Halley and Reece and Anor

[2009] FamCA 907

FAMILY COURT OF AUSTRALIA

HALLEY & REECE AND ANOR [2009] FamCA 907

FAMILY LAW – CHILDREN – BEST INTERESTS – Consent orders that father have sole parental responsibility, children live with father and spend supervised time with mother for minimum two hours each month for four months – Question whether after that period children’s time with mother be unsupervised in a structured graduated regime or supervised indefinitely – Principles related to long term supervision considered – Order made for continued supervision

Family Law Act 1975 (Cth), ss 60B, 60CC and 61C

Foster & Foster [2009] FamCA 499
Johnson & Page (2007) FLC 93-344
McCall & Clark [2009] FamCAFC 92
Miller & Harrington (2008) FLC 98-383
Moose & Moose (2008) FLC 93-375
Rice and Asplund (1979) FLC 90-725

APPLICANT: Ms Halley

RESPONDENT: Mr Reece

INTERVENER: Director-General, Department of Community Services (New South Wales)

FILE NUMBER: LEC 309 of 2007

DATE DELIVERED: 4 September 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Lismore

JUDGMENT OF: O'Reilly J

HEARING DATE: 21, 22, 23 & 24 April, 29 & 30 June and 1 & 2 July 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blond

SOLICITOR FOR THE APPLICANT: Legal Aid New South Wales (Ms Nanlohy in April 2009 and Ms Lovell-Jones in June/July 2009)

COUNSEL FOR THE RESPONDENT: Mr Priestley

SOLICITOR FOR THE RESPONDENT: B L Crane & Associates (Ms Paskins)

COUNSEL FOR THE INTERVENER: Mr Anderson

SOLICITOR FOR THE INTERVENER: Crown Solicitor, New South Wales (Mr Mitrevski)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Theobald in April 2009

Mr S C Priestley in June/July 2009

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hertzberg Heydon

(Ms Creak)

Orders

29 JUNE 2009

IT IS ORDERED BY CONSENT

1. In terms of the minute of orders annexed and marked A.

AND IT IS FURTHER ORDERED

1. The original minute of orders be placed and kept on the Court file.

19 AUGUST 2009

IT IS FURTHER ORDERED

1. Upon the expiration of the period of four months referred to in paragraph 4a of the consent orders made on 29 June 2009 the children continue to spend supervised time with the mother in accordance with paragraphs 4-7 of those orders as if the words “for the next four months” in paragraph 4a are then ruled out and do not appear PROVIDED THAT W and R not be forced by the father to spend time with the mother if they do not wish to do so HOWEVER the father must encourage W and R to attend.

AND IT IS FURTHER ORDERED

1. The independent children’s lawyer is discharged.

IT IS NOTED that publication of this judgment under the pseudonym Hally & Reece and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: LEC 309  of 2007

MS HALLEY

Applicant

And

MR REECE

Respondent

And

Director-General, Department of Community Services (New South Wales)
Intervener

REASONS FOR JUDGMENT

The children, the parties, their applications, the intervener and recent court history

1. This matter concerns the five male children born of the relationship between Ms Halley (the mother) and Mr Reece (the father).  The children are:

   ·W born in September 1993, now 15½ years

   ·R born in June 1996, now 13 years

   ·T born in October 1997, now 11½ years

   ·S born in April 1999, now 10 years

   ·Y born in January 2001, now 8 ½ years.

2. The parties separated initially in April 2003 after a relationship of about ten years.  However, they continued a casual relationship, it appears, until late 2005/early 2006.  During the latter period the children lived with the father and at times the father and the mother. Since the expiry of that period however the children have lived with the father and spent somewhat limited time with the mother.

3. Initially, interim orders were made on 28 August 2003 in the Local Court for the children to live with the father and have contact with the mother on alternate weekends from 5pm Friday until 6pm Sunday and for half the school holidays, with regular telephone communication. A further order was made that the matter be transferred to the Family Court at Lismore.

4. On 30 May 2005, in proceedings BRF11151/2003 final consent orders were made for the children to live with the father, there be “joint responsibility” for major decisions concerning the children and they have contact with the mother as may be agreed between the parties but failing agreement at least four days for each child in each of the Autumn, Winter and Spring holidays and fourteen days in the Summer holidays and, during the school terms, basically for not less than one weekend in each half term from Friday evening to Sunday evening for the four younger children and for W at least two hours during each such period.

5. The mother says that she consented to those final orders because at that time she and the father were having a casual sexual relationship, getting along quite well and “still discussing the possibility of a future together”, such that, absent these factors, she would not have consented to an order that the children live with the father.  Indeed, the mother said that it was always her intention after the separation that the children should live with her once she found suitable accommodation, but that at the time of the separation she could not “take the children with me” because she had no accommodation suitable for herself and the children.

6. After the final orders were made on 30 May 2005, there were two court events concerning the children in the Federal Magistrates Court.  On 6 December 2005, in proceedings BRM16574/2005, which were contravention proceedings, Federal Magistrate Jarrett found the father in contravention of the final orders made on 30 May 2005, the contravention occurring on 4 November 2005, and made an order for compensatory time and other orders.  Then, on 19 July 2006, in the Federal Magistrates Court in the same proceedings, Federal Magistrate Slack made a recovery order, ex parte, that the mother return W and T to the father.

7. The current proceedings were commenced by the mother on 10 May 2007.

8. Since then there have been several interim orders relating to the children spending time with the mother, the most recent of which was made on 13 October 2008, by consent, which, by variation of an earlier consent order made on 27 June 2008, provided that the children spend time with her for two hours in each calendar month after school between 3.30pm and 5.30pm at the E Family Support Centre, that earlier order being further varied by consent on 24 April 2009 to provide that the time be at the Lismore Children’s Contact Centre.

