Harvey and Maloney

FAMILY COURT OF AUSTRALIA

HARVEY & MALONEY

[2010] FamCA 936

FAMILY LAW – CHILDREN – Parental Responsibility – Parties consent to the allocation of equal shared parental responsibility for the children
FAMILY LAW – CHILDREN – With whom the children live and spend time – Father seeks orders for the children to live with him and spend time with the mother four nights per fortnight during school terms and for half of school holidays – Mother seeks an equal time arrangement – Family violence – Finding that children not at an unacceptable risk of exposure to family violence – Allegation of child sexual abuse – Finding that children not at risk of sexual abuse in the care of the father - Ability to foster and encourage relationship between parents and children – Children to live with the father and spend time with the mother five nights per fortnight during school terms and for half of school holidays – Father and children to reside with the paternal grandmother for a period of two years

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CG(1)(b), 61B, 61DA, 62B, 64B, 65AA, 65DAC, 65DAA, 65DAE, 65DA(2), 65D, 67Z
Family Law Rules 2004 (Cth) rr 2.04B, 2.04D

Goode & Goode (2006) FLC 93-286
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Mr Harvey

RESPONDENT:

Ms Maloney

INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW

FILE NUMBER:

NCC

984

2009

DATE DELIVERED:

21 October 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

21- 24 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fraser

SOLICITOR FOR THE APPLICANT:

Mr Haricharan, Hunter Family Law Centre Pty Limited

COUNSEL FOR THE RESPONDENT:

Ms Cotter-Moroz

SOLICITOR FOR THE RESPONDENT:

Mr Coyle, The Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW

Orders

All former parenting orders relating to the children T, born on … June 2003, and M, born on … July 2005, (“the children”) are discharged.
The mother and father shall have equal shared parental responsibility for the children.
The children shall live with the father.
For a period of 2 years from the date of these orders the father shall ensure that he and the children live with the paternal grandmother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows, or as otherwise agreed:
5.1During New South Wales public school terms, each alternate week from after school on Wednesday until the commencement of school on the following Monday, or Tuesday if Monday is not a school day, commencing on the second Wednesday of each term.
5.2During New South Wales public school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
5.3During the New South Wales Christmas public school holidays, in alternating weeks, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Order 5 is suspended during the following periods:
6.1From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
6.2Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
For the purposes of implementation of Order 5, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day halfway between those first and last days.
For the purposes of implementing Order 5.1, the mother shall cause the collection of the children from, and the delivery of the children to, school at the commencement and conclusion of the time that the children spend with her.
For the purpose of implementing Orders 5.2, 5.3, and 6:
9.1The father shall cause the delivery and the mother shall cause the collection of the children at the commencement of the time to be spent with the mother outside the post office at K, NSW, and
9.2The mother shall cause the delivery and the father shall cause the collection of the children at the conclusion of the time spent with the mother at the same place.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:
10.1The mother each Friday when the children are living with the father, between 5.30pm and 6.00pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s call on that number at that time.
10.2The father each Friday when the children are spending time with the mother, between 5.30pm and 6.00pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother, and the mother shall ensure that the children are able to receive the father’s call on that number at that time.
10.3The parent with whom they are not then staying, on the children’s birthdays, between 5.30pm and 6.00pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s call on that number at that time.
Each party is restrained from consuming illicit drugs during any period in which the children live or spend time with them, and also during the period of 12 hours immediately preceding such time.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
Each party shall ensure the children’s attendance at all educational, sporting, cultural, and extra-curricular events in which the children are enrolled or in which the children are due to participate.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
By consent, the father shall pay the costs of the Independent Children’s Lawyer in the agreed sum of $1,900, inclusive of GST, within 3 months of the date of these orders.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 984 of 2009

MR HARVEY

Applicant

And

MS MALONEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The applicant father and respondent mother are in dispute about the parenting orders that should be made in respect of their two children, T, born in June 2003, and M, born in July 2005, (“the children”). The children are now aged 7 and 5 years respectively.
The nature of the relationship between the parties regularly fluctuated between harmonious and poisonous, both before and after their final separation. Commendably, they were in no need of parenting orders to regiment arrangements for the children until early 2009 when two events coincided.
Firstly, there was friction between the parties about residential arrangements for the children over the period between late December 2008 and January 2009. The father considered that the mother had abandoned responsibility for the children to him, which induced him to tell the mother that he intended applying to the Court for shared care parenting orders. Conversely, the mother maintains that the father was withholding the children from her and she recovered the children from the paternal grandmother in the absence of the father in late January 2009.
Secondly, in early February 2009, some weeks after the mother’s recovery of the children, the youngest child made a statement which caused the mother to believe that the father had sexually molested that child.
By reason of the absence of any parenting orders, and the disclosure made by the youngest child, the mother terminated the consensual and flexible arrangements that had existed until then for the children to spend time with the father. That in turn led the father to institute these proceedings in April 2009.
Although the allegation of sexual molestation was a catalyst for the dispute, the issue was abandoned by the mother at trial. Despite contradictory evidence from the mother, her counsel informed the Court during the trial that the mother did not assert that the father had sexually molested the youngest child, and further, did not contend that the children were at an unacceptable risk of sexual abuse in the care of the father.
Consequently, the issues that dominated the trial were the father’s concerns about the mother’s capacity to properly care for the children, and the mother’s concerns about the adverse emotional repercussions for the children if the parenting arrangements were reversed so that the children lived primarily with the father.
There was no serious debate about parental responsibility for the children being allocated on an equal shared basis to the parties. The principal dispute centred on the children’s residential arrangements. Each party proposed the children live predominantly with him or her, and spend time with the other party on alternate weekends and in school holiday periods, although the proposals of each party remained fluid even during final submissions.

Proposal and evidence of the applicant father

The father began the trial pressing for the orders set out within his Amended Initiating Application filed on 28 July 2010, in support of which he was permitted to rely upon:
a)His affidavit filed on 26 August 2010.
b)The affidavit of Ms P filed on 26 August 2010.
c)The affidavit of the paternal grandmother filed on 22 April 2009.
By the time of final submissions, the father advocated for the allocation of equal shared parental responsibility and was prepared to countenance the children spending time with the mother for one additional overnight visit in the period between alternating weekends.

Proposal and evidence of the respondent mother

The mother was in egregious default of procedural orders made on 19 July 2010 regulating the preparation of the case for trial. She filed an Amended Response and a raft of affidavits only days before the trial, and only served those sealed documents upon the father and Independent Children’s Lawyer moments before the trial commenced.
With the consent of the father and Independent Children’s Lawyer, the mother was permitted to rely upon:
a)Her Amended Response filed on 17 September 2010.
b)Her first affidavit filed on 17 September 2010 (although she filed two affidavits on that date, the mother did not ultimately seek to rely upon the document described as the “second affidavit”).
c)The Form 4 Notice of Child Abuse or Family Violence filed by her on 27 April 2010.
d)The affidavit of Ms A filed on 17 September 2010.
The mother also sought leave to rely upon an affidavit of Ms L filed on 17 September 2010 and a handwritten, unsworn, unfiled statement of Mr W. In both instances leave was refused and ex tempore reasons were given for that refusal.
By the time of final submissions, the mother abandoned the orders proposed in her Amended Response filed only the week before trial. Instead she proposed the allocation of equal shared parental responsibility and that the children live for equal time in each household.

