GARRETT & KING

[2015] FamCA 543

FAMILY COURT OF AUSTRALIA

GARRETT & KING [2015] FamCA 543

FAMILY LAW – CHILDREN – sole parental responsibility – with whom the children shall live – mother to spend time with the children by consent in writing- discussion of the risk for the children spending time with the mother – discussion of the benefits to a child of spending time with both their parents – ability to promote a meaningful relationship with the other parent

Family Law Act 1975 (Cth) s 60B s 60CA s 60CC s 61DA s 61DAC s 65DAA
Evidence Act 1999 (Cth) s 140

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof) [2004] FamCA 768
Harridge & Harridge [2010] FamCA 445
Re Andrew (1996) FLC 92-692

APPLICANT: Mr Garrett

RESPONDENT: Ms King

INDEPENDENT CHILDREN’S LAWYER: Ms Murray

FILE NUMBER: TVC 824 of 2007

DATE DELIVERED: 16 July 2015

PLACE DELIVERED: L Town

PLACE HEARD: L Town

JUDGMENT OF: Tree J

HEARING DATE: 10, 11, 12 March 2015 and 9 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Collins

SOLICITORS FOR THE APPLICANT: Purcell Taylor

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms McArdle

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: G A Murray

Orders

1. All previous parenting orders be discharged.

PARENTAL RESPONSIBILITY

1. The father have sole parental responsibility in relation to B born … 2003, C born … 2005 and D born … 2006 (“the children”) for decisions relating to their education, religious and cultural upbringing, and their name.

2. The father is to notify the mother in writing of all decisions made in relation to the children pursuant to Order 2 of these Orders.

3. In the event of a medical emergency relation to the children the father is to as soon as possible call the mother on her mobile phone to advise her of the emergency; should the mother not be available the father will either leave a voice message or a text message to the mother advising her of the child’s location and the nature of the emergency.

LIVE WITH AND SPEND TIME

1. The children shall live with the father.

2. The mother shall spend time with the children as set out in these orders and more particularly:

   (a)at a park or at a restaurant in E Town, to be nominated by the mother, for a period of 2 hours on each occasion provided that the mother notifies the father in writing (including by text or email) of the time, date and location of the visit at least 21 days prior to the nominated date of her wish to spend time with the children pursuant to this order as follows:

   (i)     once every 2 month period with each period to commence in February, April, June, August, October and December each year;

   (ii)    in addition to the time in (i) above:

   (A)on any child’s birthday;

   (B)on the mother’s birthday;

   (C)on Mother’s Day. 

3. The mother is prohibited from leaving the nominated area where she is to spend time with the children pursuant to Order 6 above, with the children or any of them, without the consent of the father first obtained in writing.

4. Should the children be away on holidays or unavailable due to schooling or sporting commitments during a time nominated by the mother, then the father shall notify the mother of this and arrange another suitable time with the mother for the visit to occur.

5. For the purposes of Order 6 above, the father will deliver the children to the nominated area and shall collect the children from the location at the conclusion of the visit.

GENERAL ORDERS

1. Each parent is to keep the other advised of their current residential address, email address and telephone number and provide updated information of any changes to these details within 48 hours notice of any change.

2. This Order acts as an authority to any medical and allied health professional who may treat or attend upon the children to provide information and/or documents to both parents in relation to the children’s health, progress and wellbeing at the requesting parent’s cost.

3. This Order acts as an authority to the children’s school and/or care providers to provide information and/or documents, including school newsletters, school reports, forms and general correspondence, to both parents in relation to the children’s education, progress and general wellbeing at the requesting parent’s cost.

4. Each parent is restrained from and an injunction issue restraining them from denigrating the other parent, the other parent’s partner and/or the other parent’s family members while in the presence of or hearing range of the children and shall remove the children from the presence and hearing range of any third party who is doing so.

5. The parents are restrained from and an injunction issue restraining the parents from using or being under the influence of any illicit substance whilst the children are in their care and the parents must remove the children from the presence of any third party who is using or under the influence of any illicit substance.

6. Neither parent will physically discipline the children or allow any other person to physically discipline the children.

7. The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

8. Otherwise all extant applications are dismissed and the matter removed from the list of active pending cases.    

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

FAMILY COURT OF AUSTRALIA AT L TOWN

FILE NUMBER: TVC 824/2007

Mr Garrett

Applicant

And

Ms King

Respondent

REASONS FOR JUDGMENT

Introduction  

1. These proceedings related to the parties’ three children, being B (born in 2003 and hence presently 12 years of age), C (born in 2005 and hence presently 9 years of age) and D (born in 2006 and hence presently 8 years of age) (“the children”).  By his Amended Initiating Application filed 30 October 2014, Mr Garrett (“the father”) seeks orders that he have sole parental responsibility for the children, who should live with him and not spend any time nor communicate with Ms King (“the mother”).  The mother at the outset of these proceedings indicated that she would seek orders for equal shared parental responsibility and equal time.  However by the conclusion of the trial her position had changed to her seeking interim orders.  As articulated, those orders would see the children live with the father, but spend weekends and all of school holidays (apart from Christmas) with the mother and spend one half of the Christmas holidays with each parent.  She also sought orders in relation to phone contact that would enable the children to call her at will.

2. The Independent Children's Lawyer, whilst substantially supporting the father’s case, did not support orders that the children neither spend time nor communicate with the mother.  Rather the Independent Children's Lawyer sought orders that the mother spend time with the children at a public venue for two hours once every three months, and additionally for two hours on any child’s birthday, on the mother’s birthday and Mother’s Day.

