the sports field where he meets Ms C at the oval. Ms C goes home with the baby and the father engages with the children's sport and takes them home. During the winter season the father takes both boys to sports after work twice a week. On the weekends generally, the father takes the boys to their games and Ms C will take the girls to sports. If time allows the boys and the father will head over to the girl’s game after the boys games to support them.
·If the father arrives home at an appropriate time he will cook one of his “specialties” for dinner. Every night the family sits down together at 6:00pm to eat dinner together.
·He has extended family in the area in which they live; his siblings live 20 minutes away and there are multiple cousins.
·He attends each of the children's parent teacher meetings.
·The father became very emotional when describing the children’s transition to his household. He deposed that Y has had an enormous transition during the period of time that she has been living with them:
I watched her grow into a young girl, from waking up with panic attacks and scared to go into classrooms, now she walks in and she lights up the room…
…[Y] for a period of time would wake up with these panic attacks - she would run up and down the hallway and cry and I would sit with her and talk to her about culture and spirit and I would breathe life into her so she would remember where she was and I would hold her in my arms, and now, she walks in and she’s the star of the show.
·That X in September 2020:
…first came home to me, he would cry in the bed and all I could do was hold him and because he was so young he couldn’t process what was going on. He would cry himself to sleep. It would happen for a period of time. When he got to the point of pre-school and challenges where he had to step out of his comfort zone, I had to remind him I would always come back…
·X’s sports coach has assisted in bringing him out of his “shell” and that when he first commenced playing, he was too scared to go near the ball. It took him three seasons to touch the ball because he was so scared but last year he excelled.
·The father arranged for both children to have counselling as he wanted some guidance as he realised that he was not a professional “in that field.” The children have continued seeing a counsellor for a number of years.
·Y is now very boisterous, and he is “learning how to deal with a young lady.”
·X is generally very happy. He has learned to navigate his way through life and no longer cries when the father drops him off at school. When X comes home of an afternoon, he tells the father about his day. He and his 13-year-old brother talk like they're “best mates”.
The father challenged the recorded observations of his household with the children. Even accepting the Court Child Expert’s recoding of the interactions of the father’s household with the children, and in stark contrast to the perceived lack of emotional warmth attributed to the father, the father became quite emotional when describing the difficulties the children faced when transitioning into his full time care. I accept the submissions of the Independent Children’s Lawyer that the father presented as a man that was genuinely affected when asked how the children were in his care and someone who expressed genuine emotions and feelings.
The father’s evidence was supported by Ms C whose oral evidence was that she treats the children as her own and gives them cuddles. Ms C agreed that the children would receive cuddles from her in the same way they would the mother.
The mother deposes that in early 2022 the maternal grandmother advised her that the children had told her that “[X] choked himself at school and said ‘my family all hate me. I want to die.” Y told the maternal grandmother that the school had contacted the father in relation to this incident.[16] In cross examination the father recalled receiving a phone call from X’s school but not anything relating to whether X choked himself. He recalled the words attributed to X with respect to this incident. No finding was sought nor submission made by the mother with respect to this incident and I make no finding with respect to same.
[16] Mother’s affidavit, paragraph 83.
The father readily conceded in cross examination that there have been occasions that he has been unable to attend special events at the school as he has been working. I do not place significant weight on this. There is no evidence that these children will not be well adjusted and emotionally secure because they did not have the attendance of a parent at every school event. This is not an unusual occurrence in this day and age. Given the mother’s apparent ability to attend such events it appears the children will have a parent in attendance in any event.
I do not accept that the father having to inquire as to which one of two school gates the children were to be collected on a particular day grounds a finding that he is not proactively involved in caring for them on a daily basis. The father and Ms C have clearly arranged a division of parenting responsibilities that suits the household. It is evident from the father’s unchallenged evidence that all the children in the household are treated equally. The division of parenting responsibilities appears to depend on what is occurring at that particular time– the father for example attends training for all the children on Tuesday and Thursday nights whilst Ms C takes the baby home. It is on these nights that the father prepares the evening meal for the family.
