Gibbon and Gibbon
[2011] FMCAfam 869
•26 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GIBBON & GIBBON | [2011] FMCAfam 869 |
| FAMILY LAW – Parenting proceedings – allegations of child abuse. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB Evidence Act 1995, s.140 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424 |
| Applicant: | MS GIBBON |
| Respondent: | MR GIBBON |
| File Number: | PAC 2331 of 2010 |
| Judgment of: | Halligan FM |
| Hearing dates: | 4, 5, 6, 8 July 2011 |
| Date of Last Submission: | 8 July 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 26 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livingstone |
| Solicitors for the Applicant: | Rafton Family Lawyers |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Smythe Wozniak Solicitors |
| Counsel for the Independent Childrens Lawyer: | Ms Carr |
| Solicitors for the Independent Childrens Lawyer: | Benetatos White Solicitors |
ORDERS
All prior parenting orders in relation to the children [X] born in 2002, [Y] born in 2004 and [Z] born in 2007 (the children) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father-
(a)During school terms, each alternate weekend from Friday after school or 3.00 pm if the child or children are not attending school, or, if Friday is a public holiday, Thursday after school or 3.00 pm if the child or children are not attending school, to Monday before school or 9.00 am if the child or children are not attending school, or, if the Monday is a public holiday, Tuesday before school or 9.00 am if the child or children are not attending school, commencing on the second Friday after these orders are made and recommencing on the first Friday of each subsequent new school term (or the first Thursday if the first Friday is a public holiday) if the children spent the first half of the preceding school holidays with the father, or otherwise commencing on the second Friday of the new school term (or the second Thursday if the second Friday is a public holiday);
(b)For half of all school holidays, being the second half of school holidays commencing in 2011 and each alternate year thereafter and the first half of school holidays commencing in 2012 and each alternate year thereafter, and for these purposes-
(i)school holidays are deemed to commence at 5.00 pm on the day school finishes in a term and to end at 5.00 pm on the day before school resumes in the next term; and
(ii)changeovers shall take place at 5.00 pm on the day mid way through the school holiday period and if there is an odd number of days in the school holidays the parent having the first half of those holidays shall have the extra day;
(c)From 9.00 am on Christmas Eve to 2.00 pm on Christmas Day in 2011 and each alternate year thereafter;
(d)On the Father's Day weekend, in accordance with paragraph (a) of this order;
(e)On each of the children’s birthdays, if the children would not otherwise spend time with the father on the day-
(i)If a school day, from after school until 6.00 pm;
(ii)If not a school day, from 1.00 pm to 6.00 pm.
The father’s time with the children under the preceding order is suspended-
(a)On the Mother's Day weekend;
(b)From 9.00 am on Christmas Eve to 2.00 pm on Christmas Day in 2012 and each alternate year thereafter;
(c)On each of the children’s birthdays, if the children would not otherwise be with the mother on the day-
(i)If a school day, from after school until 6.00 pm
(ii)If not a school day, from 1.00 pm to 6.00 pm.
Changeovers not occurring at school shall be effected by the mother or her agent delivering the children to the father’s home at the commencement of the father’s time and by the father or his agent delivering the children to the mother's home at the conclusion of the father's time.
Each party is restrained from physically disciplining the children, is restrained from allowing any other person to physically discipline the children, and shall take all reasonable steps necessary to ensure no other person physically disciplines the children.
Each party is restrained from denigrating the other party, the other party’s partner, and any member of the other party’s household or family, to or in the presence or hearing of the children and shall take all reasonable steps necessary to ensure no other person does so.
The mother is restrained from consuming alcohol 12 hours before or during the time the children are in her care.
The mother shall, as soon as practicable and not more than 10 days after making such appointment, and in any event before such appointment, notify the father of all medical appointments in relation to [X]’s diabetes and the father may attend all such appointments.
The mother shall notify the father of the name and contact telephone number of each of [X]’s treating medical practitioners and shall authorise [X]’s treating medical practitioners (including the Diabetes Clinic at the Children’s Hospital) to provide to the father such information as he may request in relation to [X]’s diabetes.
The mother shall ensure the children [X] and [Y] continue to attend their current school until the end of the 2011 school year.
The mother shall provide to the father, as soon as practicable after they are received and not more than 10 days after receipt, copies of all school reports, any other reports on school progress and behavioural issues in relation to the children and other school circulars in relation to school events to which parents are invited.
The father may attend parent teacher interviews and any events at the children’s schools to which parents are invited.
The father shall not be required to take the children to any sporting, cultural or extra curricula activity during his time with the children unless the father consented to the child participating in that activity.
Otherwise all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gibbon & Gibbon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2331 of 2010
| MS GIBBON |
Applicant
And
| MR GIBBON |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested parenting proceedings under the Family Law Act 1975 concerning the parties’ three children.
Both the applicant mother and the respondent father sought that the children live with them and spend time or live with the other parent on alternate weekends, for half school holidays, and on days of special significance. The father also sought an order restraining the mother allowing the children to come into contact with her partner, Mr S. The mother sought sole parental responsibility while the father sought sole parental responsibility for matters concerning the children’s health and education and sought no order in relation to the other aspects of parental responsibility.
The Independent Children's Lawyer proposed that the mother have sole parental responsibility, and that the children live with the mother and spend time with the father on alternate weekends, half school holidays and on special days.
Background
The mother is aged 30 (born in 1980), the father 47 (born in 1964). They commenced cohabitation in 2001, married in September 2005 and separated under the one roof on 9 February 2008 according to the mother or 28 January 2008 according to the father. The father moved out of the marital home on 29 September 2008.
The parties’ children are [X] born in 2002, aged nine, [Y] born in 2004, aged seven, and [Z] born in 2007, aged four.
The mother has a child of an earlier relationship, [A], who is aged 11 (born in 1999). [A] was a member of the parties’ household during their cohabitation and has lived with the mother since their separation.
The father has two adult sons of a prior relationship, aged 21 and 19. The older son lived with the parties throughout their cohabitation while the younger one did so for the first six years.