9. It is convenient, at this stage, to refer to each of the interim orders made in the current proceedings concerning the children spending time with the mother.   The interim orders made were:

   ·17 July 2007, Federal Magistrate Jarrett, for supervised time weekly graduating to unsupervised time weekly 4pm Saturday until 4pm Sunday, those orders being by consent

   ·27 June 2008, a registrar (name unclear), for supervised time on alternate Sundays 10am until 2pm, those orders also being by consent

·13 October 2008, as already mentioned, those orders also being by consent.

·24 April 2009, as already mentioned, those orders also being by consent. 

1. The parties tendered, by consent, a schedule setting out the time the children have spent with the mother since April 2003: see ex 9.  Significantly, between January and October 2008, the children spent no time with the mother, primarily because her partner, Mr P, was not permitted to attend; but since October 2008 the children regularly have spent supervised time with the mother, once in each month for about two hours, except for W, whose time on some occasions was reduced.  The circumstances were that he was able to spend only one hour when the occasions occurred on school days because of the geographical location of his school and the need for a teacher to deliver him from his school at G to E. 

2. The Director-General, Department of Community Services (New South Wales) has had extensive involvement with the parties and the children, and on 30 August 2007 intervened in the proceedings, providing affidavits by two caseworkers and a comprehensive case outline.   The affidavits are by Ms K, the caseworker assigned to matters concerning the children between 2 January 2008 and 3 September 2008, and Mr F, who took over from Ms K as caseworker on 8 September 2008.

3. The Director-General, as evident by the minute of orders annexed to the case outline, proposed that the children live with the father and spend supervised time with the mother on four occasions in each year for a period of up to two hours at the Lismore Children’s Contact Centre operated by Interrelate or such other service as may be available through Interrelate or another like service, such time to be during the gazetted New South Wales school holidays, that the father have sole parental responsibility for the children and other orders as set out in the minute of orders referred to. 

4. The independent children’s lawyer, Ms Creak, urged also that the children live with the father and spend supervised time with the mother.  In address Mr SC Priestley of Counsel, for the independent children’s lawyer, put that the supervised time be at the Lismore Children’s Contact Centre or like service once each calendar month for such period as can be accommodated but minimum two hours and maximum four hours. 

5. The mother, whose application commenced the proceedings, sought initially that the children live with her and spend supervised time with the father (application filed 10 May 2007).  Subsequently, the mother sought that the children live with the father, there be equal shared parental responsibility for the children and they spend supervised time with her (amended application filed 7 March 2008).  Subsequently, the mother sought that the children live with her, there be equal shared parental responsibility for the children and they spend time with the father on alternate weekends from Friday afternoon until Sunday afternoon and for half of the gazetted school holidays (second amended application filed 20 October 2008).  At the commencement of the April component of the trial, 21 April 2009, the mother sought (by inference) that the children live with the father, there be equal shared parental responsibility for the children, that during school terms on the first weekend of each month W, R and T spend time with her from Friday afternoon until Sunday afternoon, on the second weekend of each month S and Y spend time with her from Friday afternoon until Sunday afternoon, on the third weekend of each month all five children spend time with her from Saturday midday until 6.00pm Sunday and that all five children spend time with her for half of the school holidays (third amended application filed 11 March 2009).  On 23 April 2009, after the close of her case, the mother was given leave to reopen her case and file a further amended application dated 23 April 2009 (fourth amended application) by which she sought (again) that the children live with her, or alternatively with her and the father on the “week about” basis, or alternatively with her from Friday after school until Monday before school in each week and with the father at all other times during the week, for half of the gazetted school holidays and there be equal shared parental responsibility for the children.  On 23 April 2009, I gave detailed reasons for allowing the mother’s application for leave to reopen her case and further amend her application, to which reasons I would refer. (The reasons are in transcript format, on the Court file). 

6. However, upon resumption of the trial on 29 June 2009, the mother consented to orders including that the children live with the father, he have sole parental responsibility for them and several other orders, including that for the period of four months the children spend supervised time with the mother on one day in each calendar month for a minimum period of two hours, and proposed other orders to ensue after that four month period.  The mother’s final proposal (ex 4) was that after that four month period T, S and Y spend unsupervised time with her on the third Saturday of each calendar month, for eighteen months, the first six to be 9.30am until 12.30pm, in a public place, the next six to be 9.30am until 2.00pm, in a public place, the next six to be 9.00am until 5.00pm (place not specified), and then commencing on 18 June 2011 from Saturday 10.00am until Sunday 3.00pm (place not specified).  The mother proposed also a venue for changeover, and that she personally supervise the children while in her care.  In relation to W and R, the mother proposed that they spend such time with her as may be agreed between them and the mother.  During address Mr Blond of Counsel, for the mother, proposed in the alternative that if I should determine against the mother’s proposal and in favour of supervised time, it not be indefinite but there be an order for the children to commence to spend unsupervised time with the mother upon the happening of a specified event, for example, the coming into existence of evidence by a psychiatrist treating the mother that she has the capacity safely to care for the children unsupervised, being a person who has had access also to the reasons for judgment and the experts’ reports in the matter, specifically, Ms D, the family consultant, and Ms B, social worker employed with the Legal Aid Commission of New South Wales, who had given evidence for the mother.  In the alternative to such an order, Mr Blond proposed that there be at least a notation as to my present view of the sorts of matters which might in the future serve as a “trigger” for the commencement of unsupervised time.