BACKGROUND FACTS

The father

1. The father was born in E Town in 1965, and hence is presently 49 years of age.  He left school in year 11 and started immediately into an apprenticeship.  He is a tradesman with a steady history of stable employment or conduct of a business.  He was first married when he was 26 years of age, which relationship existed for about 6 years before they separated.  There were no children of that relationship.  He met the mother in 2001 when he was 35 years of age.

The mother

1. The mother was born in 1965 and hence is presently 49 years of age.  She was adopted as a baby in E Town.  She appears to have had a stable early childhood, however when she was 10 years old, her father’s brother was killed in a motor vehicle accident which appeared to significantly impact upon her father.  Further her mother was diagnosed with cancer, seemingly in the 1980s.  However she reported to Dr F, a psychiatrist who examined both the mother and father, that she had a “happy, normal primary school experience” and “no major problems” in high school.

2. The mother has had a varied employment history.  She has worked as a clerical assistant, sales person and as a personal assistant.  Thereafter she went to work in some mines in North Queensland, and appears to have at some stage been engaged in running a pastoral enterprise.  Her first serious relationship was at the age of 18 and lasted for two years.  There was one child of that relationship, Mr G, who is now about 28 years of age.

3. After that first relationship failed, she entered into another relationship.  There were two children to that relationship, Ms H and Mr I.  Ms H is 22 years of age and Mr I is 21.  (Both gave evidence before me; Ms H gave evidence in the mother’s case and Mr I in the father’s case.  Their evidence was in conflict but ultimately I have not found it necessary to resolve that conflict, as there is sufficient objective material to obviate the need to do so).  That relationship however ultimately failed.  Her next relationship was with the father, commencing in 2001 when the mother was 35 years of age. 

The relationship

1. Initially the relationship proceeded well.  B was born in 2003, before the parties’ married the same year.  The following year C was born and then D in 2006.

2. During the course of the relationship both Ms H and Mr I at times lived with the parties.

3. The parties separated on 1 January 2007.  At that time, Mr I had been living with the parties, but upon separation went to live with his father rather than stay living with the mother.

Post-separation

1. Both parties appear to have re-partnered reasonably quickly after separation.  The father formed a relationship with Ms Garrett (born in 1966 and hence presently 49 years of age) in 2008 and they married in 2010.  Ms Garrett has one child of a previous relationship being Mr J who is presently 18 years of age.  They remain married and Mr J lives them on a week about basis, being shared with his father. 

2. At the time of trial, the father was working in an underground mine on a seven day on seven day roster off.  He lives on-site on his seven days on.  Ms Garrett is employed as a family day care co-ordinator.

3. The mother’s post-separation history is far more complex.  Her first new relationship was with a Mr K.  The circumstances of that relationship, particularly insofar as it involved the use of illicit drugs, is controversial and I will consider it in due course.  Likewise the extent to which there was domestic violence between the mother and Mr K will also be considered later.  However that relationship concluded on 28 April 2013 in tragic circumstances.  On that day the mother had left the children in Mr K’s care whilst she attended Magistrates’ Court proceedings in another town (which proceedings I will detail later as well).  Whilst the children were in his care, Mr K doused himself in petrol and ran into a fire suffering horrific injuries.  The children witnessed some or all of this episode.  Immediately they went into the sole care of the father, which situation was regularised by Federal Circuit Court orders made on 3 June and 4 September 2013.  Since that time the mother has only spent limited supervised time with the children at the L Town Contact Centre, some two and a half hours’ drive from E Town.  There is no Contact Centre in E Town.

4. Subsequently the mother has re-partnered with a Mr M.  He remains her partner and gave evidence before me.  The extent to which her relationship with Mr M involves one, or both, of them using illicit drugs or misusing prescription medication is a matter I will need to consider in detail later.  Likewise the extent to which the mother has continued to engage in unlawful criminal activities which have seen her from time to time dealt with in the Magistrates’ Court for offences of dishonesty will be considered later as well.

5. As at the time of trial, notwithstanding orders which saw the mother able to spend time with the children at a Contact Centre, she had not availed herself of those for something in the order of 12 months.  It is not altogether clear why that arrangement fell down, but both parties are agreed that the supervised time was not productive, perhaps because it involved 5 hours of travel for each party and the children.

THE ISSUES

1. With the assistance of the parties during the course of the trial, the following were identified as the list major issues for determination in this litigation, in the sense that their determination is likely to impact upon the ultimate outcome.

   1.What is the nature of the children’s present relationship with the mother.

   2.What, if any, risk does the mother pose to the children, by virtue of:

   (a)substance abuse;

   (b)emotional harm by exposure to violence;

   (c)impulsive behaviour;

   (d)physical abuse;

   (e)prioritisation of her needs over children’s and a lack of child focus.

   3.Would the children benefit from a meaningful relationship with the mother, and if so, how may that be optimised, whilst accommodating any risk which the mother poses.

   4.Will the father promote a meaningful relationship between the mother and children.

   5.Does the parties’ post-separation relationship and communication make equal shared parental responsibility practicable.

1. I will consider those issues in that order once I have discussed the relevant statutory provisions and legal principles to the case, and prior to undertaking a general traverse of the s 60CC considerations.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

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

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

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

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

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

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

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

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

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

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

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

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).

6. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s.60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

7. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

1. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
   or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from Mahendra B, “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child spend no time with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Plainly however, a Court would only cut the relationship between the child and parent with considerable hesitation.

NATURE OF CHILDREN’S PRESENT RELATIONSHIP WITH THE MOTHER

1. As discussed earlier, the children have not now spent any face-to-face time with the mother in the 12 months or so since the parties mutually agreed to abandon the supervised contact.  However the children have continued to have telephone communication with the mother on a regular basis.