Both parties have repartnered. The mother's new partner is Mr S, a 44 year old [occupation omitted] (born in 1967). The mother commenced a relationship with Mr S shortly after the father left the marital home in 2008. She commenced cohabitation with him in a home he owns in about April or May 2009. The mother moved with the children to live with her parents when interim parenting orders were made on 4 August 2010 which among other things prohibited the mother bringing the children into contact with Mr S. Mr S has no children of his own.
The father lives with Ms C, whose first husband died, in a home she owns subject to a mortgage. Ms C is 44 (born in 1967). She has two children of her prior marriage, 19 year old [B] and 16 year old [C], both of whom live with her.
On 29 June 2010, consent orders were made until 4 August 2010 that the children live with the parents on an equal time week about basis.
As mentioned, further interim orders were made on 4 August 2010. They were made in the context of allegations having been made that Mr S had hit [X] and [Y] on their buttocks with a metal spoon as a form of discipline, in [X]’s case leaving a significant mark that remained visible for more than a week after. At all relevant times the mother has contended that she was the one who disciplined the children with the spoon, contending that she did not hit the children forcefully.
Proceedings for an apprehended violence order were instituted against Mr S for the children’s protection and an ex part provisional order made. The AVO application was defended and at the hearing on 18 August 2010, the prosecution offered no evidence and the application was dismissed. Two weeks prior, on 4 August 2010, Mr S had been charged with assault occasioning actual bodily harm in relation to [X] and assault in relation to [Y]. When the AVO application was dismissed, the bail conditions previously imposed on Mr S in connection with the criminal charges, which had been in similar terms to the interim AVO, were removed. Mr S defended the criminal charges, and after a two day hearing, during which [X] and [Y] gave evidence and were cross-examined, the charges were dismissed.
Apart from the restraint on the mother bringing the children into contact with Mr S, the interim orders of 4 August 2010 provided for the parents to have equal shared parental responsibility for the children, for the children to live with the parents on an equal time week about basis, that changeovers occur at the conclusion of school each Monday, that the mother be restrained from consuming alcohol for twelve hours before the children come into her care and while the children are in her care, that the mother not consume drugs other than prescription medication while the children are in her care, that both parents not physically discipline the children or allow any other person to do so, that the parents ensure the children sleep in the same residence as the parent with whom they are living at the time, that the parents not leave the children in the sole care of a person under eighteen, and that the parents not discuss the proceedings with the children or allow the children to read any “family law documents” and not allow any other person to do so except the Independent Children's Lawyer, a Family Consultant, a school counsellor or other counsellor seen by the children.
Credit of witnesses
The witnesses in the mother's case, apart from the mother, were Mr S and the maternal grandmother, Mrs H.
The witnesses in the father's case, apart from the father, were Ms C and his solicitor. His solicitor’s affidavit was solely for the purpose of putting into evidence part of the transcript of the hearing of criminal charges against Mr S, being the cross-examination and re-examination of [X] and [Y].
Credit of mother
Various aspects of the mother's evidence are concerning. I am satisfied she was not candid in relation to the extent of her alcohol or ecstasy use, or whether she self-harmed at the time of her hospitalisation in April 2009. However, I am not satisfied her credit as a witness was generally called into question.
Credit of Mr S
Mr S denied that the argument he had with the mother immediately before her hospital admission in April 2009 was to do with her alcohol abuse and association with other men.
The hospital records include a notation that the mother's “boyfriend” said to staff that the mother's promiscuity while intoxicated was the reason for the breakdown of her past relationships. Mr S visited the mother in hospital, as did the father when he coincidentally became aware of her admission. Mr S denied conveying this information to hospital staff, denying that he spoke to hospital staff at all. The father at first denied speaking to hospital staff, then conceded that he did speak to hospital staff when enquiring about visiting the mother, but denied he gave any information about the mother.
I ultimately cannot be satisfied who was the source of the information recorded in the hospital records, and this in my view cannot be a basis of challenge to Mr S’s credit.
There was no other aspect of the evidence on which in my view
Mr S’s evidence could be challenged and I accept him as a credible witness.
Credit of maternal grandmother
I accept the maternal grandmother as an honest and reliable witness.
Credit of father
I have some concerns about the father's credit. For example, he alleged in his evidence in chief and to the Family Consultant that the maternal grandparents abused alcohol. The father's counsel did not put these allegations to the maternal grandmother in cross-examination, and made it clear that there would be no submission on the father's behalf critical of the maternal grandparents’ alcohol use. In cross-examination, the father said he understood that this was his position. However, he did not withdraw the allegations. The maternal grandmother in cross-examination by counsel for the Independent Children's Lawyer denied them.
I am not satisfied of the truth of the father's allegations against the maternal grandparents. When taken with his admission that he made some allegations against the mother and Mr S just to “trash” their reputations, and with his palpable antipathy for the mother and Mr S, I am satisfied that his criticisms of the mother and those supporting her must be treated with a degree of caution.
There were other areas of the father's evidence that were unsatisfactory, but on balance I am not satisfied his credit generally was seriously damaged.
Credit of Ms C
I accept Ms C as an honest and reliable witness, despite her changing her response in cross-examination about whether she considered the Family Consultant’s report of things said by [X] when Ms C was not present was accurate.
Status of the Family Report
While no issue of credit arose in relation to the author of the Family Report, there are issues as to the weight to be attached to its content which it is convenient to address in the context of credit of the other witnesses.
The author of the Family Report was not available for cross-examination due to illness. The hearing had previously been adjourned due to the unavailability of the Family Consultant for the same reason, and because of uncertainty as to when the Family Consultant would be well enough to be cross-examined, it was agreed the matter should proceed, the Family Report being admitted into evidence by consent subject to weight in the circumstances.
There was no issue about the factual content of the Family Report, in particular the reported observations of the interaction between the children and the relevant adults, or in relation to what the children were reported to have told the Family Consultant.
Counsel for the father submitted that in the circumstances, while I could place weight on evidence of facts observed by the Family Consultant, that is, the observed interaction between the children and the adults and what the adults and children had told the Family Consultant, and while I was entitled to draw inferences properly to be drawn form that evidence, I could place no weight on opinions expressed in the Family Report. He submitted that the court could not form its own opinions, as distinct from drawing inferences of fact, based on the facts recited in the Family Report.