7. The father, by his response, sought orders that the children live with him and spend supervised time with the mother for two hours each fortnight at such place and time as agreed between the parties or failing agreement at the Lismore Children’s Contact Centre (response filed 29 June 2007).  Subsequently, the father sought that there be equal shared parental responsibility for the children, they live with him and spend supervised time with the mother at the Lismore Children’s Contact Centre on one Saturday each calendar month for such period of time as can be accommodated by the contact centre (first amended response filed 16 March 2009).  However, the father’s summary of argument filed on 20 April 2009 proposed that the father have sole parental responsibility for the children, they live with him and spend time with the mother at all times as may be agreed between the parties but failing agreement supervised time at the Lismore Children’s Contact Centre one Saturday each calendar month for such period of time as can be accommodated by the contact centre.  Mr Blond of Counsel, properly, conceded that the change in the father’s proposal relating to his having sole parental responsibility (father’s summary of argument) as opposed to the parties having equal shared parental responsibility (father’s first amended response) did not pose any difficulty of procedural unfairness in relation to the mother’s case nor her case against the father’s proposals.  On 29 June 2009, upon resumption of the trial, the father formally sought that he have sole parental responsibility for the children and proposed that the children spend supervised time with the mother at the Lismore Children’s Contact Centre on one Saturday in each calendar month for such period of time as can be accommodated by the contact centre (second amended response filed 29 June 2009).  In address Mr Priestley of Counsel, for the father, urged that the supervised time be at the Lismore Children’s Contact Centre or like service once each calendar month for such period that can be accommodated up to maximum four hours.    

Consent orders made on 29 June 2009

1. On 29 June 2009 the parties, the Director-General and the independent children’s lawyer presented proposed consent orders that the children live with the father, he have sole parental responsibility for them and, as mentioned already, that for the period of four months the children spend supervised time with the mother on one day in each calendar month for a minimum period of two hours, and other orders as to ancillary matters to which I would refer but need not set out.  On that day I expressed my satisfaction that the proposed consent orders are in the children’s best interests and made those orders, with effect that the only matter remaining for my determination concerns the children’s best interests upon the expiry of the four month period referred to, in particular, as to whether the children’s time with the mother should remain supervised indefinitely, as proposed by the father, the Director-General and the independent children’s lawyer, or move to unsupervised time as proposed by the mother, to which I have made already detailed reference, and, in either case, frequency of time and venue. 

The parties’ and the children’s current circumstances and relevant past circumstances

1. The mother is a disability pensioner.  She lives at E with Mr P, also a pensioner. Neither is employed for wages.  However, together they participate in entertainment activities in New South Wales and Queensland in exchange for their petrol, food and accommodation whilst travelling.  …. 

2. As at April 2009, the premises at which the mother and Mr P lived at E had been leased between January 2008 and January 2009 for $440 per fortnight, paid by Mr P.  However, the lease had expired, the premises had been listed for sale and thus they had become in effect fortnightly tenants.  As at June 2009 the mother and Mr P had taken a lease on another premises at E for three months 10 June 2009 to 9 September 2009 for $235 weekly with a rental assistance of $55 weekly, being a premises with three bedrooms, a sleepout and a spare room near the kitchen. 

3. The mother was diagnosed in 1994 by Dr O, psychiatrist, based at Lismore, with Borderline Personality Disorder.  The mother had been referred to Dr O by a Dr M, general practitioner at E, now retired.  She saw Dr O on only one or two occasions in 1994 and then again in 2005 when his diagnosis was that she still suffered Borderline Personality Disorder.  The mother does not see any psychiatrist now therapeutically.  She attends upon Dr G, general practitioner at E, who took over Dr M’s practice.  Dr G prescribes the mother Tegretol and Effexor, apparently for moodiness or depression, but the mother said Dr O had explained to her that in his view there was “not much to do” in relation to her Borderline Personality Disorder. Despite this, the mother said that the prescribed medication “helps” with her Borderline Personality Disorder condition.  It is important, at this juncture, to refer in more detail to the mother’s condition.  Dr G, in a report to Dr M 5 September 1994, described the mother as having “Severe Personality Disorder, Borderline Type”. He said “Unfortunately there is no specific drug treatment that would help in any major way”, however, he mentioned Anafranil as a drug which “may assist more than Prothiaden” (ex 5).  Dr O said in a later report 25 November 2005 that the mother “continues to have the ravages of Borderline Personality Disorder with the major problem being moodiness, lack of motivation, impulsivity, irritability and lack of direction” (ex 1, item 7.2). See also the references to and descriptions of the mother’s condition in ex 1, items 5.1, 5.2 and 5.4. 

4. The mother does not have a motor vehicle nor a driver’s licence.  Mr P does not have a driver’s licence.  The only contact centre available to the parties and the children is at Lismore.  There is a bus service operating between E and Lismore, but not on weekends.  The mother said in her evidence on 29 June 2009 that she and Mr P had not rented premises at Lismore, as opposed to E, because rent for an equivalent property at Lismore would be of the order of $280 weekly, with no increase in rental assistance. 

