GRAEME & FAWCETT

[2014] FamCA 1137

FAMILY COURT OF AUSTRALIA

GRAEME & FAWCETT [2014] FamCA 1137

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time – where the child has a meaningful relationship with both parents – where the mother has not reflected on the impact on the child of new relationships, changes of residence, changes of school, and homelessness on more than one occasion and attributes blame to others – where the child has lived with the father for more than three years – where the father has taken seriously his responsibility to care for the child and keep her safe – where there is uncertainty for both parents in the future but considerable weight is given to the father’s willingness to support the relationship between the child and the mother – where the Court is not satisfied that the mother places such a high value on the relationship of the child and the father – where the capacity of the father to understand the full range of the child’s needs appears to be greater than that of the mother – child to live with the father and spend time with the mother each alternate weekend and half school holidays.

FAMILY LAW – CHILDREN – Parental Responsibility – where there are reasonable grounds to believe that both parents have engaged in family violence during the relationship, but most particularly at the time of separation – where evidence comfortably satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility – father to have sole parental responsibility.

Family Law Act 1975 (Cth) ss 60CC, 64B

APPLICANT: Mr Graeme

RESPONDENT: Ms Fawcett

INDEPENDENT CHILDREN’S LAWYER: Grant & Co

FILE NUMBER: (P)NCC 1300 of 2010

DATE DELIVERED: 24 November 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATES: 30 June, 2, 22 and 23 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gorton

SOLICITOR FOR THE APPLICANT: Family Law Firm

COUNSEL FOR THE RESPONDENT: Mr Weightman

SOLICITOR FOR THE RESPONDENT: Arnold & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Grant & Co

Orders

1. That the father shall have sole parental responsibility for the child M GRAEME born … 2008 (“the child”).

2. That the child shall live with the father.

3. That the child spend time with the mother as follows:

   (a)each alternate weekend from 3.00 pm Friday or the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if a long weekend);

   (b)one-half of all school holidays, being the first half in odd numbered years and the second half in even numbered years;

   (c)from 6.00 pm on the day before Mother’s Day to Monday before school;

   (d)from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years and from 3.00 pm Christmas Day until 3.00 pm Boxing Day in even numbered years;

   (e)on the child’s birthday from 1.00 pm to 7.00 pm if on a weekend and from the conclusion of school until 7.00 pm if on a school day;

   (f)on the mother’s birthday from 1.00 pm to 7.00 pm if on a weekend and from the conclusion of school until 7.00 pm if on a school day.

4. The mother is restrained from permitting the child to remain in the presence of Y born … 2003 and X born … 2004, unless she herself or a responsible adult known to the mother is also present.

5. The child shall communicate with the mother by telephone each Tuesday, Thursday and alternate Sunday between the hours of 7.00 pm and 7.30 pm, to be implemented by the mother telephoning the father’s mobile telephone number and the father ensuring that the child is available to speak with the mother and in private.

6. Time with the mother is suspended on Father’s Day from 6.00 pm on the Saturday prior to Father’s Day for the balance of the period.

7. The mother is to collect the child from the home of the father at the commencement of the period of time and the father is to collect the child from the home of the mother at the conclusion of the time.

8. The parties are each restrained from changing the enrolment of the child from D Public School without the prior written consent of the other.

9. Each party is to notify the other of their residential address, landline telephone number and mobile telephone number within seven days of the date of these Orders and keep the other party advised of any proposed changes to the above details within 14 days of any proposed changes.

10. Each party is to notify the other of the names of all adults living with them within seven days of the date of these Orders and keep the other party advised of any changes to these details within 14 days of any proposed changes.

11. Each party is to contact the other as soon as is reasonably practical upon the child being admitted to a hospital or receiving specialist medical attention whilst she is living with or spending time with them.

12. Each party is at liberty to obtain all relevant medical records and consult the child’s medical practitioners to obtain any information they require and these Orders are sufficient authority for that purpose.

13. Each party is at liberty to attend the child’s schools and school functions and sporting functions and obtain all details from the child’s school including reports, school photos and these Orders are sufficient authority for that purpose.

14. Neither party shall denigrate the other or their extended families in the presence of the child or permit any other person to do so within the hearing of the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Graeme & Fawcett 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 NEWCASTLE

FILE NUMBER: (P)NCC1300 of 2010

Mr Graeme

Applicant

And

Ms Fawcett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction  

1. These are competing parenting applications by the parents of one child, a girl aged six years (“the child”).

2. Both parties seek orders for residence.  The child has lived with the father for more than three years.  The child is presently spending time with the mother each Saturday afternoon for four hours pursuant to interim orders.

3. The matter was included in the Magellan protocol arising from allegations of:

   a)violence by the father towards the mother during their relationship;

   b)neglect of the child by the mother;  and

   c)sexual misconduct by a child of the mother with the subject child.

4. The applicant is the father, aged 29.  The respondent is the mother, aged 28.  The parties live in the same town in the Hunter area of New South Wales.

History of Relevant Events

1. The parties began a relationship in either late 2005 or early 2006.  The father moved into the home where the mother was living with her young son aged about 12 months.  Her other son, aged almost three years, was living with his father interstate.  Soon after, that child returned as a member of the parties’ household.

2. The subject child was born in early 2008. 

3. The father worked fulltime.  The mother was at home with the children.

4. The father alleges that from the outset the home was in a state of squalid filth unless he cleaned it after work.  The evidence of the father, the paternal grandmother and, to some extent the mother, supports a finding that during the relationship the family home was dirty to the point of being unhygienic.  One aspect of this was dirty nappies and animal faeces being left in the house where they dropped.

5. In February 2010 the parties separated after a violent disagreement.  Each party alleges assault by the other.  The father alleges that the mother forcefully struck him in the crotch with her knee.  He responded by grabbing her round the neck and shoulders pushing her onto the bed and screaming at her.  There were mutual insults yelled in front of the children.  The mother told the father to leave, which he did, taking the child with him.

6. The mother was injured by the father.  The father was charged and pleaded guilty to assault.

7. The father says that after separation the child continued to spend most of her time with him.  The mother says the child was fulltime with her.  Neither provided any detail of this period, however I am inclined to accept that the father provided the majority of care.  The child left the home with him and despite the assault charges, an application was not made by the mother for residence of the child for three to four months.

8. On 21 May 2010 the mother commenced parenting proceedings in the Federal Circuit Court.  The parties were seen by a family consultant and reached an agreement for a 12 month period that the child would live predominantly with the mother and spend time with the father in a pattern harmonious with his work roster. 

