HAYMER & BAGANS

[2014] FCCA 487

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYMER & BAGANS [2014] FCCA 487

Catchwords:
FAMILY LAW – Parenting – children aged 13, 11, 7 and 6 – children currently living with the father – mother seeking an order that the children live with her – where the court is satisfied that the father was responsible for fires in 2012 which destroyed the mother’s partner’s car, the mother’s partner’s parents’ home and the mother’s workmate’s car – order that the children live with the mother – where the father has a mental illness – where the evidence provided by the father about the management of his mental illness raises concerns – order made for the children to spend limited time with the father pending him providing a further report about his mental health.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Applicant: MS HAYMER

Respondent: MR BAGANS

File Number: NCC 3246 of 2012

Judgment of: Judge Terry

Hearing dates:

24, 25 and 26 February 2014

& 5 March 2014

Date of Last Submission: 5 March 2014

Delivered at: Newcastle

Delivered on: 17 March 2014

REPRESENTATION

Counsel for the Applicant: Mr Hunt

Solicitors for the Applicant: Borthwick Butler

Counsel for the Respondent: Ms Burns

Solicitors for the Respondent: Stephen Young Solicitors

Counsel for the Independent Children’s Lawyer: Mr Graham

Solicitors for the Independent Children’s Lawyer: Flintoff Lawyers

ORDERS

Made on 7 March 2014

1. The children W born (omitted) 2000, X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2007 (“the children”) shall live with the mother.

2. Subject to orders 3 & 4 of these orders the mother shall have sole parental responsibility for the children.

3. The mother shall not without the written consent of the father or an order of the court:

   (a)change the children’s names;

   (b)relocate the children’s place of residence from the (omitted) area.

4. The children shall continue to attend their current schools until the conclusion of Term 4 in 2014.

5. The mother shall promptly notify the father in writing of any decision she makes in the exercise of her sole parental responsibility including but not limited to a decision to change the schools they attend.

6. The father shall as soon as reasonably practicable provide to the Independent Children’s Lawyer a report from his treating psychiatrist confirming that:

   (a)the father is compliant with the medication prescribed for the management of his mental illness;

   (b)the psychiatrist is not in possession of any information which suggests that the father’s capacity to care for the children on an unsupervised basis is compromised

   and the Independent Children’s Lawyer shall forward this report to the solicitors for the mother.

7. Upon compliance by the father with order 6 the father shall spend time with the children:

   (a)each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school the following Monday (or the commencement of school on Tuesday if it is a long weekend);

   (b)for one half of each school holiday period being the first half in even numbered years and the second half in odd numbered years;

   (c)at such additional times or alternate times as may be agreed between the parties.

8. Pending the father’s compliance with order 6 and unless otherwise agreed between the parties the father shall spend time with the children each alternate Saturday commencing on Saturday 15 March 2014 from 9.00am to 3.00pm.

9. Notwithstanding any other order the children shall spend time with the parties as follows:

   (a)if Mother’s Day falls on a weekend when the children are not otherwise in the care of the mother, with the mother for that weekend from the conclusion of school on the Friday until the commencement of school on the Monday.

   (b)if Father’s Day falls on a weekend when the children are not otherwise in the care of the father, with the father on that weekend from the conclusion of school on the Friday until the commencement of school on the Monday if order 7(a) is in force or from 9.00am to 3.00pm on Saturday if order 8 is in force.

   (c)with each parent on each parents’ birthday and each of the children’s birthdays for not less than two (2) hours should their birthdays fall on a school day and for not less than four hours should the birthdays fall on a non-school day.

   (d)in odd-numbered years, with the mother from 5.00pm on 24 December until 2.00pm on Christmas Day;

   (e)in even-numbered years, with the father from 5.00pm on 24 December until 2.00pm on Christmas Day;

10. For the purposes of implementing these orders changeovers shall occur at the children’s schools and on occasions when the schools are closed shall occur at the (omitted) at (omitted).

11. The father is restrained and an injunction is granted restraining him from:

    (a)attending the children’s schools during school hours except for the purposes of attending upon formal parent/teacher interviews or special school events to which parents are specifically invited by the school; and

    (b)approaching the mother at such school events;

    (c)using illicit drugs or consuming alcohol to excess while the children are in his care or for 12 hours prior to them coming into his care.

12. The mother is restrained and an injunction is granted restraining her from using illicit drugs or consuming alcohol to excess while the children are in her care or for 12 hours prior to them coming into her care.

13. The parties are restrained and an injunction is granted restraining them from:

    (a)denigrating the other party or the other party’s partner in the presence or hearing of the children or any of them;

    (b)allowing the children to remain in the presence or hearing of any person denigrating the other party or the other party’s partner.

14. Each party is to keep the other informed of their residential address, mobile telephone number, landline telephone number and email address and inform the other of any change to those details within 24 hours of such change.

15. Each party may obtain from the children’s schools copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents and may attend any event at the school normally attended by parents.

16. Each party shall advise the other as soon as reasonably practicable in the event that the children or any of them while in their care is/are involved in an accident or medical emergency requiring treatment at hospital or is diagnosed with a serious medical condition and each party shall be entitled to visit the children in hospital.

17. The Independent Children’s Lawyer shall arrange to meet with the children as soon as reasonably practicable to explain the orders which have been made to them.

18. The father and the Independent Children’s Lawyer have liberty to relist the matter on short notice should any difficulty arise with the father’s compliance with Order 6 as a result of the unavailability of the father’s psychiatrist to provide the report or concerns expressed by the psychiatrist about the information he is required to provide or any other matter.

19. The Independent Children’s Lawyer is discharged upon compliance by the father with Order 6 of these orders or upon 3 months of the making of this order, whichever is the sooner.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3246 of 2012

MS HAYMER

Applicant

And

MR BAGANS

Respondent

REASONS FOR JUDGMENT

Introduction

1. I am required to decide where W, 13, X, 11, Y, 7 and Z, 6 should live.

2. The children’s parents separated in January 2009 and following separation the children lived with the mother in (omitted) and spent time with the father in (omitted) on weekends.

3. On 4 April 2012 the mother fled from (omitted) to (omitted) with the children after three separate fires destroyed her partner’s car, her partner’s parent’s home and her workmate’s car. She was convinced that the father was responsible for the fires.

4. For a time the father did not see the children but on 15 June 2012 the parties signed a parenting agreement and the children began to spend time with the father in (omitted) each weekend.

5. On 24 November 2012 the father refused to return the children to the mother at the end of a visit. The mother immediately commenced court proceedings but the children have remained with the father pending a final hearing of the parties’ competing applications for the children to live with them.

6. Central to the case is whether it is open to the court to find that the father was responsible for the fires.

7. Counsel for the Independent Children’s Lawyer submitted that it was and he supported the children living with the mother.

8. He proposed that the children spend time with the father each alternate weekend and for half of the school holidays once the father provided a report from a psychiatrist confirming that his mental health was stable and that he was appropriately medicated and compliant with his medication. Until then he proposed that the children spend time with the father each alternate Saturday from 9.00am to 3.00pm.

9. Counsel for the Independent Children’s Lawyer proposed that the mother have sole parental responsibility for the children subject to a specific order that they remain at their current schools until the end of 2014.

10. The mother adopted this as her position during final submissions.

11. The father vehemently denied responsibility for the fires. He sought an order for equal shared parental responsibility and proposed that the children live with him and spend time with the mother each alternate weekend from Friday to Sunday and for half of the school holidays.

The evidence

1. The father relied on his response filed 12 March 2013 and his trial affidavit filed 19 February 2014.

2. The mother relied on her trial affidavit e-filed on 20 February 2014 and the affidavits of her father Mr T filed on 20 February 2014 and her mother Ms K filed on 19 February 2014.

3. The mother also relied on the affidavit of Mr G, a man with whom she is in a relationship, which was filed on 24 February 2014, the first day of the trial.

4. The mother has been in a relationship with Mr G since August 2013. She did not mention him in her trial affidavit and his affidavit was filed very late indeed. I was initially concerned about this but as the evidence unfolded, I came to the view that the mother’s failure to mention Mr G earlier was entirely understandable given her belief that the father was responsible for the fires.

5. A Family Report was prepared by Ms L, a Family Consultant, following interviews in June 2013.

6. All of the witnesses were cross-examined.

An assessment of the witnesses

1. The mother was a responsive witness. She became visibly distressed when pressed by Counsel for the Independent Children’s Lawyer about whether she would consider returning to live in (omitted) and her distress was congruent with her claim that this would be intolerable to her because of her fear of the father.