1. Mr P has an extensive criminal history, extending from 1966 to 2005: ex 1, items 13.1A-13.1K. Mr P’s convictions include offences of assault, stalking and sexual intercourse without consent. His record shows several terms of imprisonment. Mr P owns or has access to a Nissan van. However his driver’s licence has been under suspension since about 1996 or 1998. The mother, in her evidence, said on the first day of the trial that her friend Ms I had driven the van that day from E to Lismore to attend the hearing. However, in response to a question by Mr Anderson of Counsel to Mr P as to who had driven the van on the first day of the trial from E to Lismore Mr P responded “Me”. Unfortunately, there had not been opportunity between the question and the answer to go through the procedural steps set out in s 128 of the Evidence Act 1995 (Cth). However in the circumstances I granted Mr P a certificate under s 128 not only for the specific question and answer but also from the date of the suspension until the first day of trial because Mr P plainly gave the impression that during that period he has frequently driven whilst unlicensed and indeed some of his answers could only be construed as admissions given without the benefit of the s 128 process. I am satisfied in the circumstances that it is appropriate the certificate was granted in particular having regard to s 128(8) which has the effect that once granted the certificate cannot be challenged.

2. Apart from the children, the mother has an older son J born in 1990, now 19 years, who now lives independently.   In 1992 the mother gave birth to A who was born alive but lived only 8 hours.  J’s father showed little interest in J.  A’s father and the mother were unable to cope with the death of their baby and their relationship broke down.  Shortly after, when the mother entered the relationship with the father, in about 1993, J was a toddler and thus grew up with the children as their older half sibling.

3. In May 2003, the mother was convicted of assault of J in March 2003 by hitting him with a hammer.  The mother said that she hit J only once with the hammer, and denied that the assault consisted of several blows.  Dr V, psychologist, assessed J for victim’s compensation.   His report 8 March 2008 contains disturbing observation as to the effect on J not only of the hammer assault but also of what Dr V described as “exposure to acts of violence perpetrated by the mother” and to “multiple instances of emotional, physical and sexual assaults perpetrated over a protracted time during childhood” (report, p 9).  This however was untested, and the mother said that J often visits her and that she visits him and they get on well and enjoy spending time with each other.

4. Mr P has two children, N and L.  N in the past had alleged that Mr P had procured that she have sexual relations for money when she was in her teen years.  However, ultimately prosecution did not proceed as N retracted the allegation and said she had fabricated it. 

5. During the course of the hearing I granted a further s 128 certificate to Mr P in relation to this and other matters the subject of cross examination of Mr P concerning N and L. However, ultimately it emerged that the certificate was not necessary, Mr P denying the matters put to him concerning N and L.

6. The children live with the father and his partner Ms X at V, about 20 kilometres outside E, with the two children of their own relationship Z born in October 2006 now nearly 3 years and C born in October 2008 now nearly 1 year.  The property comprises acreage, on part of which the father has built a running track.  The residence comprises two bedrooms and two sleepout areas.  The father and Ms X, who have been in a de facto relationship since early 2006, have lived in the same premises since 2006.

7. According to the affidavits of the father and Ms X, and indeed as supported by evidence from the Director-General’s caseworkers Ms K and Mr F, the children are well cared for by the father and Ms X.  For example, Mr F reported that on recent visits, including an unscheduled visit, the house was clean (though scattered with toys and items), a new refrigerator and washing machine had been purchased with the recent government bonuses, there was clean washing on the clothesline and on one occasion the father was cooking the children a curry in a new slow cooker.  There was evidence that in the mornings before school W prepares his own lunch and Ms X or the father prepare the other children’s lunches which comprise sandwiches, for example, cheese and pickles, peanut butter or vegemite.

8. The father has a criminal record containing four matters, however, none concerning violence. 

9. The mother’s trial affidavit contained several allegations of violence by the father relating to her and the children.  However, in the circumstances of there being consent orders that the children live with the father and that he have sole parental responsibility for them, such being supported by the Director-General and the independent children’s lawyer, it is not necessary in these reasons for judgment that I refer in detail to the allegations, nor make findings.  I would refer, however, to my observations as to these allegations in the reasons for judgment 23 April 2009 relating to the grant of leave to the mother to reopen her case. (As mentioned earlier, the reasons are in transcript format, on the Court file).

10. W attends the G School, presently in Class 9, whereas R, T, S and Y attend KR Public School at KR, some several kilometres north of V.

11. W and R have been diagnosed with intellectual impairment, the material indicating that W has an IQ of about 55 and R an IQ of about 61.  Whilst there is no formal evidence in relation to T and S, their school reports indicate learning difficulties.  Y, the youngest child, according to his school reports, is achieving very well.  The remarks of the principal and teachers at KR Public School consistently describe the children as well behaved and well liked by the staff.  R is due to commence secondary school in 2010.  The principal at KR Public School has expressed the opinion that R “would not cope” at E State High School and should join W at the G School. 

12. The school reports for all five children indicate that all necessary steps have been and are being taken to ensure that the children will benefit as much as possible from their formal education years.  In particular, W has shown interest in craftwork.  The children also enjoy swimming, and track and cross country sport. 

Principles

Children’s best interests paramount

1. Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.

Objects and principles underlying objects

1. Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:

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

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

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

   ·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;

   and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:

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

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

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

   ·parents should agree about the future parenting of their children; and

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

Determining what is in a child’s best interests

1. Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.

2. The primary considerations are:

   ·the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   ·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The additional considerations are too numerous to set out.  However, I will make specific reference to them below, to the extent that each may be relevant.

Parental responsibility

1. Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.

2. Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.

Equal time/substantial and significant time 

1. Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:

   ·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and

   ·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.

2. Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:

   ·days that fall on weekends and holidays; and

   ·days that do not fall on weekends and holidays;

   and:

   ·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and

   ·allows the child to be involved in occasions and events that are of special significance to the parent,

   although regard may be had to other matters.

3. Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:

   ·how far apart the parents live from each other; and

   ·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and

   ·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   ·the impact that an arrangement of that kind would have on the child; and

   ·such other matters as the Court considers relevant.

Prior parenting plans

1. Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.

