HASELTON & SHORNE
[2014] FCCA 18
•21 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASELTON & SHORNE | [2014] FCCA 18 |
| Catchwords: FAMILY LAW – Parenting dispute – five children, two children with learning disabilities and one child with Down Syndrome – mother and father lived in unhygienic conditions when they were together – father ousts mother and five children from family home at separation and was not opposed to their relocation to (omitted) – father remarries and seeks residence of the five children – radical change for the children –children’s best interests served by remaining with the mother – Department involved with the family for years. |
| Legislation: Family Law Act 1975, Part VII, ss.60 CC, 61DAA |
| MRR v GR [2010] HCA 4 Marzorski & Albright [2007] FamCA 520 |
| Applicant: | MS HASELTON |
| Respondent: | MR SHORNE |
| File Number: | CSC 298 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 16 - 18 September & 7 - 8 November 2013 |
| Date of Last Submission: | 8 November 2013 |
| Delivered at: | Cairns |
| Delivered on: | 21 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Middleton |
| Solicitors for the Applicant: | Stevenson & Associates |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Ms Wilson |
| Independent Children's Lawyer: | Terry Newman, Newman Family Law |
ORDERS
The children V born (omitted) 2000, W born (omitted) 2003, X born (omitted) 2006 and Y born (omitted) 2007 will live with the mother.
IT IS ORDERED BY CONSENT THAT:
The child Z born (omitted) 2001 will live with the father.
Parental Responsibility
The mother and father have equal shared parental responsibility for the long term care, welfare and development of V born (omitted) 2000, Z born (omitted) 2001, W born (omitted) 2003 and X born (omitted) 2006 and Y born (omitted) 2007 (“the children”).
IT IS FURTHER ORDERED:
School Holidays
The children and Z will together spend equal time with the Mother and Father during all school holiday periods.
The first day of the school holidays will commence the day after the last school day and conclude on the day prior to the recommencement of school.
The children will live with the father for the first half of the school holidays in 2014 and each even numbered year thereafter and the second half of the school holidays in 2015 and each odd numbered year thereafter.
Other times
In the event the father is visiting the (omitted), the father will spend time with the children as follows:
(a)Any reasonable time with the children as agreed between the parties and upon the father giving the mother twenty-four (24) hours’ notice of his intention to spend time with the children.
(b)On the children’s birthdays from 3:00pm until 6:00pm when the birthday falls on a school day; or one half of each of the children’s birthdays with the children on a non-school day with the mother and father to agree as to the timing of the one half of the day.
(c)On the father’s birthday from 9:00am on the birthday until 9:00am the following day when his birthday falls on a non-school day; or from after school until the commencement of school the following morning if the father’s birthday falls on a school day.
(d)On the Father’s Day weekend.
The mother will always spend time with the children on the Mother’s Day weekend and on the mother’s birthday.
In the event that either the mother or father’s birthday falls during a period in which the children would otherwise be on school holidays with the other parent pursuant to the terms of these Orders, the provisions of Orders 4, 7 and 8 herein will not apply. The Court notes that the Orders which provide for the children to spend time with each of the parents on the children’s and parent’s birthdays are not intended to interfere with the other parents holiday time with the children as provided for in these Orders, unless agreed otherwise.
Telephone / Skype
The father will communicate with the children by telephone and or Skype twice per week on set days and times to be agreed in advance between the parties. The mother is to nominate two days each week and times that suit the children’s routine, within 7 days of today’s date and the father is to nominate two days each week and the times that suit Z to communicate with the mother and the children within 7 days of today’s date. The father is to initiate the telephone or Skype call and the mother is to ensure that the children are ready to receive the call. To enable Skype contact to occur, each parent is to do all acts and things to organise either connection or access to Skype facilities no later than three months from the date of this order.
Changeovers
School holidays changeovers will take place as agreed between the parents but failing agreement the mother is to deliver the children to the McDonald's (omitted) at the commencement of the contact period and the father is to return the children to McDonald's (omitted) at the conclusion of the contact. The time for the handover for both collection and return will be at 12:00 pm, unless agreed otherwise.
Other General Orders
The mother forthwith participate in an intake and make all necessary arrangements for herself and Z to attend joint counselling (at an appropriate (omitted) Counselling Service) on each occasion Z spends holiday time with the mother, or as and when directed by the counsellor during times Z is with the mother, such counselling to be for the purpose of re-establishing their relationship.
The ICL is directed to forward a copy of the Judgment, photographs of the parties former home annexed to the father’s Affidavit material and Orders to the Department of Child Safety and a copy of the Orders only to the schools that the children and Z attend.
The mother and father are both at liberty to attend (and obtain information about) medical and/or dental appointments with the children equally (subject always to the discretion of the relevant medical/dental professional or health worker) and will abide by any recommendations made by medical or dental professionals
Each of the parties will notify the other of any change of address for the children or Z or any telephone number within forty-eight (48) hours of such change.
In the event of an emergency concerning the children or Z, the parent with whom the children are living at the time with will advise the other parent without delay of the emergency.
Each of the parties are restrained from discussing this litigation and issues arising from it directly with the children or in the presence or hearing of the children, and they will remove the children from the presence or hearing of any other person discussing the litigation.
During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent or other family members in the presence or hearing of the children.
These Orders shall, without more, act as authority to the children’s schools to provide each parent (at that parent’s expense) information about the children’s progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the children and other school communications ordinarily provided to parents.
The Independent Children’s Lawyer be discharged after he has complied with these Orders.
All outstanding Applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Haselton & Shorne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 298 of 2012
| MS HASELTON |
Applicant
And
| MR SHORNE |
Respondent
REASONS FOR JUDGMENT
Background
The parties in this matter have been in a de-facto relationship since around 1998/9, they separated in 2010. The applicant is Ms Haselton (“the mother”) and the respondent is Mr Shorne (“the father”). In the period they were together, they had five children many of who have intellectual or behavioural difficulties. The children are; V, aged 13 at the time of trial; Z, aged 11 at the time of the trial, soon to be 12; W, known as W, aged 10; X aged seven and Y, aged 6.
V was born on the (omitted) 2000, and has speech difficulties and learning difficulties and is in a “small class” in grade eight at (omitted) High School. This class is a very special program and enables those with learning disabilities to transition from primary school to high school. It is a unique program and one in which V has made good progress. V has been affected by her parents’ separation so much so, that she has had sessions with the guidance officer to cope with the experience of her parents’ arguing and the ongoing conflict that has been occurring since they separated.
Z was born on the (omitted) 2001 and is 12. Z now lives, at the time of trial, with the father by agreement between the parties, following on from a significant and serious conflict with the mother and other siblings which ultimately involved the ambulance and the police.
W, or W, was born on the (omitted) 2003 and is in grade four. Like V, W lives with the mother and his other siblings, save and except for Z.
X was born on the (omitted) 2006. She is seven and, sadly, was born with Down Syndrome. She is, as I said, living with the mother and her other siblings and attending grade one at (omitted) State School.
Y was born on the (omitted) 2007 and is in prep school. It seems she has probable learning difficulties which are still being subject to review and assessment.
These parties separated on the 3rd of June 2010 in what are fairly acrimonious circumstances. The mother gave evidence that, over and over, that the father, “Put us on the bus” to (omitted). It is her position that the father basically ousted herself and the children from the former matrimonial home in order to have his new girlfriend move into the home. The mother says she had no choice but to move and stay with her own mother (who lives in (omitted)) as part of her establishing somewhere for herself and their five children to live. It seems at separation, the father did, in fact, drive the mother and all of the children to the bus stop, gave them $500.00 and sent them on their way.
The father denies it was to be a permanent move to (omitted) though gave no evidence as to where it was he expected the mother and children to live in (omitted). The father says the mother bought the bus tickets for herself and the children to travel to (omitted). He says that there was agreement that the children would live with the mother and spend weekends and holidays with him and that the children needed both parents.[1] The father says however that there was no agreement for the mother and children to relocate permanently to (omitted) and that the mother was just to move to stay in (omitted) for the school holidays.[2] As will be seen elsewhere in these reasons, I do not accept his explanation that the mother was to move to (omitted) only for the school holidays.
[1] Paragraph 24 of father’s trial affidavit.
[2] Paragraph 28 of the father’s trial affidavit.
The mother denies this and says she had nowhere else to live and therefore moved in with her own mother for a period of time. Not unexpectedly there was some tension with herself and five children living with the maternal grandmother and the mother wanted to find her own place to live. The mother then found independent accommodation for herself and the five children in the home owned by the (omitted). The mother remained renting this home for 17 months. The mother was asked to leave that home by Mrs B because it was alleged that she was having a relationship with Mr A. Whether or not she was, it is clear that Mr A separated from his wife and is now in a relationship with the mother. The father complains of the mother moving with the children from place to place.
Whilst the father denies that he moved the mother and children out of their former home to move in his new girlfriend, weeks after the mother moved out, he invited a person known to him as a barmaid in a hotel regularly frequented by the father for some years during the relationship, Ms L, to move into the family home with him. The father got to know Ms L when he attended the hotel for social gatherings, happy hours and his regular dart nights. At that time Ms L’s adult son was experiencing difficulties with life and became homeless. Ms L said she did not have the capacity to offer her son accommodation as she only occupied a single room in the hotel she worked in, and the owner of the hotel would not allow her son to live there too.