While the untested opinions of the Family Consultant cannot be given the same weight as if they had been tested in cross-examination, they do retain considerable weight, especially where consistent with the evidence otherwise presented and accepted by the court, and coming from the only objective witness in the case.
It was not suggested by counsel for the father on what basis or in what way doubt could be cast on the opinions expressed in the Family Report, other than the absence of an opportunity to cross-examine its author. The only matter he challenged was the Family Consultant’s opinions about the relationships between the father and the children flowing from the observed interactions between them, suggesting the father gave evidence from which I should assess those relationships to be much closer than suggested by the Family Consultant.
I propose to accept the factual and opinion content of the Family Report and place considerable weight on it. In relation to the only aspect where an opinion was directly challenged by the father’s counsel, I am satisfied that the undisputed factual observations of the interaction between the father and the children, when contrasted with the starkly different and again undisputed observed interaction between the children and the mother and the children and Mr S, fully supports the opinions of the Family Consultant as to the various relationships, and I accept them.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D).
The parties entered into a parenting plan in April 2009. Neither the parties nor the Independent Children's Lawyer suggested it now held other than historical relevance.
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). S.60CC indicates how the court determines the children's best interests. Section 60B sets out the objects and principles of Part VII.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5) and see MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424). If so satisfied on both these matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There was no suggestion that these children do not now have a meaningful relationship with both parents and have not benefited from it in the past, or will not benefit from an appropriate ongoing opportunity to continue that relationship in the future. The fact both parties and the Independent Children's Lawyer all sought orders under which the children would live primarily with one parent and spend alternate weekends, half school holidays and special occasions with the other parent suggests it is common ground that such an arrangement is appropriate for the children to benefit from the meaningful parental relationships into the future.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Physical abuse
The principal, though not the only, issue of child protection in this case arises from the disciplining of [X] and [Y] with a metal spoon, a fact not in issue. What is in issue is whether the mother or Mr S did so, and with what force.
The mother consistently maintained that it was she who disciplined [X] and [Y] by hitting each relatively lightly on the bottom with a metal spoon. She said she had ample opportunity in the following week before the children passed into the father's care to have observed any bruise such as was subsequently observed on [X]’s buttocks, and saw no mark.
In evidence at the hearing of the assault charges against Mr S, the mother gave evidence that she saw a red mark on [X]’s buttocks. This is inconsistent with her evidence before me of having seen no mark at all.
The mother suggested that the day before the children passed into the father's care next after she hit [X] and [Y] with the spoon, she,
Mr S and the children went bike riding and [X] fell off her bike twice. She said that this may have been the cause of [X]’s bruise, although again she saw no sign of any apparent injury to the child after the bike riding expedition. One would expect that if the child suffered a forceful enough impact to cause a significant bruise such as [X] sustained by falling off her bike, she would have experienced significant pain and it would have been apparent to an accompanying adult that the child was in significant pain. The mother gave no evidence to suggest either of [X]’s falls from her bike were accompanied by any reaction of the child suggesting she had hurt herself in any significant way.
Although he was present, Mr S gave no evidence about the incident when [X] and [Y] were hit with the spoon, other than to deny that he hit either child. Nor did he give evidence of [X] falling off her bike, although he again was present. He was a witness in the mother's case. He swore an affidavit after the criminal charges against him had been dismissed. There was no explanation as to why he failed to provide any evidence to support the mother's version of these events.
It was submitted on behalf of the father that from this I should draw an inference adverse to the mother that Mr S’s evidence would not have assisted the mother's case. On behalf of the mother it was submitted that such an inference should not be drawn as he was a witness in the mother's case, he was available for cross-examination, and in fact he was cross-examined, both by the father's counsel and counsel for the Independent Children's Lawyer, and he was not questioned about the incident when the children were hit with the spoon. Ultimately, in my view it matters not whether I draw an adverse inference or not, because drawing it will not prove the father's version of events. It is nonetheless concerning that Mr S remained silent about what he observed.
The father's version of this event, which he based on what [X] and [Y] told him, told the police, said in evidence in the criminal proceedings against Mr S, and told the Family Consultant is that Mr S hit [X] and [Y] on the bottom with a metal spoon, in [X]’s case with such force as to leave a severe bruise that remained visible for well over a week after she was hit. The father had an unshakeable conviction that this is what happened, and contended that the mother was taking the blame for what her partner, Mr S did, to protect his employment as a [occupation omitted].
Thus, the truth of what the father contends depends on the evidence of [X] and [Y], who were not witnesses before me, although they were witnesses and were cross-examined in the criminal proceedings. And thus this is not an aspect of the case where any question about the father's credit as a witness is relevant.
There are reasons to have some caution in accepting what [X] said. She gave inconsistent versions of how many times she was hit with the spoon. She also told the police that Mr S hit her with the spoon regularly, probably five times a week. That never formed part of the father's case presented to me. There was no explanation why. One would expect that if the father believed that this child was being physically abused by being struck with a metal spoon on almost a daily basis he would have pressed this vigorously as part of his case, as he did his contention that Mr S hit [X] causing the bruise. The father lost no opportunity to raise matters critical of the mother and Mr S in his evidence and to the Family Consultant, even matters he admitted were raised just to “trash” their reputations with the Family Consultant. His palpable antipathy for both the mother and Mr S otherwise led him to make allegations of alcohol abuse against the maternal grandparents that his counsel abandoned without explicitly withdrawing the allegation. Thus his failure to press this allegation suggests he did not believe it to be true.
[X] also gave inconsistent versions of the Friday night games, to which I will refer shortly.
It was conceded by the father that [X] tells lies. It was conceded that [X] may tell the parents what she thinks they want to hear and find favour with them. It is clear that the father's antipathy for the mother and Mr S means he would relish information adverse to them. However, [X] and [Y] both remained consistent in naming Mr S as the one who hit them and were not shaken in this in cross-examination in the criminal proceedings, and I cannot ignore their evidence.