2. The father asserts that none of the children have any meaningful relationship with the mother, and to the extent that they may express a desire to that effect, it is largely done to appease the mother’s feelings.

3. Two Family Reports have been prepared in this matter by a social worker, Ms N.  The most recent of those was in August 2014.  She noted that there was a differential between the three children’s relationship with the mother.  B had the strongest relationship, and he expressed enjoyment of the supervised time his mother.  He also said that whilst happy with those visits “he would also welcome time at his mother’s home.”  Ms N specifically then recorded “[B] said he would like a lot of things about visiting his mother including that his mother could take them shopping, he could ride his quad bike and he could visit nans (maternal grandmother).”  B also identified that his closest family members started with his mother.  He expressed a desire to have overnight visits with his mother and whilst he conceded that he had felt embarrassed by his mother’s behaviour at a recent sporting event of his which she had attended, it did not appear to be a matter of major concern for him.

4. C appeared to have a more ambivalent attitude toward the mother.  She identified that she had found some of the mother’s behaviour at the Contact Centre embarrassing and expressed a desire for her mother to change how she dresses.  She also seemed to think that the mother favoured B over her and D.

5. Ms N recorded that “[C] looked very awkward around her mother at the observation and was looking at me a lot seemingly for reassurance.”

6. Finally D appears to have lost any significant connection with his mother altogether.  He told [Ms N] that he never wants to go to the mother’s house again because “she’s mean and scary”.  He said that sometimes, rather than spending supervised time with his mother, he prefers to go shopping with his step mother, and also expressed some reluctance to attend the Contact Centre because the mother posted photographs of the children at the Centre on her Facebook page.

7. At the conclusion of the observation phase of the Family Report interviews, Ms N records that “[D] resisted his mother’s attempts to hug him.”  She ultimately opined in her report that it appears as though D’s primary attachment is with his step mother rather than his mother.

8. Amongst the evidence tendered was a video recording undertaken by the mother on Christmas Day of 2013.  I will discuss the circumstances of its creation later, but for present purposes it is suffice to say that to my observation the children appeared to be animated and engaging with the mother, and there were certainly occasions during the video where it appeared as though they then enjoyed what might be described as a normal parent child relationship.  However it seems clear that in the intervening 18 months, that relationship has deteriorated, no doubt substantially because of the lack of any face-to-face time.

9. I have already observed that the children continue to have telephone time with the mother on a regular basis.  The father invariably causes that to be recorded, although he asserts that that would not be obvious to the children.  However the mother asserts that the children are well aware that their conversations are being taped, and claims that there are recriminations visited upon them in the event that they say anything of which the father and step mother disapprove.  She therefore says that the children’s behaviour – which she appears to concede is somewhat stilted – in those conversations, is not indicative of their true relationship with her.

10. In support of this argument during the course of the first stage of the trial, she recorded a conversation she had at that time with the children.  Both the father and step mother were not then with the children, and therefore the conversation was (it seems) not recorded by the children’s carer.

11. The mother asserted that her recording of the conversation showed a family interaction characterised by more vibrant and healthy interaction between her and the children than normally occurred during telephone calls.  She indicated that she intended to in due course tender that recording.  However by the time the trial resumed before me, it appears as though the mother had not been able to download the recording, nor had she made it available to the parties.

12. Whilst that is perhaps unfortunate that the recording was not put in evidence, it is unlikely that any such material would, even if it were of the quality that the mother suggests, detract from the Family Report writer’s observations and the observations of Contact Centre supervisors from time to time of the children’s engagement with the mother.

13. On the material before me, I am satisfied that B still has an attachment with his mother, and desires to have a relationship with her.  I am of the view that C’s relationship with her mother is more ambivalent, and has been adversely effected by her belief that the mother’s clothes and conduct are embarrassing.  Finally I am persuaded that D’s relationship with his mother is at best tenuous, and not of any significance to him.

14. However I am satisfied that a large part of the reason for the lack of meaningfulness in the mother’s relationship with one or more of the children relates to the fact that they have not had face-to-face time with their mother for over a year now, and prior to that, for some months, the time they had spent face-to-face with her had been in the strictures of a Contact Centre at a city which required them to be driven about two and a half hours each way to and from the Contact Centre.

RISKS POSED BY THE MOTHER

Overview

1. The mother’s asserted risks are various.  The father says that taken in combination, the mother poses an unacceptable risk of harm to the children; the Independent Children's Lawyer does not contend that the risk is unacceptable, but rather one which can be kept within an acceptable bounds by restricting the amount of time that the mother spends with the children and the type of venue at which it can be enjoyed.

2. I will discuss each of the individually contended risks before finally considering their cumulatively effect.

Substance abuse

1. The father contends that I should be satisfied that the mother is a user of illegal drugs.  The mother resolutely denies that she uses them.  This therefore brings into focus the honesty of the mother’s denials, and hence her honesty generally.  The father contends that I should be satisfied that the mother is a dishonest person, and hence reject, or at least place little weight upon, her denials of the use of drugs.  Further, he points to a positive evidence which he says demonstrates the mother’s use of drugs.

2. I will therefore firstly consider questions in relation to the mother’s honesty and credibility.

3. A convenient starting point is the mother’s criminal history.  It demonstrates that on 2 July 2013 she was found guilty (albeit no conviction was recorded) of stealing on 15 June 2013.  That was in the Brisbane Magistrates Court.  It also shows that on 12 August 2013 at the O Town Magistrates Court she was found guilty (albeit again no conviction was recorded) of unauthorised dealing with shop goods on 11 April 2013.  It can therefore be seen that in fact although the O Town court event was after the Brisbane event, the offence in question pre-dated the Brisbane events.  Most recently on 5 January 2015 in the P Town Magistrates Court, the mother was again found guilty of stealing.  On this occasion a conviction was recorded.