Ms L’s evidence is that whilst she has known the father for years and she moved in with him in September 2010, she has only been in a “relationship” with the father since December 2010 which is also what the father says as to the time of his relationship commencing with Ms L. Ms L gave evidence that she and her adult disabled son moved in with the father in or around September 2010. Both Ms L and the father are at pains to stress they did not start their relationship until December 2010. Whenever they started their relationship, they have now married and Ms L has moved into the former matrimonial home, as has her adult son. Ms L who now goes by the surname of (omitted)-Shorne, but, for the purposes of this hearing, will be known as Ms L. All of her material is sworn under that name, and that is how she is referred to throughout the other witnesses’ material. The father remains living in (omitted) with his now new wife and her adult son.
Given the sequence of events with the father separating from the mother and assisting her removal from the home, and making an agreement that the children live with her and see him on weekends, and then having his friend Ms L move in with him, it is not difficult to understand the basis for the mother’s strongly held belief that she was moved out of the house along with the children to make way for the father’s new girlfriend.
The father gave evidence that Ms L started paying rent for herself and her son when they moved in. This evidence was however contradicted by the evidence of Ms L. Ms L denied that she paid rent and said the father made her the offer of free accommodation and that she stayed there with her son and in return for that, she performed housekeeping duties. I will come back to the housekeeping issue, but I note that prior to Ms L moving in to the house, anyone taking on housekeeping duties certainly had their work cut out as will be seen from the state of the house depicted in photographs of the house annexed to the father’s trial affidavit.
In terms of the proposals of each of the parties, the proposal of the mother is that V, X, W, Y all remain living with her and that Z remain living in (omitted) with the father. The father’s primary proposal is that all five children live with him and his new wife. The Independent Children’s Lawyer (“the ICL”), Mr Newman essentially supports orders sought by the mother.
All of the parties at the end of the trial were seeking orders for equal shared parental responsibility. There is no dispute about the holiday time for the children. Wherever the children aren’t living, the parties agree they should be spending half of the holiday time with the other parent. The parties agree that holidays should be taken so that the children spend each week together, alternating between their parents. There are other Orders sought about handovers occurring at (omitted) and so forth. They are set out in the draft orders provided to me by the ICL. Importantly, each of the parties is seeking orders for Skype contact between the siblings and the non-residential parent.
This matter has progressed fairly slowly over five days of hearing. Part of the reason for that is that there has been quite voluminous material placed before the Court in the form of subpoenaed material which required canvassing, in particular from the Department of Child Safety. Also the father has been self-represented. He has done the best he can in representing himself and has been ably assisted by his new wife who prepared an affidavit on his behalf. The father has difficulties with reading and writing and, I am sure, appreciated this assistance. The affidavit consists of hundreds of pages and some very gruesome pictures, all of which I’m not sure I really needed to see. For instance, during the relationship, Z suffered significant burns in a childhood accident with a go-kart when the parties were together. The father says that he was the parent that looked after Z following the incident. The father has attached the gruesome and distressing pictures of the child’s serious burns. There was no need to attach those pictures.
The father sought, during the trial, to make much mileage out of the fact that he had done the caring of Z at that stage. As the evidence unfolded, it became apparent to me, that at the time Z suffered his third degree burns at home, the mother already had three children and she was seven months pregnant with the fourth. In my view it was quite unreasonable for the father to suggest as he did that somehow the mother had been derelict in her duties and that all of the responsibility fell to him, implying that the mother had done nothing herself. The mother was back at home with all of the other children and heavily pregnant with their next child. There are also photographs of children’s school sores, ulcers, pus-filled eyes, dirty feet and cracked heels. This is the father’s primary focus, the mother’s alleged neglectful and unhygienic parenting.
The father’s solution to what he perceives as the mother’s failures is that all five children now come and live with him and his new wife and her disabled adult son.
As to the relationship between the parties, it seems there have been plenty of arguments both during and after the relationship. The evidence of Ms W the Family Report writer was that the children are well-used to raised voices. Ms W observed two of the boys freezing up when the mother started to get stroppy with one of the children during interviews. She concluded that these children had been exposed to a level of conflict between the mother and father which was not in their best interests in being exposed to.
I should say at the outset that I accept that the father has had legitimate concerns about the hygiene and physical care of the children, however both his and the mother’s parenting style have been under the spotlight before thorough reports and the involvement of the Department of Child Safety. The father, however, failed to acknowledge the emotional impact of his solution to these issues and he failed to acknowledge that whilst the parties were together, he was also responsible for the parenting of the children. The father’s solution to these concerns represents a radical upheaval to the lives of these children.
As I said, the matter progressed over five days and the father’s material was traversed very thoroughly by the ICL and also by the Counsel for the mother. Each of those cross-examinations assisted the Court to sift through this voluminous material and work out what the real issues are. The issues, as I said, are to do with neglectful parenting. It is very apparent from the voluminous subpoenaed material from the Department, schools, and medical centres to name but a few, that this family and their five children have been the subject of some concern by various authorities for years. I note that the ICL has prepared two bundles of tender documents. Each bundle consists of hundreds of documents. The work undertaken by the ICL, Mr Newman, to present that material so succinctly to the Court is acknowledged and appreciated.
The first bundle, alone, has 140 tabs of separate bundles of documents and the second one is numbered to tab 243. This material consisted of extracts. This family’s entry into this Court is preceded by boxes of subpoenaed material from the Department and other agencies relating largely to reports and incidents during their time together as a family. The Department has had involvement since around 2006. There is too much material to canvass all of the occurrences and incidents in these reasons.
In summary, in September 2006 the Department considered that there was physical harm substantiated by neglect of the mother when X became dehydrated as a baby aged around 2 months old, with diarrhoea and vomiting and not being taken for medical attention soon enough. X was then flown from (omitted) Hospital to (omitted) Hospital to receive care. In 2008 V then aged 8 reported “we have a camera in our bathroom, video camera, we have it in there to video Z in case he gets into trouble undressing.” This was at a time when Z had suffered from 3rd degree burns after riding on a go-kart in 2007 when it flipped over and caught alight during the relationship. There were also concerns raised about the hygiene of the house. Ultimately, there was no evidence of a camera in the bathroom and the house was cleaned to an appropriate standard.[3] A further report was made at or just after separation regarding the mother being unable to care for the child as the parents had separated and the father had been the primary carer. Nothing further seems to have eventuated from that report.
[3] Tab 169, “Pattern of Harm” 16 pages in.
In April 2012 the Department contacted the principal of the (omitted) School and discussed the ongoing care and presentation of the children. Generally issues were raised and confirmed by the principal that the children presented with various low level issues, unkempt, sores and irregular bathing. There were also concerns about the mother’s refusal or failure to collect children from school when they were ill. In May 2012 cross complaints were lodged with the Department about the children being harmed either by the father’s new partner deliberately burning a child with a cigarette and being at risk from the new partner’s adult disabled son, who it was alleged was beating the children. It was also alleged that the father “strips the children down” in the presence of others to search for marks. Accordingly interviews were conducted with the children to assess their care and protection needs. Before the Department interviewed the children, the Department was contacted with further notifications against the mother including her alleged failure to take Z for a hospital appointment for his ongoing treatment for burns, the children were covered in sores, the mother has hit Z, that W gets hit around the head and a variety of other complaints. I note that one of the issues recorded is that the notifier is aware that the mother is seeking to have the children returned to her and the father is concerned that this will happen. These notifications were made during the period that the father withheld the children from the mother and the mother was seeking orders for the children’s return. It seems to me that both of the parties were acting strategically in relation to the allegations about the other’s partners harming the children. None of those allegations were substantiated. Ultimately in May 2012, the Department concluded its investigations into this family noting the acrimonious separation and custody dispute which was unresolved. The Department noted the father had withheld the children contrary to agreement with the mother and that orders were made by this Court for the enforcement of a Recovery Order. An interim hearing was conducted on 6 June 2012 and Orders were made for the children to be returned to the mother.
The children were described as being enmeshed in this fight for custody and ongoing cross allegations of excessive discipline and neglect. The Departmental records state It is not possible to substantiate the claims of excessive discipline due to the age of the children, limited verbal skills, uncorroborated statements and no medical assessments to support injury by physical harm. The disclosure from Z of a cigarette burn by father’s partner was refused in interview by father stating his partner does not smoke or carry lighters and did not do this. It is likely the children have experienced episodes of physical discipline however when and by whom is confused in the emotional turmoil of the custody situation. The parents have demonstrated significant problems in managing a shared care arrangement in the best interests of the children and this has impacted negatively on the children’s emotional wellbeing.[4]
[4] ICL tender bundle, tab 164.
The most recent concerns which formed the basis of the notifications were investigated and some gaps were identified in parenting but the concerns were not substantiated. The records also show that the case was closed with recommendations that the mother access supports via community services including a parenting program and protective behaviours for the children and a recommendation of voluntary not ongoing statutory intervention. Issues around the children’s hygiene, school presentation and excessive discipline were discussed with the mother and the concerns did not meet the safety threshold. Also discussed was the use of a community agency and resources to assist this family which was recommended as an appropriate early intervention strategy to assist the family to stay outside of the child protection network. The records noted that the children were accessing counselling support via the school. The mother agreed at the closure interview with the outcome and was to be supported by the Moving Ahead Program to locate appropriate community services to assist. [5]
[5] Tab 169, 4th and 5th last pages.