9. On 2 June 2010 interim orders were made consistent with that agreement.  The proceedings were adjourned for six months.

10. On 15 November 2010 the mother’s application was dismissed in the Federal Circuit Court for want of prosecution.  There was no appearance by either party.  Within days of that Court event, all three children were living with their mother in a refuge in or around Town U.  The subject child was almost three.

11. It is apparent that the mother struggled in the refuge.  A mandatory reporter made a report to the Department of Family and Community Services (“the Department”)[1] that the children had impetigo, that the mother was not dressing the sores to stop infection and the refuge was unable to confirm that she was administering the antibiotics provided.  The reporter said that the mother was not changing the bed linen, their room was a disgrace, there was food on the floor and an uncleaned bathroom in an unhygienic state; the children were sick with coughs and asthma and appeared to not have been bathed.

    [1]Exhibit 14

12. On 30 November 2010 the two boys were not attending the local public school, as they should have been.  The mother had been warned by the refuge about her failure to care for the children and to supervise.  At some point, the mother left the refuge and soon after formed a new relationship. 

13. By early 2011 the mother, together with the three children, was living with her new partner in the home of his parents.  The mother felt the pressure of being in a small home with 13 people, including herself, her partner and the three children.

14. There is evidence that temporary housing could have been made available to the mother in May 2011.[2]  Her file with the Department of Housing only having been closed through her failure to supply documentation.  Had she supplied the necessary documents, temporary accommodation could have been provided immediately, with follow up for longer term accommodation.

    [2]Exhibit 18

15. The mother had an aunt in Western Australia who appeared to be in a position to assist the mother and her family with work and accommodation.  The mother decided that she would move with her partner and the children to Western Australia.  The father did not agree to the subject child being removed to live interstate. 

16. As a result, the parties signed a statutory declaration stating that the child would live with the father and spend time with the mother in a defined way.[3]

    [3]Affidavit of father filed 30/05/2014, Annexure ‘A’

17. The mother alleges that the father coerced her into signing the document.  I do not accept this evidence.  I am satisfied that the mother was determined to go to Western Australia and that the father was determined that the child would not go with her.  In those circumstances the mother chose to go, leaving the child with the father.

18. In July 2011 the mother, her two sons and her partner moved to Western Australia.  The mother remained in Western Australia until December 2012.  In all, she was interstate for a total of about 18 months.

19. The mother complained in her affidavit that she rang to speak to the child “every single day” and that there had been numerous times when she had called and the father would make excuses for why the child could not speak to her,  “If I was lucky [the father] would allow me to speak to [the child] once a week.” [4]  The agreement between the parties in the statutory declaration was “[the mother] has contact via phone with [the child] minimum three times per week”.

    [4]Affidavit of mother filed 27/05/2014, para 18

20. The father asserts that the mother rarely rang, certainly much less often than weekly.  I accept that there may have been times that the mother rang when the child was not available, but I am satisfied that the father did enable the child to speak to the mother at a reasonable level of contact.

21. I am confident about that because the father complied with his side of the agreement.  He allowed the child to spend time with the maternal grandmother and maternal family one weekend each month.  He also supported the child being part of the wedding parties when the maternal grandmother and the maternal aunt each married.  On those occasions the mother returned from Western Australia for the weddings and spent time with the child.

22. The father also agreed to the child travelling to Western Australia at the end of 2011, where she spent five to six weeks with the mother, her brothers and the mother’s partner. 

23. The mother was dismissive of the additional time beyond the agreement, which had been for a three week period, saying that the father had let the extra time elapse because he was unable to afford to come and get her.  In fact, the father flew to Western Australia at the end of December and returned with the child. 

24. In about September 2011 the father began a de facto relationship with a new partner, Ms L.  That relationship continued until January 2013, a period of about 16 months. 

25. In either late December 2011 or early 2012, the child made complaints about events in Western Australia, both to the father and to his partner, and also at some stage to the mother.  She told Ms L that she had slept in the same room as her brothers; that they had had to swap rooms all the time and that the mother’s partner had “made us go and play in our rooms all the time while mum was at work.”  The child also had the marks of a cigarette burn on her arm.

26. She also disclosed to the paternal grandmother that when she put a straw in her mouth, “it feels like a doodle in my mouth. [X] does it to me all the time”. 

27. The mother’s affidavit suggests that she had not become aware of any complaints by the child, about her son or any other matter causing discomfort until October 2013.  This was simply not the case.  Although she made no reference to it in her affidavit, the mother agreed that there had been a telephone conversation initiated by the father where he raised those complaints with her after the child’s holiday in Western Australia. 

Mother returns to New South Wales

1. In December 2012 the mother and her two sons returned to New South Wales.  In her affidavit the mother asserted that she returned to New South Wales because the father had withheld the child from her by only allowing a month and a half worth of visitation during the Christmas period in 2011 and also because of some concerns she had about his treatment of the child.  I do not accept that that was the motivation for the mother’s return.  She could have returned at any time.

2. Her oral evidence was that she married her partner in early 2012 and that about 10 months later the marriage broke down.  In my view it was for that reason that the mother returned to New South Wales alone with her two sons.

3. In December 2012 when she returned, the mother did not have accommodation.  The father allowed time between the child and the mother every second weekend and that continued for about nine or 10 months.

4. On the three occasions of overnight time for the child with the mother, the father imposed a condition that her brothers not be present.  I accept that the father was genuinely concerned about the child being subjected to sexual misconduct by one of her brothers.  It was not unreasonable given what the child had said to him about the nature of supervision by the mother and her husband in Western Australia and her comments about “a doodle in her mouth.” I also accept that the father had been genuinely fond of the two boys  and treated them as his own during cohabitation.

5. In January 2013 the relationship between the father and Ms L ended, although they have remained on friendly terms.

6. Later in that year, I do not know when, the father entered a new relationship with Ms H, who had a daughter Z aged about four and was already pregnant with another child, who was born in the second half of 2013.

7. The mother also entered into a new relationship with Mr R, which continued until early 2014.

8. In September 2013 the mother moved into a house purchased by her sister for the mother  to rent and live in with her children.  There was no evidence by the mother’s sister about this matter at all, for instance the circumstances which might cause the arrangement to cease. 

9. The mother conceded there were some conditions which qualified the statement in her affidavit that she would “never have to move” from the house.  She was required to keep the property neat and clean, no dogs, and if she started dating “He is only allowed there four days per week.”  The latter seemed implausible.