4. Although not altogether clear on the evidence, it appears as though two of those occasions involved the mother having dealt with compact discs in a department store.  As I understand her evidence, she asserts that in O Town she attended a store and was examining some CD’s when she dropped them and they spilled onto the floor.  She picked them up and put them into her trolley, and perhaps her handbag.  At some point she became concerned that a person, whom she knew, or at least suspected to be, a store detective, was observing her.  For reasons which are not clear, she then removed the CD’s from her trolley and/or handbag and placed them in another area of the store different from where they had initially come from.  She then left the store, refusing to comply with the store detective’s demands that she returned.  She denies that she in fact dealt with the good in an unauthorised way, and says that she only pleaded guilty to the offence because she was advised that no conviction would be recorded, as indeed it was not.

5. As to the Brisbane offence, she says that she was so incensed with the injustice visited upon her in the O Town Magistrates Court that she deliberately repeated her conduct in another store in Brisbane so as she would be again charged with a similar offence.  She said that she hoped that the Brisbane Magistrate would, in dealing with the matter, realise the injustice that she had visited upon her in O Town, and that therefore somehow or other the O Town matter would be revisited.  It was very difficult to find any logical theme to her evidence on this point.

6. Moreover, there is the practical difficulty that in fact the O Town court event post-dated the Brisbane Magistrates’ court event, although I accept that the O Town offence occurred prior to the Brisbane offence.

7. There is of course an alternative explanation, and that is that on two occasions the mother has been detected attempting to steal from a shop.  Of the two explanations, I am satisfied that the second is the more likely.

8. There is then the further stealing offence in the P Town Magistrates’ Court related to an event on 11 September 2014.  The evidence of the circumstances surrounding this offence is not clear, but a conviction was recorded.

9. The next matter relevant to the mother’s credibility and honesty relates to a letter which the mother in the course of the proceedings put forward, at least initially, as being an authentic letter received by her from her general medical practitioner.  The father doubted the authenticity of the letter and queried the general practitioner, who produced a letter denying that he authored it.  He said it was a forgery.  The mother denied that she had forged the letter, but said that someone else must have done so and then placed it in her letter box.

10. The purpose of the letter was to assist the mother in a dispute she was then having not directly related to this litigation.  There are three explanations it seems to me as to how the forgery came to be in existence.  The first is that the mother forged the letter; the second is the somebody else unbeknownst to the mother forged the letter and fooled her into thinking it was genuine; the third alternative is that somebody else forged the letter to the mother’s knowledge.  Both the first or third of those alternatives speak adversely to the mother’s honesty.  The difficulty with the second alternative is that it is highly improbable.  How someone could have known precisely what the mother wanted to obtain from her general medical practitioner, forged the letter and then left it in the mother’s mail box, is nigh inexplicable.

1. I am satisfied that the most likely explanation for the forgery is that either the mother undertook it, or someone else to her knowledge undertook it.

2. A third matter relevant to the mother’s credibility relates to her having, in her asserted capacity as a Justice of the Peace, witnessed some of the affidavits and/or Statutory Declarations which various people had prepared for use in these proceedings.  It transpired that in fact at the relevant time she purported to witness the documents, she had been removed as a JP.  The mother denies that she knew that at the relevant time she had been removed as a JP, but concedes that a Show Cause notice had been issued to her, to which she had responded.  She says that the ultimate decision to remove her as a Justice of the Peace had not been communicated to her.  She therefore denies that she knew that at the time she was purporting to act as a Justice of the Peace she was not so entitled to do.  Ultimately the material does not enable me to resolve the mother’s state of mind at the relevant point in time, but I am deeply suspicious.

3. I am satisfied to the requisite standard that the mother has on occasions been dishonest.  I am satisfied that on occasion she has attempted to deceive or mislead people as part of her dishonest schemes.  However the evidence does not enable me to conclude that the mother is an habitual liar, or that everything that she says is likely to be untrue.  However what the evidence does permit me to conclude is that the mother’s evidence may be unreliable and may need to be treated with some circumspection.  I would be hesitant to, in controversial matters, accept the mother’s evidence as truthful unless it is inherently probable or corroborated by contemporaneous and independent material.

4. I then turn to consider the mother’s asserted involvement with illicit drugs against the background of my findings in relation to her honesty.

5. The most telling material which speaks as to the mother’s involvement with illicit drugs is her criminal record.  On 5 January 2015 in the P Town Magistrates’ Court she was found guilty and convicted of an offence under the Drugs Misuse Act of possessing dangerous drugs.  Her explanation for that was the drugs in question were not hers.  The reason she pleaded guilty in those circumstances – if true – is difficult to discern.  Given the fine imposed, a sum of $350.00, I am satisfied that the drug in question was marijuana.

6. The next matter relevant to assessing the mother’s involvement with illicit drugs is for her support of use of marijuana.  That was in two places.  The first was in some Facebook posts of hers which were in evidence before me, which supported the use of cannabis in certain circumstances.  The second was in the course of her evidence before me, where she asserted that there was no difficulty with the use of marijuana (although she continued to deny doing so).  She said it would be her drug of choice, if she were to take drugs.