The most recent evidence obtained by the Department of the mother’s capacity to parent in an interview with the school Guidance Officer at (omitted) State School held on 4 June 2012 indicates that the mother had been making changes for the better. The records indicate that the Guidance Officer noted the children were presenting as cleaner, the children had had medical intervention and the mother was taking them for treatment, the mother was in a house, she had made an application for Better Start Funding for X, a speech pathologist has been engaged, and generally the mother was attending meetings and making positive changes.
As to the photographs produced by the father, when the mother left the home in 2010, the father says he set about taking photographs of the house as it then was. The father now takes the moral high ground and complains about the state of the house. It was abundantly clear to me during the cross-examination of the father by Mr Middleton of Counsel for the mother, that the father was living in that same squalor that he now complains about and attributing all of the blame to the mother. I do not accept the evidence of the father that the photographs taken by him represent six weeks of no cleaning by the mother when he wasn’t there.[6] Six weeks of no cleaning would in my view look dramatically different from the inbuilt, ingrained, extensive grime and mould and spreading blackness and dark shadows in the bathroom and elsewhere. The vinyl bathroom floor, or at least a quarter of it, has disappeared. The father says, during the relationship he used to “hose out” the house once or twice a year. He says that ultimately, the floorboards gave way and fell through to the earth beneath it. I am satisfied that the photographs represent the type of conditions in which both the parties were living. It is difficult to imagine the interior of a house literally being hosed out as a method of cleaning it up.
[6] Father’s Affidavit filed 28 August 2013, paragraph 23.
The condition of the interior was confirmed by the observations of the Department made on 8 September 2008 when the Departmental officers noted children’s beds consisted of bits of foam and no sheets or bedding, the kitchen with no clear bench space as it was all entirely covered in boxes, cartons, papers, bedrooms covered in clothes, books and toys with no clear floor space. The home was in such poor condition that the statutory authority had to direct the parents to clean up their own living environment. By 15 September 2008 the home had been cleaned up to the satisfaction of the Department. The father now submits that the children are likely continuing to live in a similar environment as is depicted in the photographs. There is no evidence from the father that the mother’s current home is unhygienic. There is evidence from the Department and other independent sources such as the Guidance Officer at (omitted) school that the children are now presenting in a clean and tidy fashion. The mother admits that she struggled at home, particularly following the death of her own father.
As to the parents’ relationship, the father says at paragraph 10 of his material;
“Around the 3rd of June, I made the decision to move out of the house. Our relationship had been unhealthy since X’s birth and was not improving. I had not been sleeping in the same bed since about the last six months prior to Ms Haselton moving out and I was finding it hard to cope with everything.”
The father’s evidence includes accusations that whilst the parties were together in a relationship, the mother stayed home most of the day, she locked herself in her bedroom sometimes and played computer games. He says, when he had come home from work around 5 pm, he would be washing clothes, bathing children, cooking dinner, trying to clean up the house and that was after working eight hours a day in the sun. He says, Ms Haselton would telephone him at “inappropriate times” throughout the day. I know from observing the father’s own oral evidence and presentation throughout the trial that he would never use a term such as “inappropriate times” and I am aware that his affidavits have been prepared by his current wife. It is alleged that the mother would ring at inappropriate times and say, “stop what you are doing and come and help with the children.” The father is critical of the mother for doing this. Whilst making allegations that the mother is a poor parent who stayed at home all day, the father is also critical of the mother for not making any effort to get her driver’s licence when they were together. Having no ability to drive of course impacts on the mother’s ability to leave the home. The father complains that the mother used to call him to pick up things like bread and milk. He says that the mother could have easily put the children in the pram and walked to the local service station which was three blocks from the house.
The father says of the mother that on other occasions, she called me to take the children to school and I would have to leave work and make sure the children got to school. He says that the mother didn’t join into any family gatherings or get involved in activities away from the house and so on. He says that people reported to him that Ms Haselton was yelling and screaming at the children while he was at work and calling them obscene names, and he annexes an affidavit from a neighbour who did not attend the trial. He says that when he moved out of the house at separation, he continued to visit the house every morning and afternoon, as he was still concerned about the children and that he would get their breakfast ready and he would bring over a meal for them. The father also complains that the children will not be permitted to have a normal relationship with him if they continue to live with the mother. He alleges that the mother is angry with him about his new relationship and that she is therefore unable to promote a relationship between the children and himself and his new wife, and also his own mother.
Overall the complaints by the father have centred primarily on the children’s lack of personal hygiene, the filthy house the parties lived in which the father blames the mother exclusively for causing and for the children having ongoing health issues such as the recurring boils, head lice, sores, cracked heels, all which represent, he says, inattention and neglect on behalf of the mother.
For her part the mother says she found great difficulty in mothering five children, one of whom had Down Syndrome and at least two others with learning, intellectual and speech difficulties. The mother says she fell in to a state of depression when her father died and that things got on top of her at that time. The mother complains about a lack of real support from the father during this difficult period.
There is medical evidence in the subpoenaed material from a doctor talking about the condition of the children when the father took them in June 2012 when he held them over. It is clear from that material that the children had had ongoing issues with sores, ulcers, boils and things that the father had complained about. There were also neglected teeth, glue ears, and a gash on the head. Dr M at the (omitted) Surgery gave a good summary of how the children appeared.[7]
“X had multiple infected skin lesions on both legs, widespread eczema, neglected teeth. Z, multiple infected skin lesions, he had the scar where it had the burn and a scarred right ear drum. Y, healing abrasions on arms, legs and knees, neglected teeth, right-sided middle ear infected. V had a boil on her buttock and a glue ear and W had multiple infected skin lesions and a glue ear”.
[7] Tender bundle 178.
The Departmental records indicate that after the father held the children over on the basis of the mother’s poor parenting, the Department have investigated these matters and have not taken any action against the mother given the low level of neglect. Whilst the father complains of a myriad of childhood ailments and infections, compared to the more serious abuse issues that the Department has to investigate, this kind of neglect cannot really occupy the Department’s time. When the father held the children over in June 2012 there were also allegations raised by the father that the children told him they were being beaten with poly pipe, and a stockwhip. The father alleges that the mother’s new partner Mr A was allegedly responsible for some of this alleged abuse.
These more serious allegations were also investigated by the Department and videos were taken of the interviews of the children which I have watched. I agree with the submission of Mr Middleton, Counsel for the mother, that the interviews are a little disquieting in regards to the presentation of the children at those interviews. One of the children hangs his head to tell the story and is quite unconvincing in his presentation and repetition of what allegedly happened to him. The stories the children told the police were told when the children were living with the father. Overall my impression of the interviews and recounting of events that allegedly occurred to the children whilst in the care of the mother was that the children were recounting events in a manner that did not correspond with the level of experience that had allegedly occurred to them. Nor did they refer to the kinds of injuries that might be expected to have been suffered had they been whipped with a stockwhip or a kangaroo whip or beaten with poly pipe. There was no evidence from school or counsellors or anyone of any injuries.
This impression may also have been formed by the Department workers as according to a reference in the subpoenaed material by one of the Departmental officers on the 24th of May 2012, a phone call occurred between child safety officer (omitted) and with (omitted) Child Safety, Ms M. Reference is made in the notes of that discussion of “coaching older boys relaxed comfortable, Dad may have spoken to the children about what to say”.
The Department also contacted the (omitted) Hospital on 24 May 2012 and were advised that the children’s immunisations were up to date, Ms Haselton had attended with a cough or cold, Y had attended with school sores, X’s records showed she had been reviewed by Dr. H in 2011 and 2012.
Concerns were also expressed by the Department about V and her interview and her troubling presentation in being almost non-verbal, having very limited communication and making no eye contact. Her behaviour was not considered coached. Checks by the Department were made with the (omitted) Hospital and reference was made to what was supposed to be a deliberate injury being a graze on W’s back, which was small, shaped and a could be a burn. The mother made this allegation alleging that W said it was a burn from a cigarette caused by the father’s current wife. I note the doctor stated it was a possible burn. Records show that the school principal was interviewed by the Department and reference was made to this incident and the school principal noting that W’s back was covered in school sores and he was in pain.
The Department noted that this family had a child protection history going back to 2006. They note that V is assessed with borderline intellectual function. They noted that Z at that stage had a significant burn that required medical review and X has Down Syndrome and needs significant intervention due to spectrum of delayed speech, intellectual ability and physical co-ordination. Y at that stage had been recently diagnosed with a heart murmur that required further exploration. There had been a substantiated notification when X was in the care of the mother and father.
Also noted in the records under the heading Lack of Willingness to Prioritise the Child’s Needs Over Own were the following:
The father has taken the children in breach of Family Law Court orders without preparation of the children for significant change, leading to confusion, disruption and uncertainty for all of the children; the Father may have acted out of concern for their physical well-being; however actions lack understanding of the emotional impact; The mother has not shared health and school information openly with the father, resulting in disrupted care of the children and limited, fragmented understanding for the father of the children’s needs and achievements.