2. The only concern I had about the mother’s evidence was that the answers she gave during cross-examination when questioned about an incident which occurred between herself and the maternal grandfather in November 2012, were at odds with what she told Ms L during the family report interviews and the mother seemed to be attempting to minimise what had occurred.

3. The maternal grandmother and maternal grandfather were only briefly cross-examined. The maternal grandmother spoke loudly but was responsive and seemed genuine and she made no secret of her feelings about the father. The maternal grandfather was reasonably responsive but he, like the mother, minimised what occurred between himself and the mother in the hallway of his home in late 2012.

4. The father was a very unsatisfactory witness. He was verbose and there were occasions when I had a distinct impression that he was making up a story. An example of this was when he was answering questions about his assault on the mother’s work colleague (one of the victims of the fires) in February 2012.   

5. The father twice informed Ms L that the maternal family had connections with the (omitted), something clearly designed to create prejudice against the mother and conveniently failed to add that it was the maternal grandmother’s brother who was a member of the (omitted) and that the maternal grandmother had nothing to do with him.

6. The father often indulged in colourful language such as asserting that the maternal grandfather “kicked Y to the ground.”

7. The most misleading and incorrect evidence of all given by the father was about what occurred in 2011 and 2012 and I shall turn to that later.

8. I will consider each disputed issue on its merits but I have considerable reservations about the father’s veracity and reliability as a witness and this will have a bearing on the findings I make about the issues in dispute.

Background

1. The parties met in (omitted) in 1997 when the mother was 14 and the father 20 and commenced a relationship shortly thereafter. The mother was born in (omitted) but grew up in (omitted).  The father moved to (omitted) from Sydney to escape the drug scene in Sydney.  

2. The parties have four children:  W, born (omitted) 2000 when the mother was a little over 18, X born on (omitted) 2002, Y born on (omitted) 2005 and Z born on (omitted) 2007.

3. The parties did not have an easy relationship. The father used illicit drugs and sometimes drank heavily and I am satisfied, for reasons to be given later in the judgment, that he was sometimes violent to the mother.

4. The father got into trouble with the law from time to time. He was convicted of a driving offence and mid-range PCA in March 1997; possessing a prohibited drug and two counts of assault in August 1997; behaving in an offensive manner in or near a public place or school in March 2000 and failing or refusing to undergo a breath analysis and assaulting a police officer in 2001. [1]

   [1] Family Report

5. In 2006 the father was diagnosed with Bi-polar disorder.[2] The diagnosis was later changed to schizoaffective disorder but the father continues to refer to himself as having Bi-polar disorder.

   [2] It is possible that the father was diagnosed with a mental health disorder earlier but the only date I can be certain about from the material tendered during the trial is 2006

6. The father was prescribed medication but all was not smooth sailing after the diagnosis. In 2008, he struggled with his mental health and the mother said that he had “frequent outbursts, crying and walking around “vacant like a zombie.” She said that it scared her and that Mr K, a counsellor from the mental health service in (omitted) where the parties were by then living, came to the home to help the father and that toward the end of 2008 his medication was changed.

7. The parties separated in January 2009. The mother remained living in (omitted) and the children lived with her and initially spent time with the father each fortnight at the paternal grandmother’s home in (omitted). This became problematic and there was then a period when the father spent irregular time with the children in the mother’s home with the mother absenting herself.

8. In October 2009 the father obtained a home in (omitted) through the Department of Housing and the children began spending one and sometimes two nights with him each weekend. 

9. In November 2009 the mother commenced a relationship with Mr B and Mr B began spending at least part of his time at her home.

10. Nothing adverse is known about Mr B. However when the father learned of the relationship he withheld the children from the mother. He also changed the school of the two older children from (omitted) Public School to (omitted) Public School which was across the road from his home.

11. The mother filed an application in the Local Court at Taree seeking to recover the children and on 15 February 2010, consent orders were made which provided for the children to live with the mother and spend time with the father each weekend from Friday to Monday and for half of the school holidays.

12. The orders also provided for the children to continue to attend (omitted) Public School and provided that neither party should use illicit drugs or consume alcohol to an extent which affected their parenting capacity while the children were in their care.

13. During 2009, the father kept in contact with mental health workers and they provided him with support. No issues of serious concern about the father’s mental health are mentioned in the (omitted) Area Health records for that year.[3]

    [3] Exhibits X, Y

14. The mother said that she had concerns about the father during 2010, but there was no independent evidence to confirm that his mental health was a problem in that year save that in March 2010 he was brought to an appointment at the Community Health Centre by a mental health worker teary and sad. His medication was confirmed.[4]

    [4] Exhibit Z

15. From early 2011 onwards however, the father’s mental health deteriorated with dire consequences for the mother and children.  

16. The evidence the father gave in his trial affidavit about what happened in 2011/12 leading up to the mother relocating to (omitted) was contained in a single paragraph and was both inaccurate and woefully incomplete. He said as follows:

    In 2011 I suffered from side effects due to medication for my Bi Polar, as it was changed by my mental health worker Mr K. The side effects suffered were loss of sleep, this combined with my heavy work load at the time elevated my mood. I was able to function however returned to alcohol after a very long period of abstinence. While intoxicated I assaulted a member of the public and drove my vehicle and I was charged with the offices. I take full responsibility for these actions and regret them.[5]

    [5] Father’s trial affidavit paragraph 4

17. The father also gave Ms L an inaccurate and woefully incomplete picture of what happened in 2011/12. He told her that he went off his medication in 2011 because he was told to do so and that “it was only for a little while I was not well”.

18. What actually happened in 2011/12, and leaving aside for the moment making any findings about the fathers culpability for certain criminal acts which occurred, was as follows:

    ·the father of his own choice ceased taking his medication sometime in early 2011;

    ·his behaviour deteriorated and he subjected the mother to verbal abuse and harassment;

    ·from around November 2011 he resumed drinking heavily and he was charged with DUI on 24 December 2011 after driving his car through a fence;

    ·by the end of 2011 the father was showing all the signs of mania;

    ·the father was charged with assaulting the mother’s work colleague on 27 February 2012;

    ·on 2 & 13 March 2012 respectively the mother’s car windows and those of Mr B were smashed in the night;

    ·attempts by the mental health service to stabilise the father while he remained in the community failed and on 19 March 2012 he was involuntarily admitted to (omitted) Mental Health Unit;

    ·the father was released from (omitted) Mental Health Unit on 29 March 2012;

    ·in the early hours of 31 March 2012, Mr B’s car and his parents’ house were destroyed by fire and on 2 April 2012 Mr M’s car was destroyed by fire;

    ·the father resumed drinking after his release from the Mental Health Unit and neighbours called police on 12 April 2012 complaining that the father had threatened while intoxicated to burn someone’s house down. The father was charged with using offensive language to police after they arrived on the scene.   

19. The evidence about what happened during this period in greater detail is as follows.

20. In early 2011 the father became concerned about the side-effects of his medication. In a letter his GP wrote in March 2011 there is reference to halving the dose[6] but there can be no doubt that at some time early in 2011 the father ceased taking his medication altogether.

    [6] Exhibit AA

1. It is impossible to be entirely sure about when this occurred. During cross-examination the father said that in early 2011, the scripts for all his medication ran out and he decided to stop taking it and this is consistent with his statement to Mental Health Workers on 28 December 2011 that he had “ceased his treatment” in February 2011. [7]

   [7] Exhibit DD

2. On 21 July 2011 however, the father told his mental health worker Mr K that he had not taken his medication for the past two months but had been abstinent from illicit drugs and alcohol.  This would put the date of him ceasing his medication slightly later ie. in about May 2011. [8]

   [8] Exhibit DD

3. On balance I consider that a date of cessation of February 2011 is more likely but nothing much turns on fixing the precise date. The relevant matter is that the father did not cease taking his medication on the advice of any treating doctor or health professional; he ceased taking it because he decided to do so.  

4. The mother said that during 2011 the father harassed her and came to her home uninvited. Examples she gave were that in March 2011 when the children were in the father’s car the father called her “a slut” and “an alcoholic” in front of her house; that he drove past her in the street with the children in the car and called out that she was an ice addict; that he called her a “slut” and “a poor excuse for a mother” when she went to the school;  and that he came to her house uninvited and when she asked him to leave called her a “fat white slut” in front of the children, something Y then repeated.