Proposal of the Independent Children’s Lawyer

Other than for the tender of some exhibits, the Independent Children’s Lawyer did not adduce any evidence, but rather relied upon the evidence of the single expert witness, Dr R. The single expert, who is a psychiatrist, prepared a report dated 10 July 2010, the contents of which were adopted when he was cross examined.
The Independent Children’s Lawyer did not tender any minute of proposed orders, but did begin the case by representing in a Case Outline document that he was generally supportive of the recommendations made by the single expert.
The ultimate proposal of the Independent Children’s Lawyer, made plain in final submissions, was that the children should live with the father, subject to them living together with the paternal grandmother for a defined period of time, and that the children should spend time each alternate weekend with the mother. The Independent Children’s Lawyer made no submission about the allocation of parental responsibility, but did not demur from the joint position of the parties that they should have equal shared parental responsibility.

Background

The parties agree that they commenced their relationship and cohabitation in 2001.[1]
[1] Father’s affidavit, par 3; Mother’s affidavit, par 2.1
The relationship subsisted for a period of years, but the duration of their cohabitation is contentious. The father alleges final separation occurred in October 2005,[2] but the mother asserts that final separation did not occur until late 2008.[3]
[2] Father’s affidavit, par 3
[3] Mother’s affidavit, pars 2.1, 3.18
Irrespective of when they actually ceased cohabiting, the parties played a substantial part in the lives of one another and the children up until 2008. Even after final separation, the mother concedes the father spent time at her home visiting with the children.[4]
[4] Mother’s affidavit, par 3.1
Regrettably, the relationship between the parties was punctuated by horrendous domestic violence, which was perpetrated by both of them. Neither party was seriously challenged about the allegations made by the other of past domestic violence and anti-social behaviour. In all probability their behaviour was due in large measure to their admitted unrestrained use of illicit drugs.
Although there is some degree of factual dispute, I accept that the mother caused herself physical harm,[5] damaged property,[6] and was occasionally violent towards the father.[7]
[5] Father’s affidavit, pars 8, 10, 12, 43-46; Mother’s affidavit, pars 3.20, 3.22, 3.24, 3.41, 3.42
[6] Father’s affidavit, pars 9, 17, 18, 21, 26, 29, 38, 39, 43, 61-63; Mother’s affidavit, pars 3.21,
[7] Father’s affidavit, pars 11, 19, 23, 33, 35; Mother’s affidavit, pars 3.23, 3.28, 3.34
Equally, despite some degree of factual dispute, I accept that the father was abusive towards the mother. The father admitted that to be so. The disparity in their evidence only goes to the severity and frequency of his brutality. The mother alleges that she suffered domestic violence at the hands of the father once or twice per week for the entirety of their relationship.[8] The father simply admits that it occurred on numerous occasions.
[8] Mother’s affidavit, pars 2.9, 2.10, 2.11
There was one particularly serious incident when the father severely beat the mother.[9] That occurred in November 2006.[10] The father was prosecuted and convicted of assaulting the mother, for which he was sentenced by way of a good behaviour bond.[11]
[9] Mother’s affidavit, pars 2.13-2.20
[10] Exhibit M1
[11] Exhibit M2
The mother said in cross examination that the incident precipitated a lengthy separation between them. Although they may not have lived together for a time afterwards, they still had regular interaction with one another.
During the separation, the father began a process of rehabilitation. He undertook drug and alcohol detoxification in a residential facility, started a course of counselling, and began regular attendance at Narcotics Anonymous.[12] He also completed a domestic abuse counselling program.[13] At least some of those rehabilitative measures were implemented pursuant to the supervisory conditions of the bond imposed upon him for the assault of the mother in November 2006. The NSW Department of Corrective Services noted that the father engaged well in those therapies.[14]
[12] Father’s affidavit, pars 108-110
[13] Father’s affidavit, par 28
[14] Exhibit M6
The parties resumed their sporadic relationship, although the evidence is unclear as to when.
In early 2008 the mother experienced difficulty in meeting her rent. The father assisted her with money for rent when she requested it of him.[15]
[15] Father’s affidavit, par 51; Mother’s affidavit, par 3.45
In April 2008 the mother was unable to secure rental accommodation. The father assisted the mother by jointly entering into a lease with her over a property which comprised two separate residences. The mother and children lived in one of the residences, and the father split his time living between the second residence and the home of the paternal grandmother,[16] but they still conducted themselves as a family unit.[17] The mother said in cross examination that the father would attend her home every day after work to assist her bathe and feed the children.
[16] Father’s affidavit, pars 5, 55-59
[17] Mother’s affidavit, par 3.52
Towards the end of 2008 the parties’ relationship had become so strained that the father ceased living at the same property. The father took care of the children for 3 weeks in October 2008.[18]
[18] Father’s affidavit, par 76; Mother’s affidavit, par 3.61
The mother’s life became increasingly chaotic around that time, which became evident in several ways. She had undesirable men staying at her home,[19] she requested the father to take care of the children as she was unable to do so due to her intoxication through illicit drug use,[20] and on occasions when the father was due to return the children to her she was not available to accept the children back.[21]
[19] Father’s affidavit, pars 78, 90, 156; Mother’s affidavit, pars 3.62, 3.68
[20] Father’s affidavit, pars 80-81; Mother’s affidavit, pars 3.64-3.65
[21] Father’s affidavit, pars 82-86
By Christmas 2008 the father alleges the mother needed him to take the children from her for a period of respite.[22] The mother does not concede any need for respite, but did agree to the children spending extended time with the father.[23] From Christmas Day 2008 until 21 January 2009 the children remained within the care of the father at the home of the paternal grandmother.[24]
[22] Father’s affidavit, pars 93-97; Mother’s affidavit, pars 3.71-3.75
[23] Mother’s affidavit, par 3.75
[24] Father’s affidavit, par 97; Mother’s affidavit, par 3.75