10. In October 2013 the father apparently found the child Z in the bath with her head “between the legs” of the subject child.  The father interpreted this incident as sexually abusive by Z of the child.  Given the age of the children the incident could not be categorised that way.  The father’s evidence is that he became distressed and depressed at this time, as he and his partner split up.  That relationship has not resumed.

11. The father returned to live with his mother in her home in Town D.

Removal of the child from school

1. On 1 November 2013 the mother, having not heard from the father or seen the child for one or two weeks, removed her from school without the father’s knowledge or consent. The father did not then see the child for about five or six weeks. 

2. On 5 November 2013 the father filed an Application for the child to return to live with him and for a recovery order.   He also filed a Notice of Child Abuse Family Violence or Risk of Family Violence.  The allegations in that Notice of Abuse were that the child had disclosed in 2012, after spending time in Western Australia, that after being given a frankfurt, that “It felt like a doodle in her mouth” and that “[X] does that to me.”  The Notice also referred to the incident between the child and Z in the bath.  Subsequently, the father disclaimed any knowledge of the child referring to a “frankfurt” and asserted that the allegation had arisen in the context of the child using a drinking straw.

3. On 5 December 2013 the mother enrolled the child in a school convenient to her home.

4. On 12 December 2013 interim orders were made providing for the child to return to live with the father and for the mother to spend time with the child for four hours each Saturday, with a restraint on the child being brought into contact with her brothers.

5. On 16 December 2013 a Magellan Report was released highlighting the following concerns:

   (a)The violence that had occurred at the time of separation in early 2010.

   (b)Various reports about the children having untreated infections and living in conditions of poor hygiene and insufficient food.

   (c)The incident between the child and Z in the bath.

   (d)Concerns regarding alleged inappropriate sexualised behaviour by the child and the child’s conduct in a game called ‘B Game’.

   (e)There was a further variation on the allegation that the child was said to have made about her brother, the reference being to the child saying that a lollipop had “felt like a doodle in my mouth”. This represents a third object which is alleged to have prompted the child to make this comparison.

1. On 24 December 2013 the mother filed a Response seeking residence for the child with her.

2. In January 2014 both parties were restrained from exposing the child to pornography and a family report was ordered.

The Family Report 2014

1. On 5 March 2014 the Family Report was released, reporting trenchant criticism of each parent by the other, but also noting that the child had positive loving relationships with both parents and expressed a wish to live with both of them and her brothers.

2. The family consultant recommended that both parties participate in a Parenting After Separation course.  Each of them has applied to participate in such a course, but at date of hearing remained on a waiting list.

Drug testing

1. On 9 April 2014when trial directions were made, the parties consented to drug screens.  The mother was not compliant with the timing of the drug screen.

2. The father attended for testing.  The screen called for further testing for opiates with the notation that opiate results were consistent with medication stated on chain of custody form.

3. On 28 May 2014 the child told the paternal grandmother that the mother sometimes falls asleep when she is driving the car.[5]

   [5]Affidavit of Ms G (paternal grandmother) filed 30/05/2014, par 103

4. The matter was heard before me over four days in June and July 2014.  The main issues arising were:

   ·the capacity of each of the parents to provide for the child’s physical, emotional and financial needs;

   ·whether the child is at an unacceptable risk of abuse or neglect in the home of either parent.

5. Ultimately neither party pressed for a finding that the child was at unacceptable risk in the care of either of them.

The evidence

1. The parties relied on the following documents:

   Father

   (a)Amended Initiating Application of father filed 22/04/2014;

   (b)Notice of Child Abuse/Notice of Risk of father filed 05/11/2013;

   (c)Affidavit of father filed 30/05/2014;

   (d)Affidavit of Ms G (paternal grandmother) filed 30/05/2014;

   (e)Affidavit of Ms L (father’s former partner) filed 30/05/2014;

   Mother

   (f)Amended Response of mother filed 06/05/2014;

   (g)Affidavit of mother filed 27/05/2014;

   (h)Affidavit of Ms T (maternal grandmother) filed 28/04/2014;

   Other

   (i)Magellan Report dated 13/12/2013;

   (j)Family Report dated 05/03/2014.

   (k)Memorandum to Court prepared 02/06/2010.

The father

1. The father presented as committed to his own child and also as having been interested in and protective of the mother’s two sons.  He was cross-examined quite extensively about his evidence that the state of the mother’s home when he moved into it had been “in a filthy disgusting state.”  He was challenged over the unlikelihood of him coming home from work every day cleaning without any assistance from the mother.  The proposition was put:

   Q:       It was incredible you’d stay? 

   A:       It was [X].  I thought I could help [him].  He was a beautiful   little bloke.

2. I accept the father’s evidence that he did not report the situation of the mother’s two children in the household to the Department because he was embarrassed about his circumstances.  I also accept that he stayed to try and improve the situation for the mother and her two children.

3. The father conceded that photographs produced by the mother of the state of her present home reflect that she is keeping it clean and tidy.  He volunteered that members of her family had told him that the mother had changed and was keeping the house clean.

Violence at the time of separation

1. The father readily conceded the details of his violent actions towards the mother on the day of separation.  He agreed that the mother had injuries, “a red mark around her neck.”  He also expressed remorse, “I do regret my actions but I was in a lot of pain when I did what I did.”  The father said he had been acting defensively and did not appear to understand the proposition that there may have been a defence of self-defence available to him.  The father said that he had pleaded guilty because he was guilty of having inflicting injury and he thought what he had done was wrong.  He was caring for the child at that time and was focusing on that.

2. The father was cross-examined at some length about this undoubtedly violent incident.  Details were put to him such as the proposition that he had kicked the mother with his left foot to the side of her hip and had hit her with a closed fist and hit her again to the back of the head.  The father conceded the details already reported and denied those allegations.  

3. In her own affidavit, the mother made a general statement that during the relationship the father had frequently been violent towards her, but she did not give any detailed description of the incident which gave rise to separation.  The mother was unwilling to accept any responsibility for the events of that day, or the exposure of the three children to the violence and loud abuse between the two adults, and yet when the father left the home as requested by her, taking the child with him, the mother raised no complaint about that, nor did she immediately make an application for parenting orders.  I infer that the mother was confident that the father would adequately care for their two year old child.  I also conclude that it is more likely that this event, which ended the relationship, was unusual rather than typical.  It is difficult to accept that the mother would have allowed a man who she said not only manipulated her by threatening violence, but was also actively violent towards her, to have the sole care of their very young child.