The Department noted under Single Parent Status that:
The mother has responsibility for financial management and managing the children’s educational and health appointments; Mother does not have a driver’s licence, which is an added stress; High degree of stress is noted; mother and father are enmeshed in the Family Law Court; Both are under stress as a result; health issues for X and Y are additional stressors. It is noted that the four eldest children attend (omitted) State School, and have regular contact with the guidance officer. V has a close relationship with the teacher at the school, and will disclose concerns. X has links with allied health professionals, and attends regular paediatric reviews. Mother has access to additionally financial package for X to enable her to have access to additional supports and services. Z has a medical review of his burns.
The records continue to record:
That the Father has demonstrated an ability to access medical support for the children, enrol them in school. There are appropriate treatments recommended; the medical negligence concern with the mother is that she is not acting on the children’s impetigo. The concerns that the mother has not attended to the children’s impetigo; or school sores, have not been substantiated. The Department note however, that the mother has attended doctors and chemists; she has purchased medicines and was able to articulate a treatment regime. The mother has attended paediatric reviews for X as requested. In regard to Z, there is insufficient evidence of intentional medical neglect of the children relating to the burns (suffered by him during the relationship and which requires ongoing assessment) however the mother has been informed to be vigilant in managing skin infections and to improve dental hygiene of the children.
The records continue:
The school has reported at this stage, (in mid-2012) improved presentation of the children at school, and the mother has agreed to being more vigilant in attendance. Disability services, who assist with X, did not identify any concerns of excessive discipline, medical neglect or basic neglect of X. It’s noted that the family is supported by a professional network. The mother is working with the (omitted) Regional Council Moving Ahead program. The mother is being supported to gain her driver’s licence and complete a certificate in disability care. At the trial the mother advised that she has that licence now, and a car.
The mother has agreed to attend a positive parenting program in (omitted) with the intent of increasing skills in shared parenting, and transitioning the children during contact changeover.
The records note the father has agreed to make contact with a local neighbourhood centre to gain skills in parenting, shared parenting and managing transition. The father has been linked with the guidance officer at the school to allow for information to share and it is noted that an ICL will be appointed at the hearing to represent the children in terms of their needs and wishes in custody arrangement and that this may reduce the risk of emotional harm. It’s noted that there are some financial stressors in both households, however not significant enough to impact on the wellbeing of the children. The mother and the father have secure housing.
In conclusion, it was noted that, in accordance with the Child Protection Act section 9, it’s assessed that V has suffered emotional harm of detriment of a significant nature. V was assessed in (omitted) by child safety officers as displaying trauma symptoms. V was unable to interact in age appropriate ways with staff, demonstrating significant non-verbal behaviours. Since returning to her mother, V has articulated confusion and sadness between who and where she should live.
The Department assessed that Mr Shorne and Ms Haselton are responsible for the emotional harm. It was assessed that Z has suffered emotional harm of detrimental effect of a significant nature. Z has made disclosures about his mother, father and respective partners. He was confused about who and where he is to live. Parents have been advised of the outcome for V and Z, and the need to achieve stability and surety for the children through the Family Law Court.
W, X and Y are too young, non-verbal and did not want to speak with Child Safety. Indicators of emotional harm have not been able to be observed. In accordance with the Child Protection Act, it was assessed that V, Z, W, X and Y are not, repeat not, at an unacceptable risk of suffering harm and have parents able and willing to protect them from harm. Parents are proceeding through the Family Law Court to address custody matters and provide certainty for the children. Both parents have demonstrated an ability to access medical and educational support for the children, with better communication of education and health matters, the children’s wellbeing can be more appropriately supported in a shared parenting situation. Both parents have agreed to access additional support with shared parenting and managing transition for children during changeover.
I should add that when the father held the children over, the mother brought an Application for a Recovery Order. The father did not at any stage come to this Court with his concerns. He comes as a respondent having been ordered to return the children to the mother. Since that time the father has had regular time and he has done very little about taking the children to doctors about these alleged ongoing concerns. He has at times provided ointments and creams.
In this matter, I do not intend to traverse through all of the matters that have occurred between the parties. It’s sufficient for me to say that the matters raised by the father which happened during the marriage such as Z being burnt when his go kart flipped over and caught fire, or when as alleged, their then three year old and five year old children set fire to a barn (which is allegedly what the three year old and the five year old told the fireman in the presence of the father at the time the fire brigade attended, but which the father knew surprisingly little about), are not matters about which I intend to make findings solely against either party. I would simply say to each party that they let these incidents happen while the children were in their care. I know that accidents do happen and with five children the chances are somewhat increased. I am however not satisfied that the children were actually responsible for the fire as alleged by the father. I am satisfied that the father is happy to press that line in this Court on the basis that he heard them say it and that he wishes to blame the mother for this event. I note with interest that he takes no responsibility for their behaviour. He says the children were out with him and they first saw the fire as they drove back towards the house. The father wants the Court to believe the two children started the fire, which would mean they must have started it before going out with the father.
The father wishes to criticise the mother on the basis that she was at home when the fire broke out, and that a neighbour had to come and knock on the door to alert the mother as she had not noticed and that she was playing a computer game. I’m not quite prepared to find negligence on the mother’s part solely. It is not unusual for someone not to be aware that an outbuilding is on fire. As I said, I regard this as an incident of the parenting of both of these parties if it was, in fact, anything to do with the children. I found the evidence from the father on this topic unsatisfactory.
In terms of the father’s implied criticism of the mother for not dealing with Z’s burns at the hospital, I do not regard the fact that the father dealt with one of the children suffering with third degree burns as evidence of the mother’s negligence. I accept that the father did do some fathering when he was not at work and that he and the mother shared this task according to their availability. I would expect therefore that the father would play his role as the father of five children. The burns with Z happened when the mother was seven months pregnant and had three children. When one of those children is injured I would have expected that the father being the person with the driver’s licence would more than likely be the parent to take that child to the hospital. I place no great emphasis on the fact that the father did what I would have expected him to do. I accept he took responsibility for managing Z’s burns.
There have been cross allegations, as I said, of excessive discipline by the parents and their partners, and largely including the alleged cigarette burn, it seems to me that there have been some tit‑for‑tat allegations being made about each other’s partners. There is no doubt that the child W had red lesions. Whether or not it was ringworm or a burn, the doctor wasn’t sure, and I am not in a position to make any findings about that. Having heard each of the partners cross examined about their alleged child abuse by burning in the case of the father's partner or hitting the children with a pipe or stock whip as alleged of the mother’s partner, I am quite satisfied that the father’s wife did not ever deliberately harm the children and I am equally satisfied that Mr A who was an impressive witness, did not and would not deliberately harm the children. I am satisfied that each of these new partners were caught up in the cross fire of allegations and counter allegations engaged in by each of the mother and father. I am also satisfied that the children have been enmeshed and caught up directly in this ongoing conflict between the mother and father. I note that this was also the conclusion of the Department of Child Safety.
Each of the Counsel representing the ICL and the mother made submissions to me that this family is anything but perfect, that they have lived at a level of almost subsistence, and with a small income coming into a house with five children. I accept the submission that I can’t make these parents perfect, and I consider that each of them really should take responsibility for the level of neglect that has happened while the parties have been together. Each of the parents has problems with literacy levels and appear as socially disadvantaged. Each of them has issues within their own family units. They each come from separated families. Another older child of the mother’s, A was sent off to live somewhere else during their relationship. The mother alleges that this was due to the way she was treated by the father. I make no findings on this issue. In many respects this family have been lurching along, trying to survive. The father’s income at the time of trial was around $16,000.00 per annum and this was indicative of his income during their relationship which had to support a family of seven. He is a (occupation omitted).
As to the father’s contention though, that all of the problems with the children somehow relate back to the mother or that he hasn’t had any responsibility in this, I reject that assertion completely. The father gave evidence that his work during the relationship was generally part-time and seasonal. The father appeared to be always looking for work to try and support his family or to be looking for different ways of generating an income or support the family. I don’t regard it as an imposition though, as the father does, that the mother would ring, when she is home with five children and no drivers licence or car, to say, “Come and help” or to request that he bring something home from the shops. He gave evidence of his very regular times that he went out with his mates. He went out Thursday nights for darts, often at the hotel where his now wife then worked as a barmaid and he went out for happy hour on a Friday night. Whilst I had the impression that the father helped when he could at home when he was there, I am also satisfied that he maintained his own life and had more independence than the mother. I also had the impression he was somewhat detached from all that was happening at home on a day to day basis and the difficulties that were being endured by the mother.
I accept that he did work on a day to day basis and washed up and wiped the benches down and did some washing when he was home, and again, I would have expected him to do that in his role as a father of five children and through his partnership with the mother. I consider the father had little real understanding of the difficulties and demands involved in staying at home every day, raising five children, one with Down Syndrome and the others with their own difficulties. I consider that a Down Syndrome child would place the primary carer, the mother, under enormous pressure as it would for the whole family unit even without four more children to care for.
In terms of the primary consideration, without doubt these children have a loving relationship with each other and their parents, (noting the current impasse with Z who has had a recent falling out with his mother) and I consider that it is in their long term best interests looking into the future for the children to have a meaningful relationship with each of the parties.