On 21 January 2009 the parties spoke by telephone. The father told the mother that he intended applying to the Court for parenting orders giving him a greater role in the care of the children. There is some dispute about how great a role the father proposed.[25] Regardless, later that day the mother attended the home of the paternal grandmother, knowingly in the absence of the father, and recovered the children.[26] From that time on, the mother refused to allow the children any interaction with the father.[27] In cross examination the mother said she did so because she did not wish to risk the children not being returned to her.
[25] Father’s affidavit, par 101; Mother’s affidavit, par 3.79
[26] Father’s affidavit, par 102; Mother’s affidavit, par 3.80
[27] Father’s affidavit, par 117; Mother’s affidavit, par 3.86
On 10 February 2009 the youngest child made comments to the mother that alarmed her and led her to believe the father had sexually abused that child. The mother immediately telephoned the father and left a voice message threatening him with physical harm.[28]
[28] Father’s affidavit, par 118; Mother’s affidavit, par 3.87
On 11 February 2009 the mother reported the child’s comments to police and the matter was referred to JIRT for investigation. The mother was interviewed by JIRT officers on 8 April 2009.[29] There is no evidence as to whether the child was interviewed. In any event, the investigation was not pursued. The father was not charged with any offence.[30]
[29] Exhibit ICL1
[30] Father’s affidavit, par 128
In light of the mother’s decision to obstruct interaction between the children and the father, the father commenced these proceedings by filing an Initiating Application on 22 April 2009.
The father was able to continue his interaction with the children by visiting them at school and pre-school on Friday afternoons, by arrangement with the teachers.
Interim parenting orders were made on 31 August 2009, providing relevantly as follows:
1.That the parties have equal shared parental responsibility for the children [T] born […] June 2003 and [M] born […] July 2005 live with the Applicant Father (sic).
2.That the children shall live with the parties as follows:
2.1With the father in two week cycles as follows:
2.1.1on Thursday from after school, or from 4:00 pm on a non-school day, until 4:00pm on Sunday in week one;
2.1.2on Monday from after school, or from 4:00 pm on a non-school day, until the commencement of school, or 4:00 pm if on a non-school day, on Thursday in week two;
2.2At all other times with the Mother; and
2.3At such other times with each of the parties as may be agreed upon by the parties.
6.That each of the Parties shall attend to obtain supervised drug screen urine analysis reports for illicit drugs within 48 hours upon request from the Independent Children’s Lawyer and serve such a copy to the Independent Children’s Lawyer and to the solicitors of the opposing parties.
7.That each of the parties, without admission, be restrained from consuming any illicit substance; or alcohol in excess while the children are in their care.
Despite the clear grammatical error in Order 1, both parties understood that Order 2 provided for the children to spend 3 nights each week with the father and 4 nights each week with the mother. The parties agree that Order 2 has been faithfully implemented over the last year. By consensual arrangement, the children spent more time with the father over Christmas 2009 than the orders provide.[31]
[31] Father’s affidavit, par 149
However, by her own admission, the mother has regularly contravened Orders 6 and 7. The mother admits her continued use of cannabis, even at times in the past whilst caring for the children, and also her repeated failure to comply with requests made of her by the Independent Children’s Lawyer to submit to urinalysis.
The parties are each now in new relationships. The father formed a relationship with Ms P about 16 months ago[32] and the mother formed a relationship with Mr W about 9 months ago. Although neither party cohabits with their new partner, they each contemplate that possibility in the future.
[32] Affidavit of Ms P, par 11
For the time being, the father continues to live with the paternal grandmother at K, and the mother continues to live alone in rental accommodation nearby. The children both attend school at the local Public School.

Summary of parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s.60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 42 Fam LR 531.

Best interests of the children – primary considerations

Section 60CC(2)(a)

It is common ground that the children love both parents and are securely attached to them. The single expert formed a consistent opinion from his discussions with and observations of the children.[33] The children have relationships with both parents that are important, significant, and valuable to them. That is the measure of a meaningful relationship (see McCall v Clark (2009) 41 Fam LR 483 at 507-510).
[33] Single expert report, pages 14, 15.9, 16.9, 18.4
It is also common ground that those relationships should be permitted to flourish because the children will benefit from it.

Section 60CC(2)(b)