4. Sixteen months later the mother chose to leave the child again in the exclusive care of the father when she moved away to Western Australia.  Again that decision, which of course the mother was free to make, was indicative that she had confidence that the father would be an adequate caregiver for the child and that she would be safe in his household.  However, that is not to say that the father does not need to resolve some difficulties with physical violence.  He had a physical fight with a brother as adults when the two of them were drinking together.  There is no suggestion that the child was anywhere in the vicinity. 

5. The father has also reacted with anger and damaged property whilst staying with his mother.  These incidents where he broke some household items and caused damage to the garage door, suggest that he does have difficulty managing anger and frustration.  He conceded that he had had treatment as a young man for Attention Deficit Hyperactivity Disorder (“ADHD”) and had been prescribed medication for depression more recently.  His evidence suggested that he has had difficulty with attention and completing tasks throughout his life.

6. The father appears to have been ambivalent about treatment, reluctant to consistently attend; although he has accepted medication for depression in adult life. 

Allegations by the child in relation to her brother

1. The father was clear to say that the child had told him that her older brother “Puts his doodle in her mouth”; that she had a little cup with a fold out straw at the time; that she put the straw in her mouth “and that’s what reminded her”.  The father had said to the child, “How do you know what that feels like?” and she responded “[X] does it to me all the time.”  I accept that the father was shocked, disgusted and at a loss to know what to do about what the child was saying to him. 

2. Unfortunately there is the complicating factor of the Notice of Abuse referring to an analogy made by the child between a frankfurt and what her brother had done to her.[6]  The father denied that he had ever heard that word or that anybody had ever told him that the child had used that word.  Both he and his mother were clear to say that it was a straw that the child was using, which had prompted her to make the comment.

   [6] Notice of Abuse filed 05/11/2013

3. The father said that he had taken the child to Dr J within a couple of weeks of her disclosure to him that her older brothers had been doing things to her.  In the medical records, there was a report dated 11 December 2012 referring to the fact that the father and paternal grandmother were concerned about the child referring to having “a willy in her mouth.”[7]  The father asserted that the date of that entry was wrong by about 12 months.  I find that I am unable to be certain about when the child was taken to the doctor; however it does seem clear that complaints were made by the child on her return from Western Australia in either December 2011 or January 2012 and that the father was sufficiently concerned to take her to the doctor for a medical examination and for direction.

   [7] Exhibit 8

The bath incident

1. The father became concerned about an incident in the bath where the child and his then partner’s same aged child were behaving in a way which the father thought was sexual conduct.  It seems to me that the father does not have a great deal of information about what constitutes normal conduct for young children, including his own daughter.  His statement, “I just thought it was wrong” is an indication of that.  However he was already sensitised to the child having been possibly the victim of sexual misconduct and it seems to me, over reacted to what was happening for the two little girls in the bath.  The father and the other child’s mother broke up their partnership over the father’s reaction to this incident.

2. The father willingly conceded that the child has a good relationship with her brothers and that she misses them.  He went further and said he did not condemn them and that he had tried to help the child to forget about past events.  It is at least possible that some sexualised play occurred involving the child and one or both of her brothers, at a time in Western Australia when they were inadequately supervised by the mother’s partner while she was working.  Very little is known by the Court about this man, other than the child’s statement that he regularly sent them to their rooms whilst the mother was away working, which does suggest a lack of interest in supervising let alone actively caring for the children.

3. The father appeared torn, acknowledging that the child loved the mother; that he had not enjoyed the fact that she was in a refuge with the mother and that he was anxious about the mother’s level of supervision, but did not want to deny the child the time:

   Q:       Why didn’t you stop her going back to her mother?

   A:       It’s her mum.  She [the mother] should do the right thing.

4. What is clear is that the father has not questioned the child and has followed his doctor’s advice that he simply not talk to the child too much about what happened.  He is also confident that at her present age and level of ability, the child could and would tell him if anything was wrong or upsetting her.

Education at school

1. The father had sought sole parental responsibility, but during the course of his evidence indicated that he would be happy with shared parental responsibility, provided that there was certainty about the school which the child would be attending.  She had the unfortunate experience of being enrolled in D Public School to commence kindergarten at the beginning of 2013, was removed from that school and enrolled at W Public School by the father towards the middle of that year, was removed from that school and enrolled at K Public School by her mother towards the end of 2014 and in 2014, as a result of a Court order, was re-enrolled at D Public School where she has remained throughout 2014. 

2. The Deputy Principal of her current school advised the family consultant early in 2014 that the child was low academically when she returned to the school, but was catching up quickly, progressing well and very keen, “She is happy and has lots of friends.”  It is a matter of some significance that the education and socialisation of the child not be disrupted again.

3. Despite these specific concerns expressed, my view of the father’s evidence is that his fundamental concern is the inability of the mother to properly supervise young children.  He referred to an incident when the parties were together, when he had told the mother to keep the boys out of the shed and he had locked the shed door.  The subject child was a few months old at that time.  One of the boys significantly injured himself on the bike in the shed.  The picture that was painted of the mother was that of an affectionate mother who is not an active supervisor.

Paternal Grandmother

1. The paternal grandmother is 51.  She was divorced from her husband (the father’s father) about 25 years ago; she lives as a single woman in her home where the father and the child are now also living.

2. The paternal grandmother has known the mother since she and the father were young teenagers.  She had some social contact with her when the mother’s first child was born and attended his first birthday party in late 2005. 

3. The paternal grandmother was clearly worried about the father at the time he moved into the mother’s home, which she described as “filthy.”  She said that she was not the tidiest person, closer to untidy, but what she was identifying about the mother’s house was that it was unclean; that in her personal experience two dogs, quite a few cats, rats and mice were all present in the house; that she had spoken to the father about the state of the house; that he had responded with embarrassment and she had helped him to clean it up more than once.  She took the view that it was not her place to tell the mother how to run her own house.

4. When the mother and her children came to the home of the paternal grandmother, she says she took it upon herself to make sure his nappies were changed regularly for his sake and for the sake of her carpets.  She described the children as “climbing up on furniture, jumping from one item of furniture to another, knocking over and damaging furniture in the process.”  The children, as very young boys, had poured plant poison into the gold fish bowl and the fish remained in the bowl dead.  Food scraps, human and animal excreta and rubbish attracted vermin, including rats and cockroaches, in both houses that the paternal grandmother visited the mother living in.  Although the paternal grandmother was critical of the mother, I accept her main concern was that young children were at risk in terms of their health in those circumstances.