5. The father denied that any of this was true but I do not accept his denials. This behaviour is congruent with his declining mental health and it defies belief that the mother made it all up.

6. From about November 2011 the father began drinking heavily and between 13 October 2011 and 29 December 2011 he sent the mother 708 text messages (“some negative and some positive”) which she said made it difficult for her to concentrate on her work.

7. At 2.15am on 24 December 2011 the mother was awoken by a knock on the door and found the father standing outside. She said that the father was slurring his words and smelt of alcohol and told her that he had come to swap car keys with her. The father had borrowed the mother’s vehicle earlier that day and she had kept his car keys and given him hers and she expected him to return to swap the keys at some point, but not at 2.15am.

8. The mother opened the screen door to exchange the keys whereupon the father entered the house and refused to leave. The mother eventually managed to get him back on the other side of the screen door by going out onto the verandah where he followed her and then returning inside and shutting and locking the screen door and the wooden door. She said that after she did this the father shouted out that she was “a selfish bitch, a white slut” and kicked the screen door four times damaging it. She said that she heard him revving his engine and he drove off in a screech of tyres.

9. About an hour later the police came to the mother’s house and told her that the father had driven his car through a fence. He was later charged with DUI.

10. The mother said that the father’s behavior scared her and she stayed away from home for two nights after this incident.

11. The father denied that he verbally abused the mother and damaged the screen door on 24 December 2011. I do not accept his denials.

12. The mother did not make the children available to spend time with the father directly after this incident and he complained about it in his trial affidavit and during cross-examination.  The father’s inability to accept on reflection now that some time has passed, that his own behaviour led to him not seeing the children over Christmas 2011 is deeply troubling.  

13. The father recognised on some level that he was very unwell and on 28 December 2011 he went to the (omitted) Mental Health Unit. He told staff that he had ceased treatment in February 2011, was stressed depressed and sleeping poorly and had been drinking heavily for four weeks. He initially refused assessment but returned later in the day saying that he recognised the signs of paranoid thinking, irritability and needing little sleep and felt that he was showing signs of a relapse in other words of becoming manic. It was recommended that he resume taking his medication and by implication he must have obtained a prescription.[9]

    [9] Exhibit DD

14. The children were with the father on 28 December 2011 and before going to the Mental Health Unit he texted the mother asking her to come and collect them. The mother was in (omitted) and was not able to get there immediately and the father asked his neighbour Mr P to mind the children. He collected the children from Mr P after returning from the Mental Health Unit and later that day when the mother came to his home refused to allow her to take the children.

15. The mother was concerned about the state of the father’s mental health and wanted to take the children. She called the police but after they were shown the 2010 court orders, they told the mother that they could not interfere. They did assist her however, to apply for an Apprehended Domestic Violence Order (ADVO). The application cited particularly the incident on 24 December 2011 and the barrage of text messages. An order was made on 31 December 2011 restraining the father from approaching the mother, her home or work premises within 12 hours of consuming alcohol.

16. The children continued to spend the weekends with the father pursuant to the 15 February 2010 orders but the mother became increasingly concerned about his care of them and about whether he was drinking when the children were with him. She said that when the children returned home after spending the weekend of 17/18 February 2012 with the father, they told her that they had attended a party with the father and that a fight had broken out and there was broken glass and blood. She said that W told her that the drunks were so annoying that he walked home alone.

17. The father agreed during cross-examination that he took the children to a party that weekend and that W walked off alone but said that nothing untoward happened at the party and that W only walked three doors down to a neighbours’ house and the father watched him as he walked.

18. The father was a very unreliable witness and I cannot accept his evidence but the mother was reporting things the children had told her and it would be unsafe for me to reach a conclusion about exactly what happened that weekend.

19. On that same weekend, Y told the father that Mr B had hit him with a tent rope and the father made a complaint to police.

20. Police investigated the complaint and their records state that Y told them that he had been playing with old tent ropes when he shouldn’t have been and that Mr B took them off him and flicked him on the chest. They noted that Y had a red mark on his chest.

21. Police noted that the father was adamant that Y had been assaulted[10] but they spoke to the mother and formed the view that the injury may have been accidental and took no further action.

    [10]  Exhibit S

22. The father was dissatisfied and angry about this outcome and still felt angry about it in June 2013 when Ms L interviewed him. Ms L said as follows:  

    The father became angry when asked what orders he was seeking and stated he wanted the children in a safe environment and claimed that “Mr B [the mother’s expartner] whipped Y” in front of others and the mother did not intervene and “did nothing”. The father described his distress at what pain and grief Y would have experienced by this event. The father reported that no action was taken by authorities in relation to this alleged assault by Mr B. (This appears to be the event investigated by police and referred to in paragraphs 146-7 below.) The father said the detectives spoke to him and that he had photographs. The father claimed he was going to the Ombudsman about the situation.[11]

    [11] Family Report paragraph 58

23. The father stated as a fact in his trial affidavit that Mr B had assaulted Y.

24. On or about 27 February 2012, the father assaulted Mr M, a work colleague of the mother’s and on 29 February 2012 he was charged over the assault. He was insistent to Ms L that all he did was spit at Mr M but Mr M complained to police that the father grabbed him by the neck. The assault occurred 500 metres from the mother’s home. 

25. In his trial affidavit, the father claimed that he assaulted Mr M because Mr M racially abused him and that he did not know at the time that Mr M was a work colleague of the mothers. Ms L spoke to the father about this incident and reported as follows:

    The father was asked about the assault conviction last year. He stated that he was at the pub when a man racially abused him and taunted him in front of his uncles. He said he saw the man again later and he did it again. The father then came across him again and spat at him. He initially said he did not know him and in his affidavit (dated 12/3/13) at paragraph 4 describes him as “a member of the public”. When challenged the father then acknowledged that the man was a work colleague of the mother. He said he was unwell at the time and did not recall physically assaulting the man.[12]

    [12] Family Report paragraph 65

26. I do not accept that it was mere coincidence that it was Mr M who was assaulted and consider it more likely than not that the father assaulted Mr M because of his connection with the mother.

27. The father’s mental health did not improve after his visit to the Mental Health Unit on 28 December 2011 and over the visit two to three months mental health workers became increasingly concerned about him.

28. A note in the (omitted) Area Health records for 29 February 2012, two days after the father assaulted Mr M, states that psychiatric support services had requested an urgent review of the father because of his deteriorating mental state and the fact that he had been drinking recently. It was suggested to them that the father be taken to the mental health department or the emergency department at the hospital or that they ring the police or an ambulance or both.

29. On 2 March 2012, the mother was awoken at home in the middle of the night to the sound of breaking glass and found that two of the windows of a car owned by Mr B and which was parked at her home had been smashed.

30. (omitted) Area Health records show that on 3 March 2012, workers had a discussion about the father and noted that they had not seen him for three days and that there was growing concern about his mental state and compliance with medication.[13] It was recorded that the father had told workers that he did not need medication and had not taken any since last visited by the Mental Health Team on 29 February 2012, that he was not sleeping well, was consuming alcohol, was easily agitated and was talking about killing certain persons when upset.

    [13] Exhibit CC

31. Following this meeting, the mental health workers visited the father’s home and found it very untidy in appearance. The father was not at home.

32. The records state that from 9 March 2012 until about 14 March 2012, mental health workers were able to observe the father taking his medication but his mental health did not settle.[14]

    [14] Exhibit DD

33. On 13 March 2012, the mother heard smashing glass late at night and on going outside found that two of her car windows had been smashed.

34. On 14 March 2012 the mother could not settle X and when she went to the bedroom to give him a hug, she discovered that he had a knife under his pillow, “the biggest knife in the house.”

35. The mother said that X told her “I’m scared, Dad said two down two to go.” The mother was concerned about what might happen if she tried to remove the knife and called the police who assisted her to remove it.

36. After the police left, X asked the mother if they could all sleep in the lounge room tonight. The mother agreed and the family all slept in the lounge on mattresses.