While the mother was not open and honest from the start in relation to her substance abuse, and while she has a motive to accept responsibility for hitting the children to exonerate Mr S, I am not satisfied the mother's version of this incident should be rejected.
I also note that I have found Mr S to be a reliable witness, and he consistently denied that he was the one who hit the children, although he did not offer evidence of what he heard and saw on this occasion.
Thus, the court cannot be satisfied that either the mother or the children have lied in relation to this incident. In the circumstances, and bearing in mind that the standard of proof to be achieved before being satisfied on this issue is the civil standard in accordance with s.140, Evidence Act 1995, I am not satisfied that it was Mr S who hit the children, but nor am I satisfied he did not hit the children. I must proceed on the basis that it may have been either the mother or Mr S who hit the children. On the evidence, I am satisfied it was more likely that it was the mother rather than Mr S who hit the children, but I cannot be positively satisfied Mr S did not hit them.
Similarly, I am not satisfied the evidence is sufficient for me to find that the bruise on [X] was caused by being hit with the spoon, but I am not satisfied that it was not so caused.
I must therefore proceed on the basis that [X] was hit with a metal spoon, that the force of the blow may have caused significant bruising to the child and thus the blow may have been delivered with considerable force, that the child may have been hit by either the mother or Mr S, that of those two adults the evidence suggests it is more likely it was the mother who hit [X], but the evidence is insufficient to completely exonerate Mr S.
While the father's case focussed on challenging the mother's version of this event to seek to prove that Mr S was the one who struck the children, on any view of the incident it was either a joint enterprise of the mother and Mr S in using that form of discipline, or one in which the adult not hitting the children acquiesced in what was done by the other adult and raised no objection at the time or since to the actions of the other adult.
It is concerning that the father seemed oblivious to the implications of the circumstances in which the children were hit, especially the implications even on his version of the event of the mother having acquiesced in or actively supported what happened. I am satisfied that he is driven by great animosity and antipathy for both the mother and Mr S, to the point where in this and other areas, he has been unwilling or unable to appreciate where the needs of the children in fact lie.
The father maintained a rigid insistence that it was Mr S who struck the children, and he obdurately refused to entertain even the possibility that it might have been the mother. When pressed to say what the court should order if satisfied it was the mother who hit the children and caused [X]’s bruise, he said the only change to the orders he sought would be to remove the restraint on the mother bringing the children into contact with Mr S and to insert an order restraining the mother from physically disciplining the children, even though he said he did not believe the mother would obey such an order. Any basis for that belief, apart from his antipathy for the mother, is not apparent as there was no suggestion by the father that the mother had failed to comply with the requirement, in force since April 2009, that she not consume alcohol while the children were in her care or for twelve hours before.
The issue is whether, under the proposals of either party or the Independent Children's Lawyer, the children would be exposed to an unacceptable risk of harm by being physically disciplined to the extent of being actually injured.
Based on my findings about the incident with the metal spoon, there must be some risk of that occurring if the children are with the mother or Mr S, although the risk would be greater from the mother than Mr S.
I infer that the father's position is that the risk is not unacceptable if the children are spending time with the mother as he proposes provided the mother is restrained from allowing the children to come into contact with Mr S and from physically disciplining the children. Although not explicitly articulated on behalf of the father, the inference is that the father contends the risk is unacceptable if the children live primarily with the mother, even with those same protections in place.
I am satisfied on the evidence that these children have been physically disciplined in the past, and apart from the incident with the metal spoon, by the mother, the father and Ms C. The only one out of the parents and step parents of these children the evidence does not unequivocally establish as having used physical discipline on any of the children is Mr S.
In those circumstances, I am not satisfied that the risk to the children from Mr S is such as to warrant them being precluded from coming into contact with him. I note the observed interaction between him and the children as contained in the Family Report, and I agree with the Family Consultant’s assessment that this is indicative of a close and warm relationship between each of the children and Mr S inconsistent with children in fear of being physically abused by him. I am satisfied that under any of the proposals under consideration, a restraint on the mother permitting anyone to physically disciple the children is sufficient safeguard for the children.
I am similarly satisfied that a restraint on the mother physically disciplining the children is sufficient safeguard for the children under any of the parenting proposals under consideration, including if the children live primarily with the mother. I do not accept the father's contention that the mother will not comply with such an order, she having complied with restrictions on her alcohol consumption while the children are with her and immediately before they come into her care.
As the children have been physically disciplined by the father and Ms C, I am satisfied that the restraint on physical discipline should extend to the father’s household as well.
Sexual abuse
The father said [X] reported to him, and [X] reported to the police, that the mother and Mr S engaged the children in Friday night games, during which the loser took off items of clothing, and when a participant was naked, that person had to do “the nudie run”. [X] inconsistently told the police that it was not all the participants who had to take off their clothes, only Mr S, [A] and [Y], and not the females or [Z]. She referred to “Strip Cluedo” and “Strip Uno” as being part of Friday night games.
The mother said that they often played Friday night games as a family activity. She denied anyone took any item of clothing off during these games. She said that when the games finished, it would be time for the children to get out of their school uniforms and put on their pyjamas, and as the clothing to be taken off needed to be washed, the children were told to do so in the laundry and go to their bedrooms or the bathroom. She said on occasions the children would take off all their clothes in the laundry and run naked to the bedroom or bathroom. She said the children called this a nudie run.
I accept the mother’s innocent explanation of this activity.
The father said [X] complained that Mr S came into the bathroom while she was showering and threw cold water over her.
The mother and Mr S said that on one occasion, when the mother and [X] were showering together so that the mother could wash the child’s hair, Mr S entered the bathroom and threw a small quantity of cold water into the shower, which had opaque glass around it. The mother said she and [X] laughed. She said some time later, [X] laughingly told her she had just gone into the bathroom when Mr S was showering and thrown cold water over him.
I accept the innocent version of this incident as given by the mother and Mr S, which is not inconsistent with what [X] is reported to have described.