Allegations of misconduct in relation to the subject child

1. The paternal grandmother said that soon after the child’s return from Western Australia, she told her something while she was having a drink from a cup containing a bendable silicone straw.  She had been putting the child to bed and gave her a drink of water in this container.  She is alleged to have said to the paternal grandmother:

   Child:            It feels like a doodle in my mouth. 

   PGM:            How would you know what a doodle felt like in your   mouth?

   Child:            [X] does it to me all the time.

2. The paternal grandmother said, and I accept, that she did not raise the matter with the child herself again.  She spoke to the father about it and left it with him.  However she says the child has occasionally asked her whether she remembered what had happened to her with her brother and commented on it being “very naughty.”  The paternal grandmother said she reassured her that it was naughty, that it had all finished and she did not have to worry about it anymore. The paternal grandmother had put the cup and straw away in a cupboard and later showed it to the father when she told him what the child had said.

3. The paternal grandmother has been worried about the welfare of her grand-daughter, concerned that misconduct has occurred involving the two older children of the mother, but I am satisfied she has not cross-examined the child, or even discussed these issues with her to any extent.  Her home is available to the father and the child for as long as they wish to live there, although she realistically expects that sooner or later the father will again live independently with the child.  However she is hopeful of maintaining a strong close connection with the child, which would certainly be to her benefit.

Difficulties with the father

1. The paternal grandmother conceded that she had wanted the father to leave the house at times.  She said that due to her own experience with domestic violence as a young mother, she is unable to cope with being yelled at and has experienced panic attacks.  She considers that objectively she may overreact.  There has been some conflict with the father over the rules that he wishes to establish for the child and, in her opinion, interfered in her decision making about her own youngest child, now aged about 18, who also lives in the home.

2. At times of disagreement with the paternal grandmother, the father and the child have gone to stay with the paternal grandfather.  Her expressed view is that the child would have enjoyed that because “she loves her pop”. 

3. On the occasion when the father had broken some household equipment, candle holders and done damage to the garage door, the paternal grandmother said that he had apologised and had fixed the damage to the doors.  She also said that on a positive note he had mowed the lawns and tended to the gardens in the house and that other than occasional disagreements, she had had no real problems with him since his late teens.

4. The paternal grandmother has been confronted by the possibility of sexual conduct between the child and her older step-brother, but I am satisfied that she does not want to disrupt the relationship between the child and the mother and that she is focussed not only on the child’s safety, but on preserving important relationships.  In practical terms, she lives near the child’s school, has a driver’s license and is willing to assist with changeovers whenever necessary.

Father’s former partner

1. Ms L is aged 30. She is the former partner of the father; their relationship having ended almost two years ago in early 2013.  She has four primary school aged children who live with their paternal grandparents.  Those children spend alternate weekends, half school holidays and other times by arrangement with her.  In her affidavit, Ms L attested to the father providing careful supervision of the child, regular nutritious meals, cut lunches for school, a bath and a bedtime story every night; that the child went to school regularly and arrived on time.  She confirms that on those occasions when the father is unavailable, the paternal grandmother takes the child to school or picks her up.

2. Ms L was living with the father during the time that the mother lived in Western Australia.  She was able to recall occasions when the child asked to ring her mother and the father facilitated that.  There were also times when the father initiated such phone calls.  On some of those occasions the child was happy to talk to her mother, on other occasions she refused or was reluctant. Ms L also recalled the mother telephoning the home directly on at least four occasions. 

3. Ms L seems to have had an affectionate relationship with the child and has continued with a friendly and confiding relationship since her separation from the father.  The father was teaching Ms L to drive in the first half of 2014 and has continued to regularly see her.  A particular statement made in her affidavit is this:[8]

   … On or about 3 May 2014 … the child said to me: ‘Me and mummy were talking about what [X] did to me and she told me that he didn’t understand that what he did was wrong’.

   [8]Affidavit of Ms L filed 30/05/2014, par 41

4. Ms L was clear to say that the child had not communicated any allegation of sexual misconduct involving her brothers or at all to her.  Rather she had heard through the paternal grandmother of what the child had said.  Likewise she did not attempt to amplify the statement that the child made about her brother “not knowing that it was wrong” when she was cross-examined about it.  She had not read the family report.

1. In her affidavit Ms L had referred to a scar from a burn mark on the child’s arm which the child explained as “I got it from mummy’s smoke.”  When she was given the opportunity in cross-examination to comment on the proposition, consider whether the burn with the cigarette could have been a complete accident, Ms L agreed that it could have been, she didn’t know.  She was an understated witness and I accept that she did have and continues to have, a genuine friendly and affectionate interest in the child and gave evidence on that basis.

The mother

1. The mother conducted a drug screen test, but not within the 24 hours from date of request.  Her explanation was that she and the children were sick at the time and that she did not know that she had to do the test within 24 hours.  She said she intended to go to a Justice of the Peace about it, as friends of the family knew that she was sick.  Her evidence was inconsistent; either she did not know that the test had to be done in 24 hours, or she knew and was too sick to attend.  The mother went on to say that the maternal grandmother had taken her to the solicitor to finalise her affidavit, but was unable to explain why she could take her to the solicitor while she was sick, but not to get the drug test done.

2. The mother assumed a self-righteous attitude on the topic of drug testing and overall. She said she believed the father and the paternal grandmother deserved to see the child, but that the child was afraid of the father because he yelled at her.  She agreed that the sum total of the child’s fear was of the possibility of being yelled at.  She said that the child also did not like the father’s former partner Ms L, because she also yelled at her.

3. When asked about her own relationships since she and the father separated, the mother adopted quite an insolent tone, to deliver the information that she had had two relationships “but how could that be anyone’s business but mine”.

Violence in the relationship

1. In her trial affidavit, and a prior affidavit which became an exhibit in the proceedings,[9] the mother had asserted that the father was frequently violent towards her and that she had on occasions reported those assaults to police.  She also referred to the father as a compulsive liar.

   [9]Exhibit 19

2. In her oral evidence she conceded that there had been one incident of violence, which took place on the day of separation.  She elaborated by saying, “Yes, there had been one incident of violence, depending on your definition of violence; He used to spit venom at me.”  I take this to mean that the parties had angry disagreements where neither held back with critical and insulting language.  The mother denied that she and a friend had been smoking marijuana in the yard on the day of separation.  She also denied assaulting the father by kneeing him in the groin or at all.   She was not a convincing witness, dismissive about her own role in events.

3. The mother referred to the first sentence in one paragraph of her affidavit as “Fake, I must have been mistaken when I wrote that.”  This was in reference to the child living with the mother on a fulltime basis, spending time with the father every now and again between separation in February 2010 and July 2011, when the mother moved to Western Australia. 