Other provisions

1. The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.

Weight

1. Matters affecting weight are primarily for the trial judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.

The evidence

1. The mother relied on affidavits by herself, Mr P, and Ms U, who gave evidence of what she witnessed at the four younger children’s school prize giving presentation in December 2008.  In the last phase of the trial, on 29 June 2009, the mother relied also on the report of Ms B, social worker, to whom I have referred. 

2. The father relied on affidavits by himself and Ms X.   

3. The Director-General relied on affidavits by Ms K and Mr F, as already mentioned.

4. The independent children’s lawyer relied on reports by Ms PN, family consultant, the report writer for the 2005 proceedings, and Ms D, family consultant, the report writer for the current proceedings.

5. In addition, the parties tendered by consent a bundle of documents extracted from the documents produced pursuant to subpoenea: ex 1; and other documentary exhibits tendered during the trial, comprising exs 2-14.

Statutory matters concerning the children’s best interests

Section 60CC(2)(a) and (b) - the primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents

1. There is no doubt that the children have a “meaningful relationship” with both parents, within the meaning of that term approved in McCall v Clark [2009] FamCAFC 92 at [108-122], esp [155], [117], [121]; and that prospectively the continuance of such is of benefit to the children, so that in relation to both parents the meaningful relationship should be fostered.

The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence

1. The father has a history of marijuana use and of disciplining the children in inappropriate ways, however the consent orders, by par 13 (c) and (d),     restrain him in relation to these matters.  The father said in respect of the order restraining him from using prohibited drugs that he would “try” to abide the order.  I had the clear impression, listening to his evidence about this, that he would struggle not to use marijuana and thus to abide the order, but would endeavour to do so.  As to his discipline methods for the children, there is strong evidence to the effect that he has accepted guidance and advice from the Department’s caseworkers not physically to discipline the children, with the effect that he now uses the “time out” method, and as well encourages the children to use the running track which he has built at their home to direct their energy to beneficial physical pursuit rather than misbehaviour. 

2. Presently, thus, there are minimal concerns as to the children’s safety in the father’s home, reflected in the consent orders that the children live with the father.  Further, there is strong indication that the Department proposes to maintain caseworker involvement with the family, by both scheduled and unscheduled visits. 

3. I turn now to the question whether, when the children spend time with the mother, there is a need to protect them from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence. It is convenient to commence this analysis by reference to some discrete past events. 

4. I have referred already to the incident of the mother assaulting J with a hammer.  However, that occurred in March 2003, now more than six years ago.  Further, it is well documented that the mother at that time was suffering the significant stress of the imminent breakdown of her relationship with the father.  Nonetheless, the incident on any view was violent and caused J great harm, as detailed in the report of Dr V, to which already I have made reference. 

5. In March 2007, the mother reported that T had run away from her home and was unable to be found.  The report caused an intensive three day search for T, involving the New South Wales Police, described as a “major police operation” ….  Ultimately, after the three day search, T was found in or behind a cupboard in a bedroom in the mother’s home, in a very distressed condition, and “in the foetal position”.  The mother was arrested in March 2007 and was charged in relation to the incident.  T was unable to give evidence, because he was too distressed, in a witness room in a position again described as being “in the foetal position”. The charge against the mother was dismissed.  However, it is controversial whether it was dismissed for the want of any case against her, or because T’s condition was such that he was not able to give evidence.  In relation to this incident, the mother gave unwavering evidence that she had nothing to do with T’s disappearance, and had not hidden him in the cupboard in the bedroom. I was invited by the parties to make a finding in relation to this matter, as to whether the mother was involved in the incident.  The evidence however is inconclusive, and I will make no findings.  Nonetheless, the salient factor is that the incident occurred while T was in the mother’s care, and, for whatever reason, plainly she was unable to prevent its occurrence.

6. In January 2008, at a changeover after time with the mother, Mr P, as I find, encouraged W to run away rather than be returned to the father.  When W ran away, he was missing for two days after which, when found, he was placed into foster care for five nights and then returned to the father.  Again, the salient factor is that this incident occurred while W was in the mother’s care, and, for whatever reason, she was unable to prevent its occurrence. 

7. Next, it is of concern that despite Mr P’s extensive criminal history, to which I have referred, the mother seemed unable in her evidence to admit of any danger to the children from their being brought into contact with him.  Apart from Mr P’s criminal record, the Department has had extensive involvement with Mr P and his family.  The mother’s view, consistently expressed, is that the Department’s involvement with Mr P and his family (which I need not set out, it being fully documented in the material) was unwarranted and misconceived, such as to amount to an unwarranted vendetta against him, or at least predisposition against him.

8. There is the then matter which Mr SC Priestley of Counsel, for the independent children’s lawyer, and Mr Priestley of Counsel, for the father, described as “the elephant in the room”, that is, the mother’s condition of diagnosed severe Borderline Personality Disorder, which, on all of the evidence, is essentially untreatable and which, according to the evidence to which I have referred “ravages her”.  Very sensitively, each of Mr SC Priestley of Counsel, for the independent children’s lawyer, Mr Priestley of Counsel, for the father, and Mr Anderson of Counsel, for the Director-General, referred to the condition which the mother suffers as not being attributable to any fault on her part, but nonetheless a stark reality.  Mr SC Priestley, for the independent children’s lawyer, ably submitted that the mother’s condition, which at least potentially has caused the incidents concerning J and T to which I have referred, combined with her inability to recognise that it is not in the children’s best interests to have contact with Mr P, “screams out” for the need for protection, which need he described as “glaring” in all of the circumstances of the case.