37. On 17 March 2012, mental health workers noted that the father reported having an elevated mood and had pressured speech, was irritable and reported that he lacked sleep and said that he had spent $5,000.00 in the last week on alcohol and gambling. It was noted that the paternal grandfather had committed suicide a few weeks previously

38. On 19 March 2012, the father was admitted to the (omitted) Mental Health Unit. During cross-examination he said that it was a voluntary admission but his supervising psychiatrist Dr R, said that the admission was involuntary and that the father was made a voluntary patient prior to his discharge.[15]

    [15] Exhibit DD

39. Upon admission the father was found to be irritable, angry, hostile, disorganised and with pressure of speech. He was initially dismissive of the need for treatment and displayed poor insight and was diagnosed as experiencing a relapse of irritable mania. He was recommenced on his usual medication and over time his demeanour changed.[16]

    [16] Exhibit DD

40. The father was released from the Mental Health Unit on 29 March 2012.

41. Between 1.30am and 1.47am on 31 March 2012 police and fire brigade were called to the mother’s home by neighbours and found Mr B’s car on fire.

42. The mother and Mr B awoke to the sound of fire hoses and Mr B contacted his parents who immediately came around to the mother’s home. A short time after they left their home, which was around the corner from the father’s home, their home was set alight and it burned to the ground.

43. The mother and the Mr B named the father as the suspected perpetrator and the police went to the father’s home at about 5.00am. He took some time to answer the door and then would not let the police in until they obtained a warrant. Police said that they noticed a strong smell of petrol and air freshener in the father’s home and a burnt area of grass at the front of the home.

44. The father told police that he had been out drinking the previous night and had returned home intoxicated but he denied having anything to do with the fires. He said that his home smelt of petrol because he kept motor bikes inside and he had an explanation for the burn mark on the lawn. He said that there was no one who could vouch for his whereabouts after he returned home.

45. The police did not arrest or charge the father.

46. On 2 April 2012 the father attended court in respect to the charge of assaulting Mr M. That night Mr M arrived home at about 10.30pm and parked his car at the rear of his house. Not long afterwards he heard noises outside and on going out to investigate, found that his car was on fire. He saw a broken VB beer bottle with flames coming from it on the ground between his car and the car parked in front of it. Mr M was unable to extinguish the fire and both cars were destroyed.

47. Mr M named the father as the suspected perpetrator and police went to the father’s home but no one answered the door. They sighted beer bottles of the same kind in the father’s bin. The father was not arrested or charged.

48. The mother was convinced that the father had smashed the car windows and lit the fires and on 4 April 2012 she quit her job and moved to (omitted) with the children. She said that the ADVO which had been in place since late December 2011 had not protected her and that she left because she “feared further damage and intimidation and was concerned about the effect of the children as well as our general safety.” 

49. The father alleged in his trial affidavit that the mother left (omitted) because she had damaged the house and had a rent debt and could not get other accommodation in (omitted). These allegations were not put to the mother in cross-examination and the father’s solicitor did not subpoena any records in an effort to support this claim. I do not accept that this claim has any validity. I accept the mother’s evidence that she moved because she was terrified.

50. The father came to police attention again on 12 April 2012. A person called the police alleging that the father was standing in his backyard yelling “You want to fuck my wife...I’ll burn your house down.” Police attended and the father used offensive language to the police. He was arrested and charged with offensive behaviour. 

51. The father denied during cross-examination that he said the words the witness claimed, commenting that he had never referred to the mother as his wife. The father was not a witness of credit and I do not accept his denials.

52. Things were difficult for the mother after she moved to (omitted). Her only option was to move in with the maternal grandparents and the accommodation in their home was not satisfactory. The maternal grandparents have the care of two of their nephews and at least one of the mother’s brother’s was still living at home and after the mother and children moved in, six children and six adults were living in a three bedroom home.

53. An additional difficulty for the mother was that (omitted) Primary School would not initially accept the school age children for enrolment because the 15 February 2010 orders provided for them to attend (omitted) Public School and the father would not consent to them being enrolled at (omitted) Primary School. Eventually after about eight weeks, (omitted) Primary School accepted the children on a temporary enrolment.

54. After moving to (omitted), the mother did not comply with the 15 February 2010 orders about the children spending time with the father but on 15 June 2012, the parties agreed on a parenting plan which provided for the children to spend time with the father in (omitted).

55. It was agreed that the children would spend time with him from 9.00am to 3.00pm for the first four weeks with collection supervised by named persons. Conditional upon no issues arising with the father being intoxicated during this time, they were to spend time with him from after school on Friday until 5.00pm on Sunday each alternate week and from 9.00am to 1.00pn each alternate Sunday.

56. These visits occurred uneventfully until 24 November 2012 when the father refused to return the children to the mother.  

57. The father said that he withheld the children because they told him that there had been a physical fight between the mother and maternal grandfather. The children had also complained earlier that the maternal grandfather had kicked Y in the shoulder knocking him to the ground and the father had reported that to the police.   

58. On 4 December 2012, the mother filed an application for parenting orders in the Federal Magistrates Court. Her application was given a return date of 31 January 2013.

59. The father continued to withhold the children after he was served with the mother’s application but he permitted her to spend some time with them subject to her agreeing to return them to his care at the end of the visits.

60. On 31 January 2013, the matter came before me and I ordered that the parties attend a child dispute conference with a family consultant pursuant to s.11F of the Family Law Act. 

61. Ms L conducted the child dispute conference. She noted the allegations made by the father about the maternal grandparents and the unsuitability of the accommodation in that home for the mother and children. She also noted the mother’s claims that the father had committed acts of family violence including the arsons and had mental health problems.

62. Ms L expressed concern about the arsons but said as follows:        

    It may be that interim orders in terms of living with the father and spending time with the mother are appropriate given concerns about the maternal grandparents household and the mother’s lack of suitable alternative accommodation and the need for stability for children.[17]

    [17] Exhibit G

63. On 31 January 2013 after hearing argument, I made interim orders that the children live with the father and that they spend time with the mother each weekend from 10.00am Saturday until 4.00pm on Sunday. I also appointed an Independent Children’s Lawyer.

64. The mother took on board the concern raised about her accommodation and in February 2013 rented a home in (omitted), a village about 45 minutes from (omitted).

1. Regrettably no further interim hearing was conducted after this change occurred and subpoena material became available. Even worse, on 13 March 2013, the orders were varied by consent in a way which made it more difficult for the mother to spend time with the children on the weekends.

2. The kind of work the mother does requires her to do some work on weekends. The consent variation which changed her time with the children to be from 10.00am on Saturday until 4.00pm on Saturday each weekend and from 10.00am on Sunday until the commencement of school on Monday each weekend may have been intended to help by allowing her to work on Saturday night but it was coupled with a restraint on her leaving the children with the maternal grandparents and required her to return the children to the father if she was required to work while the children were in her care.

3. As the mother needed as much weekend work as she could get to pay her rent, the effect of the variation was that it became almost impossible for her to spend time with the children on Saturdays and indeed she has not spent the full time permitted by the orders with the children for most of the time they have been in place.

The mother’s current circumstances and proposals for the future

1. The mother works at (employer omitted). She does (duties omitted) and works as a (duties omitted) and her hours vary. They are 6.00pm to up to 9.00pm or 9.30pm depending on whether the (employer omitted) is busy and 9am to 11am if the mother does (duties omitted). The mother is usually offered work on Saturday and during the summer season she may be offered work 7 days a week. She is paid about $22.00 per hour. 

2. The mother said that if the children were returned to her care, she would cease working in the evening but would continue working during the day. I accept that the mother would do her best to fit any work she did around the children’s needs. The mother also hopes to study in the future.

3. The mother is leasing a four bedroom home in (omitted), a village about 45 minutes’ drive to the west of (omitted) and about equidistant from (omitted) and (omitted).

4. There is a bus from (omitted) to (omitted), so the children could continue to attend their current schools if they lived with the mother, but during cross-examination the mother admitted that her preference was for the children to attend school in (omitted).

5. The mother said that while living in (omitted), she was verbally abused at (omitted) Public School by the father who was conducting a playgroup there and that she felt unsupported and excluded by the school – as if everyone was on the father’s side. She said that she was fearful of the father and did not want to come across him if she visited the school.

6. When the mother was cross-examined about this issue, it was evident that she had a genuine strongly held desire for the children to attend school in (omitted) but was reluctant to honestly admit it for fear that she might damage her case to have the children returned to her care.  

7. At the end of the hearing, the mother said that she would accept the proposal of the Independent Children’s Lawyer that the children remain at their current schools until the end of 2014.