Time in the Refuge

1. In relation to the refuge asking her to leave if she could not keep the room where she and the children were living in a better state, the mother said she did not remember that, “If it was written down in the file it probably happened”; but she didn’t remember it.  The mother was taken to the details of the state of the room and bathroom and gave an explanation for having put a desk up against the door to keep refuge workers out of the room: “That her two boys had been sleep walking and that she had needed to put a desk up against the door to keep them in.”  It seems unlikely.

2. As the mother was taken through the details of the children’s state of health, their school sores, the failure of the boys to attend school, she was dismissive of any responsibility in the matter, “The children had caught school sores from another person’s children.”  Her failure to put Dettol in the bath on a medicinal basis “might have been because she thought it would burn the children”. 

3. The mother had no explanation for why the children were not taken to school, other than she was homeless and “was trying to get into the swing of things” in the refuge.  The mother conceded that the boys had missed a lot of school in the six months she was in the refuge, but did not appear to be particularly concerned about it.

Move to Western Australia

1. Inevitably, the mother was asked why she had chosen to move to Western Australia in July 2011, leaving the child with the father.   The mother stated that it was her only option.  She said she could not have stayed in the refuge because “privacy was an issue.” 

2. The mother married her partner in Western Australia and moved out of her aunt’s house into private rental.  She rejected the suggestion that she could have worked and moved out into private rental in New South Wales.  She laughed and seemed incredulous.  None of her explanations of her own conduct seemed authentic.  For instance, the mother was questioned about why she had not made an application to the Court to relocate the child’s residence to Western Australia.  Her answer was, “Fear, I’m scared of [the father], there’s a lot of fear.”  This was despite the father’s willingness for the mother to see the child when she returned to New South Wales, which she did on three occasions for family weddings and the fact that she returned to New South Wales when her marriage broke down, back to the area where she had previously lived. 

Relationship with the paternal grandmother

1. The mother was highly critical of the paternal grandmother, referring to her as “his mother the drug addict; the stoner.”  The mother was challenged over the fact that she had been content to leave all three children with the paternal grandmother.  She agreed that she had done it, but was not happy to do so.  By way of concession she said this: 

   I was quite immature and you had that man [the father] standing over you threatening to break your fingers or whatever; you try not to upset him. 

   This was a reference to the father and it appeared to me was intended as a distraction from the fact that the mother had been willing for the paternal grandmother to look after the child as well as the mother’s two children on a regular basis.

2. She was equally dismissive about her decision to remove the child from school at the end of 2013 and withhold her for a period of weeks from the father. 

The child’s school

1. The child is presently re-enrolled at D Public School where she started kindergarten in 2013.  The mother asserted that what the child wanted was to be with her brothers every day at school.  She also said that the child did not like D Public School and got picked on there.  It appeared to me that the mother herself is the one who would love her three children together at the same school.  However the boys are aged 11 and 10 and in the senior primary years, would hardly see their sister in year 1 at all. 

2. The mother did not appear to have given any consideration to the possibility of one or more of the three children being quite seriously teased over events since separation, likely to be well known to many members of the local community. 

3. The mother conceded that her two sons had missed a lot of school.  She said that if the children were sick or had nightmares, she did not send them.  When she changed the child’s school to K Public School, the mother agreed that she gave contact details of her very recent partner, Mr R, and no details of the father, other than that he was not authorised by her to collect the child.

4. The mother gave as an explanation as to why she was much too scared to include the father’s details; that he would take the child away.  I accept that explanation.  The child had been in the father’s care for more than three years when the mother unilaterally removed her from school and withheld her from the father.  It was an unkind thing to do to the child and it is highly likely that the mother knew that the father would be most upset about it and might be angry with her for having done it.

Allegations about the child

1. The mother became quite irate on this topic.  She said that the father had concocted that story.  She shouted in a dramatic and emphatic way, “Brothers and sisters miss each other,” which I took to be a reference to her three children being separated.

2. The mother said that she did not believe that her son had put his penis in the child’s mouth and that this was something that the father and paternal grandmother had put in the child’s head. 

3. Quite fairly the mother conceded that if the child had said that to the paternal family, the steps they had taken in response could not be criticised. 

4. The mother agreed that she had suggested to the father a range of people who might have molested the child and focused on the particular friend of the father’s, E, although there had been no reference to him in her affidavit.  I consider she did so to provoke the father, rather than because of a genuine fear that the child had been harmed.

5. The mother conceded the father loved the child, but was not prepared to say he was a good father.  The reason for that is because in the mother’s view, he had made up stories for the child to tell about her brother.

6. In turn the mother raised her own concerns, where she said that the child had “flashed us by removing her towel” after coming out of the bathroom after showering and had left the bathroom door open when she was using the toilet and that these things had constituted sexualised conduct by the child in the view of the mother.  I am not convinced that the mother was concerned about either of those matters, if they did occur on any basis.

Relationships

1. After the mother’s relationship with Mr R ended, there was no new relationship although the mother did allow a man she had met to stay in the shed, which developed briefly into an intimate relationship.

2. There is some concern about the mother’s impulsiveness in that regard.  One of the reasons she gave for going to Western Australia was for family support.  The majority of her family lived locally to where she does now.  She gave as an explanation that:

   Her sisters used to not to speak to her for months, they didn’t approve of the men she dated and her lifestyle. 

   She also conceded:

   My house didn’t always use to be clean, but now it’s my house I’ve taken pride in it.

3. The mother it appears has changed and has drawn closer to her family as a result of that change.  However, it is still very early and there have been at least three unsatisfactory relationships since separation from the father.  In the event that the mother’s sister withdrew her report, the mother and children would once again be homeless. 

4. The mother did give evidence that she was undertaking a Certificate III course and was hoping to get work in school holidays once that course was completed.  She has a provisional driver’s license, although presently no car.  There is the beginning of stability for the mother in her present arrangements.

Maternal grandmother

1. The maternal grandmother is aged 51.  She was strongly loyal to the mother, defending her difficulties with keeping the children clean and healthy.  She was unable to offer an explanation for why the family had not been able to persuade the mother not to go to Western Australia, leaving her youngest child behind.

2. The maternal grandmother gave the explanation that the mother had broken up with her new husband in Western Australia, “Because they were different people and he was immature.”  She referred to the fact that whilst the mother was in Western Australia, she had spent overnight time with the child at least one day each weekend, usually on Friday night, in order for the child to keep contact with her family.  She did not give any credit to the father for facilitating those arrangements.