7. The third source of material pertaining to the mother’s involvement in drugs was in a very long letter written by Mr K on 21 April 2012.  Apparently he sent it to the father.  In paragraph 22 of his affidavit filed 9 May 2013 the father explained that “as far as I understood his situation at that time is that [he and the mother] had separated and he was fearful that [the mother] was trying to have him killed by some other person and was giving me as her husband this information so if he was killed I would report it to the police.”  In that letter he identified that he had on occasions smoked marijuana with the mother but then went on to say that the mother:

   introduced me to the wonderful world of amphetamines.  This occurred late 2010.  [The mother] had been honest about her drug usage to a certain degree.  She was using speed heavily at the time we met and I believe this toned down until about the end of 2009.  She was a very heavy pot smoker and as I paid for most of her habits I ended up growing a few plants for our personal use.  I was a regular but not heavy user of pot.  She confessed to a few blowouts on speed and she complained in 2010 that she had put on too much weight and intended sourcing some to curb her appetite.  I was first given small amounts orally and did not inject as [the mother] did until probably April of last year.  I blame speed for the deterioration of our relationship & it was midyear last year when [the mother] went right off the rails in regard to her habit.  I usually paid [the mother] for the gear we sourced for our habit.  I became aware that she was sourcing additional supplies for herself early last year.  She lost a lot weight & initially it actually gave us a boost in our sex lives.  However [the mother] got particularly aroused when she was using and this was I believe the cause of her decline back to fulltime prostitution…

8. Mr K was not called to give evidence.  Inevitably therefore the weight which I would give to such material must be substantially lessened.  Moreover, the letter is long and rambling and generally accusatory.  That said, I do note that it is not merely an accusation against the mother, but also in the nature of a confession by Mr K as to his own use of drugs.

9. The mother has from time to time been asked to undertake random drug tests by the Independent Children's Lawyer.  With one exception, she has routinely refused to undertake any such test or submit to one, citing her impecuniosity as the reason.  On occasion she has said that it was more important to her to prioritise her money to be able to travel to L Town to the Contact Centre to spend time with the children rather than submit to drug tests.  However as I have noted, the mother has in fact not been attending the Contact Centre for the last 12 months.  That excuse does not explain her failure to undertake such testing in the last 12 months.

10. I should note that Mr M has two drug related convictions in 2005 and 2010 respectively.  I place little weight on that as being indicative of the use of drugs by the mother.

11. The mother has inconsistently reported her history of drug use.  In the Family Report of Ms N filed 20 December 2013 at paragraph 48, she recorded:

    48. [The mother] acknowledges that she used drugs as a young person and her “drug of choice” was cannabis.  She denies this was regular use but more on social occasions.  [The mother] states that [Mr K] was “heavily into” cannabis which suggests it is likely she also continued to use cannabis.  However the result of a drug screen she completed in July 2013 did not appear to detect cannabis.  [The mother] also acknowledges that she has experimented with intravenous drug use in the past but not when the children are with her.  She estimated that her last use of speed was with [Mr K] in 2011 or 2012 when she added speed to a drink.  Ms King said “I don’t have to have drugs, I have evolved.”

12. In her oral evidence under cross-examination, she denied that she in fact knew that the drink in question referred to in that previous paragraph had speed added to it by herself.  The highest her evidence was that she believed Mr K may have added speed to the drink.

13. Taking all of the above into account I am satisfied that the mother has in the past used illicit substances from time to time.  In so concluding I place little weight upon her denials of any such drug use for the reasons I have detailed above in relation to her honesty and credibility.  That said, I am unable to be satisfied that she presently uses drugs, or the types of drug which she may possibly use from time to time.  However plainly her past use of drugs, coupled with her denials of doing so, must make the risk that she continues to misuse drugs a real one; of itself it is not unacceptable, but is substantial and worrying nonetheless.

Emotional harm by exposure to violence

1. There seems little doubt that the mother has a history of relationships which involve domestic violence.  For instance Mr K attempted to strangle her in February 2013.  However the mother denies that the children witnessed that event, although she does concede that the children witnessed an argument between her and Mr K during which he threw her mobile phone into a swimming hole.  She also conceded to the Family Report writer that the children would have heard Mr K use derogatory terms towards her.

2. The mother’s present partner however does not appear to have a history of violence.  His criminal record was in evidence before me and contains no suggestion of a violent past.  Moreover, Mr M is presently quite ill.  He gave evidence before me.  He did not appear to have an angry aspect to his character, although there was perhaps what might be described as truculence evident on occasions.

3. Neither party asserts that the mother’s present relationship with Mr M is one characterised by violence, although it does appear to involve some arguments from time to time.  I am not satisfied that at present, the mother presently poses any real risk to the children of emotional harm by exposure to violence in which she is an involved party.

Impulsive behaviour

1. Dr F was of the opinion that the mother’s “behaviour appears to be rather impulsive.”  He gave instances of that as being her formation of relationships, shoplifting, and the occasion when the children did not go to school but were left in care of Mr K who self-immolated.

2. The evidence contained other illustrations of such impulsive behaviour in dealing with the children.  For instance notwithstanding that the orders provided that she spend only supervised time with the children at a Contact Centre, in telephone conversations with them she attempted to encourage them to leave the father’s house under a pretext so that they could meet up with her and go fishing at a river.  Perhaps on a more significant level, the evidence also shows that the mother allowed the children to be in the company of a man who had been convicted of a sexual offence against a child.  Her reasoning behind it was somewhat superficial.  She said that the man in question had freely disclosed the conviction and the circumstances behind it to her (it appears there was a degree of entrapment on his version) and she formed the view that he was not a significant threat to any of the children.  That said, she tried to explain that the children were never left in his sole company, but would invariably have also had the presence of anther adult nearby.  However that explanation – if true – only goes so far, in that it appears as though this man spent considerable time with C supervising her reading for her homework, as evidenced by him having signed the relevant school form asserting he had supervised her reading on 10 nights.