9. Ms D, the current family consultant, was consistent in her view, which was detailed and thoughtful despite extensive and provocative cross examination, that the mother’s circumstances are such that the children are in need of protection in the mother’s care.   

1. Further, even Ms B, the social worker called by the mother on 29 June 2009, and whose report deliberately was sought by the mother to support her case upon her being granted leave to reopen it, contended that “at this point” protection is warranted, although, as is plain by Ms B’s report, she advocated a progressive move ultimately to unsupervised time. 

2. In contrast, Mr Blond of Counsel, for the mother, sought that I make a finding that there is no significant risk of physical or psychological harm to the children if they should spend unsupervised time with the mother, to commence after the expiry of the four month period of supervised time which will obtain pursuant to the consent orders to which I have referred.  Mr Blond pointed to the circumstance that the mother, by par 14 of the consent orders, despite her view concerning Mr P, nonetheless has agreed that he not be present in relation to any time the children spend with her, and to the circumstance that there is no recent history of the mother’s medical condition impacting harm upon the children.  However, in relation to this aspect of the matter, it must be observed that between January and October 2008, the children spent no time with the mother because she was unwilling for Mr P not to be present, and that between October 2008 and the trial, whilst that time has been successful, it has been supervised time, with effect that there has been minimal opportunity for the mother’s medical condition to impact upon the children in recent times.

3. On balance, having regard to the history of the matter, and the evidence as to the mother’s medical condition, there is real doubt that even after expiry of the four month period the mother would be able safely to care for the children and return them safely to the father if the children’s time with her be unsupervised, and real doubt as to her ability to exclude Mr P from being present.    

4. In some cases, it is possible to identify precisely the form or type of likely future physical or psychological harm to children from being subjected to abuse neglect or family violence.  In other cases, it is not possible to identify the precise form or type of likely physical or psychological harm.   This is such a case.  Nonetheless, the circumstances identified of the past events referred to, the mother’s current circumstances, in particular her medical condition, and her likely inability to exclude Mr P from being present, despite par 14 of the consent orders, when considered also in light of the expert evidence to which I have referred, lead me to the firm conclusion that a risk of physical or psychological harm exists for the children while with the mother so that they need protection from abuse neglect or family violence while in her care.  Whilst, as I have said, it is not possible to identify the precise form or type of likely future physical or psychological harm, I would refer to what was ably put by Ms D that “The best predictor of future conduct is past behaviour”. 

Section 60CC(3) -  the additional considerations

Any views expressed by the children and any factors such as the children’s maturity or level of understanding that the court thinks are relevant to the weight it should give to the children’s views

1. The children’s views, individually, were variously expressed.  I do not propose to set out all of the evidence concerning the children’s views.  They were ably summarised by Mr SC Priestley of Counsel, for the independent children’s lawyer, and by Mr Priestley of Counsel, for the father, in submissions, with comprehensive reference to the evidence.  Should reference to the precise evidence concerning the children’s views subsequently be required, a transcript will be available. Mr Blond of Counsel, for the mother, urged that overall the children’s expressed views overwhelmingly were that they wished to live with the mother and, by force of reasoning, thus, to spend unsupervised time with her.  Mr Blond submitted that significant weight should be given to the children’s views and that the weight should not be lessened by reference to their age or, in the case of some of the children, their intellectual impairment. 

2. I take the children’s views into account, and accord them significant weight.  However, in all of the circumstances the children’s views are not determinative of their best interests.

The nature of the children’s relationships with their parents and other significant persons

1. The children have a meaningful relationship with each of their parents. However, as was ably put by Mr SC Priestley of Counsel, for the independent children’s lawyer, until the orders made in October 2008, there was no “pattern of regularity” for the development of the children’s relationship with the mother, but since then, that is, between October 2008 and the time of the trial, there has been “the period of the greatest stability the children have had” of routine and successful time with the mother, with the least amount of parental conflict, all of which has augured well for the children’s present stability of relationship with each parent. 

2. There was no significant evidence as to the children’s relationship with other persons.

The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent

1. Mr Blond of Counsel, for the mother, submitted that the father has limited willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother, having described the mother as “a waste of space”, from which he did not resile in cross examination, despite opportunity to do so.  Further, when asked specifically in cross examination whether he was able to say anything positive about the mother, in terms of what she may be able to offer the children, the father answered “Probably not”. 

2. Thus, it is unlikely that, in the father’s care, he has the ability to promote to the children any positive aspects of a close and continuing relationship between them and the mother.  Despite this, historically, the father faithfully has abided all court orders in relation to the children spending time with the mother, with two exceptions, the first being 4 November 2006, which resulted in a contravention finding, and the second being during the period March 2007 and July 2007 immediately after the incident of T’s disappearance, when the father did not present the children to spend time with the mother, which, according to his evidence, which I accept, was based upon advice of the Department and the Police.  Then, subsequently, as I have mentioned, new interim orders were made on 17 July 2007, and several interim orders since, to which I have already made reference, and in respect of which there has now been a very lengthy period during which the father, despite his own attitude to the mother, has ensured that the children spend ordered time with her. 

3. Indeed, having regard to the geographical locations of the parties’ residences, and the cost to the father of ensuring that the children have been delivered to designated venues to spend time with the mother, there can be little doubt as to his willingness and ability to facilitate a close and continuing relationship between the children and the mother, although he may have limited ability to encourage it and to encourage that it be a close relationship.

4. The consent orders made on 29 June 2009 include that the parties not denigrate each other to or in the presence of the children.  Presently, despite the father’s stated belief that the mother is “a waste of space”, and that in his view she is “probably not” able to contribute anything to their welfare, plainly he has turned his mind to the necessity to facilitate such, if not to encourage it. 