3. The maternal grandmother did concede, without hesitation, that the father loves the child and had done everything he could to look after her whilst the mother was in Western Australia.

4. The maternal grandmother was understandably pleased that the mother has given up unsatisfactory relationships and is keeping a tidy house, and of course that she is now enjoying a closer and more regular relationship with the mother, who had her first child at 16 and was subsequently estranged from her family.

Family Consultant

1. The family consultant had identified serious allegations and concerns.[10]  These involved both parents and members of the extended family. 

   [10]Family Repost dated 05/03/2014, pars 90-106 

2. The family consultant had been unaware that the father had had some mental health issues in 2013, but was pleased to note that he had sought treatment, which may or may not have been as comprehensive or consistent as possible.  One of his concerns about each of the parents is the likelihood of a new partner causing a change of home, a change of school and disruption for the child.

3. In the view of the family consultant, if the child is considered by the Court not to be at an unacceptable risk, then all other things being equal, she should be with her siblings.  He considered that the child could cope with that change; her history having been involved in an enormous amount of change, but still she maintained good relationships.  I share and endorse the view of the family consultant that there are risks in both households; a history of unsatisfactory relationships, a history of poorly managed emotions and a lack of adequate evidence about the mental and psychological health of both parents.

4. The family consultant recommended that if the Court considered that the child was not at an unacceptable risk in either household, she live predominantly with one parent and spend significant and substantial time with the other.[11]  I agree.  Both parents also agree that it would be better for the child to live predominantly with one parent and spend regular time with the other.  They simply do not agree which parent the child should live with.

   [11]Family Report dated 05/03/2014, par 107

5. The family consultant also recommended that significant weight should be given to considering which parent is more likely to actively encourage and support the child’s relationship with the other parent and extended family members.[12] 

   [12] Family Report dated 05/03/2014, par 109

6. This recommendation in my view is at the heart of the difference between the parents.  In making a parenting order a Court must consider a presumption of equal shared parental responsibility. 

The law

1. The objects of the Act in relation to parenting Orders are to ensure that:

   a)   Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)     Children are protected from physical and psychological harm;

   c)     Children receive adequate and proper parenting to help them achieve their full potential; and

   d)     Parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (‘the Act’). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

6. In this matter, there are reasonable grounds to believe that both parents have engaged in family violence during the relationship, but most particularly at the time of separation.  The mother suffered physical injuries as a result of an assault on her by the father; he was charged and pleaded guilty to the charge of assault.  The mother had wounds on her neck from the father’s pressure on her neck with his hands.[13]  The mother was pinned to the bed when those wounds were inflicted by the father using force.  It is a serious matter.

   [13]Exhibit 4

7. The mother denies, but I accept, that she struck the father in the area of his genitals with her knee with force and he responded in the way that was described.  All three children were present in the house and the two boys were drawn into the room by their mother calling out to them.  It must have been terrifying.

8. There is also the factor that these parents have had at times an ability to cooperate.  They agreed that when the mother moved to Western Australia, the child should remain with the father.  They agreed on terms which were largely put in place for the child to maintain contact both with the mother and the extended maternal family.  However, they have been quite incapable of respectfully consulting each other about the child’s education; she has attended three different schools without having yet completed two years in the education system. 

9. The parents do not communicate well or respectfully; they are suspicious of each other.  The mother refers to the father as a compulsive liar.[14]  They are mistrustful of each other after allegations that have been raised that one of the mother’s children engaged in sexualised misconduct with the subject child. 

   [14]Affidavit of mother filed 27/05/2014, par 10

10. The mother has accused the father of exposing the child to pornography in the home and raised as a possibility that any one of a number of named members of his family may have molested the child in some way. 

11. This evidence comfortably satisfies me that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.  This is despite the father’s change of position to favour equal shared parental responsibility.  It will be of most assistance to the child if the parent with whom she lives makes the critical decisions, but that as many decisions as possible are confirmed in orders, so that the situation is well known to both parents.

12. In deciding what parenting order to make, the best interests of the child are the paramount consideration.  Since there will not be an order for equal shared parental responsibility, there is no obligation to consider the child spending equal time or substantial or significant time with each parent, although those considerations come into play in any event.

13. The factors which the Court must take into account are those set out in s 60CC of the Act.

Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents

1. The child does have a meaningful relationship with both of her parents; she loves them both.  She does have an important relationship with the mother’s two sons, whom the child regards as her brothers.

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

1. There is a need to protect the child from physical or psychological harm.  I consider it likely that as an infant she was exposed, to some extent, to neglect in terms of her physical health and hygiene.  Fortunately she has experienced no permanent harm.  The mother was at times unable to meet her needs for regular bathing and a hygienic environment.

1. The child was exposed to family violence between her parents when they separated; when she was two.

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. The child expressed herself in a happy relaxed way about her family to the family consultant.  She does not have any concerns about her brothers, although she knows that she does not presently see them because it is not safe for her to do that. 

2. The child herself wants to live with both of her parents and said she was missing her brothers.  She has no concerns in either household.  She is now progressing well at school, is happy and has a lot of friends.  There is no doubt that despite a long period of separation between mid-2011 and late 2012, the child has maintained a loving bond with the mother and wishes to spend regular time with her.  That she has sometimes expressed different views to different members of her extended family on each side is hardly surprising.

Section 60CC(3)(b) – the nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. I accept that the child has a strong loving bond with each of her parents, her paternal grandmother, her maternal grandmother, her half-brothers and probably also Ms L, the father’s former partner, with whom he continues a friendship.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother chose to move interstate for 18 months when the child was a little over three years.  She returned to New South Wales on three occasions for family events and chose to return to Western Australia on each occasion.  She communicated with the child and that was facilitated by the father. 

2. I take into account that the mother failed to take the opportunity to spend as much time with the child as she could in that formative period between three and four and a half years of age.

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. The father has maintained the child in his care.  The mother does not presently make any financial contribution.

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 either of his or her parents, or any other child or other person

1. The child has lived with the father for three and a half years.  There have been other partners for the father; Ms L and for almost a year, Ms H and her children.  There have been changes in residence in the father’s home, from the father living independently, to moving back to live in the home of the paternal grandmother.

2. To separate the child from her father and paternal grandmother and change her residence to live with her mother, would be to reconnect her with her siblings, although there is a problematic aspect to that, given the unresolved allegations of some misconduct by one of her brothers with her.  It would be destructive for the child if further allegations arose for investigation. 