I am satisfied and find that the father plays an active role in the day-to-day care of the children. I am satisfied and find that Ms C also plays an active role in the day-to-day care of the children.
It appears to be the view of the Court Child Expert that a “warm and fuzzy” environment created by the mother triumphs a structured environment provided by the father. This position was also advanced by the mother. I accept the submissions of the father and the Independent Children’s Lawyer that these observations were in contrast to the evidence of the father and Ms C in the witness box. The Court Child Expert herself notes that during the father’s observation with the children and their step siblings the father was holding newborn sleeping baby. The Court Child Expert did not state whether this was considered when forming her opinions and recommendations to the court notwithstanding her oral evidence that she agreed it did “limit his participation in activities.” Ultimately my observations of both the father and Ms C in the witness box do not support the Court Child Expert’s observations of the father that he was purely instructional and directive. The father speaks in his affidavit of his delight in the children’s achievements and sports and the fact that he is involved is indicative of his care. The evidence does not support the contention that the father and mother are emotionally distant and I reject this proposition.
I accept that the mother presented as a bubbly and charismatic witness. It is not in dispute that she has a meaningful relationship with both children and that she loves them both dearly. The Court Child Expert’s views as to the mother providing the children with warmth and emotion are not directly disputed, nor is it disputed that the mother tends to add a “sprinkle of fairy dust” to her relationship with the children. Instead, I accept the submission made by the Independent Children’s Lawyer that creating a bubbly and charismatic environment is far easier to achieve in a controlled environment and by a parent who is not involved in the day-to-day care of the children.
The father is self-employed and runs various successful businesses. Ms C is employed as a public servant. I am satisfied that the father and Ms C are positive and encouraging role models to the children.
In support of her application submissions were made on behalf of the mother that in the event the children are to live with the mother they would receive more attention as a result of there being less people in the home. The following exchange took place in cross-examination:
COUNSEL: …there are also a lot of children in the father’s household. I think on my count there are about six, ranging in age from about 18, going down to newborn and there’s another child on the way. Now, the evidence suggests that in the father’s household they manage that by quite a good system of routine, and everyone pulling their weight, so to speak. Do you think however, that because there are so many children and people vying for attention in the father’s household, that [X] and [Y] might feel at times their needs aren’t being met?
CCE: …One of the interesting things about a large family composition is the positives and negatives of that. So, the positives is that the siblings can provide support to each other, and can, you know, strengthen a child’s relationship to other children. But in terms of time, it’s a very fair thing to believe that time is divided between that number of children, and therefore the time – direct time with each child is undoubtedly less than it would be in a smaller-children household.
The Court Child Expert’s oral evidence was that there is information to suggest that the children are struggling with their identity and their sense of value with competing with other children in the father’s household. She conceded that this view would not be gleaned from her written opinion as to the children’s presentation[17] and her opinion has formed from information she has received subsequent to the observations and interviews such as Y getting her period and not having the comfort of the mother to explore this with her.
[17] As contained in paragraphs 160 and 164 of the Family Report.
The mother asserts that in mid-2023 Y disclosed to the mother that Ms C “bought me these period undies but they were way too big for me. Can you take me to buy some please because I don’t want [Ms C] to.” The mother deposes that Y was visibly uncomfortable.[18] Ms C was cross examined as to this incident. Ms C’s evidence was that she simply bought the period underwear for Y however Y did not attend with her to purchase them. Ms C’s oral evidence was that Y walked into the room whilst Ms C was having a conversation about puberty with her older daughter and Ms C included Y in this conversation. Ms C conceded that Y may have felt uncomfortable because “puberty is an uncomfortable for anyone to learn about.” To her credit she accepted that Y may be more comfortable in discussing these topics with the mother. The Court Child Expert was also cross-examined as to this incident and her evidence was that in the circumstances it may have been easier for this situation to be managed by the mother as she had discussed it with the mother previously and this could have been an explanation for her not being comfortable. I do not accept that there should be any criticism of Ms C in buying period underwear for Y. I cannot make a finding that Y was uncomfortable in the situation as it was managed by Ms C. I am satisfied that the children will most likely both have issues as they grow up that they will feel more comfortable talking about with one parent. It is a natural consequence of the parties’ being separated that the children will not always have the parent they wish to discuss such matters with living with them at the time.