There are pervasive allegations of family violence and a single allegation of child sexual abuse in this case which need to be considered carefully.
Notwithstanding the serious nature of the allegations, the parties failed to comply with the requirements of the Act (s 67Z) and Family Law Rules (Rules 2.04B, 2.04D) crafted for such allegations. In the absence of either party filing a Form 4 Notice of Child Abuse or Family Violence the matter languished. When the matter was allocated its first hearing day pursuant to Chapter 16 of the Rules, the parties’ parenting proposals were aired. The allegation of child sexual abuse was raised and the mother was ordered to file a Form 4 Notice without delay.[34] The matter was then given expeditious consideration as the Act requires (s 60K). Neither party filed a Form 4 Notice alleging family violence.
[34] Order 5 made on 30 March 2010
It is convenient to deal firstly with the allegations of family violence and secondly with the allegation of the father’s sexual abuse of the youngest child.
The mother’s allegations of family violence against the father are most disturbing. Her counsel described the allegations as the central plank in her case about why the children should live for not less than equal time with the mother.
The incident which occurred between the parties in November 2006 when the father savagely assaulted the mother was disgraceful. According to the police facts tendered at the father’s sentence hearing following his conviction for the assault,[35] which facts he admitted, the father yelled profane language at the mother, pushed her to the ground, and punched her repeatedly on the face, all in the presence of the children. The incident ended when the father deliberately drove his car into the mother’s parked car, causing damage to it. The mother suffered injuries in the assault. The police observed swelling and redness to her jaw, redness on her neck, and a bleeding scratch on her leg.
[35] Exhibit M1
The version of that incident offered by the mother in cross examination differed in some respects from the police facts, which is perplexing given that the police facts were most probably compiled from the mother’s contemporaneous version of the incident. In cross examination the mother asserted that:
a)The father dragged her from the house to a point between their two cars; whereas the police facts record that she walked outside the house to retrieve some child car seats and placed herself in that position.
b)The father drove his car into her car at a speed of 160 kph causing serious damage to her car; whereas the police facts record that, while the force of the impact between the two cars moved the mother’s car forward, it caused only a large dent to the rear of the mother’s car. The father was able to drive away in his own car.
I conclude that the mother exaggerated her evidence about the incident to some degree.
The mother asserts that the father “became less violent for a while” after that incident occurred.[36] Thereafter, the mother describes no other discrete incident of violence, but makes the generalised allegation that the father “continued to hit and punch” her if she was in her home alone.[37] Due to the lack of specificity, that is an allegation the father is unable to meet other than with a blanket admission or denial. Neither party was cross examined about any violent incident between them after the incident in November 2006.
[36] Mother’s affidavit, par 2.21
[37] Mother’s affidavit, pars 3.2, 3.68
The mother’s witness, Ms A, gives evidence of an incident in June 2007 where the father grabbed and pushed the mother,[38] about which she was not challenged. Apart from that incident, the parties have not adduced independent oral or documentary evidence of any other episodes of violence between them after November 2006. The mother definitively asserts that there has been no domestic violence between the parties to which the children have been exposed since their separation.[39]
[38] Affidavit of Ms A, par 9
[39] Mother’s affidavit, par 4.13.2
Although I am left with the impression that the mother exaggerated her allegations of violence against the father, I am also left with the impression that the father minimised the severity of his violent conduct towards the mother. Nevertheless, the father’s admissions about the nature of his past conduct are still damning.
However, the evidence permits a strong inference that the father now accepts the disgrace of his conduct and has set about redemption. He embarked upon a series of rehabilitative measures, including drug and alcohol detoxification and counselling during November and December 2006,[40] attendance at Narcotics Anonymous,[41] and domestic abuse counselling in 2007.[42] As already noted, the NSW Department of Corrective Services supervised the father’s good behaviour bond and found that he responded positively to those programs.[43] The father also apologised to the mother for his violent conduct when he participated in counselling with her in October 2008,[44] which is indicative of at least some level of remorse. He expressed his shame about the violence to the single expert.[45] The evidence and demeanour of the father during the course of the trial also indicated genuine contrition about his past behaviour.
[40] Father’s affidavit, pars 108-109; Exhibit M3; Exhibit M4; Exhibit M5
[41] Father’s affidavit, par 110
[42] Father’s affidavit, par 28
[43] Exhibit M6
[44] Mother’s affidavit, par 3.7
[45] Single expert report, page 10.4
Although certainly not a justification for it, the father’s shameful conduct is at least partly explained by his past addiction to or dependence upon illicit drugs. The NSW Department of Corrective Services monitored the father with urinalysis testing during the period of his good behaviour bond in 2007 and 2008 and found that he was abstinent from illicit drugs as at April 2008.[46] Drug testing orders were made by this Court on 31 August 2009,[47] and the father was both compliant with the testing regime imposed by the Independent Children’s Lawyer and remained abstinent from illicit drugs. Positive results for the father in December 2009 and May 2010 were apparently adequately explained by the prescriptive medication he was receiving for a work injury.[48] Those results are consistent with the father’s assertion that his is now free of drugs.[49]
[46] Exhibit M6
[47] Order 6
[48] Father’s affidavit, par 168
[49] Father’s affidavit, par 111
There has however been a blemish upon the father’s improvement over recent years. In August 2010 the father was convicted of assaulting his current partner, Ms P, in January 2010.[50] The father denied the charge and an appeal is pending against both the conviction and sentence. Nevertheless, the conviction presently exists. The father and his partner both gave evidence about the incident in this trial. I accept the mother’s submission that both witnesses minimised the incident.
[50] Exhibit M2
Apart from the formal record of the conviction, the only evidence before the Court about the circumstances of the incident is that given by the father[51] and Ms P. Peeling away the peripheral detail, the extent of the assault appears to be that the father pushed Ms P to the ground during a heated argument as they departed a party when both were heavily intoxicated by alcohol. Ms P suffered no injury. The father attributes his intoxication not only to alcohol consumption but also to his inadvertent ingestion of an illicit drug by drinking a spiked drink not intended for him. Corroborative evidence to that effect was given by a witness during the father’s prosecution, but not in the trial before this Court.
[51] Father’s affidavit, par 167
It is really unnecessary to determine whether the father is truthful, dishonest, or mistaken about the circumstances of his alleged drug-induced intoxication on that occasion. Quite simply, given his history of drug and alcohol misuse, he should not have allowed himself to be in such a precariously exposed position to intoxication by any means. The father told the single expert that the incident shocked him,[52] and the single expert said in evidence that he believed the father was genuinely remorseful for that incident.
[52] Single expert report, page 10.6
The father’s commission of that offence of violence upon his present partner in January 2010 permits the mother to rationally submit that the father remains prone to commit acts of domestic violence, and that the children therefore remain exposed to the risk of emotional harm by reason of them witnessing the father behave in that way. While that submission is superficially attractive, on balance, I am persuaded otherwise. The circumstances of the father’s patent advancement with rehabilitation since 2007 are not completely spoiled by a single, less serious incident in January 2010. Caution is certainly warranted though.
The mother also exhorted the Court’s reliance upon evidence of reports by the children to the mother about argumentative behaviour between the father and Ms P.[53] It was asserted that such evidence proved a level of aggression in the relationship between the father and Ms P, which constituted a danger for the children. I do not repose much weight in that evidence for a number of reasons. Because of the mother’s tendency to exaggerate I treat it cautiously, even though the evidence was unchallenged. The father was unable to admit or deny conversations to which he was not privy. The children are still too young to take for granted that their comments are always factually accurate, particularly when the children are clearly anxious about conflict between the parties. The mother cautioned the Court about attributing weight to comments made by the children to the paternal grandmother about them wishing to live with the father, because of their immaturity, so consistency requires that the Court not attribute much weight to other partial statements made by the children to the mother.
[53] Mother’s affidavit, pars 3.11-3.12
On any view of it, the mother has had a troubled history. Before her relationship with the father she endured two abusive relationships with boyfriends,[54] and after her relationship with the father she suffered an abusive lesbian relationship. Her female partner was prosecuted for an assault upon the mother, shortly following their separation.[55] The mother said that occurred in May 2009.
[54] Single expert report, page 7.6
[55] Single expert report, page 6.8
The mother has also acted violently herself on occasions. Leaving to one side the many uncorroborated allegations of violence made by the father against the mother, the mother makes some admissions about her past aggressive conduct. She was involved in fights in 2001, which caused her to seek medical treatment at hospital.[56] She also fought another woman in a hotel in 2007, which led to her prosecution and conviction for assault.[57] She has also been convicted of maliciously damaging the father’s property.[58] On another occasion, police attended upon her in response to a threat of suicide.[59] In cross examination the mother admitted that there was an occasion as recently as this year when the police were called upon to attend her home in relation to an incident of aggression between herself and some other women.
[56] Single expert report, page 4.1
[57] Father’s affidavit, par 42; Mother’s affidavit, par 3.39; Single expert report, page 4.5
[58] Father’s affidavit, pars 17-18; Mother’s affidavit, par 3.25
[59] Father’s affidavit, pars 43-45; Mother’s affidavit, pars 3.40-3.41
Although the mother is presently in a relationship with a man who she asserts is not violent towards her, the mother’s history suggests there is a risk that violent conduct could remain an aspect of her life. She has a propensity to react violently in circumstances of stress, and many other people with whom she has chosen to associate have been violent towards her.