8. The mother’s relationship with Mr B ended at some point after the arsons in 2012. It was not made clear when it ended but the mother told Ms L that Mr B left the (omitted) area at Christmas 2012. In late 2012 or early 2013 the mother met Mr G and she commenced a relationship with him in August 2013. Mr G is a (occupation omitted) at the (employer omitted) and at present the mother stays at his home in (omitted) six nights a week and spends one night a week with the children in the house at (omitted).

9. Mr G has met the children on several occasions when he has taken them and the mother out on his boat.

10. Nothing adverse was alleged against Mr G and he seemed pleasant in the witness box. However, he made it clear during his cross-examination that he did not envisage setting up home with the mother and the four children if they came to live with her and that he was uncertain where the relationship would go if this occurred.  

11. Counsel for the Independent Children’s Lawyer pressed the mother quite hard about whether she would consider returning to live in (omitted). The advantages of this would be that it would then be easy for the children if they lived with the mother to continue attending school, sporting activities and cultural events in (omitted). The mother became tearful during this cross-examination and was resistant to the suggestion. She said that she would be concerned for her safety and was too afraid to return to (omitted).

12. The maternal grandparents continue to live in (omitted). For reasons to be given later, I do not accept that they pose any threat to the children. They will be a source of support for the mother if she needs help in the future although they will not be living next door.

The father’s circumstances and proposals for the future

1. The father lives in (omitted) and has suitable accommodation for the children. In his affidavit he said that he was a (occupation omitted) for (employer omitted) in (omitted) and was also studying for a (course omitted) specialising in (omitted).

2. The father said that he had the support of the paternal grandmother and paternal aunt but they did not give evidence and the father did not say how often if at all they saw and the children and the extent to which they are actually supportive of the father remains open to question.

3. The father has not re-partnered.

The children’s circumstances

1. W is enrolled at (omitted) High School and the younger three children attend (omitted) which is a small school with about 250 students.

2. No information was provided about W’s school performance, but the children who are at (omitted) are each either doing well or doing as well as could be expected.  

3. X is doing very well academically and is school captain this year.

4. Y and Z have some learning difficulties and receive help from the school.

5. The father said that the children attended PCYC and did AFL and hockey but in oral evidence said that the children were playing rugby league. He provided detailed evidence about the children’s school and sporting achievements in paragraphs 40 to 45 of his affidavit and there was no dispute that the children were doing well or as well as could be expected in these areas.

The children’s best interests

1. I must treat the children’s best interests as the paramount consideration when determining whether to make a particular parenting order and to determine the children’s best interests I must have regard to the matters in s.60CC (2) and (3) of the Family Law Act.

2. The primary considerations in s.60CC(2) are as follows:

   a)the benefit to the children of having a meaningful relationship with both of the children’s parents; and

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

3. S.60CC(2A) provides that in applying the considerations in s.60CC(2), the court is to give greater weight to the consideration in s.60CC(2)(b).

S.60CC(2)(a) 

1. There was no dispute that the children would benefit from having a meaningful relationship with both of their parents and no dispute that if the father’s mental health was stable and he was not drinking excessively or taking illicit drugs, he had a lot to offer the children.

S.60CC(2)(b)- risks posed by the mother 

1. I am satisfied that the children are not likely to be subjected to or exposed to abuse, neglect or family violence in the separate care of the mother.

2. The mother would not abuse the children herself and there was no evidence that she had chosen problematic partners since separation who might do so. Nothing adverse was alleged against either Mr B or Mr G and I do not accept that Y was assaulted by Mr B.

3. There was no evidence that the mother had entered into a post-separation relationship with a violent partner.

4. I do not accept that there is a risk of the children being subjected to abuse by the maternal grandparents or exposed to family violence between the maternal grandparents and the mother or any other adults.

5. I do not accept that Y was assaulted by the maternal grandfather. The maternal grandfather’s appearance in the witness box makes it clear that it would have been physically impossible for the events described by the father to have occurred and the father has a tendency to sensationalise matters and grossly overreact to anything that falls from Y’s mouth.

6. I accept that something happened involving the maternal grandfather which upset Y at the time but it was very likely something accidental combined perhaps, with a mild instinctive overreaction by the maternal grandfather.

7. The mother and the maternal grandfather minimised what occurred between them in the hallway of the maternal grandparents’ home in 2012. I am satisfied that there was a deliberate physical interaction between them in the context of an argument but it did not make either of them fearful or coerce or control either of them and I do not consider that it constituted family violence. It was an isolated incident which occurred when the extended family were living in crowded conditions.

8. The only real risk of the children being exposed to family violence in the company of the mother is if the father perpetrated it, and the risk of them actually witnessing any violence will be reduced if the parents come into contact with each other as little as possible. They no longer live in the same town and if orders are made that changeovers of the children occur at school or in a public place, the risk is reduced to the extent it can be by orders of the court.

S.60CC(2)(b) – risks posed by the father

1. There is a risk of the children being neglected by the father if his mental health is poor or if he abuses alcohol or uses cannabis, but this issue is best dealt with in the context of considering the father’s parenting capacity.

2. The issue of whether the children may be abused by the father in the future is a vexed one. He would not deliberately harm them but the definition of abuse was extended by the amendments to the Family Law Act which came into effect on 7 June 2012 and “abuse” now includes the following:

   Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence

3. To assess the risk of the children being exposed to family violence either while in the father’s care or because of the father’s actions in the future, I first need to make findings about the allegations that the father has perpetrated family violence in the past.

4. The mother alleged to Ms L that there was violence during the parties’ relationship and Ms L said as follows in the Family Report:

   [the mother described] “scuffling up and down the hallway” when the father pulled her hair and punched her in the face. She described bruising around the eye and that her head was so sore she could not brush her hair. She believed that this was the incident where the police were called (?26/7/01) and she recalled that her parents came to get her and she and W stayed with them for a while.

   The mother said that the family then moved to (omitted) and there were lots of arguments. She described the violence as “going through stages”. She reported that the last time the father was directly physically abusive to her was when she was pregnant with Z when he put a pillow on her head and hit her. The mother also described throughout the relationship ongoing controlling behaviour by the father where she was isolated from family and friends. 

5. During cross-examination, the father’s counsel challenged the mother only about her allegation that the father was controlling and isolated her from family and friends. She did not challenge her about any of the other allegations, nor did she challenge the maternal grandmother about the information she provided to Ms L about seeing the mother with injuries.[18]

   [18] Family Report paragraph 82

6. The father’s counsel nevertheless submitted that I should disbelieve the mother and treat the violence allegations as a recent invention because:

   ·when the mother was interviewed by hospital social workers as part of routine procedure at or around the time of some of the children’s births, she made no complaint about family violence;

   ·she did not mention any incidents of family violence in her trial affidavit.

7. I do not accept this submission.

8. The fact that the mother did not mention family violence to social workers at or around the time of the birth of her children does not establish anything one way or the other. It could mean that no family violence occurred but it could also just mean that for a variety of reasons the mother, who was then still in a relationship with the father, chose not to mention it.

9. The fact that the mother made only brief reference to family violence in her affidavit could be because of the detailed references to it in the family report.

10. I am satisfied that physical violence occurred during the parties’ relationship as described by the mother. I cannot find that the mother was controlled as she asserted, even though the maternal grandparents made a similar assertion, because these were just expressed as conclusions and no detailed information about what occurred was given by the mother or maternal grandparents, either to Ms L or in their affidavits, which would allow me to make a finding about the issue.

11. However, the father’s actions in withholding the children in November 2009 for no good reason whatsoever and in November 2012 for what I consider an invalid reason, when coupled with his other behaviours toward the mother since separation suggests a propensity in the father to engage in controlling and coercive behaviour toward the mother.

12. The father subjected the mother to family violence after the end of the relationship every time he yelled abuse at her in the street and or at/outside her home and called her vile names. This behaviour occurred on a number of occasions and I am satisfied that it constituted repeated derogatory taunts.

13. The father committed an act of family violence when he entered the mother’s home on 24 December 2011 against her express wishes, verbally abused her and kicked and damaged the screen door. I am more than satisfied that this event occurred as described by the mother and I do not accept the father’s denials about calling the mother names and damaging the door. The incident scared the mother and she stayed away from home for some nights afterwards.

14. I am satisfied on the balance of probabilities that the father was responsible for the mother’s car windows and Mr B’s car windows being smashed during the night in March 2012. It is simply not believable that anyone else would have done this.  

15. Perhaps most importantly, I am satisfied on the balance of probabilities that the father was responsible for the fires. They all constituted acts of family violence as they all caused the mother to be fearful and they were acts of family violence of the utmost seriousness.