The father also raised in cross-examination for the first time an accusation that [X] alleged Mr S “pantsed” her in the swimming pool, pulling off her swim suit pants. Assuming this occurred, I am not satisfied the father himself viewed it seriously, as he failed to mention it in his case in chief. His counsel did not put it to Mr S in cross-examination, and I am not satisfied anything untoward occurred.
Neglect
“Abuse” and “family violence” are both defined in the Family Law Act. “Neglect” is not. There thus may be some legitimate debate about the scope of this aspect of the second primary consideration. It was not specifically addressed in any of the submissions I received.
I will interpret the father's allegations about the mother's substance abuse and involuntary hospitalisation as being capable of raising issues of risk of neglect. This may well overlap with more than one of the additional considerations.
The father alleged that after [Z] was born the mother regularly drank to excess both in the home and outside the home. He also alleged the mother was using ecstasy. He alleged that the mother was self-absorbed and ignored the children to the point that he altered his work hours to be more available to provide care for the children. The mother denied his allegations.
In April 2009, the mother was hospitalised after making statements to Mr S that he reasonably interpreted as indicating an intention to take her own life. When police attended the mother's home in response to Mr S seeking their assistance to check on the mother’s welfare, they found the mother in the bath, inebriated, with a self-inflicted wrist laceration and a long bladed knife nearby. The police found [Z] standing in the bathroom where they found the mother. The mother had the care of all her children at the time. Her parents lived next door, were home at the time, and she had not sought their assistance.
The mother sought at first to deny in cross-examination that she had a drinking problem, but ultimately conceded that she did, suggesting that it was only a significant issue during the parties’ separation under one roof and up to and shortly after her hospitalisation. She also denied that she had used ecstasy since she was 19, saying at about the time of separation she was abusing prescription weight loss medication. There is some indication in clinical notes taken at the time of the mother's admission to hospital in April 2009 that she reported current ecstasy use. The mother said this misinterpreted her statements that she had used when she was 19.
The mother denied cutting her wrists on this occasion, but I accept the medical records from the hospital that she presented with lacerations to her wrist or wrists, and I am satisfied that these were self-inflicted.
I note that while in the medical certificate under Schedule 1 of the Mental Health Act 2007 (NSW) issued in relation to the mother on 18 April 2009 the mother is described as having made a “serious attempt to kill self”, in fact the medical records refer to “minor lacerations” to her wrist or wrists. On the evidence, I am satisfied that on this occasion the mother was depressed, expressing feelings of profound hopelessness, and made statements suggesting she may be a danger to herself, but I am not satisfied she attempted to kill herself despite self-harming.
I am satisfied that in the circumstances at the time of the mother's self-harming and hospitalisation, she was incapable of caring for the children in her care, she had assistance immediately at hand in the form of her parents next door and she did not seek their assistance either for herself or to care for the children, and that the children were thus at risk of neglect.
The mother in April 2009 was experiencing a number of stressors, including the breakdown of the relationship with the father, parenting her four children as a sole parent, and had had a serious disagreement with Mr S, with whom she had formed a romantic relationship, that the mother believed may have indicated that relationship had ended.
The mother gave evidence of having undertaken counselling, curbed her drinking despite an alcohol fuelled argument with Mr S in September 2009 during which the mother called the police, and improved her relationships with Mr S and her parents in the sense of making those relationships more open and honest, and thus more able to enlist their emotional and practical support.
I am satisfied the mother derives practical and emotional support from her parents and Mr S. I am satisfied the relationship between the mother and Mr S is an apparently stable and committed relationship, despite the strains on it of the orders preventing the mother to allow the children to come into contact with him that necessitated her and the children leaving Mr S’s home. I am satisfied the mother has not consumed alcohol since April 2009 while having the care of the children. I am satisfied the risks of a relapse or recurrence of the behaviour at the time of the mother's hospitalisation in April 2009 is relatively low.
In any event, I note that the father himself, despite these criticisms of the mother, agreed to the equal time shared care arrangement that was implemented immediately after the mother's hospitalisation, and has raised no evidence of any similar behaviour since.
I am therefore not satisfied this is a significant issue in determining the parenting arrangements for these children now.
There are other issues raised by the parties that may arguably expose the children to a risk of neglect. Of particular concern is the lack of communication between the parents and their mutual distrust and antipathy in the context of [X]’s recent diagnosis of insulin dependent Type 1 diabetes. The father earlier this year sought a separate appointment with the child’s paediatric endocrinologist, which that doctor rebuffed, indicating she would see the parents together or she would not see the father at all. The father attended a joint appointment with the mother, at which it was discovered that [X] was receiving different insulin dosages in each parent’s household. The doctor indicated the parents needed to resolve this, and they did.
Despite this, and despite conceding the importance for [X] of the parents cooperating in and coordinating the child’s treatment, the father maintained that his request for a separate appointment was appropriate.
Diabetes, if not properly treated, is a very serious medical condition. I am satisfied that the father's attitude exposes [X] to a risk of her condition being inappropriately managed in the father's household, and could amount to a risk of neglect, that is, unintentional harm.
Family violence
The father admitted that in February 2008, in the mother's presence, he punched the glass out of a display cupboard and hit another cupboard breaking his finger, resulting in him having three months off work. He said the children were not present but were aware of the incident. He admitted he was in a rage and completely out of control, but denied it was against the mother, even though it was joint property he damaged and he admitted that the mother was terrified of him. I am satisfied on the father's evidence that this was an incident of family violence as defined in the Family Law Act.
Assessment of additional considerations (s.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.
According to the Family Consultant, [X] expressed a wish to live with her father if [Y] lived with his mother, and [Y] expressed a preference to continue the week about arrangement. However, I accept the Family Consultant’s reasons for placing little weight on these views. I do so having regard to the age of the children, the immaturity of [X]’s reasons, the fact the activities [X] reported enjoying with the father were with one exception activities the father enjoyed, the fact [X] presented as a somewhat troubled child, the issues between [X] and [Y], and the somewhat troubled relationship between [Y] and Ms C, who seems to provide most of the child care when the children are with the father.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I am satisfied the children have good relationships with both parents and with Mr S and Ms C. However, I am satisfied that there are significant differences in the quality and nature of those relationships.