There is a risk that the children will continue to be exposed to violent conduct by both parties, but more particularly the father. That would undoubtedly cause the children psychological harm were it to occur, but I am not satisfied the risk is unacceptably high. The parties are on notice about their appalling past behaviour and the harm that can cause the children, who are now mature enough to appreciate the conflict between the parties. The single expert said that the children’s immaturity has, to some extent, inured them from greater psychological harm before this. The manner in which the parenting proposals of the parties continued to evolve, and the way in which they each gave their evidence, convinced me they are both alive to the risk they each pose to the children if they do not continue to improve their behaviour.
I do not consider that the orders now made expose the mother to an unacceptable risk of family violence (s 60CG(1)(b)).
I turn now to the allegation of child sexual assault, the state of the evidence about which is highly unsatisfactory.
The circumstances of the youngest child’s disclosure are set out within the Notice of Child Abuse or Family Violence filed by the mother on 27 April 2010. The incident is not directly mentioned by the mother at all in her affidavit. She simply admits that she threatened the father with violence following the revelation.[60] Consequently, the only direct evidence about the issue is that contained within the mother’s Form 4 Notice filed in April 2010, well over a year after the child’s disclosure in February 2009. Although the Form 4 Notice records that the mother and child met with JIRT officers, there is no evidence at all about whether the child was interviewed, and if so, what was said by the child in that interview. With one exception, unrelated to this issue,[61] the JIRT records were not tendered in evidence. All that can be said with certainty is that the JIRT officers did not regard the report as worthy of further investigation or prosecution.[62]
[60] Mother’s affidavit, par 3.87
[61] Exhibit ICL1
[62] Father’s affidavit, par 128; Form 4 Part E.13
The mother asserts in the Form 4 Notice that the incident occurred in “approximately mid January 2010”. She was wrong. It was ultimately conceded by the mother that the disclosure was made by the child on 10 February 2009, which caused the mother to leave a threatening telephone message for the father that evening. The mother reported the matter to the police on 11 February 2009 and discussed the matter with JIRT officers on 8 April 2009.
The mother reports that the child complained to her of a sore “bum” whilst on the toilet. The mother inquired whether any person had touched her bottom and the child allegedly reported that the father had stuck his finger “in” her bottom.[63]
[63] Form 4 Notice of Child Abuse or Family Violence
The mother discerned the child’s report to mean that her anus had been penetrated by the father’s finger. Suffice it to say that, after such a delay and without contemporaneous records, it is difficult to know whether the child correctly reported anal penetration, or whether the mother correctly understood the complaint as one of penetration.
The father said in evidence that there were two occasions in the period between December 2008 and 21 January 2009, whilst the children were staying with him, that the youngest child complained to him that he had hurt her bottom while wiping it clean following her defecation. He said much the same thing to the single expert.[64] The father could not know, but postulates that as the reason why the child may have later complained to the mother of a sore “bum” and associated that soreness with the father touching it. He was not challenged in cross examination that he deliberately or accidentally penetrated the youngest child’s anus with his finger. Presumably that is because the mother’s counsel had instructions to abandon the issue as irrelevant. Although not called upon to deny the allegation, it is implicit that the father denies any aberrant behaviour of that sort.
[64] Single expert report, pages 12.9, 19.1
When the children consulted with the single expert they made no mention of the youngest child’s sore bottom or its cause. However, they did mention the father rubbing the youngest child’s “flossy”.[65] The parties agreed that “flossy” was the word used by the children to describe a vulva. Neither party asserted that disclosure was in any way abnormal, presumably because it is capable of innocuous explanation, such as the child having cream or ointment applied to dry or reddened skin around her groin and genitals.
[65] Single expert report, pages 8, 19
The single expert concluded that the sexual assault allegation was groundless.[66] Having regard to the evidence elicited at trial, there is no basis for a conclusion that either child is at risk of sexual abuse in the care of the father.
[66] Single expert report, page 19
Despite the countervailing allegations of abuse and family violence, neither party submitted that the circumstances gave rise to such a level of risk that supervision of the children with the other party was a necessary precaution. Each party proposed that the children spend unsupervised time of varying but still substantial duration with the other party. The allegations were only employed by the parties to influence the determination about with whom the children should primarily live. Logically, that means the parties trust one another to properly care for the children for periods of reasonable duration. If that is so then the criticisms levelled by one against the other largely fall away. It is inconsistent to assert that a parent has impaired parental capacity but then propose the children live with that parent for significant periods of time.

Best interests of the children – additional considerations

Section 60CC(3)(a)

The single expert found that the children were not able to express any clear views about their wishes, other than that they wanted their parents to reconcile. The conflict between the parties caused the children to be erratic and anxious.[67]
[67] Single expert report, pages 8, 18.3
I do not attribute any weight to the statements made by the children to the paternal grandmother well over a year ago to the effect that they wished to stay with the father and/or paternal grandmother.[68] The children were then and still are still too young and immature to express any view that would carry any weight in the outcome of these proceedings.
[68] Paternal grandmother’s affidavit, pars 9-10

Section 60CC(3)(b)

The parties agree the children enjoy their relationships with the paternal grandmother and the father’s partner, Ms P.
There is no evidence about the quality of the relationship between the children and the mother’s partner, Mr W.

Section 60CC(3)(c)

The single expert expressed the opinion that both the father and paternal grandmother would promote the relationship between the children and the mother,[69] but was much more circumspect about the mother’s willingness and ability to support the relationship between the children and the father.[70] I accept that evidence. Although the mother made submissions to the contrary, she did not really challenge the single expert about the validity of his opinion on that issue.
[69] Single expert report, pages 19.9, 20.1
[70] Single expert report, page 20.2
The past history demonstrates the father’s willingness and ability to promote the children’s relationship with the mother. He continued to assist the mother to parent the children in her home once the parties finally separated. He responded to the mother’s various requests to take the children from her for varying periods of time. He has complied with the interim parenting orders made in August 2009. Even while seeking that the children live primarily with him, he has always advocated that the children should spend substantial time with the mother. Although the father and paternal grandmother may have been resistant to the idea of the children returning to the mother in January 2009, they did not create a scene and disturb the children when the mother exerted her wish to recover the children.
The mother has not been so accommodating. Once she recovered the children in January 2009 she refused to allow the children any interaction with the father for many months. The mother obviously thought she had good reason to take that course, but her decision clearly held adverse consequences for the children about which she had little regard. She asserted in cross examination she took that decision because she was worried the father may not return the children to her again. Other than for the father arranging interaction with the children through their school and pre-school, the children would have been deprived of all interaction with the father for many months. It was only the making of interim parenting orders in August 2009 that permitted resumption of their ordinary interaction with the father.
There is another worrying aspect to the mother’s attitude. Despite abandoning the allegation of child sexual assault against the father, the mother gave evidence that she believes what she was told by the youngest child in February 2009. The mother continues to believe the father deliberately penetrated the youngest child’s anus with his finger. She disavowed that such an incident could occur accidently, and she is resistant to any idea that the child was mistaken, or that she mistook what the child reported. The mother said she decided to abandon the allegation as an issue in these proceedings when she read the single expert’s report, the contents of which led her to believe that if she continued to pursue the issue it could result in her loss of the children.
The only rational conclusion that can be drawn from the mother’s evidence is that she harbours an honest belief that the father sexually molested the youngest child on an isolated occasion in the period between 25 December 2008 and 21 January 2009. The implications of that conclusion are obvious. The mother will face inordinate difficulty facilitating and encouraging close and continuing relationships between the children and the father when she honestly believes they are at risk of sexual abuse by him. The mother’s adherence to the interim orders over the last 12 months may be due to her perceived need to be compliant during the litigation rather than to an honest willingness to recognise the need for promotion of the children’s relationships with the father.
For reasons which were unsatisfactorily explained by the mother in cross examination, she now belatedly asserts that the father may not be the biological father of the youngest child.[71] The mother said she discussed that evidence with a paralegal in her solicitor’s office before she included that evidence in her affidavit. It was therefore a considered decision to raise it as an issue. Paternity of the child has not been investigated so it is impossible to know whether the mother’s doubts about the father’s paternity are justified. However, what is beyond doubt is that the mother’s decision to raise the issue in the litigation indicates indecision on her part about promoting the relationship between that child and the father, who the mother believes may not be the child’s biological father.
[71] Mother’s affidavit, pars 3.13-3.17
Although the mother asserts her willingness and ability to promote the children’s relationships with the father,[72] I am not entirely convinced. As with the single expert, I do not conclude that the mother will set out to destroy or curtail the children’s relationships with the father, but I am not satisfied she will promote those relationships with the same degree of commitment as the father will likely promote the children’s relationships with the mother.
[72] Mother’s affidavit, par 4.6.1