16. The father’s counsel submitted that in considering whether I was satisfied on the balance of probabilities that the father was responsible for the fires, I had to apply the test at the highest level because of the seriousness of the allegations and I accept this.

17. The father’s counsel submitted that I could not find myself so satisfied and that I should place weight on the fact that the police did not consider that they had sufficient grounds to arrest or charge the father.

18. I do not accept this submission.

19. This court does not have to be concerned with whether a criminal charge can be made out beyond a reasonable doubt and the following matters taken together lead me to be satisfied on the balance of probabilities that the father was responsible for the fires:

    a)All of the victims were associated with the mother. The father was physically violent to the mother during their relationship, had lashed out at her verbally since separation and had damaged her property on 24 December 2011 and 13 March 2012;

    b)One of the victims was Mr B. The father was unhappy when the mother re-partnered with Mr B in November 2009 and withheld the children from her for a period of time. He made a complaint to police in February 2012 that Mr B had assaulted Y and he was dissatisfied and indeed angry about the refusal by the police to take action against Mr B. He was still angry about this more than twelve months later;

    c)Another of the victims was Mr M, a work colleague of the mother’s. The father assaulted Mr M on 27 February 2012 and had been to court about this on the day that Mr M’s car was set on fire;   

    d)The other victims were Mr B’s parents who lived not very far from the father;

    e)Mental health workers raised a number of concerns about the father at a meeting on 3 March 2012 including that he had threatened to kill certain people when upset;

    f)The father was released from (omitted) Mental Health Unit only two days prior to the first two fires. It is reasonable to assume that he was released from hospital because it was considered that it was safe for him to be back in the community, but it is clear that his behaviour did not wholly settle after his release. On 12 April 2012 he was charged with using offensive language to police after neighbours called them. The person who called the police reported that the father had threatened to burn down a house;

    g)When the police went the father’s home on 31 March 2012, he took a considerable time to answer the door and the police noticed a strong smell of petrol and air-freshener in his house and a burn mark in his front yard. The father had an explanation for the petrol smell and the burn mark but they are also consistent with his involvement in the fires;

    h)When the police visited the father’s home after the destruction of Mr M’s car, they found beer bottles in his bin of the brand and type which had been used to contain the fuel which started the fire at Mr M’s home;

    i)There are no witnesses who can vouch for the father’s whereabouts at the time of any of the fires.

20. It is beyond belief that an unknown third party, rather than the father, was responsible for fires which all destroyed the property of people who had a connection with the mother and that by sheer coincidence, when the police visited the father’s home on the morning following the first two arsons, they noticed a strong smell of petrol in his house and a burn mark on his lawn and that by sheer coincidence, Mr M’s car was set alight on the day the father went to court to answer the charge of assaulting him.

21. The father suggested to Ms L that perhaps the (omitted) were responsible,[19] an absurd suggestion which his counsel mentioned briefly in submissions and then rapidly backed away from.

    [19] Family Report paragraph 69

22. This is not the end of the matter, of course, because what I am required to consider in this section of the judgment is whether the children are likely to be at unacceptable risk of being subjected to or exposed to family violence in the future in the father’s care or as a result of the father’s actions and a complicating factor is that at various times during his relationship with the mother the father abused drugs and alcohol, in 2006 he was diagnosed with a mental illness and the events of 2011/2012 occurred mainly when he was off his medication and the serious events occurred when he was either acutely mentally ill or had just been released from (omitted) Mental Health Unit.

23. There is certainly an unacceptable risk of the children being exposed to family violence in the future as a result of the father’s actions or in his care if the father’s mental health is not properly under control and/or if he is under the influence of alcohol or illicit drugs especially given the broad definition of “exposed” in s.4AB(3), but it is open to me to find that there is no unacceptable risk of the children of being exposed to family violence in the father’s care or as a result of his actions in the future if he is compliant with his medication and mentally well, not intoxicated and not under the influence of illicit drugs.

1. I say no unacceptable risk because I am not prepared to find that there is no risk at all. The father’s withholding of the children from the mother in November 2009 and November 2011 speaks of controlling behaviour and I cannot be certain that all of the assaults which occurred during the relationship occurred when the father was in the grip of substance abuse or was mentally ill. I cannot completely dismiss the possibility that the father’s attitude to the mother is such that behaviour coming within the definition of family violence could occur even if the father’s mental health is stable and he is not intoxicated or under the influence of an illicit drug.

2. The issue of whether there is a risk of the children being abused in the father’s care as a result of being exposed to family violence is not something I can determine, because it involves consideration not just of whether the children are likely to be exposed to family violence but of whether they are likely to suffer serious psychological harm as a result and there is no evidence in this case which would allow me to make any findings about this.

3. The first of the additional considerations in s.60CC(3) is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.

4. Ms L spoke to each of the children. She said as follows about W’s views:

   W’s views in regard to future parenting arrangements and the parties’ proposals were to have things like they are now, that is live with the father and see the mother every weekend.

   When asked how it would be if the Judge decided he was to stay with Dad he replied, “pretty good”. He commented that that arrangement may be best as when with the mother the fighting between, and swearing by, the children increases.

   When asked how it would be if the Judge decided he was to live with Mum he replied, “don’t know – I would be pretty disappointed”. He went on to say that he thought they would have to change schools and he was doing well at his current school so did not want to change. He also thought that the mother would get stressed. He commented that when the mother had them in her care she went to Nan and Pop’s because she had nowhere to go and needed their help. He wondered how she would manage the four of them as “the boys are a bit of a handful”. When asked if he thought it would be better now the mother had accommodation separate to the maternal grandparents he replied, “don’t know. The boys are yelling and swearing a bit at (omitted).” He went on to say that the boys were better at the father’s than at the mother’s but he did not know why. When asked how it would be if they lived with the mother and remained at their schools W responded that that would “be alright” but he expressed concerns that the mother may become stressed.[20]

   [20] Family Report 105, 106, 107

5. Ms L said as follows about X’s views:

   X reported that he enjoyed the father’s place more than the mother’s. He described seeing his friends often when at the father’s place and he clearly enjoyed his involvement in activities such as boxing (which he attends 3 days a week). He said that at his mother’s place he enjoyed playing in the paddock with his brothers and playing with his dog.

   X thought that his mother and father got on at present. He commented that, “now they just talk but don’t really talk much about things”. He did feel they discussed issues to do with the children and that they usually do this on the phone. X reported that he remembered when they lived together and he thought they got on “okay, pretty good” but he acknowledged they argued.

   When asked about the time he had stayed with the maternal grandparents X commented that he had not really liked it and said that the house was too small for them. He then said “sometimes be mean to us”. When asked further about this he said “when whinged be mean and nasty” and when queried again he said “say stuff to us”.

   X’s views in regard to future parenting arrangements and the parties’ proposals were sought. When asked how it would be if the Judge decided he was to stay with Dad he replied, “good”. When asked how it would be if the Judge decided he was to live with Mum he replied, “no not really” and said he probably would not get to go to (omitted) School and see all his friends outside of school. When asked how it would be if he lived with the mother and stayed at the (omitted) School he replied, “little bit better”. When asked if he thought he saw the mother enough he stated no because her car need to be fixed and the father does not have a license. He felt that both his parents were “going good” though described his father as getting “cranky when we are really naughty”. [21]

   [21] Family Report paragraphs 113-116

6. Ms L said as follows about Y’s views:

   When asked how it would be if the Judge decided he was to stay with Dad he replied, “sad”.  When asked how it would be if the Judge decided he was to live with Mum he replied, “sad”. He explained that he really wanted “50/50” and seemed to be saying he wanted to spend half his time with each parent so he can see both. Y said he’d like to see the father on weekends, Friday to Sunday and the mother from Sunday to Friday. He went on to say that when he was with Mum he missed Dad and when he was with Dad he missed Mum.[22]

   [22] Family Report paragraph 130

7. Ms L said as follows about Z’s views:

   Z was asked how his parents got on with each other and he replied “I don’t know”. When asked if they talk to each other he said “yes”. He felt he currently saw each of his parents enough then added that he would like a bit more time with the mother.[23]

   [23] Family Report paragraph 130

8. As noted above, the first preference of W and X, who are 13 and 11, was for things remain as they are but neither was vehemently opposed to living with their mother and their major concern was having to change schools.  Y talked of equal time and Z said he would like a bit more time with his mother.