In terms of the second of the primary considerations, protecting the children from physical or psychological harm, from being subjected or exposed to neglect, abuse or family violence, the most significant risk to protect the children from in this matter is the ongoing entrenched conflict between the parties. I agree with the department that these parties have an enmeshed relationship and I consider that they have each resorted to involving the department in point scoring in their quest to succeed in having the children live with them and that each has made scurrilous allegations about the other’s partner to further their cases. The father showed absolutely no insight, until it was pointed out to him in cross examination, how it would feel for the mother and all of the children to be bundled off in a bus and have another woman in the family home within weeks. The mother is then to accept that then two months later the father and his new boarder then happen to fall in love. In response to this situation, the mother wrote some fairly scathing and crass text messages to the father insulting him and his new partner following separation for what she believed to be his reprehensible conduct toward herself and the children. The mother says to the Court she was very upset at the time. I accept this.
To have their 10 year relationship with five children come to an end in this manner after the hurdles they had been through represents major turmoil for the mother. I’m critical of the father for not acknowledging very quickly what the emotional cost has been to the mother of the manner in which he has left. I also consider his conduct in having the mother agree to sign over the house to him before she left added weight to the mother’s position that the father told her if she wanted to keep the kids, she had to do so. Whatever gloss the father has tried to put on the circumstances surrounding separation, and the difficulties he had in seeing the children after separation, I do not accept that the difficulties were all with the mother. The father did not try and seriously make contact with the children for months following separation. He failed to take steps to “find” the mother if as he said, he did not know where she was. He was given the address by Mrs B yet failed to go to the address. His evidence in this regard was most unconvincing. I am satisfied that the father has been pre-occupied with his new life and relationship following separation. I do not accept his suggestion that the mother went into hiding making it too difficult for him to see the children.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1). (In changes in 2012, the second consideration is now to be given greater weight).
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).”
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
The Witnesses
The Mother
The mother is a woman of limited education who has been having children and parenting for most of her relationship with the father. I have no doubt that she has been parenting under significant pressures as one would expect with the arrival of a Down Syndrome child into the family. Five children is a significant number of children to parent. The mother has had limited opportunities to better herself given her inability up until recently to even drive herself anywhere. I also had the impression that the mother did not get much emotional support from the father during their relationship. I had a strong impression that the mother knew her children very well, although I was also satisfied that she has not in the past given priority to their ongoing childhood ailments and infections. I note in the subpoenaed material references to the mother’s functioning. From my observations of the mother throughout her cross examination, she has had limited life experiences and is somewhat naïve in her outlook.
In terms of her evidence, I consider that the mother gave evidence that was sometimes truthful and sometimes dishonest. I do not accept her evidence that the children have not been sent to school in dirty uniforms. I do not accept the mother’s assertion that that the evidence given by the current principal is entirely false. I do, however, accept that the former principal didn’t raise any of the issues referred to by the current principal, and perhaps he has spoken to someone who has a more historic view of what has been happening. I am also satisfied that the mother was treated rather poorly by the father at the time of separation and that it was quite understandable that the mother would have reacted rather angrily towards the father, as she did.
I am satisfied that the mother has moved on once she had time to work through what has happened to her family and that the father is in another permanent relationship. I am satisfied that the mother does genuinely want the children to have a relationship with the father. I accept that there was an agreement between the parties at separation that the children would continue to live primarily with the mother and spend time with the father. I accept that the mother was in a desperate position in terms of having to find accommodation for herself and five children at the time of separation, and that it was therefore quite reasonable for her to turn to her own mother for help. I do not accept that the mother and children were just going to (omitted) for “a holiday” as suggested by the father.
At the time of trial the mother impressed me with her determination to improve her life, to obtain her licence and to engage with community organisations to get her life on track and improve the aspects of her parenting that had been the subject of criticism.
Mr A
Mr A gave evidence at the trial. He was the mother’s former landlord and is now, having left his wife, in a relationship of sorts with the mother. He was challenged about whether or not he had engaged in any of the alleged conduct towards the children, such as whipping and he denied it. I found him to be a truthful witness. I considered he was very credible. Mr A seemed to me, to be a very pragmatic and grounded person. I am satisfied he is a supportive person in the mother’s life and someone who will assist her to achieve her goals and retain stability. He is a positive addition to the children’s lives.
The Father
The father impressed me as being a father who was sometimes interested in the welfare of his children, but who had little understanding of the pressures of being a stay at home parent as the mother had been and of the daily pressures this involved. The father, like the mother, has had limited education and clearly struggled with an ability to communicate with doctors, schools, counsellors and others due to poor insight and limited education and life experiences. The father’s evidence in relation to the fact that the mother was leaving (omitted) on a temporary basis for the school holidays was entirely unconvincing and inconsistent with him then setting about having an agreement drawn up to the effect that the mother was to sign over her entire interest in the house to him on a final basis, which she did. The mother’s evidence on this topic was that she did this because the father said; “You don’t get to keep the kids unless you sign the house over.” I accept the mother’s version of events in relation to the circumstances surrounding her signing this agreement.
In terms of credibility, I was troubled about the version of events given by the father on several topics. I was not convinced about the sequence of events he sought to portray with his involvement and relationship with his now new wife. I consider at times the father’s evidence was completely untruthful such as his evidence that his new wife paid board when she moved in. On issues about when he took up a relationship with his current wife and the basis of her moving into his house, I reject his evidence. He gave inconsistent evidence to that given by his own wife, as I said, saying that she paid rent when she moved in which was contrary to Ms L’s evidence. I am satisfied the father embellished his evidence to try and portray to the Court and the mother, that his relationship with Ms L was platonic and one of a boarder or lodger and was not the reason for leaving the mother, which I do not accept. I prefer the evidence that Ms L gave that she didn’t pay anything when she moved in.
Other parts of his testimony did not make sense, such as not being able to find where the mother and children were living after separation or the fire brigade interviewing three of the children then aged 3, 5 and 6 about starting a fire, and then having the Court believe that since that day, he has never asked the boys about the fire, such as what they used to light the fire. I am satisfied that the father has attempted to re-write history to portray himself in the best light, rather than admitting that he was pre-occupied with his new relationship after separation and chose not to see the children or admitting that he blamed the mother for the fire without any basis to do so.
The father has a very disturbing criminal history. He had drug offences and at a point during the relationship was sentenced to a term of imprisonment following a Supreme Court trial resulting from charges for being in possession of an extremely large amount of drugs. The father’s evidence is that he found someone else’s drug crop, cut it and took it home and decided he would make a lot of money from this by on selling it. He had some 55 kilograms of someone else’s crop. Overall I did not accept the father as a truthful or completely candid witness. I consider his evidence was largely presented in a way to paint himself in a good light. Whilst his evidence about the children’s sores and infections was truthful, I do not consider that this only occurred after separation. The father did not show any willingness to accept that as the father in the home, he also should shoulder some of the responsibility for the state of the house and the children. It was not always possible to work out if the father had told the whole story. When pressed on issues, he would sometimes make concessions that ought to have been made at the outset.
The father was highly critical of the mother and her parenting generally. I was troubled that his strongly held criticisms of the mother would affect his ability to encourage a relationship between the mother and children in the event that the children lived with him. The father is now ably assisted by his wife and together, it seems to me, they have attempted to portray the very worst of the mother’s parenting to the Court.
I was also most concerned with the father’s very significant lack of understanding of emotional issues. This was evident in his high handed expectations of the mother to cope with staying home for years with five children and the difficulties involved each day in doing that. It was also apparent in his answers to questions about how the children would cope with the significant change proposed by him, namely that the children all cease living with the mother and live with him and his new wife and also how they would cope with changes of school. The father enrolled the children in school when he held them over and when questioned on this issue, I had a strong impression he had no concept of the difficulties for children in moving from one school to another, leaving friends and all that is familiar to them.
The father was also prepared to make quite scandalous allegations about his own father, the paternal grandfather of the children having a sexual relationship with the mother. This was the only basis that the father could explain why the paternal grandfather sought to retain a relationship with the mother and children. He justified such scandalous allegations by saying when asked if he really believed this, that I don’t really know if they are having an affair or not and seemed to suggest that it was therefore fair enough to raise such matters. He was also loathe to admit that his new wife might struggle to mother six children, five of his and her own disabled adult son. I had strong impression that the father was highly aligned with his new wife and influenced by her. This troubled me in terms of their ability to provide a household that was conducive to enabling the children to have an ongoing and loving relationship with the mother. It seemed to me that the father had not really focused on the practical outcome of the Orders he and his new wife were seeking. His descriptions of how the children’s education would proceed, what was available at the schools in (omitted), and the day to day care arrangements for the children were not thought through at all. The father also did not show the capacity to properly understand what specific programs were on offer at each school or what was entailed in those programs. Significantly the father showed almost no insight or understanding into the functioning of a child with Down Syndrome when he was questioned on this topic. I consider this to be a significant flaw in his parenting and his attempt to have his Down Syndrome daughter primarily living with him. He also failed to show any insight into the effect upon the children of separating the siblings.