Section 60CC(3)(d)

The mother submitted that any substantial change to the parenting regime constituted by the existing interim orders would deleteriously affect the children. She was able to derive some support for that submission from concessions she gleaned from the single expert in his cross examination, who had earlier reported that the mother was the “major parent figure” for the children,[73] and from the father who conceded that she was the primary carer for the children.
[73] Single expert report, page 15.9
Under current arrangements, the children spend 3 nights each week with the father and 4 nights each week with the mother. The initial recommendation of the single expert was that the children should live predominantly with the father and spend alternate weekends with the mother, which would amount to 3 nights per fortnight with the mother. The corollary would be that the children would move from the current regime of separation from the mother for 3 nights at a time to a new regime where they are separated from the mother for 11 nights at a time. The single expert conceded that such a change was significant and should perhaps be ameliorated to some extent.
The single expert was not moved from his opinion that the children should live predominantly with the father. He held the opinion that the children would be able to cope with a reversal of current residential arrangements.
The father also conceded in cross examination that his parenting proposal represented a structural change which might cause the children some emotional disturbance. He envisaged that he and the paternal grandmother would adequately assist the children to cope and that, to the extent needed, he would involve the mother to assist in the transition.
The children have spent most of their lives living primarily with the mother and, given their young ages, I do expect that they will experience some distress about being separated from the mother for longer periods. However, the orders do moderate the proposals of the father and Independent Children’s Lawyer, and find mid ground between their proposals and that of the mother for equal time. I am satisfied the children will adapt satisfactorily to the arrangement under the orders now made.

Section 60CC(3)(e)

The father lives with the paternal grandmother at K. The mother lives nearby in Z. The two townships are adjacent.
The parties and Independent Children’s Lawyer agree there is no practical difficulty or expense involved in implementing the parenting proposal of any of them.

Section 60CC(3)(f)

There was no issue in the case about the parties’ respective ability to provide for the intellectual needs of the children. They both can.
The principal issue in the case was the capacity of each of the parties to provide for the emotional needs of the children.
The mother asserted that the father’s capacity in that regard was severely impaired by his propensity to commit domestic violence upon his partners, which would be seriously emotionally damaging to the children should they be exposed to it. There is no doubt that the children would be damaged by exposure to conduct of that kind. However, for reasons already addressed, the mother also presents a risk of that kind, and neither party represents an unacceptably high risk of that sort. Their respective insight into that risk and their commitment to improve their parenting performance abates the risk.
The evidence of the single expert, which I accept, is that the father has made significantly more progress than the mother in improving his parenting capacity over the last couple of years. While the mother recognises the need for her improvement and asserts her intention to improve, she is yet to demonstrate the improvement. It was only in the last few months that the mother sought out counselling, and although the mother said she would like to see a “psych” she is yet to do so. The mother is also awaiting entry into drug and alcohol counselling, which she must now realise she needs after telling officers of the NSW Department of Human Services in April 2009 that she was not interested in such rehabilitation.[74]
[74] Exhibit ICL1
By comparison, the father is reliant upon his deeds rather than his words. The various rehabilitative steps taken by the father have already been mentioned in these reasons.
The mother also contended that the father’s excessive use of drugs impeded his capacity to properly provide for the children’s needs.[75] I do not accept that proposition. For reasons already explained, the evidence warrants a finding that the father has probably been abstinent from illicit drugs since some time in 2007.
[75] Mother’s affidavit, par 4.9.2
Although the mother adduced evidence from her friend Ms A about her witnessing known drug dealers attending the father’s home on frequent occasions,[76] that evidence ultimately carried no probative weight. Ms A admitted that her observations were made several years ago when the parties were still living together and she did not know whether the drug dealers were at the parties’ home to supply drugs to the father, mother, or both of them.
[76] Affidavit of Ms A, par 12
Otherwise, the mother had no concerns about the standard of the father’s care of the children. She generously volunteered that he was a “good dad”.
While the father has shown marked improvement, the mother’s life is still blighted by difficulty. The single expert professed “major concerns” about her present parenting capacity.[77] Her problems are multiple. She is struggling with both her mental health and her dependence upon cannabis without family support.
[77] Single expert report, pages 15.9, 16.8
The mother has suffered from deteriorated mental health, for which she has been medicated, over a number of years.[78] It causes her to be occasionally unstable.[79] The single expert said that her emotional health would not be assisted by her long-standing dependence upon cannabis. She has used cannabis for many years,[80] and still does, even though she is trying to cut back. The fact that she is unable to voluntarily stop her use immediately is an indication of the level of her dependence.
[78] Single expert report, pages 3.9, 4.3, 6.3, 6.4
[79] Single expert report, pages 7.1, 7.3
[80] Single expert report, page 6.5
In a candid and unguarded moment of cross examination the mother confessed her regret about the sub-standard parenting she and the father had offered the children in the past. The regrets which she specifically mentioned at that moment were the father’s violence, her depression, and the illicit drug use by both of them. That evidence emphasised the tribulations in the mother’s life.
Managing two young children must be hard enough for the mother with the burden of unstable mood and drug dependence, but her lack of family support only serves to compound the problem. Although the mother told the single expert that she does have family support,[81] that is not the reality. She does not have much contact with, or regard for, her older step-sister,[82] and her adolescent step-brothers are too young to offer her support.[83] She has a poor relationship with both of her parents.[84] That was graphically demonstrated by the mother’s description in cross examination of a recent heated argument in which she engaged with the maternal grandmother that has ended communication between them. That argument occurred in the presence of the children and, by reason of the mother’s description, must have been highly distressing for all concerned. No member of the mother’s family was called as a witness in her case.
[81] Single expert report, page 6.3
[82] Single expert report, page 5.5, 5.7
[83] Single expert report, page 5.4
[84] Single expert report, page 6.1
There is another aspect of the evidence that exemplifies the mother’s struggle to maintain her parenting. The children have had substantial absences from school. In the first half of the 2010 academic year the children were either late for school or absent altogether on dozens of occasions.[85] Although the mother asserted that the absences were for legitimate sickness,[86] I do not accept her evidence on that issue. Curiously, apart from blithely asserting that the children’s school absences were legitimate, the mother made no attempt to elaborate her evidence by explaining the individual absences which were verified by the school records produced by the father. Most probably that is because the absences are incapable of exculpatory explanation.
[85] Father’s affidavit, par 163, Annexure D
[86] Mother’s affidavit, par 3.85