3. The magnitude of the risk which the mother’s impulsive behaviour poses to the children is difficult to gauge.  Perhaps that is the innate difficulty with impulsive behaviour.  Ms N was of the view that the nature of the risk posed by impulsive behaviours (together with impaired judgment) mandated against the mother spending equal or significant time with the children.

4. I am satisfied that the mother does behave impulsively, and that it is presently not able to be predicted the magnitude of the risk which the children face if they are with the mother and she so acts.

Physical abuse

1. There is some suggestion that in the past the mother has physically disciplined her children.  For instance at paragraph 65 of Family Report filed 14 August 2014 B reported that in the past his mother had hit him with a belt, which hurt.  That is significant in my view because B, of all of the children, is the one who most wants to have a relationship with his mother and views her in a generally good light.  There is also a suggestion in the distant past that in relation to another child, the mother whipped her.

2. However even taking that material at its highest, I am far from satisfied that the mother poses any kind of risk of physical harm to the children from deliberate physical abuse.  To the extent that she may pose some risk of physical harm to the children, it is as an incident of the other risks which attach to her.

Prioritisation of her needs over children’s and lack of child focus

1. The evidence is replete with a number of instances of the mother acting in a way which put her needs ahead of her children’s, or otherwise lacking child focus.  These include her being seemingly unaware that the children find being seen with her when she is wearing skimpy clothing highly embarrassing and her leaving the children in the care of adults from time to time with, it seems, little regard as to the quality of care which those persons can afford or the risks which they pose.

2. At paragraph 140 of the Family Report filed 14 August 2014 Ms N said:

   140. At this assessment [the mother] presented with some improvement in her alertness and self organisation but there is still considerable evidence that she struggles to be child focussed.  Reports about her lateness for short visits at the CCC; being unable to keep all of the children included in visits; the children’s discomfort with her skimpy clothing; distracting [B] when he is competing in high jump; as well as her involving the Police to remove gifts of a laptop and mobile phone contribute to an impression that she struggles to be maternal or sensitive to the children’s needs.  Her impulsive behaviours such as trying to entice children to see her away from father, attending sporting events and trying to engage with the children at skating possibly stem from her frustration with supervised visits but also suggest a lack of maturity and child focus.

3. The reason why the mother appears to be self-focussed was explored in the report of Dr F.  He thought that her presentation raised the possibility of “some features of borderline personality structure” however he concluded that he “did not have enough information to qualify for a personality disorder.”  He suspected that she had significant self-image difficulties and “had a need to try and embellish her achievements such as her statement [that she had been] head-hunted for overseas jobs.”

4. I am satisfied that the mother does lack a consistent child focus and on occasion plainly has prioritised her needs over those of the children.  However of itself and without more, I am not satisfied that it poses an unacceptable risk of harm to the children.

Cumulative consideration

1. It has been seen that in relation to each of the individual risks which the mother poses, I am not satisfied that they individually mean that she is an unacceptable risk of harm to the children.  However it is the cumulative impact of them which needs to be considered in the final analysis.

2. The father contended that the cumulative impact was one of unacceptable risk if the mother spent any time or had any communication with any of the children.  Neither the mother nor the Independent Children's Lawyer so contended.  The Independent Children's Lawyer argued that whatever risk the mother does cumulatively pose can be sufficiently accommodated by short periods of day time contact between her and the children in public, or relatively public, locations.  I shall consider those competing proposals in due course.  However for present purposes I am satisfied that collectively the above described risks would make it unacceptable for the mother to spend overnight time with the children, or significant periods of time during the day.

BENEFIT FROM MEANINGFUL RELATIONSHIP WITH MOTHER

1. The father contends that the children would not benefit from a meaningful relationship with their mother.  Both the mother and the Independent Children's Lawyer say that the mother does have something to add to the children’s lives if she has a meaningful relationship with them. 

2. Dr F opined that the mother “cares about the children and that I would expect that she should continue to have a contribution to make to them.”

3. Indeed there is little doubt that the mother does deeply love the children.  This is evidenced from not only her own evidence, but the observations of a number of her friends who gave evidence, and indeed the observations of the Family Report writer during interviews.  However it is quite another thing to say that, thereby and without more, the children will obtain some benefit from a meaningful relationship with her.

4. I have already discussed that D’s primary attachment is not with his mother.  He appears to regard her as someone whom he recognises but from whom he derives no support or comfort.  For instance in the Family Report at paragraph 136 there is reference to the Contact Centre Reports which show that D at Contact Centre visits would engage with the worker rather than the mother.

5. It is likely that in later life however D will obtain some benefit from having a knowledge of his biological mother.  Beyond that it is difficult to conceive that the mother has, at present, much to offer D.

6. Turning to C, it appears as though she finds that her relationship with her mother is significantly detracted from by the mother’s behaviour.  For instance she told the Family Report writer that she was very embarrassed at a Contact Centre visit, when her mother was rubbing a cricket ball on her private parts.  She was also not happy that the mother had posted photographs on Facebook of the children at the Contact Centre, which had then been seen by her peer group.  She hoped that things could “get better” by which the Family Report writer thought that she that her mother might change how she dresses and not be partial to B.

7. The mother gave no indication in her evidence that she really understood the level of embarrassment which she from time to time caused C.  It is most unfortunate the C finds her time with her mother as, at least in part, a grating experience.  It seems likely that so long as the mother continues to dress and behave in what C perceives as an inappropriate manner, the benefit which she would obtain from a meaningful relationship with her mother will be commensurately discounted.  However I am satisfied that notwithstanding those impediments to the relationship, C would benefit from some relationship with her mother, however ironically, it is likely given the mother’s embarrassing attire and behaviour, that shorter periods of time rather than longer periods of time would maximise the benefit which C obtains.