9. Ms L said during cross-examination that the children were compliant children and she felt that they would accept an outcome which saw them living primarily with their mother. She did not consider it likely that they would run away.

10. The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.

11. The father did not dispute that the children had a good relationship with the mother and Ms L observed a happy relationship between the mother and the children. She commented that all the children were happy to talk to the mother and that she appeared familiar with their interests and activities. Ms L said that it seemed to her that the children had a warm and reciprocally loving relationship with the mother.

12. The maternal grandmother attended the family report interviews in person but was not observed with the children and there was not much independent evidence about the relationship between the children and the maternal grandparents.

13. The father alleged that the children were scared when the maternal grandfather approached them in a shopping centre on 9 November 2013 but a reading of that paragraph suggests that the father was  told about the incident by a third party. The maternal grandfather was not cross-examined about this incident and there was no evidence to suggest that there are any particular ongoing difficulties between the children and the maternal grandparents. It is likely that the period in 2012 when the mother and children lived with the maternal grandparents was stressful for all concerned.

14. Ms L observed the children to happily engage with the father and said that he showed a good ability to engage them in conversation and activities demonstrating a close and familiar relationship. The mother did not dispute that the children had a good relationship with the father.

15. There was no evidence about the relationship between the children and the paternal grandmother or any other member of the paternal family.

16. The children have always lived together as a sibling unit and this will continue in the future. They fight with each other and during the report interviews, W said that he felt that the younger two fought more when at the mother’s. Y however said that there were lots of fights between all the brothers and that they fought more at the father’s. Z also referred to the sibling fighting and said that both parents told the children to stop.

17. I must consider the extent to which the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children or to communicate with the children.

18. The father’s counsel submitted that the court should be critical of the mother for her failure to spend all the time with the children which the interim orders allowed.

19. The mother conceded that between October 2013 and the date of the hearing, she spent time with the children only four Saturdays although she always had the children on the Sunday overnight to the Monday and that prior to the Family Report interviews she missed a good deal of time with them. 

20. At first sight this seems to indicate a lack of interest in the children and a lack of child focus on the mother’s part, but the mother could be forgiven for thinking that the decision I made on 31 January 2013 went against her because she did not have appropriate accommodation. In my view this explains why her focus after this decision was on obtaining and maintaining a home and why she chose to prioritise paying the rent over all other things including paying for car repairs and spending time with the children on Saturday.

21. The mother could only pay the rent if she worked as much as possible and the 13 March 2013 consent orders required the mother to return the children to the father if she was working, making Saturday time impracticable.

22. I am satisfied that the mother’s focus on paying the rent since February 2013 demonstrates a strong focus by her on trying to achieve the outcome which she considers to be in the children’s long term best interest, namely that they live with her.

23. The father maintained that the mother had also failed to have regular telephone communication with the children but I cannot be satisfied on the state of the evidence that this is correct.

24. I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children. 

25. The mother alleged in her affidavit that the father owed arrears of child support in 2012 but to the best of my recollection, this was not the subject of cross-examination and child support was not an issue referred to by anyone in submissions.  

26. I must have regard to the likely effect of any change in the children’s circumstances including the likely effect of separation from either of their parents or any other child or person with whom they have been living

27. The children have had to endure a lot of change in the past two years.

28. On 4 April 2012 the mother moved with them from (omitted) to (omitted) and they were required to change schools.

29. On 24 November 2012 the father unilaterally withheld them in (omitted) and re-enrolled them at (omitted) Public School.  

30. If the mother’s case prevails, the children will commence living with her in (omitted) and at the end of this year will very likely change schools again.

31. The mother submitted that the changes she proposed would not only be beneficial for the children, but were essential given the father’s violence and the concerns about his mental health.

32. The father submitted that it would be detrimental for the children to undergo yet another change to their living arrangements. He also submitted that it was essential that the children remain with him because he was aboriginal and only if the children lived with him they would remain positively connected with their aboriginality. He was also concerned that the mother would not be able to manage the children’s behaviours.

33. The children are used to living primarily with the mother. They have lived with her for nearly four out of the five post-separation years and there is reason to be optimistic that they would adapt to a return to her care. Ms L certainly believed that this was the case and from this perspective, there is everything to be said for changing the children’s residence and removing them from the care of a parent with a propensity for violence and criminal behaviour.

34. However I need to make findings about all of the s.60CC(3) matters before I can come to a conclusion about whether a change in the children’s circumstances is likely to overall be beneficial or detrimental for them.

35. I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.

36. It takes about 45 minutes to drive from (omitted) to (omitted) and half an hour to drive from (omitted) to (omitted). These distances do not prevent regular weekend time or even greatly impact on a parent’s ability to attend school events in the circumstances of this particular case.

37. I must consider the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.

38. The father questioned the mother’s capacity to provide adequate day to day care and supervision for the children and to manage their behaviour. He asked the court to have regard to the fact that after the mother moved to (omitted) in April 2012, she rang the DOCS helpline saying that she was having trouble managing the children and was referred to Brighter Futures. He further asked the court to have regard to the admissions the mother made to Brighter Futures workers about her difficulties parenting the children which are contained in the document prepared when she was interviewed.

39. In the light of my findings that the father was responsible for the fires and other acts of family violence and that prior to the mother’s flight from (omitted) he harassed and verbally abused her and damaged her property, the father’s attempt to use this material against the mother is breathtaking in its arrogance and even leaving that aside, it demonstrates a deeply concerning inability by the father to understand the extent to which even the bits of his behaviour to which he admits negatively impacted on the mother.

40. The father refused to concede while in the witness box that it was inappropriate for him to go to the mother’s home at 2.15am on 24 December 2011 while intoxicated and he sat in court and listened to his counsel pressing the mother to admit that the screen door was not really damaged. Whether the screen door was actually damaged by him kicking it or not was a minor detail.

41. During cross-examination, the father complained that following this incident, which caused the mother to leave home for two days, the mother failed to make the children available to him on Christmas Day. This was another example of him being unable to place himself in the mother’s shoes and consider in hindsight how she might have been affected by his behaviour that night.

42. The fact that the mother sought help from Brighter Futures in 2012 is not a negative for her case, it is a strong positive. It shows a willingness by her to make frank admissions about problems she has with her parenting and to seek help when help is needed.

43. Ms L recommended that if the children returned to the mother’s care, the mother re-engage with Brighter Futures and the mother said that she was willing to do this.

44. The mother has amply demonstrated that she is able to provide suitable housing for the children.

45. The mother is not perfect. She used cannabis as a teenager and she was convicted of mid-range PCA in early 2011 and fined $500.00 and lost her licence for 7 months.  There was no evidence however that the mother currently had any problems with substance abuse. In his affidavit the father said that the children had complained on occasions in the last twelve months about the mother’s drinking but no cross-examination was directed to this issue and there was no evidence that the mother had drinking problems.

46. The father gave evidence about the children’s school achievements in 2013 and submitted that it was strong evidence of his (superior) parenting skills.

47. I accept that the children either did well at school in 2013 or received the help they needed but for the father to blame the mother if they did less well in 2012 and claim all the credit for their achievements in 2013, simply illustrates once again his troubling inability to understand or take responsibility for the impact his behaviour had on the mother and the children in 2011 and 2012.

48. There can be no doubt that the children as well as the mother were affected by the father’s behaviour in 2011 and 2012. Common sense suggests that they must have been and the mother was not challenged about her evidence that X was so distressed on 14 March 2012 (the day after the father was responsible for smashing the mother’s car windows late at night), that he secreted a large knife under his pillow and the mother had to call the police to help her to remove it.

49. The mother was forced to flee (omitted) on 4 April 2012 as a result of the father’s actions and was unable to enrol the children in school in (omitted) for eight weeks because the father would not give his consent.

50. If the children were able to recover ground in 2013, it was at least partly due as far as W, X and Y were concerned (Z has only just started school) to the solid grounding they received in 2009, 2010 and 2011 when they were in the mother’s care during the school weeks.

51. There was nothing to suggest that if the mother was uninterested in the children’s education or that if she had charge of it in the future, this would lead to a decline in the children’s school performance.

52. There are many reasons to be concerned about the father’s parenting capacity, the first and foremost of which is the fact that he has committed numerous acts of family violence for which he accepts no responsibility and has shown no remorse.