[18] Mother’s affidavit, paragraph 28.
The Court Child Expert conceded during the course of cross examination that a child bed wetting can be indicative of distress and emotional distress, but she does not have a “conclusive line to say that that's definitely what it is” as she is not a doctor. I accept and find that the cause of Y’s bed wetting is unknown, and I am not satisfied that I can in any way infer that it is an indicator of any emotional distress that Y is continuing to experience.
The mother deposes that the children have told her that they are smacked in the father's household with a wooden spoon. This was firmly denied by both the father and Ms C both via text messages between the parties and in oral evidence. This denial was not successfully challenged, and I am not satisfied the mother has met her evidentiary burden to ground a finding that the children have been so disciplined. In any event I am satisfied that any possible risks arising from physical chastisement of the children has been appropriately ameliorated by parties consenting to final orders made during the course of the hearing restraining each of them from physically chastising the children.
I thus do not accept that the children’s emotional needs are not being adequately met in the father’s care. I am satisfied and find, as set out above, that the father and Ms C provide a warm and loving environment for the children. I am satisfied and find that the father is actively involved in their day-to-day care. I am not satisfied that the children’s needs are not being met due to the number of children in the father’s household.
What are the children’s expressed views, and how much weight should they be afforded?
It is the mother’s evidence that Y does not tell her that she wants to live with her, but X says that he does - when it is time to go home X will tell the mother that he does not want to go, he wants to stay. The children did not comment directly to the Court Child Expert which parent they wanted to live with, although X did make a comment that he wanted to live and stay with his mother and had to be encouraged and supported to actually leave his mother's care.
The Court Child Expert accepted during the course of her oral evidence that it is not unusual for a child who is engaged in a particular activity to not want to stop what they are doing and fit into a structured programme such as moving between the care of the parties.
The Court Child Expert accepted that it is unknown if the situation was reversed, and X was living with the mother and spending time with the father in similar circumstances, how X would have reacted on the day he was observed. It is a possibility that X’s observed behaviour on this day is attributable to the:
Simple fact that he's attached to her; he loves her and was not seeing enough of her.
I accept the Court Child Expert’s challenged opinion that little weight in any event would be accorded to the children’s views having regard to their young ages as young children do not always understand the implications of decisions they may wish to make. [19]
[19] Family Report, paragraph 238.
What is the likely effect of any changes in the children’s circumstances?
The likely effect of the children’s circumstances is a significant issue in this matter.
The Court Child Expert opined that it is important that the children have safety and stability in their lives as:
the accumulation of adverse childhood experiences in a child's developmental years increases the likelihood of long-lasting impacts on a social, emotional, and behavioural development and health incomes in the years to come.[20]
[20] Family Report, paragraph 217.
I accept the opinion of the Court Child Expert in this regard.
It is uncontested that the children went through a period of adjustment with the change of household circumstances over three years ago that they both found very difficult. I accept the Independent Children’s Lawyer’s submissions that the father gave difficult evidence as to how the children were when they came into his care – Y was anxious, and X would not leave his father’s side. To their credit the father and Ms C arranged for counselling for the children to assist them to cope with the transition.
Despite the importance to these children of safety and stability in their lives, it is clear that the recommendation of the Court Child Expert will result in another significant change in circumstances for these children; with the resultant potential issues that will cause as the children’s feelings of security, attachments and stability in their relationships.
The Court Child Expert conceded that it may have been “poor judgment” not to explore the children’s relationship with their paternal step and half siblings further. The children have lived with J for her entire life and another half-sibling is expected shortly. The Court Child Expert gave oral evidence that the children’s relationship with their step siblings can be maintained through contact arrangements notwithstanding that the report had not explored this in detail. I accept the submission of the Independent Children’s Lawyer that the evidence of the Court Child Expert is flippant in this respect, noting her concession that she had not considered the children’s relationship with their step siblings when providing her recommendations to the court.