8. Finally B has the most consistent relationship with his mother, and plainly wants it to not only continue, but improve.  For instance he told the Family Report writer that he would welcome spending time at his mother’s home even to the extent of overnight visits.  When asked to list his closest family members, he in fact listed all of them, but placed his mother at the top of the list.

9. Like C, B also experienced embarrassment in relation to his mother, for instance his mother’s behaviour at the sports day.  However the impression I have from the evidence is that his embarrassment is nowhere near as acute as that of C.

10. I am satisfied that B would benefit from a meaningful relationship with his mother and that ordinarily, that would be optimised by him spending unstructured, unpressured and liberal amounts of time with the mother.  However the difficulty with such a relatively laissez-faire approach is that it does not accommodate the risks which the mother poses, and of which B may be blissfully ignorant.  In my view the best means of accommodating that risk is to control the time and environment which the children spend with the mother.  I will consider this in greater detail later when considering the specific orders.

WILL THE FATHER PROMOTE A MEANINGFUL RELATIONSHIP BETWEEN THE MOTHER AND THE CHILDREN

1. In a sense the answer to this question is found in the father’s proposed orders.  He does not believe that the children would benefit from a meaningful relationship with their mother, and does not propose a regime of orders which would permit such a relationship to continue or develop.  In cross-examination he freely conceded that he could not implement an order for equal time if it were made, and would be “not happy” if he was required to comply with orders which obliged the children to spend time with the mother in E Town.  His concern was “who was going to guarantee the safety of the children?”  He conceded that he has absolutely no trust of the mother.

1. An unfortunate illustration of the extent to which the father is unlikely to promote a relationship between the mother and the children is the resistance he has had to the children maintaining a relationship with their maternal grandmother.  I do not overlook the fact that indeed the father did facilitate the children spending one occasion with the maternal grandmother after April 2013, but thereafter he appears to have refused to permit her to attend the supervised visits at the Contact Centre.  He has not otherwise facilitated or sought to encourage the maternal grandmother to see the children, although he asserted that she could have done so had she so requested.

2. That said I acknowledge that the father has for some period of time, and at some cost and inconvenience, driven the children from E Town to L Town in order that they can spend supervised time with their mother.  However beyond that it is difficult to see how the father has otherwise sought to encourage the relationship between the mother and the children.

3. Upon balance, I am not satisfied that the father will promote a meaning relationship between the mother and the children.  In the event that there were orders that the mother not see the children, I am satisfied that the father – even by omission rather than commission – would allow the relationship between the children and mother to wholly wither and die.

IS EQUAL SHARED PARENTAL RESPONSIBILITY PRACTICABLE

1. The mother seeks orders for equal shared parental responsibility; neither the father nor the Independent Children's Lawyer supports such a regime.  The parties have historically abysmal communication.  That was demonstrated in the second Family Report interviews where both parents were interviewed together for a short time.  Ms N said at paragraph 53 of that Report:

   During this interview [the mother] tended to talk over [the father] and was fairly dominant in offering her views.  She was very critical of the father and presenting herself as being wrong.  [The father] was trying to assert himself but was unsuccessful.  The overall impressions was that the parents would struggle to have any meaningful exchange about the children.

2. I am satisfied that the poor communication between these parties would make any obligation upon them to meaningfully negotiate towards resolving decisions about long term care, welfare and development issues an impossibility.

SECTION 60CC CONSIDERATIONS

Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. I have already discussed the benefits of the children having a meaningful relationship with the mother.

2. The benefits of the children having a meaningful relationship with the father do not appear to really be in contest.  Dr F opined:

   He appeared to be very focussed on the needs of the children, and seemed to have a good insight into the children’s needs.  I formed the view that he was a capable and caring parent and that he could continue to provide well for the children.  He also seems to be well supported by [Ms Garrett] from his reports.

3. He later said:

   The father appears to be a stable and healthy person from a personality and mental health perspective, with every expectation that he could continue caring for the children well and that he is likely to remain stable and responsible into the future.

4. Ms N at paragraphs 138 and 139 of the second Family Report formed a like view:

   138. [The father’s] presentation seems consistent with his presentation in 2013.  He seems to maintain stable behaviours, is focused on the children and well supported by his wife and his parents.  A recent psychiatric assessment does not raise any concerns about his mental state or personality.  On the basis of the information before me I am unable to identify any concerns in regard to his parenting capacity and it seems that the children are receiving appropriate care in his household.  The evidence of the children’s positive school reports supports this view.

   139. [The mother] also presents as child focused and committed to the care of the children.  She seem well informed about the children and attuned to their needs.  All 3 children seem to regard her as significant to them (as evidenced by their family drawings).  There has also been evidence at each assessment that [C] and [D] identify their stepmother as their psychological parent.

5. I am satisfied that the children would benefit from having a meaningful relationship with the father.

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

1. I have already discussed the risks which the mother poses to the children.  It was not suggested that the father poses any relevant risk of harm to the children.

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

1. I have already adverted to the relevant views of the children.  In summary, B has a desire to spend additional time with the mother, C is ambivalent and D appears not to have any such wish.  Although B is 12 years of age, Ms N said “In my view [B] is immature for his age and his views need to be treated with some caution.”  I accept that evidence, particularly because there is no indication that B is advertent of the risks which I am satisfied his mother poses to him.

2. I give B’s wishes some weight but not a great deal.  I do not give the wishes of C or D much weight given their immaturity.