I have no doubt that the father loves his children and enjoys spending time with them. The father was asked during the trial if he could move to the (omitted) to be closer to the children and enable much more time between himself and the children who obviously love him dearly. Regretfully, the father said that now he had a new wife he had to make considerations for her family, which seemed to be a reference to Ms L’s adult son and her adult daughter who has just moved to (omitted) with grandchildren, and bearing that in mind, it was not possible for him to contemplate leaving (omitted).
Ms L – The Father’s new wife
Ms L was not completely candid in her evidence. She had a poor memory about when she started paying the mortgage, her evidence about the nature of her relationship, when it started and when she took up with the father was most unsatisfactory. I do not accept her evidence on this subject.
Having observed Ms L in the witness box, I considered her very long pauses between each answer and her very carefully worded answers as being somewhat calculating. I could not imagine that as a barmaid in her normal life, Ms L would take the time to answer questions in the manner that she did in the witness box.
Ms L showed little warmth in her presentation, and no understanding of the effect of the parenting proposal being put forward by the father which meant that she would literally take on the mothering role of five children, one having Down Syndrome, another one having significant speech and learning difficulties, and yet another one having developing signs of a learning difficulty. Not only is Ms L proposing on taking on these five children, but she’s doing it at a time when her own son, B, who has Asperger’s and other significant difficulties, is on a disability pension, has lived on the streets from time to time, has urges to just get up and leave and who has not been able to sustain employment, lives in a caravan next to the house.
I was not satisfied that Ms L had the emotional capacity to understand and deal with the intellectual and emotional needs of the five children in this matter. Ms L has never raised a Down Syndrome child before and has not had five children to raise before. Her son has for a number of reasons, ended up homeless and living on the streets. I am not at all confident that the father’s wife would encourage or be supportive of the children’s ongoing relationship with the mother. I am alarmed at the prospect of the fracturing and failure of the children’s relationship with their mother if the primary mothering role was to be taken on by Ms L. Ms L is a strong supporter of the father. In her evidence she refused to accept that the father had contributed to the state of the house as depicted in the photographs attached to the father’s affidavit, stating No I do not think Mr Shorne has contributed to the state of the house.
In my view Ms L showed no understanding of the bonds and attachments that these children have from living with and being raised by their mother, assisted by the father. Like the father, Ms L gave no indication to the court that she even considered that this would be an issue or that there would be any great difficulty in having five more children living with herself and the father full time. Ms L attempted to provide an excuse for the father himself not taking the children to a doctor if they needed to go, saying I think he believed the mother was taking them.
Ms L did not display any understanding of the day to day practical difficulties of all of the children getting to and from school and home, and seemed to have a position that the older children would be supervising the younger children, including X.
In terms of the allegations made that the father’s wife deliberately burnt one of the children with a cigarette or some other way, I am not satisfied that there is sufficient evidence to suggest that Ms L deliberately or otherwise injured any child with a cigarette burn. If it was a burn, I don’t have enough evidence to conclude how it occurred.
I heard evidence of the income of Ms L being around $399.00 per week on a gross basis, and of the father having an income of $299.00. This income had not permitted Ms L and the father to keep up to date with the rates on the house they currently occupy, with evidence that the rates were behind some $8,000.00. The father gets seasonal work and Ms L works casually. Ms L says that she now looks after their finances; however, her evidence was curiously vague when she was asked to explain the funding and costing of the bathroom renovations. I gather that Ms L is or has started to pay occasional mortgage repayments on the former matrimonial home. When asked, Ms L said she could not move to the (omitted) as it would mean giving up her own family.
Ms W - Family Report writer
Ms W was cross examined regarding her report. The issue of Z wishing to live with his father occupied much of the questioning. Ms W stated that at the present, Z’s relationship with his mother had been fractured. I accept that has happened and that Z’s behaviour in the mother’s home directed towards her and the siblings caused much conflict and ended up leading to a fairly dramatic event involving the police. I accept that 12 year old Z is expressing strong views to stay with the father, though I am less certain that he is going to be happy there on a long term basis. I am not satisfied that sufficient endeavours have been made to have his relationship repaired with his mother, and I consider it very unfortunate that he has been singled out to live separately with the father. Evidence was given that when he moved in with the father and the father’s new wife, he felt unloved. What a tragedy that a child would go from one parent to another and live in a household where he feels unloved. I can see in the subpoenaed material too that Z is well and truly confused about where he should live. He has been caught up directly in the cross fire between these two warring parents, as observed by the Department of Child Safety.
Ms W says that she spoke to Z, and her very strong impression was that he felt the conflict, that he had a fractured relationship with his mother and that he felt confused. Ms W was not aware of the evidence that he had felt unloved in the father’s household nor did she know that he has become upset because he tries to ring the other children and they appear to be quite dismissive, as children can be, on the phone.
I intend to make orders that the parties do all acts and things to ensure that when Z visits his mother, that they have a session of counselling and that those arrangements be made long before Z arrives. I consider that his relationship with his mother needs to be repaired and that that one particularly awful incident not be a barrier for the years ahead to them resuming their relationship. Hopefully with the end of this litigation, Z and the mother can slowly rebuild their relationship.
Determining Bests Interests
In determining the best interests of these children, I need to have regard to all of the evidence and to the considerations to both the primary considerations in Section 60CC (2) additional considerations in section 60CC(3). In addition to the matters already canvassed in this judgment, I will now turn to the relevant considerations.
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In terms of the children’s views, I accept that Z has very strong views and that they are based on his experience in being involved in this conflict. He has acted out angrily, and I’m not surprised he did with the level of conflict. It is a tragedy that this child has reacted in this way. As to the other children, their views have to be seen in the context of this acrimonious conflicted parental dynamic and in the context of each of their respective disabilities and intellectual and behavioural issues.
The ICL organised for a Family Report as I said, to be prepared by Ms W. She describes Z as being a healthy young boy who seemed quite confident and presented more like a 12 year old than a nearly 11 year old. He’s in grade 6 at (omitted) Primary School in (omitted).
Z is the child who had serious burns at the age of six when the muffler on the go‑kart he was riding burst into flames. He was in the burns unit in (omitted) and had skin grafts in May 2006. He had physiotherapy for the following couple of years, and those are the appointments that Mr Shorne took him to. In May 2012, he had multiple infected skin lesions to the arms and legs. He said he moved to live with his father because he was getting hit a lot, that his mother hit him across the face and in the back, and that “she hit me with a whip. It was brown”. As I said, I’m not quite convinced about the allegations about being hit by a whip, whether it’s from the mother or anybody else. He did say, though, that while living with his mother he didn’t have a bedroom, he used to sleep on the veranda and that W didn’t want him in his bedroom.
He was old enough to appreciate that Mr A slept over at the mother’s house in the mother’s bed, and he didn’t like that. I accept that. He stated he was happy to stay at dad’s and didn’t want to move back to mum’s.
W, who liked to be called W, was a young boy of about nine years. There were no outward signs of neglect. Educationally, he was getting support for maths and other subjects and achieving sound grades in maths and getting support for English. Homework is rarely completed. He wants to be a farmer when he grows up.
He described to Ms W the word-fight that his parents had, and he became quite sad, and said dad put us on a bus, and it was a long time before we saw dad, looking very sad. He said that his mum just hits him with a bare hand around the bottom. I note, with interest, that he described to Ms W that he likes it when his Poppy comes and sleeps over in the two babies’ rooms, and they sleep in my room, and I sleep somewhere else. There was as I have mentioned elsewhere a scandalous allegation made by the father that his own father, the paternal grandfather of these children visited them and stayed over, and that he therefore assumed, because his father did not tell him that he was going to stay with the children, that he was having some sort of inappropriate relationship with the mother. I reject those allegations out of hand; they ought not to have ever been included in the material. The father was not able to see the benefit to his children through their ongoing relationship with their paternal grandfather.
W was observed with his sister, and observed helping her when X was trying to put a top on a bottle. W told the report writer, if mum gets us, dad’s going to move up here saying that dad told him. This has been explored during the trial, and unfortunately the father says he has his new wife to think of and she has a family in (omitted). The father who was given time during the trial to think about and discuss this proposal with his new wife informed the Court that it is not possible for him to move up. X was interviewed, observed with a diagnosis of Down Syndrome. She presented more like a child of year 3, casually dressed, clean, appropriately groomed, no signs of neglect.
When Dr H saw X in March 2012 when the mother was living in a women’s shelter, having had a falling out with her own mother. Dr H noted that X was unkempt, snotty nose, mild discharge of eyes and scattered spots, bites and that she needs one-on-one support at school. He noted she was not doing well at school, doesn’t speak and still has toilet problems. She has significant needs. Y was interviewed as well, and described as a mummy’s girl. She had lived with her mother all her life. She had had rotten baby teeth and she interacted well with her other siblings.
I have had regard to the children’s discussions and views in light of the issues I have referred to. I accept that Z at this point in time, is very much wishing to stay with his father, though as I have stated, there are obviously issues for Z in feeling left out of what was his family and feeling isolated within the father’s household. It seems he now misses his siblings too.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
In terms of the nature of the relationship between the children and significant other people, I am satisfied that the mother has been the primary carer of all of these children. I am satisfied that they have had their primary and continue to have their primary attachment with the mother save for Z having his falling out with the mother. Even though there was conflict with the mother, I note that when Z moved to live with the father he felt unloved. This perhaps is a feature of what I observed as the father’s inability to understand the pressures and strains that these children are under and their emotional needs.