To her credit, the mother admitted to the single expert that she is struggling to cope.[87] She said in evidence that what she told the single expert was truthful. The single expert summarised his opinion of the mother’s difficulties, concluding that she has a borderline personality disorder, which caused her enough difficulty managing herself without the added burden of caring for young children.[88]
[87] Single expert report, pages 14.6, 16.1
[88] Single expert report, page 16
I conclude that the father, with the aid of the paternal grandmother, is better placed to provide for the emotional needs of the children.
The father also complained about the mother’s capacity to care for the children’s physical needs, but I am not satisfied that the evidence bears out his concerns. I accept the submissions of the mother’s counsel that there is no proper evidential basis to find that the mother does not attend to the children’s nutrition and medical care.

Section 60CC(3)(g)

The mother’s continuing dependence on cannabis is an aspect of her lifestyle that seriously affects her parenting capacity.
The mother has used cannabis frequently, including daily for some years, since she was adolescent.[89] That is a period of use that exceeds 12 years. Although her use has abated in recent times, she still smokes the drug regularly. She admitted to last smoking cannabis only days before the trial. She has often smoked cannabis when she has had the care of the children in the past, although she asserts that she now confines her use to occasions when the children are with the father. I have reservations about accepting that evidence. If she is unable to cease her use of the drug immediately it is probable that her dependence leads her to use the drug even at times when she knows that she should not.
[89] Single expert report, page 6.5; Mother’s affidavit, par 2.8
There is no doubt the mother is unable to resist her dependence. Although she may be able to reduce her use, she cannot terminate it. The mother admits that she has consistently contravened the interim orders made in August 2009 requiring her to submit to urinalysis. She has failed to submit to urinalysis on numerous occasions at the direction of the Independent Children’s Lawyer since August 2009. On the occasions that she has submitted to urinalysis she has returned positive results for THC, the active intoxicant of cannabis. Her test results showed decreasing THC levels in late 2009, but despite her apparent involvement in a detoxification program in late 2009,[90] there was an upward trend in the mother’s THC levels in early 2010.[91] More recently, there has been a downward trend.[92]
[90] Father’s affidavit, par 134
[91] Exhibit ICL2
[92] Exhibit M7
It was very bold of the mother to assert in her affidavit that there was no use of drugs in her household.[93] Her statement is simply false, or intended to literally mean that her drug use is confined to her shed rather than her house. She said in cross examination that she had in the past smoked cannabis in her shed when the children were in bed inside the house.
[93] Mother’s affidavit, par 4.12.2
Suffice it to say, the mother’s heavy use of cannabis is anathema to her provision of proper care to and supervision of the children. It involves her in criminal activity, compromises her as a role model to the children, and her intoxication must impair her judgment and physical dexterity. The fact that the mother argued the issue in cross examination, asserting that she is better using cannabis than alcohol, only served to underscore her lack of judgment and emphasise her disinclination to abandon her use of the drug once the litigation is finalised.

Section 60CC(3)(h)

Neither the parties nor the children identify as Indigenous Australian.

Section 60CC(3)(i)

I am satisfied that the parties are devoted to the children and wish them to be happy and healthy. To that extent the parties have a proper attitude to the children.
For reasons already explained, the parties do not have an optimal attitude to the responsibilities of parenthood. That concern arises principally from the domestic violence they have each committed, albeit the father more seriously, and their illicit drug use, which remains a problem for the mother.
There is very little evidence about the father’s payment of child support. The single expert noted that the father paid $100 cash per week to the mother for child support, [94] but the father asserts paying $500 per month in child support to the Child Support Agency.[95] Neither the single expert nor the father was cross examined about that evidence. I impute that the father is paying the amount of child support commensurate with his financial capacity.
[94] Single expert report, page 11.9
[95] Father’s affidavit, par 171
The father attended a parenting seminar in 2009.[96] In addition to the other rehabilitative measures implemented by the father, that demonstrates an improvement in his attitude to his parenting responsibilities.
[96] Father’s affidavit, par 120

Section 60CC(3)(j)

The issue of family violence has been comprehensively addressed under s 60CC(2)(b) of the Act. There is nothing to add.

Section 60CC(3)(k)

There is no family violence order currently in existence affecting the children or any member of the children’s family.
Family violence orders have existed in the past, but there is little evidence about them and no evidence about when they expired.[97]
[97] Father’s affidavit, pars 36, 72, 107, 121

Section 60CC(3)(l)

By the conclusion of the trial the dispute was relatively narrow. The father proposed the children live with him and spend up to 4 nights per fortnight and half of school holidays with the mother, whereas the mother proposed the children live for equal time in each household.
Making orders that require the children to live or spend time with the mother for between 4 and 7 nights per fortnight, which represents an outcome between the parties’ proposals, is no more or less likely to lead to the institution of further proceedings in relation to the children.

Section 60CC(3)(m)

There were no other circumstances addressed by the parties or Independent Children’s Lawyer as relevant to the outcome of the proceedings.