5. The circumstances of the case are such that there has been little evidence as to the mother’s ability to facilitate and encourage a close and continuing relationship between the children and the father. 

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from their parents or other significant persons

1. The history of the matter, the evidence, and the circumstance of the consent orders made on 29 June 2009, have effect that this is not a significant factor.

Practical difficulty and expense

1. In relation to the question of the children spending time with the mother, whether supervised or unsupervised, I have referred already to the circumstance that the mother does not have a driver’s licence or vehicle, and also to the geographical distance between the father’s home at V, the mother’s home at E and the only available contact centre presently available at Lismore. 

2. The parties are both pensioners.  The mother, as I have mentioned, is the recipient of a disability pension.  The father, as the carer of the five children, is in receipt of a carer’s pension. 

The parties’ capacities to provide for the needs of the children including emotional and intellectual needs

1. The circumstance of the consent orders made on 29 June 2009 have effect that this matter is not of great significance, the sole for question for my determination being whether, after expiry of the four month period the subject of the consent orders, the children’s time with the mother should be supervised or unsupervised.

The maturity sex lifestyle and background including lifestyle culture and traditions of the children

1. The children are all male children, of varying ages, 15½ to 8½ years.  Unfortunately, in their short lifespans, they have had significant emotional challenges, described already to sufficient extent.  As mentioned, W and R have low intellectual assessment; and T and S have significant difficulties.  Fortunately, however, Y, at least, seems to be achieving well at school.

The parties’ attitude to the children and to the responsibilities of parenthood

1. Each of the parties has a loving and responsible attitude to the children, and to their responsibilities of parenthood.  There is no doubt that each of the mother and the father love the children very much. 

2. The mother, between January and October 2008, by choice, did not spend time with the children, despite opportunity.  It was put by Mr SC Priestley of Counsel, for the independent children’s lawyer, that this circumstance arose by “confused loyalties” between the mother and Mr P, but that, since October 2008, the mother’s conduct in ensuring that the children spend ordered time with her has been exemplary.  I accept this submission.

3. The father’s attitude to the children, and to his responsibilities of parenthood, is exemplified by his willingness to have the children live with him, and not only to care for them but, as I have mentioned, to accept advice from the Department concerning the children’s needs, in particular in relation to disciplinary measures in relation to them so as to not involve physical violence.

Any family violence involving the children or family violence orders

1. As I have mentioned, the mother raised in her affidavit material significant allegations of violence by the father against her and the children.  The evidence includes that at least one domestic violence order was made, in 2006.

2. However, presently there are no concerns as to family violence.

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 children

1. The litigation history of the matter shows that in each and every year since the parties’ separation in 2003 there has been court intervention. 

2. Plainly, in so far as may be possible, it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.

3. I have mentioned already that since October 2008 the children successfully have spent supervised time with the mother.

4. Presently, the children are stable, living with the father and Ms X at V, and attending their respective schools, which I have mentioned. 

5. I have mentioned also at least two examples of the children spending unsupervised time with the mother, when T and W, for whatever reason, did not make successful transition back to the father’s care, resulting in devastating consequences for them, already described. 

6. It appears to me, on all of the evidence, that the order that would be least likely to lead to the institution of further proceedings in relation to the children would be one that, after the four month period referred to in the consent orders made on 29 June 2009, the children continue to spend supervised time with the mother, indefinitely.  I will however refer below to the case authorities concerning indefinite supervision, and whether in this particular case such is in the children’s best interests. 

Any other fact or circumstance that the court thinks is relevant

The authorities as to long term supervision

1. The case invites the question whether a final order as to long term supervision of the children’s time with the mother may be appropriate as being in their best interests.

2. The authorities as to long term supervision are clear in providing that whilst conceptually and in practical terms such may be undesirable, always the children’s best interests is the paramount consideration, such that in cases where the choice is between supervised time between a child and a parent, as opposed to there being no time, there are occasions on which, particularly if there is an established relationship between a child and a parent to be preserved, supervised time should be favoured, even if the order be for long term supervision:  see, eg, Moose & Moose (2008) FLC 93-375 per Boland J at [118]-[119]. In that case, her Honour observed (at [120]) that the trial judge’s reasons omitted consideration of the family consultant’s oral evidence, the recommendations of the independent children’s lawyer and discussion of the practical long term effects on the children of an indefinite order for supervision at a contact centre. Whilst there is no evidence as to the practical long term effects on the children of an indefinite order for supervision at or arranged by a contact centre, I have mentioned already that in some cases where the choice is between supervised time and no time, but there is an established relationship to be preserved, on such occasions there is scope for supervised time, even if long term, to be favoured.

Section 60CC(4) – the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent

1. It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long‑term issues in relation to the children and to spend time with and communicate with the children and has facilitated or failed to facilitate the other parent participating in making decisions about major long‑term issues in relation to the children and  spending time with and communicating with the children and has fulfilled or failed to fulfil the parental obligation to maintain the children.

2. It is not necessary to revisit the evidence. Largely, it shows that the mother and the father have endeavoured to fulfil their responsibilities as parents, however, the mother has the difficulties to which I have referred.

Decision and reasons

1. It is sensible to deal first with the question whether, after the four month period referred to in the consent orders expires, the children’s time with the mother should be supervised or unsupervised, and then to deal with the matters of frequency of time and venue.

Supervised or unsupervised

1. It is significant that the children have a meaningful relationship with both of their parents, and that there is benefit to the children prospectively in its continuance so that the meaningful relationship with both parents should be fostered.