The mother seeks orders which will result in the children moving to a household which includes Mr B, a person the children have never met before. Mr B is currently seeking orders to spend time with his children from a prior relationship and in the event that his time with his children is to progress then it is likely that his children will also be present at the home of the mother. There is no evidence to suggest how these children will interact with each other. There is no evidence to suggest how the children will interact with Mr B.
What orders will ensure that the children maintain a connection to their culture?
This is a significant consideration. It is not addressed by the Court Child Expert in any way.
The father ensures that the children are learning and participating in Aboriginal cultural activities including storytelling and sharing information on family and history. He outlined to the Court Child Expert the importance of spending time on country and with Elders. It was apparent from the father’s oral evidence the value he places on the children learning and understanding their culture. I accept and find that the father ensures that this connection is maintained through regular sharing with the children of information on family and history.
The father’s written evidence that he has concerns as to the mother’s willingness or ability to promote the children’s Aboriginal heritage was confirmed by him in cross examination. The father’s concern as to Mr B making racist comments to the police; calling them “white dogs” was not challenged and I accept and find that this occurred.
Whilst I accept and find that each of the parties will use their best endeavours to support the children’s cultural identity, this connection will be best ensured by the children continuing to live with the father. The mother’s evidence that children can attend programs at the local school simply does not equate to living with a parent who is able to immerse them in their culture on a daily basis.
CONCLUSION –
I have found significant limitations in the grounding of the Court Child Expert’s opinion that the children should be removed from the father’s care and returned to live with the mother. Such opinion did not consider, for example:
·The care arrangements that will ensure the children maintain a connection to their culture;
·The sibling relationships in each parties’ households;
·The importance of the extended paternal family to the children;
·The potential risk of harm to the children in being in the care of Mr B;
·The potential issues for the children in moving to live with someone they had never met.
I have further found that opinions formed by the Court Child Expert as to the father’s parenting on the children are not supported by the evidence.
I thus place little weight on the recommendations of the Court Child Expert.
With Whom the Children Shall Live
When weighing up all of the considerations above and balancing the known factors in the father’s household as compared to the unknown factors in the mother’s household, I am not satisfied that any possible benefit the children may obtain from moving to live with the mother is outweighed by the removal of them from the stable and loving environment they have experienced in the father’s care to date. I am satisfied that it is in the best interests of the children for all of the above reasons that they remain living with the father and orders will be made to that effect.
Should the Injunctive Orders as to Mr B Remain
All parties including the Independent Children’s Lawyer submit that Mr B does not present an unacceptable risk of harm to the children and in those circumstances the current restrictions as to his contact with the children can be removed in a short period of time.
I have accepted and found that there is no evidence to ground a finding that Mr B currently engages in the excessive consumption of alcohol or that there is family violence in the mother’s household. I accept that the mother will always try and prioritise the safety and interests of the children above the needs and wants of Mr B. The interim orders made in the family law proceedings relating to his elder two children in September 2023 provide both some amelioration of risk of harm to the children of these proceedings as Mr B is required to undertake drug testing and engage with his treating medical practitioners. However, the orders made: -
·restricting his behaviour pursuant to s68B for the protection of his elder two children and their mother; and
·that those children only have supervised time with him;
is some cause for concern as there is no evidence before me as to the evidence the mother has filed in those proceedings to ground such orders.
Mr B still remains an unknown quantity. He has only recently been introduced to the children. I have no evidence as to how the children and he will interact and what the nature of their relationship will be moving forward.
Adopting a cautious approach, I am satisfied that it is in the best interests of the children that their relationship with Mr B move more slowly than that suggested by the parties and will make an order that the mother is to continue to be present at all times the children are in contact with Mr B for a further three-month period.
I certify that the preceding one hundred and fifty-five (155) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 8 February 2024
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