Section60CC(3)(b): The nature of the relationship of the child with:

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

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

1. I have already discussed the nature of the relationship of the children with each of the parents.  It appears as though the children also have – or at least had – good relationships with the maternal grandmother and other of their siblings.  I am satisfied that the children would benefit from having their relationships with those other persons continue.

Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child

1. No criticism is made of either parent in relation to this consideration.  Both parties have attempted to become involved in the children’s lives to the extent that circumstances and orders permit.

Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. This is not a live issue in this case.

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

(i)       either of his or her parents; or

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

1. The children’s circumstances changed dramatically after the self-immolation of Mr K in April 2013.  No doubt at the time that change did have some substantial effect upon the children, however there is no reason to think that its consequences have not now settled.

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

1. This is not a relevant consideration here in that the parents live within a reasonable distance of each other.

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

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

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

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

1. I have sufficiently considered this consideration earlier in these reasons.  There is considerable doubt as to the mother’s capacity to provide for the needs of the children, and little, if any, doubt as to the father’s capacity.  To the extent that there is any criticism of the father, it is that he will not facilitate a relationship of any kind between the children and the mother.

Section 60CC(3)(g): The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. This matter is not engaged.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right

1. This matter is not engaged.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. This matter is relevant but I have sufficiently considered the relevant factual material earlier in these reasons.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. I have sufficiently considered the family violence aspects of this case earlier in these reasons.

Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i)       the nature of the order;

(ii)      the circumstances in which the order was made;

(iii)     any evidence admitted in proceedings for the order;

(iv)      any findings made by the court in, or in proceedings for, the order;

(v)       any other relevant matter

1. A family violence order has applied in which the father was the respondent and the mother the aggrieved; it arises out of the circumstances of their final separation.  I am not satisfied that any relevant inference can be drawn from that order in the circumstances of this case.

Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I am satisfied that it would indeed be preferable to make an order that would be least likely to lead to the institution of further proceedings.

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

1. I cannot identify any other fact or circumstance that is relevant beyond those I have previously addressed.

PARENTAL RESPONSIBILITY

1. The parties could not communicate in a way that could discharge their obligations under s 65DAC.  The impulsive, non-child focussed behaviour of the mother strongly disqualifies her from having sole parental responsibility even if there were equal care.  On the other hand the father’s demonstrated capacity for child focussed, mature and rational decision making plainly makes him the preferable recipient of sole parental responsibility. 

2. There will be an order that the father have sole parental responsibility.

CHILDREN’S TIME WITH MOTHER

1. The level of risk which the mother poses to the children is significant but not unacceptable provided that the time she spends with them and the circumstances in which that time is spent maximise their safety.  Whilst the father contends that the safety of the children must be guaranteed, no such guarantee can, nor need, be given.  Rather it is a question of whether or not the risk in the particular circumstances is an unacceptable one or not.

2. As I attempted to explain to the mother during the course of her submissions, in the final analysis, this case is a question of balancing risk posed by the mother on the one hand, with the benefit of the children having something beyond recognition contact with her on the other.  That is because although I am satisfied that the children would benefit from having a meaningful relationship with the mother, it needs to be a relationship enjoyed in circumstances which minimises the risk of harm which the mother poses.

3. The Independent Children's Lawyer proposes that the mother’s time with the children should be restricted to two hours on each occasion and that there should be about nine occasions per year.  They would comprise a three monthly visit (being four in total) together with the children’s birthdays, the mother’s birthday and Mother’s Day.  That said the Independent Children's Lawyer expressly disavowed that she was immutably wedded to the frequency of once every three months.

4. Further, by way of additional safeguard, the Independent Children's Lawyer proposed that the time which the mother spends with the children be either at a park or a restaurant in E Town.  There is difficulty in obtaining a clear definition of a “park” but nonetheless the intention plainly was to ensure that the mother would be subject to some degree of public observation during time she spent with the children.

5. I am satisfied that both of those matters (ie restriction in hours, relative infrequency of occasion, and public observation) do sufficiently safeguard the children from the risks which the mother would otherwise pose to them.

6. Having the time unsupervised in the E Town district will overcome what I understand to have been the significant logistical difficulties with the time being spent in a supervised location in L Town.  Moreover I note Dr F’s reservations in relation to long term supervised contact “as being undesirable and practical” and his recommendation that “probably fortnightly daytime contact could be of benefit for the children.”

7. The only question then remains how frequent the mother’s time with the children should be.  I am satisfied that it should be something more than once every three months, and am satisfied that it should be once every two months, together with special days.  On my calculation that will see a total of 11 visits with the children each year.

COMMUNICATION

1. The father did not propose any communication regime between the children and the mother, nor did the Independent Children's Lawyer.  I am satisfied that the regime of communication which has prevailed thus far has resulted in stilted and artificial communication styles between the children and the mother on those occasions.  I am not satisfied that there is any real benefit to continuing that form of communication, given the inevitability that the father will likely continue to tape it.

2. There is another reason for restricting communication.  In the past the mother has abused these opportunities to, at least on one occasion, seek to cajole the children into seeing her beyond the times which the orders provided for.  It might also be the case that she has used them as occasions to encourage the children to challenge the father and step mother’s discipline regimes.

3. Weighing these matters in the balance I am not satisfied, given that I shall make orders permitting the mother to spend relatively frequent time with the children, that a telephone communication regime is in the best interests of these children.

OTHER ORDERS

1. I am otherwise satisfied that the orders proposed by the Independent Children's Lawyer are in the children’s best interests and will make them.

I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 July 2015.

Associate: 

Date:  16 July 2015