I note that Mr S said in cross-examination by counsel for the Independent Children's Lawyer that the children love their father very much, which can be seen from their behaviour.
However, the stark contrast in the interaction observed by the Family Consultant between the children and the parents and step parents speaks eloquently in my view of the difference in the relationships.
The Family Consultant said that that the observed interaction of the children with the father did not reveal that the father had a particularly close emotional bond with any of the children, and expressed “most concern” that none of the children seemed to have the expectation that he would engage with them in their activities. She commented that although the children demanded adult attention only after Ms C entered the room, nonetheless [Y] possibly has a rather strained relationship with her, being the only child not to demonstrate a positive response to her entering the room. The Family Consultant opined that [X]’s interview and observed interaction with the parents seemed to indicate that the father did not spend a great deal of time interacting directly with [X] and her brothers and that they largely depend on Ms C for adult interaction and emotional warmth when in the father's care.
I accept this evidence. It is concerning that despite the father contending that the mother was a drug and alcohol affected uninvolved parent before separation, to the extent that he had to change his work hours to care for the children, and was thus in effect the children’s primary carer, and despite the fact that since April 2009 the father has had care of the children each alternate week, there is such a lack of “connection” between him and the children. It suggests either that the father was untruthful in his assertions of the extent of his care of the children before separation, as the mother suggested, or his care of the children has not involved any emotional closeness or nurturing. But even if the father was not the primary carer of the children before separation, it is troubling that despite having the care of the children each alternate week since April 2009, there was such a marked lack of engagement between the father and the children.
I also accept the evidence of the Family Consultant that despite it appearing that the children were largely dependent on Ms C for adult interaction and emotional warmth when in the father's care, there appeared to be difficulties in the relationship between her and [Y] which were apparent at interview with both [Y] and [X] as well as during observations of [Y] with Ms C.
In contrast, the Family Consultant commented on the greater degree of emotional warmth apparent between the children and the mother, referring to the children hugging the mother affectionately, competing for her attention and being noisy, happy, playful and exuberant with her, and clearly expecting her to be involved in their games. The Family Consultant was of the opinion that the mother displayed some skills in coordinating the children's activities and encouraging them to play together. I accept this evidence.
The reported interaction of the children with each of their parents is difficult to reconcile with the father's allegations of his and the mother's respective involvement in caring for the children, and in fact would seem to be more consistent with the exact reverse of what the father alleges to be true, with the mother being the caring, nurturing parent and the father being distant, remote, and unengaged with the children, for whatever reason. This does not necessarily call into question the things the father says he has done in providing care for the children, in the sense of preparing meals, supervising homework, taking them to their activities, and the like, but it does raise real doubts that in doing so, the father is engaging emotionally with the children and meeting their need for emotional support and nurturing.
The Family Consultant, commenting on the warmth of the children’s response to Mr S after not seeing him for about six months, including [X] who had made serious abuse allegations against him, expressed the view that none of the children were fearful of him and in fact engaged with him in a positive and high-spirited manner. The Family Consultant observed that despite her allegations against
Mr S, [X] included him as part of her mother's family and reported enjoying it when Mr S played with the three children, and she remembered him helping her with her homework. Again despite her allegations against Mr S of being hit by him with a metal spoon more than once and that he smacks her all the time, she did not nominate him as an angry person in her family, nominating her deaf grandfather and Ms C instead. [Y] too, who made allegations that Mr S hit him once with the metal spoon, both in the criminal proceedings against Mr S and to the Family Consultant, was noted to have recalled positive memories of living in his home and that he did not yell at him or his siblings very frequently.
I accept this evidence of the Family Consultant.
I am therefore satisfied that the children have a much warmer and closer bond and relationship with the mother than with the father, and a very warm and close relationship with Mr S. Their relationship with Ms C is much less positive and warm, even though I am satisfied she and not the father provides the primary care for the children when they are with the father.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Ss.60CC(4) and (4A) are relevant to both these considerations, which I will consider together.
Both parents have made decisions about the children without reference to the other parent, including the father unilaterally having [X]’s hair cut short knowing that it would upset the mother, Ms C having foils put in [X]’s hair without consultation with the mother, and the mother unilaterally moving the location where [X] and [Y] engaged in Little Athletics and where [Y] played rugby league much further away from the father's home. I am not satisfied this aspect favours one parent more than the other. Both are equally deserving of criticism for their actions.
The mother's actions in April 2009 in exposing the children to a risk of neglect when she became inebriated and self-harmed is of concern in the context of these considerations. However, I am satisfied there is little risk of a recurrence.
The father's implacable antipathy for the mother has resulted in him acting contrary to the children’s interests. An example is the father seeking a separate appointment with [X]’s paediatric endocrinologist, as previously mentioned.
I am also concerned about the father's attitude to the children and his responsibilities to them from his refusal to reciprocate when the mother reinstituted a communication book between them for about three months in late 2010. The father claimed he found the information the mother was conveying to him about the children of no use. He said that if the children had received awards at school when with the mother, it would be useful for him to know about them. He said he had no useful information to convey back to the mother. The children received school awards while in the father's care during this time and the father did not tell the mother. He explained not including them physically in the communication book by saying he wanted to keep them at his home. This is consistent with the father requiring the children to change out of his clothes in the school toilets before going to the mother, and having separate school bags for the children.
Both parties have reported complaints about the other to the police inappropriately and unnecessarily. I exclude the report of [X]’s complaint of being hit with the metal spoon from this comment. However, the mother has not directly involved the children in this. The father has, by photographing the children on occasions other than when [X] was hit with the metal spoon.
I am satisfied that both parties have inappropriately and unnecessarily exposed the children to the parental conflict, but I am satisfied that the father has done so to a much greater extent, and appears to have far less appreciation of the damage doing so can cause the children.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is common ground that the equal time arrangement should end. I am satisfied its continuation is inconsistent with the children’s best interests, as it will leave the children more exposed to the parental conflict and its consequences.
I am satisfied that reducing the children's time with one parent to alternate weekend and half school holidays will not prevent the children maintaining an appropriate and meaningful relationship with that parent. That was implicitly conceded by the parties’ proposals for their time if the children were to live primarily with the other parent.