Parental responsibility

By the conclusion of the trial it was agreed that it was in the best interests of the children for equal shared parental responsibility to be allocated to the parties. The Independent Children’s Lawyer did not disagree with the parties.
In some respects that was a curious position for the mother to adopt, because she spent the entire case stressing the importance of the father’s gross domestic violence as the principal issue in the case. Given the findings of family violence, consistent with the mother’s submissions, the presumption of equal shared parental responsibility does not apply (s 61DA(2)). Nevertheless, the mother contended that the best interests of the children dictated that the parties should still be allocated equal shared parental responsibility even in the absence of the presumption.
The parties’ communication has certainly been compromised from time to time because of their impetuosity and intermittent conflict. But at other times they have been able to parent the children co-operatively. As an example, they discussed and reached agreement about the eldest child repeating Year 1 at school. The father said in cross examination that he considered it was important for the parties to consult over major long-term issues affecting the lives of the children.
The demeanour of each party, both when giving evidence and when listening to the other give evidence, clearly demonstrated that they retain some empathy and goodwill for one another, despite the tempestuous nature of their relationship. The trial proved to be a cathartic process for them. I am satisfied they each understand the importance to the children of them being able to deal with one another civilly and courteously. The children have been developing normally and the only threat to their stability is their anxiety,[98] which the single expert attributed to their exposure to conflict between the parties.
[98] Single expert report, page 18
With the modicum of insight now demonstrated by the parties, and their mutual request for the allocation of equal shared parental responsibility, I am persuaded that such an outcome is in the best interests of the children.

Living arrangements

Given the allocation of equal shared parental responsibility to the parents, the Court is obliged to give consideration to an equal time living arrangement for the children (s 65DAA). That was the outcome for which the mother ultimately submitted. It is the outcome which should result if it is both practicable and in the best interests of the children.
There can be no argument that such an outcome would be practicable. The proximity of the parties’ residences and the children’s school means that the children can easily be moved between those venues.
However, I am not satisfied that an equal time living arrangement is in the best interests of the children. I accept the single expert’s opinion that the children should live primarily with one party and spend regular time with the other.
The balance is tipped against an equal time outcome by the evidence about the mother’s continuing instability, even though that consideration is offset to some degree by concern about the children suffering distress about any radical change to their existing living arrangements. The single expert did not accept that an equal time arrangement was workable because of insufficient co-operation between the parties, but I am not significantly persuaded by that reasoning.
I found other aspects of the single expert’s evidence compelling. He was not moved from the opinion that the father currently presents as a more reliable and competent parent than the mother, and the father and paternal grandmother offer more stability to the children than the mother. The single expert said in cross examination that both parties had limitations but the father offers the least detrimental alternative for the children.
I am persuaded that the children should live primarily with the father.
I also accept the recommendation of the single expert that the father and children should live with the paternal grandmother for a period of time. That was his original recommendation,[99] to which he adhered in cross examination. The single expert referred to the paternal grandmother as a “safety valve” for the children. The father said in cross examination he would agree to submit to such a restriction, and the paternal grandmother confirmed in her affidavit[100] and in cross examination that she was prepared to take on that role indefinitely. She is not employed outside her home. She and the father have discussed the prospect of the father and the children living with her on a long term basis.
[99] Single expert report, page 20.5
[100] Paternal grandmother’s affidavit, par 19
The single expert vacillated about the appropriate duration of such a restriction. He referred to periods of 12 months and 2 years without holding a firm view about either. I err on the side of caution and adopt the longer time frame.
The father contemplates that eventually his relationship with Ms P will develop to a point where they cohabit. Unless Ms P also begins residence in the paternal grandmother’s home, her cohabitation with the father will need to await expiration of the 2 year transition period. That is not a hardship. Both the father and Ms P gave evidence that their cohabitation was likely some way off.
Although the father is now working on a full-time basis, his shifts will commence at 6.00 am and conclude at 2.30 pm. The paternal grandmother will be available to care for the children before they commence school on weekday mornings, and the father will collect the children after school and attend to their care, including assistance with homework and transport to extra-curricular activities such as dancing and athletics. It was not submitted by the mother that such an arrangement precluded the children from living primarily with the father.
Although I am not satisfied that it is in the children’s best interests to live for equal time in each household, I am satisfied that they should spend substantial and significant time with the mother, as that will be in their best interests. The single expert said the children should see the mother regularly, with which opinion I agree.
The single expert said he was worried by the prospect of the children spending extended periods of time with the mother. He originally recommended the children spend time with the mother only on alternate weekends, but moderated that view in cross examination to accept the proposition that the children should also see the mother for an overnight visit between the alternate weekends. He did not believe the children should spend time with the mother for block periods during school holidays until she could prove that she is abstinent from drugs and had completed rehabilitation in the nature of Dialetic Behaviour Therapy. The Independent Children’s Lawyer adopted that recommendation.
I am not convinced by that aspect of the single expert’s evidence. I am satisfied the mother recognises the need to rehabilitate herself and has a firm intention to do so. The father sees no need to deprive the children of the benefit of spending time with the mother during school holiday periods. He proposes that the children spend half of the school holidays with the mother. I agree with that proposal. In all probability the mother will capably care for the children for periods of several days at a time during school terms, and intermittent periods in school holidays confined to a week at a time.
For those reasons the orders provide for the children to spend time with the mother for 5 consecutive nights each fortnight during school terms, and for half of school holiday periods in alternating weeks. With the time being spent over consecutive nights it will avoid a multiplicity of changeovers, which would likely disturb the stability that should result from the arrangement intended by the orders.
I am satisfied that 5 consecutive nights per fortnight in school terms is not so long a period as to compromise the mother’s ability to cope, and that the children’s separation from the mother for the other 9 nights of the fortnight is not too long a period for the children to be away from the mother. The separation will be ameliorated by telephone communication.
The time spent by the children with the mother in school holidays will be alleviated of the stress that attends the mother having to be efficient and organised to prepare the children for school and deal with their homework, which the evidence of excessive school absences implies she has had difficulty doing. Consequently, the periods of time spent by the children with the mother in school holidays can be slightly longer. That will also enable the mother and children to take holidays together.
The changeovers during school terms will occur at the children’s school. At other times the changeovers will occur outside the K Post Office, which is a public landmark in the near vicinity of the venue proposed by the mother at K,[101] but more distant from the venue proposed by the father at Z.[102] It should make no difference to the father since he lives in K.
[101] Amended Response, Order 5
[102] Amended Application, Order 6
Provision is made for the children to have weekly telephone communication with the parent with whom they are not then staying.
The various mandatory and restrictive injunctions are either consistent with the proposals of the parties or not open to reasonable controversy.
The Independent Children’s Lawyer sought an order granting him leave to furnish a copy of these orders and reasons to the NSW Department of Human Services. The reason for that proposal was the need professed by the single expert for the Department to be involved in the matter.[103] The parties both opposed such an order. The Department was previously invited to intervene in the proceedings but declined that invitation. In those circumstances I accept the submissions of the parties that there would be no utility in providing copies of these orders and reasons to the Department.
[103] Single expert report, page 4.8
The order concerning costs between the Independent Children’s Lawyer and father is made with the consent of the father.
For those reasons I regard the orders made as being both practicable and in the children’s best interests.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 October 2010

Associate:

Date: 21 October 2010

3.25, 3.28, 3.30, 3.32, 3.36, 3.40, 3.54, 3.55, 3.56

[2010] FamCA 936

21 October 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Consent