I consider the relationship between the children and their parents to be a very significant matter in terms of Y, with her difficulties, X, particularly with her Down Syndrome, W and also V with her difficulties. Z, it seems to be agreed by the parents, ICL and Ms W, should remain living with his father. It is to be hoped that his relationship with the mother is repaired in the near future.
On the father’s proposal his wife will become the primary mother figure in the lives of the children. I have already made reference to what I consider are her shortcomings in this regard. I have also made reference to her strong alignment with the father and that I am troubled by the prospect of the other children’s relationship with the mother becoming fractured given the obvious hostility and criticism demonstrated by both the father and his new wife toward the mother.
I am particularly concerned that X who has never lived away from her mother, should be uprooted and moved into a new home with the father who has never been the primary parent, and his new wife who has no experience in raising a Down Syndrome child whom Ms L has only known since 2011. Even the father showed almost no understanding or insight in describing what it means to look after a Down Syndrome child in his evidence.
I am satisfied that each of the parents love these children dearly and they have had exposure to significant others and that the orders that will be made will enable each parent to organise time between the children and other family members.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and
(ii) To spend time with the child; and
(iii) To communicate with the child.
The mother has taken responsibility for providing housing, feeding and schooling for the children post separation. She did this at a time when the father had entered a new relationship and was involved in doing up the former family home with his new partner. I am satisfied that the mother has made decisions about schooling and the children’s lives to the best of her ability post separation. During the relationship I consider that the mother was under significant difficulties in her own functioning and limitations with financial pressure, multiple children most of whom have intellectual difficulties, a lack of independence with no licence to drive and life matters impacting upon her such as the death of a parent and feeling of despair which followed.
The father post separation in my view failed to take up parental responsibility in relation to the major issues of ensuring that the children were housed and fed and keeping in touch with them. For at least 9 months or more after separation the father was content to leave all of this decision making and responsibility to the mother.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In terms of the impact of the changes in the children’s circumstances and their separation from their mother, this is a most significant matter and one I place significant weight on. I consider that there are two proposals before the Court, one which involves a radical change and that the Court ought make such a radical change very cautiously. It is a significant upheaval in the lives of V, X, W and Y to no longer be living with their mother. If they move with their father, I note that he has never been the primary carer, he has never solely looked after the children other than to take them out for weekends (other than when he held them over). His explanation of his understanding of Down Syndrome was at a most basic and crude level. His inability to appreciate or provide for their emotional needs has the potential for the children to suffer emotionally if they live under the father’s primary care.
The children are to be removed on the father’s proposal from all they have become familiar with on the (omitted) to go to (omitted) to live with the father’s new wife, with whom they have never lived. The father’s new wife only met the children in 2011, and she has only known them on weekends and holidays. I am deeply troubled by the emotional impact upon the children, and their emotional wellbeing in being uprooted in this fashion. I have no confidence that Ms L has the emotional warmth or connection with the children to be able to nurture them, or provide for their intellectual or their general wellbeing, and psychological wellbeing. As I said, Ms L struck me as rather a detached person of few words who was very supportive of the father, and very dismissive of the mother. It is very easy for new partners to come along and look over a family and decide that they could do better.
The person who would be the primary carer on the father’s proposal is Ms L. She, as I said, does not have a close and loving relationship with each of these children such that she could fill the role of primary carer. Ms L may have raised two children in the past, but she does not in my view exhibit the capacity at this point in her life to take on five children, and, in particular, these five children. She has had difficulties with her own son, and for one reason or another has not been able to be in a position to offer her own son accommodation so that he was not living on the streets, prior to her moving in with the father. Ms L gave what I regard as illogical evidence that she was making payments towards the father’s mortgage at a time shortly after she alleged she could not afford to have a place of her own where she and her son lived.
The father loves his children however, I have a strong impression he has been somewhat detached at times, particularly following separation. His complaints that he did not know where they were for about six or seven months were not valid. It was clear to me that once he found out where they were, through his friend, Mrs B, who worked at the doctors and who improperly in my view, handed over letters she had written to the mother and the mother’s lease agreement to the father, still did not go and see the children saying to the Court that he did not know where the road was, even though he had the actual address. His explanation that he did not ask Mrs B how to get to the house was quite unbelievable.
The father’s proposal involves four of the children changing schools. V is very well placed at the moment in the unique small class program, which is transitioning children with learning disabilities such as her from primary school to high school. She is very fortunate, in my view, to have the opportunity to engage in that program. There is a special education unit at the (omitted) school, however, it is not this same program. V is a very special child, with special needs and learning difficulties. The disruption to her schooling, in my view, would be a significant disruption to her schooling life. The change will involve social challenges for V as well. She needs to make new friends, engage in a new school and have new teachers and totally new surroundings. V is seen on the video, and, as observed by the Department, to have a serious difficulty socially and even speaking. I consider the changes proposed by the father represent a significant challenge for her which will have a negative impact on her schooling and social progress.
Y also has learning problems and will face difficulties. Moving X, in my view, a Down Syndrome child, from one school (where she is doing as well as she can be expected) to another school in (omitted) to start all over again educationally and socially, is a significant upheaval. Removing X from the home and primary care of the mother, who describes her as a loving child, is a significant change and one about which I am seriously troubled particularly about the prospect of the father severing the ability of X to continue her close and primary attachment to her mother. I have already made reference to Ms L’s lack of parental competence. Ms L really knows so little about these children. Ms L’s primary role in this matter has been to drive this litigation for the father. W is doing at school as well as can be expected. The changing of the place of residence for the children into a home where Ms L and the father are the parental figureheads will be a radical change. Living with the father and Ms L is vastly different than going to the father’s for a holiday.
I am also a little troubled about the actual home environment, the potential lack of parental supervision with each of the father and his wife working at odd hours, and that there is not sufficient room for all of these children in the father’s home.
In addition to the likely overcrowding, there is also the issue of Ms L’s own son, B, who is in his early 20s. He has what I consider to be a most miserable existence. He has no particular interests, he has some behavioural difficulties, he is not able to retain employment. The father described that every now and then to keep himself occupied, B went for a walk into town. I was told that he had a girlfriend on the phone living in Western Australia and one day he hopes to go to Perth to see her. He has a disability income. He lives/sleeps in a caravan next to the house, but uses the other facilities in the house. B is put forward as the person who will be in control of the children in the event that Ms L is at work, and the father is called back to his work.
I do not regard him as, in any way, being an appropriate supervisor of Y with her problems, X with her problems and young W and V with her communication problems. I have concerns about the possibility of all of these children being left with another adult who has difficulties functioning with his own life. I am also troubled by the lack of appreciation by the father and his wife of the enormity of the arrangements they are proposing. Neither of them appear to have given it any great consideration. On the material before me, there is no way that the father and his wife can afford to feed these children and pay the mortgage and the other costs associated with home ownership, let alone educate them at a private school as was suggested by the father and his wife. Their work arrangements will likely see them each working at different times and one or other looking after the children.
The father gave evidence that he is going to send all of these children to (omitted)’s private school. The fees which were obtained by the ICL at the court’s request (because the father didn’t know how much they were) are well in excess of what this family can afford, being $2,120 per year for one child, or $3,776 per year for three children. They currently cannot afford to pay the rates on the house being behind to the extent of $8,000.00. They do not pay the mortgage repayments set at $100.00 per week to the mortgagor who is the father’s parents. Even with this minimal payment, neither he nor his wife can afford to pay the $100.00 a week on a regular basis. The maths done by Ms L and the father do not add up.
The children’s wellbeing in this totally new environment is a matter upon which I place significant weight.
If the children remain living with the mother, she has organised accommodation and very importantly, the children will remain at their current schooling. Given their intellectual difficulties, I find this issue very significant. Whilst the mother has a history (as does the father) of being involved with the Department, the issues which arise from neglect in the past have also been identified, and dealt with or have been unsubstantiated. The children remaining with their mother and in their current environment with the mother’s support services will in my view offer the children stability and an opportunity to progress. The children’s emotional wellbeing will in my view be promoted by enabling them to live with their mother and each other. X has support services in place and is regularly under the gaze of these professionals.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The father, in the past, has paid something in the order of $110.00 for child support a month, or around $55.00 a fortnight for five children, which is about $3.90 per day for all five children, less than a $1.00 per day per child. I understand that his income is modest; however, this level of support leaves the primary burden of providing financially for the children with the mother.
In terms of maintaining the health and wellbeing of the children, each of the parties have had failures in the past. Post separation, after a difficult period, the mother has sought and taken advice and assistance. There are positive signs of the children directly benefitting now from the mother’s improved standards of hygiene, the children’s attendance at school in a cleaner presentation and that the children are slowly making headway with their education, noting their obvious difficulties with their abilities.