I am satisfied that if the children were to live primarily with the father, they will be separated from the parent with whom they have the closer and warmer bond and relationship, and the parent who I am satisfied is better able to engage with the children and provide them with nurture and care.
On the other hand, if the children live primarily with the mother, while they will be in the care of the parent I am satisfied is better able to meet their needs, they will be in the household where there is a risk of physical abuse. However, I have found that risk is not unacceptable if there is an order prohibiting the physical discipline of the children.
(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
This consideration is not relevant.
(f) The capacity of each of the child’s parents and 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
The father's action in seeking a separate appointment from the mother with [X]’s treating paediatric endocrinologist suggests, as did his refusal to convey relevant information to the mother through the communication book, that he is incapable of separating the children's needs from his conflict with and antipathy for the mother. It is troubling that despite conceding the importance of cooperation between the parents in treating [X]’s diabetes, and despite the firm rejection of his request by the child’s specialist, he professed to still think the request for a separate appointment was appropriate.
It is also troubling that despite being aware for some six or seven months of the existence of a report from that specialist that he had not seen, the father had never made any effort to obtain a copy of it.
I am not satisfied he is as capable of meeting the children’s needs as is the mother, and in fact has significant deficits in his ability to do so.
I also have some reservations about Ms C’s ability to meet these children’s needs. She gave the clear impression of being well outside her “comfort zone” attempting to be a step-mother to children of parents engaged in a high level of conflict. She more than once in cross-examination rather defensively said she had never been in a separated family situation before. She clearly finds managing [Y]’s behaviour challenging, and I am concerned she does not appreciate or accept the emerging serious issues with [X]’s behaviour, much less have any means of dealing with them, based on her answers in cross-examination to questions about the Family Consultant’s concerns for [X]. For example, she at first denied there was any scope for [X] to manipulate the adults “in my household”, the father having conceded that there was. It was only when pressed that she changed her answer and conceded the possibility existed in her household. She was reluctant to accept the accuracy of the Family Report, apparently because it was not consistent with her perception. She shares the father's view that Mr S, and not the mother, hit [X] and [Y] and sympathised with the father's anger at the situation and expressed concern if the court were to lift the injunction restraining the children coming into contact with Mr S, because she believes what the children have told “us”, despite saying that [Y] is mistaken in saying she yells at him and [X] is mistaken in describing her as an angry person. Thus Ms C, like the father, is not prepared to consider the possibility that the children are lying or mistaken on the issue that is central to their position in this case, despite conceding the children are lying or mistaken on other issues.
I am satisfied that the mother is more aware of the children's needs, particularly their emotional needs, and is clearly better able to meet those needs, as evidenced by the obviously warmer, more engaged relationship between her and the children. I am satisfied the mother is able to met the children’s educational needs, despite the father's complaints about the mother not ensuring [Y] completed his homework in 2009. The mother denied the allegation, and the school report the father said alerted him to the problem was not put into evidence. In those circumstances, I am not satisfied the mother failed to ensure [Y] completed his Kindergarten homework in 2009.
I am satisfied that Mr S, having developed a warm and close relationship with the children, can assist the mother in meeting the children’s needs, including their educational needs, as he has done in the past to the obvious pleasure of [X].
(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
I have already commented on matters relevant to this consideration in assessing what weight should be attached to the views expressed to the Family Consultant by [X] and [Y], and I have commented about [X]’s diabetes.
The mother advised the father that [Y] and [Z] had been diagnosed with asthma. She said she gave him asthma medication for the children. The father said it was an antibiotic. The mother said she had a spacer to administer the children’s asthma medication. The father said the mother had never told him about a spacer. The father said he took the children to a different doctor who said the children did not have asthma, but may have had bronchial asthma when they had a cold.
There was no medical evidence adduced by either party as to whether or not the children had asthma, and I am unable to make a finding one way or the other. However, whether the children had asthma or not, this illustrates again how the parents’ mutual antipathy, distrust and inability to communicate effectively may place the children’s welfare at risk. There is no indication the doctor to whom the father took the children had access to or even knew of any earlier diagnosis by another doctor. Without the full history of symptoms for the boys, either or both doctors may have misdiagnosed them. And yet the parents’ inability to communicate means that under the equal time arrangement neither has had the full knowledge about the children necessary to secure the best medical care for them.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
There are no issues or aboriginality in these proceedings.
(j) Any family violence involving the child or a member of the child’s family
I have already dealt with family violence.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
I have already dealt with the family violence proceedings against
Mr S.
The mother instigated family violence proceedings against the father arising from the incident in February 2008, but discontinued those proceedings.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am not satisfied one order under consideration is less likely to lead to further proceedings than any other.
The parties’ proposals
The mother sought orders that she have sole parental responsibility for the children, and that the children live with her and spend time with the father on alternate weekends during school terms from after school Friday to before school Monday, or Tuesday if Monday is a public holiday or pupil free day, half school holidays, and at specified times at Christmas, Father's Day, and the children’s birthdays. The mother also seeks a specific order that the children attend specified primary and high schools and that the parents do all things necessary to enable passports to issue for the children, such passports to be retained by the mother.
If the court decided that the children should live with the father, the mother nonetheless sought sole parental responsibility for all health issues regarding the children, and that the children live with her on the same basis she proposed the children spend time with the father.
The father sought sole parental responsibility for health and education issues in relation to the children, that the children live primarily with him and live with the mother each alternate weekend during school terms from after school Friday to before school Monday, for half school holidays, and at specified times at Christmas and Mother's Day. He did not propose any specific provision for the children’s birthdays. He sought orders to restrain the mother from bringing the children into contact with Mr S, and from consuming alcohol for twelve hours before and during any time the children are with her.
If the court made a finding of fact that it was the mother and not Mr S who had hit the children, as the mother contended, the father sought the same order except that in lieu of the restraint on bringing the children into contact with Mr S, he sought an order restraining the mother from physically disciplining the children.
If the court decided the children should live primarily with the mother, the father sought the same time he was proposing the children spend with the mother.