2. However, it is significant also, as I have determined, that there is a need to protect the children while in the mother’s care, and I find that need to be “glaring”, as submitted by Mr SC Priestley.  In all of the circumstances of the case, it is probably not necessary to go further in order to justify the conclusion, to which I have come, that the children’s best interests will be met, and indeed require, that their time with the mother should continue to be supervised after expiry of the four month period the subject of the consent orders, there being no reliable evidence that the circumstances relating to the mother’s medical condition, or the other factors I have mentioned, may be likely to change within that period or the foreseeable future.  I have considered carefully the opinion and recommendation of Ms B, as to a progressive move ultimately to unsupervised time.  However, Ms B came into the matter only very recently, and plainly was not apprised as to the full history of the matter, nor all of the evidence in the case, which I have the opportunity to consider. 

3. I have had regard also to application of the principles governing unacceptable risk of harm to children, including physical, emotional, or psychological harm, namely the necessity to balance the level or degree of any identified risk of harm to a child from spending time with a parent against the possible benefit to the child from spending time with that parent so that it is only when the level or degree of any identified risk of harm to a child from spending time with a parent outweighs the possible benefit to the child from spending time with that parent than the risk of harm is said to be an unacceptable risk: see, generally, Johnson & Page (2007) FLC 93-344 at [66]-[71]; and see also the discussion in Foster & Foster [2009] FamCA 499 at [37]-[45]. In my view, the identified need for the children’s protection outweighs the possible benefit to them of spending unsupervised time with the mother, having regard to the past events referred to which occurred while the children were in the mother’s care unsupervised, the mother’s current circumstances, in particular her medical condition, and the real doubt, to which I have referred, of the mother being able to exclude Mr P from being present if the children’s time with the mother be unsupervised. Again, I would refer to Ms D’s evidence that “The best predictor of future conduct is past behaviour”. Thus, despite the children’s individual views, to which as I have said I accord significant weight, there is such little prospect of possible benefit to the children from spending time with the mother unsupervised that the level of risk of harm to the children, on balance, far outweighs that possible benefit.

4. In my view, therefore, having regard to all of the evidence, all of the statutory matters which I am required consider, including the objects and principles underlying the Act as it relates to children, and the submissions, I conclude that the children’s best interests will be met by their spending supervised time with the mother, rather than unsupervised time with the mother, after the expiry of the four month period the subject of the consent orders. 

5. As to the frequency of supervised time with the mother, and its venue, I have considered the proposals of the Director-General, the independent children’s lawyer and the father, as outlined earlier.  In my view, four times per year, as proposed by the Director-General, would be insufficient, particularly because for the last ten months the children have spent supervised time with the mother once in each calendar month, and further, several of the children have expressed strong views in favour of spending more time with the mother, indeed, the wish to live with her.  In my view, after expiry of the four month period, the children’s best interests would be met by continuing the current regime of their spending time with the mother once in each calendar month, and that such be for a minimum period of two hours or such other period as can be accommodated by the contact centre venue.  I have considered, as urged by Counsel for the independent children’s lawyer, and Counsel for the father, specifying that the time be maximum four hours.  However, as that limitation presently does not obtain for the four month period, I am not persuaded that there is any good reason to impose it after that time, and prefer the formulation in the existing consent orders.  The Lismore Children’s Contact Centre, geographically, is the only venue for supervision currently available.  It is sensible in this regard also to adopt the wording of the current consent order, which I propose to do.  Thus, in effect, after expiry of the four month period, it is both convenient and sensible that the arrangement put in place by the consent orders seamlessly continue. 

1. During argument, it was put that after the four month period there should be a proviso concerning W and R having regard to their ages and expressed views, but bearing in mind also their intellectual assessments, that they not be forced by the father to spend time with the mother if they do not wish to do so, but that the father must encourage W and R to attend.  Having regard to these matters I am satisfied that the proviso is in W’s and R’s best interest’s, and I will include that in the order. 

2. As to whether there should be an order or notation to serve as a “trigger” for a move to unsupervised time, as urged by Mr Blond of Counsel, for the mother, the following were canvassed during argument:

   (a)an expert report obtained by the mother, being a psychiatrist, psychologist or social worker who has read these reasons for judgment, and the reports of Ms D and Ms B, and who has consulted with the Department’s caseworkers, to the effect that the children’s safety would not be jeopardised by either living with the mother or spending unsupervised time with her;

   (b)a written opinion by a Department caseworker that it would be in the children’s best interests that they live with the mother or spend unsupervised time with her.

3. Mr Blond of Counsel encouraged such an order, or at least notation, which was opposed by Counsel for Director-General, the independent children’s lawyer and the father.  In my view such an order or notation would not be appropriate, in particular if intended to be self executing, because the legislative intention is that such matters be determined by the judiciary rather than report writers or Department caseworkers (at least where a child is not pursuant to State legislation under the care of the Department).  I am however persuaded by Mr Blond that I should include a remark in relation to the potential future operation of the principle in Rice and Asplund (1979) FLC 90-725, although it is understood that such remark would not bind a judge in any future proceedings. Potentially, in my view, a significant change of circumstances would be shown, to warrant further proceedings concerning the children, if the mother in the future should be able to present evidence akin to either of the two categories of evidence in the two subparagraphs above.

4. In relation to the order which I will make, I am mindful of the undesirability of long term or indefinite supervision orders.  Although the order which I will make will be a final order and inevitably will have the effect of long term supervision, it is not immutable, particularly having regard to the children’s ages and inevitable operation of the principle in Rice and Asplund (see also Miller & Harrington (2008) FLC 93-383 at [72], [100]-[101]), if the mother ever should be able to trigger the operation of that principle.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:     

Date:              4 September 2009