In terms of the father’s responsibility towards parenting, I believe he has had genuine concerns about the mother’s inability, at the time he took the photographs of the children, to actually physically keep the children clean. Having said that, the father gave evidence that he hadn’t done anything about taking the children to the doctor after they were returned to the mother. As is often the case in this Court, the father, when he retained the children, took the children to various places to gather evidence to justify holding them over. Once they were returned, he has seen them on various weekends, but he hasn’t followed through with some of his alleged concerns. It also cannot be overlooked that he has repeatedly agreed for the children to live with the mother. The father agreed to that when he put them on the bus and they left at the time of separation. He agreed again at a mediation. The outcome was a parenting plan with the children to remain living with the mother. He agreed again a third time after mediation, but then refused to sign the orders. It is clear to me that when he took the orders home that he was going to sign, that Ms L did not agree. I have the very strong impression that she is a forceful woman and that the father, who has difficulties with literacy and communication is in some ways quite vulnerable, has relied on her heavily.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father lives in (omitted) and has no plans to relocate to the (omitted). The mother now has achieved obtaining a driver’s licence and a car. The mother lives on the (omitted). The distance between them precludes any opportunity to have the children living in a shared care arrangement. I should add that given the past level of acrimony between the parties, unless resolved, this issue in itself would preclude a shared care living arrangement.
The parties have conducted their cases on the basis that the children are going to live in either (omitted) or the (omitted). This will require travel between these two locations for the children. As to the proposed handover locations, the mother proposes changeovers occur at (omitted).
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am not satisfied about the father’s capacity to primarily parent these five children. He is untested as a primary parent and at times has shown minimal interest. He has a history, just like the mother, of living in filthy conditions. He does not have any great emotional depth, and I do not consider that he has the requisite capacity to provide for the emotional welfare of the children nor to provide for their intellectual and educational wellbeing. I make no criticism of the father when I say he has difficulty reading and understanding a lot of concepts about school and lots of other language issues, but it certainly puts him at a disadvantage in being able to assist the children with their schooling or to be able to interact with schooling authorities and communicate effectively.
The mother has limitations as well in terms of education, but I am strongly of the view that she is a lot more in touch with the children themselves and their functioning than the father, albeit that she has had significant failures when it comes to cleanliness. Whilst the mother complained of the difficult financial pressures she was under, making children have a shower every day is not really a financial issue. The school sores and other matters, the ringworm, are all signs, in my view, of poor hygiene. Nonetheless, I am not satisfied that this has just occurred since separation. Clearly each of these parties was living in unhygienic conditions. I consider that once the mother has accepted the separation she made a lot of effort to improve. This is already being demonstrated with the children attending school cleaner. I consider that she has the potential to improve and that she has shown a willingness to engage with community support services to continue that improvement. The mother’s partner Mr A also offers good support and is quite measured in his attitude towards the father. I accept that he will continue to support the children’s relationship with the father.
I also accept the submission that the children are regularly under the gaze of the Department and the school. X is engaged with Disability Services, and I note that they make no complaint as of June 2012 regarding significant neglectful parenting.
In terms of the capacity of Ms L, I refer to the comments I have made in this regard elsewhere in this judgment.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have nothing to add under this section.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
In terms, then, of responsibility towards parenting, I accept the submission that whatever her parenting has been like, she has continually stood by the children, albeit she has had failures in relation to basic hygiene and cleanliness with the children. The mother has also failed, in my view, in relation to properly keeping in touch with the teachers, though it seems she has improved, but waxed and waned. She has had to provide a roof over the heads of these children, and I’m not critical, as the father is, of her having to move a few times to find appropriate accommodation. The father does not have any understanding of what it would be like to have $500.00 in your pocket, no income, and go and find a place to live for you and five children. He has never done it. He has had the comfort of the home and support from his then very good friend, Ms L, who subsequently became his girlfriend and then his wife. He has had financial security from his own mother who has not sought to evict him from the home for not paying the mortgage, which would have happened if it had been a bank, and as I said, he acted very purposefully in getting the mother to sign a contract transferring the interest in her house to himself at the time of separation.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family - S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family
There is no issue of domestic violence between these parties, though the father’s new wife has been a perpetrator of domestic violence. She has had domestic violence orders made against her and on her own admissions, slapped her former partner. She says she was in a domestically violent relationship and she has attempted twice to take action to breach her former partner, and twice the police considered that she had contrived to lure her partner into a breach and relying on video surveillance taken and the statements of other witnesses, refused to follow through with the breach.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Each of the parties are seeking final orders and I consider that it is in the best interests of these children that the litigation comes to an end. Neither proposal suggests that one or other would be less likely to lead to further litigation.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I consider that the mother has been willing enough to promote a relationship between the children and the father once she settled down from the shock of what had happened to her, effectively being evicted from the house with the children. I do not accept that it was entirely the mother’s fault that the father didn’t know where the children were. The father knew where the maternal grandmother’s home was. The father had discussions with the mother’s landlord once she moved and chose not to contact the children once he knew where they lived. It was another matter about which the father wished to complain to support his case. I do not regard his complaint as being valid.
S.60CC(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.
As to the presumption of equal shared parental responsibility and evidence of abuse or neglect, it is fair to say that in the past there has been involvement by the Department at times when issues of neglect were raised and each parent has been involved in those issues. Overall in recent times, the issues of neglect, particularly against the mother were not substantiated. In any event, I consider that the presumption has not been displaced. Each of the parties seeks an order for equal shared parental responsibility. I consider it is in the best interests of the children that each of their parents has involvement in making decisions regarding the long term issues such as health, religion and education. Each of the parents has something to offer these children and I consider they will benefit from the ongoing involvement of both parents in making long term decisions. Whilst I note that the father relies heavily on his current wife to assist him with this litigation, I would caution involvement in the children’s matters from anyone other than the children’s parents.
As to their communication, I believe each of the parties have been operating under difficult circumstances and hostility since separation, as a result of the difficult circumstances surrounding the mother’s removal with the children from the house. I had the impression that at the end of the trial, the father realized for the first time, the enormity of his actions at separation. It is to be hoped that with the litigation behind them, the parties can resume a degree of co-operation. The mother in my view has moved on from her emotional state at separation and the father has now married and the mother has a relationship with Mr A. This will no doubt assist in their future capacity to communicate.
Having made an Order for equal shared responsibility, I need to consider the children spending equal time or substantial and significant time with each parent pursuant to section 65DAA. It is not possible given the geographical constraints to have an order for equal time or significant and substantial time. The father was given time to consider whether or not he would contemplate relocation and he has declined to agree to relocate. The mother is not able to relocate to (omitted) given the support services she has on the (omitted). The time for the children then has to be taken with the non-residential parent during the time available in school holidays. Time should also be permitted if the non-resident parent is visiting the township of the other parent with the children.
Best Interests
I accept the submissions made that each of these parties suffers from disadvantages socially, financially and educationally. Having said that, I am satisfied that, as between the mother and father, the mother has the requisite emotional capacity and parental responsibility to primarily parent these children. As was raised at trial by the ICL and the Court, if they lived in close proximity, a solution to the children wanting to spend lots of time with the father and to addressing the father’s concerns about future poor parenting of the mother, and to be able to spend time with the children very regularly as recommended by Ms W, would be for the father to move closer to the children. The father is not prepared to do this.
I am not satisfied that it is in the children’s best interests to live primarily with the father. I do not accept that he has the parenting capacity to provide for the children’s emotional and intellectual needs, and neither do I consider that his new wife has the capacity to be the primary carer of these children for all of the reasons referred to in this judgment. I do not accept that the changes proposed by the father will enable the children to achieve their ultimate goals in life, as I consider the disruption proposed is radical and will represent a significant upheaval in their lives at various levels as referred to in these reasons. Whilst the mother has struggled with minor health issues of cuts, grazes, school sores and so on, the father fails to acknowledge that the mother understands the children and is able to accommodate their emotional needs. I consider that the children’s interests are best served by living primarily with the mother and spending holiday time with the father, and those are the Orders I intend to make. I am not making Orders that the children live week on week off with the father in the event that he relocates. The evidence at trial is that he is not relocating. I do not consider it appropriate to make Orders that might be relied upon in the years ahead as by that stage, the family dynamics or children’s positions may have altered considerably.
I am satisfied that the children’s emotional wellbeing will be addressed in Orders which provide for them to remain living with the mother, save for Z, who by agreement between the parties, will remain living with the father. I expect that once Z and the mother have counselling as proposed, Z will be able to rebuild his relationship with the mother. In making this Order, the Court needs to impress upon the mother that the signs of improvement in parenting commitment and capacity demonstrated at the time of trial, need to be maintained. Slipping back into the kind of home life that the children had when the parties were together, will result in further Departmental involvement. I intend to make an order that the mother attend upon a community agency closest to her and invite them to attend her home on a regular basis for at least the next 12 months. I intend to order that the ICL provide these reasons to the department.
The mother’s Counsel Mr Middleton submitted that on the evidence the mother had moved on and was improving with all aspects of her parenting. I accept this. The father asks the Court to give him a chance to show that he can parent better than the mother. I have considered the likely outcome of such a radical change, and for the reasons referred to, the Court is not prepared to make such Orders. Nonetheless the Court accepts that the children love spending time with the father and considers that the Orders which provide for the children to spend holiday and other time with the father, including Skype contact, will enable the children to have a meaningful relationship with both the mother and their much loved father.
In summary, looking at all of the evidence and the relevant section 60CC matters, I am persuaded that the children’s best interests will be served in living with the mother primarily and spending time with the father during the school holidays as proposed by the mother and the ICL.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 21 January 2014
Key Legal Topics
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Family Law
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Consent
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