3. If the child remains living with the father, there is a likelihood that he will move to live independently, which may be a positive or negative change for the child, depending on whether or not it is caused by a new relationship for the father, a falling out between the father and the paternal grandmother, or an understandable desire for self-reliance by the father.  However, what is clear is that the child has done well in her father’s care.  She has proved to be emotionally resilient and maintained relationships with maternal family.  A change of circumstance may see her spend significantly reduced time with the father and that relationship undervalued by the mother.

4. The mother was prepared to remove the child from school and even more significantly, withhold her from the father because there had been a period of a couple of weeks when the mother was unable to see her.  It was a punitive thing to do from the child’s point of view and the likely effect of such an attitude would be detrimental.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent

1. The parents do not live too far apart and are each capable of driving.  They each have the assistance of a grandparent who will assist with changeovers.

Section 60CC(3)(f) – the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother seemed unable to cope with the demands of parenthood for many years.  She was evicted from more than one residence; she was unable to adequately supervise the children or provide basic hygiene and routine for the children.  She formed unsuitable relationships and that has continued.  From the children’s perspective, the relationship with the father was unsuitable.  The young parents were regularly angry and uncontained in their emotions around the children. 

2. The mother pursued a relationship in Western Australia until its end at the expense of spending time with one of the children in New South Wales.  On the evidence, she could have remained in Department of Housing accommodation.  She was unable to maintain the standards required in a refuge for women and children within months of separation.

3. The father has some psychological and psychiatric difficulties.  He has recently suffered from depression over the breakdown of his most recent relationship.  He had a satisfactory relationship with Ms L and a tumultuous and unsatisfactory relationship with the mother.  He has connected with medical attention for depression and also consulted a psychologist, for the consequences of ADHD, which makes it difficult for him to attend and complete tasks.

4. However, the father has had an ability to focus on the needs of the child; her emotional needs in terms of her relationship with the mother and maternal grandmother and other family members; her intellectual needs, in that he has ensured she attended school on time every day, appropriately clothed and provided with lunch.  She is a healthy, well developed child and has been provided for by the father.

5. The mother is showing strong signs of stabilising; she now has the support of her family and the enormously significant support of her sister who has bought a home for the mother to rent with her children with some conditions.

6. The father has shown some signs of instability in that he has chafed at not being independent through living in his mother’s home and has been unable to deal with conflict with her at times.

7. Both parents have pursued relationships at the expense of their children. 

Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The child will be seven in early 2015.  Despite raising with the father and paternal grandmother matters which suggest that there has been sexual play between the child and her brother, she has not become inordinately distressed and she has not rejected her brother.  This may be attributable to the fact that they listened to what she had to say, reassured her that such things would not happen again, did not question her and have encouraged her to put such things behind her.  They have provided her with a safe home. 

2. The child fell behind understandably through having a change of school three times in 2013.  That the mother chose to remove her from school at the end of the kindergarten year to enrol her in another school, for reasons completely unrelated to her welfare and progress at school, was unhelpful to her, but she has recovered and is now doing well, educationally and socially.

Section 60CC(3)(i) – the attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The maternal grandmother gave evidence that the mother had a belief that she cannot manage alone and needs a man to support her.  She has chosen partners with whom she has not been able to sustain a relationship.  She has chosen those partners, the father of her two sons, the father of her daughter, her husband in Western Australia, Mr R and a short term relationship, and found all of those partners to be incompatible.  She has not in the past reflected on the impact on her children of new relationships, changes of residence and homelessness on more than one occasion; although clearly she has been unhappy about it.  The mother attributes blame to others and has not been introspective about herself as a parent.

2. The father has taken seriously his responsibility to care for his daughter and keep her safe.  He has also most significantly, supported her relationship with her mother, in circumstances where it would have been easy to cut that relationship off.

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

1. There has been serious family violence and the father became aggressive and violent when provoked.  Even if I accept that the mother did physically provoke the father by striking him, he knew and concedes that he knew, that it was the wrong thing to do to hurt her in the way that he did.  He pleaded guilty accordingly.

2. The father needs to ensure by appropriate therapeutic intervention. That he learns to control his emotions, even under the most provoking circumstances, so that he does not again expose a child to domestic violence, as the two boys were exposed to domestic violence between the mother and father, and does not create any incident where police need to be called and where the father might be punished for such conduct, in a way that would impact inadvertently on the child. 

3. The father should consider attending a program which would assist him to understand the necessity to contain his emotions and the impact of exposure to violence on young children.

4. The mother also needs to understand that when she is unable to contain her emotions, the delivery of angry and insulting comments and physically provoking actions on her part, are part of a pattern of conduct which is unproductive for her and has exposed all three of her children to family violence.

5. The mother did not deny that she had slapped the father over the head after he pushed her “gently initially.”  The argument had arisen over the father removing his DVD collection from the house.

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

1. There is uncertainty for both parents in the future, but I give considerable weight to the fact of the father’s willingness to support the relationship between the child and the mother, despite his genuinely held fears that she might be suffering some abuse by one or both of her brothers, or neglect by her mother, because of his commitment to the bond between mother and daughter. 

2. I am not satisfied that the mother places such a high value on the relationship of the child and the father.  The mother was dismissive of the father’s efforts; including his delivering the child for a holiday when she was in Western Australia and allowing it to extend into a longer period than the written agreement provided for, the telephone calls between mother and child, the monthly visits between the maternal grandmother and other relatives, which were critical to maintaining that bond which were in place when the mother returned at the end of 2012.

3. In this respect, the capacity of the father to understand the full range of the child’s needs appears to be greater than that of the mother. I therefore consider that it is more likely that orders for time between the child and the mother will be complied with and emotionally supported by the father, than they would be if there was a change of residence.

4. For those reasons I have made orders for the father to have sole parental responsibility and for the child to continue to live with him; for the mother to spend regular time with the child, expanded to alternate weekends with her or an adult nominated by her to be present when the child is with her brothers for several reasons: adequate supervision; reassurance for the child that she is safe and that nothing bad will happen and to eliminate the possibility that further allegations will be made leading to further litigation.

5. I should say that the Independent Children’s Lawyer submitted in favour of a change of residence to the mother, with a reuniting of the siblings.  It is understandable, given that ultimately neither parent pressed for a finding of unacceptable risk in the household of the other parent. 

6. However I have taken the view that the father’s history of supporting the relationship between the child and the mother post-separation throughout the 18 months that the mother was away in Western Australia, and for the period of nine to ten months after the mother’s return when she was homeless, are a strong foundation for certainty that the child will be able to maintain her meaningful relationships with both parents if she remains living with the father.    

I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 November 2014.

Associate: 

Date:  24 November 2014