The Independent Children's Lawyer proposed orders generally consistent with those sought by the mother. The Independent Children's Lawyer also sought orders restraining each party from using physical discipline on the children, restraining each party from denigrating the other, restraining the mother from consuming alcohol during and for twelve hours before her care of the children, and requiring the mother to keep the father informed of medical appointments in relation to [X]’s diabetes, and of the name and address of her treating medical practitioners and authorise them to provide the father with information about [X]’s condition. The Independent Children's Lawyer also sought orders preventing the mother changing the children’s school before the end of 2011, requiring her to provide the father with copies of school reports and the like, and allowing the father to attend occasions and events at school to which parents are invited. Finally the Independent Children's Lawyer proposed an order that the father not be required to take the children to any extra curricula activity during the children’s time with him unless he had consented to the children’s participation in the activity.
The mother currently lives in her parent’s home. She has done so since the interim orders that she not bring the children into contact with
Mr S. If that order is discharged, she intends moving back with the children to live with Mr S in his four bedroom unencumbered home, although she and Mr S intend making that a gradual process of reintroduction of the children to Mr S before moving back permanently. This is clearly a sensible and child focussed proposal.
The mother wishes to change the children’s school to one closer to Mr S’s home, but does not intend doing so until the children finish the current school year.
If the court continues the order that the mother not bring the children into contact with Mr S, the mother intends to continue to live with her parents until she could move into her own accommodation. Her parents support her in this.
The mother works five days a week, and relies on the assistance of her parents to walk [X] and [Y] to school as she leaves for work at about 7.40 am. [X] and [Y] currently attend a school across the road from her parents’ home. [X] and [Y] are also collected after school and cared for by the maternal grandparents as the mother generally finishes work between 3.00 pm and 4.00 pm. She is usually home about 15 minutes after finishing work. The maternal grandparents would continue to assist the mother with child care after she moved back to live with Mr S, if the court orders permit her to do so.
The mother said [Z] will be attending pre-school on Mondays and Wednesdays and on other days be cared for by the maternal grandparents while the mother is at work. The mother did not indicate when this would commence.
The father lives with Ms C in her mortgaged home. He works 3.30 am to 12.30 pm, and it takes about 15 to 20 minutes to travel between the home and work. Ms C works Tuesday to Friday from 9.00 am to 6.00 pm. [Z] attends day care between 8.30 am to 4.00 pm Tuesday to Friday each week when in the father's care. Ms C cares for [Z] on Mondays when he is in the father's care and the father is at work.
The three children sleep in an enclosed sunroom at Ms C’s home. If the children lived with him most of the time, the father and Ms C would consider extending her home to increase the number of bedrooms or they would move to a larger home. Ms C’s preference is to move to a larger home in the same area.
No submissions were made challenging or criticising the proposed care arrangements of either parent.
Children’s passports
Although she sought orders to enable her to obtain and retain passports for the children, the mother gave no evidence in chief directly on this issue. In cross-examination she said she did not plan to travel overseas in the near future but would like to take the children on an overseas holiday at some point in the future. She did not discuss applying for passports for the children with the father before filing her application seeking orders to enable her to do so. However, the father did not consent to this order or otherwise indicate he would cooperate in applying for passports for the children.
No submissions were addressed to me in relation to this issue on behalf of either party or the Independent Children's Lawyer, and in the circumstances, I am not satisfied I should make the order the mother seeks. I note that even if passports for the children are issued, they cannot leave Australia without the consent of both parents. If and when either parent wishes to travel overseas, that parent may bring a specific application about that travel if the other parent will not facilitate the issue of passports and consent to the travel.
Decision
Both parties raised a variety of allegations that I do not intend to recite or detail in these reasons. They include but are not limited to issues surrounding dental treatment for [Y], the mother having [Y]’s hearing tested, problems with the children’s participation in extra curricula activities, various complaints each parent alleged [Y] and [X] related about matters in the other parent’s household, an allegation Ms C’s 19 year old son hurt [Y] (which I am satisfied does not raise a matter of concern), allegations the mother was not treating a head lice problem with the children and not properly attending to head colds and ear infections the children were said to have, bruises observed by the father on [Z] (which I am not satisfied signified anything untoward), and alleged conflict between the parents at the children’s school over which parent should have the children.
Both parents made allegations about the other to the Family Consultant that they did not see fit to include in their evidence. Some of the allegations seeking to challenge the suitability of the other parent as a significant carer of the children are inconsistent with the parties’ mutual implementation of an equal time shared care arrangement in 2009.
Having carefully reviewed and considered all the evidence, I am satisfied that the mother is clearly better able to meet the children’s needs than the father, and that she is better supported in doing that by Mr S than the father is by Ms C. I am satisfied little weight can be placed on the views of [X] and [Y]. I am satisfied the risk of physical abuse of the children in the mother's household is not an unacceptable one, provided an order is in place proscribing physical discipline of the children.
I am satisfied that s.61DA does not apply because of the admitted family violence by the father directed at the mother (s.61DA(2)). I am satisfied in any event that these parents are incapable of exercising equal shared parental responsibility. They lack the ability to communicate constructively about the children, and this has led to the children’s welfare and even their health and safety being placed at risk in the past. It would significantly compromise the children’s welfare to order equal shared parental responsibility. I am satisfied the parent with whom the children primarily live should have sole parental responsibility.
I am satisfied it is in the children’s best interests to live primarily with the mother, who can better meet their needs, subject to a restraint on the use of physical discipline. I am also satisfied that the restraint on the mother consuming alcohol when the children are in her care or for 12 hours before coming into her care should continue.
There was no issue about the time the children should spend with the parent they did not primarily live with and I am satisfied such a regime is appropriate, subject to extending the commencement of alternate weekends to include any holiday Friday and well as any holiday Monday, as proposed by the Independent Children's Lawyer.
There is no issue about the changeover arrangements between the parents where time is not to commence or end at school.
I am satisfied the additional orders sought by the Independent Children's Lawyer are in the children’s best interests and I will make them as sought.
I certify that the preceding one hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Halligan FM
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