53. I am satisfied that the father committed acts of family violence by physically assaulting the mother during the relationship, subjecting her to repeated derogatory taunts (sometimes while the children were present) after the end of the relationship, kicking and damaging her screen door, sending her 708 text messages in a two month period, smashing the car windows of herself and her partner and either lighting or being responsible for the fires which destroyed her partner’s car, Mr M’s car and her partner’s parents’ home.  

54. When the father called the mother vile names in the street while the children were with him the father caused harm to the children. Y immediately copied the father. The other acts of family violence committed against the mother, namely the incident on 24 December 2011 (which caused her to leave home for a few days), the barrage of text messages (which caused her to have difficulty concentrating at work) and the smashing of the car windows and the fires (which caused her stress and fear), all had an impact on the children because of their impact on the mother. They also impacted on the children directly; X’s behaviour on 14 March 2012 with the knife suggests that he was under severe stress as a result of the father’s behaviour and its impact on the mother.

55. The fires were terrifying for the mother and caused her to flee (omitted) and move to the maternal grandparents’ home in (omitted) which was not entirely suitable accommodation, in other words had an immediate direct serious impact on the children. 

56. In addition to the family violence, it was not in dispute that the father assaulted Mr M in February 2012 and I am satisfied that he was responsible for the fires which destroyed Mr M’s car and Mr B’s parents’ home.

1. I accept that the father was in a bad way as far as his mental health was concerned during 2011 and early 2012. It is likely that his declining mental health and heavy drinking was a causative factor in him letting loose with verbal abuse and barraging the mother with text messages and in what occurred on 24 December 2011, and he had only just been released from (omitted) Mental Health Unit at the time of the fires.  

2. There are cases which come before this court in which a person who has committed serious acts of violence and abuse while acutely mentally ill admits what they have done so (or at least accepts that they have done so if they do not remember it) and expresses remorse. Such a person usually goes on to claim that their mental health is now properly managed and that they are properly medicated and to argue that the fact that they have caused harm when mentally ill should not mean that their children should be taken away from them or should spend no time with them whatsoever is the focus in any particular case.

3. In cases such as these, the issue becomes one of assessing the likelihood of that sort of behaviour occurring again and the risk to the children and impact on the children of remaining with or spending time or unsupervised time with the parent. The court can also consider options such as asking a trained professional to explain to the children that the parent acted irrationally because they were ill and that they are remorseful.

4. In this case however, the father denies every allegation of family violence except for the assault on Mr M which led to him being arrested and for that he seeks to excuse himself on the basis that he was racially vilified.

5. The fact that the father has committed serious acts of violence including lighting or being responsible for the fires and does not even offer up the excuse of mental illness places the court in a position where it cannot consider leaving the children in his primary care. It is left with the bare facts that he has committed serious acts of violence, some of which were criminal and refuses to accept responsibility for his actions, which makes him an absolutely appalling role model for his children and incapable of ensuring that they grow into adults who respect the rights of others and avoid getting into trouble with the law. 

6. Even if I was minded to excuse the father’s actions on the basis of mental illness despite his refusal to admit to any wrongdoing, there is still the issue of whether the court can be confident that he will suffer no further mental health difficulties in the future.

7. The father has not had a trouble free run since his first diagnosis. In 2008 he needed assistance from Mr K at home and had difficulties until his medication was adjusted. He was non-compliant with his medication from early 2011 to the end of March 2012. The fact that a further two years have now passed does not mean that no problems will occur in the future.

8. The father admitted that he was effectively in charge of his own mental health at present and that he only sought assistance from Mr K when he felt he needed it. The result of the father making his own decision in 2011 about whether he needed to take his medication was dire.

9. The father said that the court should be confident that he would not go off his medication again because he was afraid of the consequences, but if the father does not admit to the consequences that occurred last time this assurance gives little comfort.  

10. There is cause for concern that the father is still adjusting his own medication. In September 2013 the father was admitted to hospital and remained there for several days. He said that he was admitted for pneumonia. There was no medical report making this clear but presuming it is correct, the following issues of concern appear in the hospital notes:

    ·the person who brought the father to hospital told staff that he father had been self-medicating on Seroquil;

    ·hospital staff expressed concerns about the father’s lucidity and noted that he urinated on the floor both during the night and during the day

11. The father did not mention this hospital admission in his trial affidavit and when asked about it during cross-examination, denied that he had adjusted his own Seroquil dose before his admission. He said that he remembered little of his time in hospital and believed that his physical illness and the fever associated with it had caused his Lithium to become ineffective which would explain his lack of lucidity and behaviour such as urinating on the floor.

12. The father was not a witness of credit and I do not accept his denial about adjusting his Seroquil dose.

13. It is true that the father has not come to the attention of the police recently and has not attracted the attention of the Mental Health Unit recently in the way he did in late 2011/early 2012 and this lends some credibility to his claim that his mental health is properly managed. There was nevertheless one concerning piece of evidence about whether his mental health is entirely stable and how his mental health issues may be impacting on the children.

14. Ms L reported as follows about her conversation with W:

    W was able to describe activities he liked doing in both parents’ homes. The worst thing for him in both household was the fighting between the siblings. W described it as being worse at the mother’s than at the father’s home. However he then went on to say that when the children are fighting at the father’s that “Dad has a go. Sometimes Dad, with bipolar, cracks up pretty bad.” He explained that his father was under pressure due to the Court issues but overall he felt that his father was going “pretty well”. Later he commented that the father was a bit stressed out as he was pretty busy with work and had to walk everywhere. [24]

    [24] Family Report paragraph 101

15. There is force in the submission by Counsel for the Independent Children’s Lawyer that unless and until the father provides a report from his psychiatrist, the court cannot be satisfied about his compliance with his medication or the current state of his mental health and even if the father establishes that his mental health is currently properly managed, there is a risk of relapse in the future.

16. Other concerns about the father are his drug use and his alcohol consumption.

17. The father commenced using drugs in his teens and he used a number of drugs including cannabis. Every order or agreement since separation has included a requirement that the parents not use illicit drugs while the children are in their care but whether the father has complied with those requirements is open to question.

18. The mother said as follows in her trial affidavit and she was not challenged about this evidence:

    On or about 28 September 2012, Z told me:

    Dad has a cup with a hose in it and he keeps it under the sink for his friends.[25]

    [25] Mother’s affidavit paragraph 113

19. The father was asked in cross-examination whether he was using drugs and he admitted that he had used cannabis only three weeks ago. He maintained that it was a one off use to assist him to deal with pain from a medical condition.

20. The father’s counsel submitted that it was to the father’s credit that he made this admission, presumably on the basis that he could have denied using drugs at all, but whether it was a full and frank admission as opposed to a partial admission has to be open to question in light of Exhibit P, and the father admitted during cross-examination that he had been told not to use cannabis while on his prescribed medications but did so anyway.

21. The father’s alcohol consumption has been problematic on occasions during his life and the 15 February 2010 orders and the 15 June 2012 parenting plan both provided that the parties were not to drink to the point where it affected their parenting capacity while the children were with them.

22. It is open to question whether the father has always complied with that requirement. When the police questioned him about the fires on 31 March 2012, he told them that he had been out drinking the previous evening and had come home intoxicated and the children were in his care that night.

23. It is concerning that the father may drink heavily when the children are with him as it has the potential to place the children at risk and result in them receiving substandard care.

24. The mother made a number of complaints about the father’s physical care of the children including not taking X to a doctor when he had a “busted face and nose,” not attending to a splinter in Z’s finger, making Z keep walking in the street until he got blisters on his feet. She also expressed concerns about housekeeping matters and the supply of food for the children.

25. The father denied that he had failed to properly care for the children and it is not open to me on the evidence available to me to find that the father’s actions were neglectful. The father was not a witness of credit but the evidence about these issues was not explored during cross-examination and there could be matters of either perception or unreliable reporting by the children or the mother placing too much significance on occasional lapses.

26. The mother complained that the father had said things to the children which inculcated an anti-police attitude into the children and exposing them to her being called vile names.

27. It is not possible for me on the state of the evidence to find that the father’s attitude to the police whatever it may be is likely to seriously impact on the children’s wellbeing.

28. The risk of the father calling the mother vile names in the presence or hearing of the children is probably at the lower end of the scale if the father’s mental health is stable and at the higher end of the scale if he suffers a relapse, but in the latter event the father calling the mother vile names would be a small part of a much greater problem.

29. Ms L was concerned about the father’s capacity to support a relationship between the mother and the children and I share that concern. The father has twice unilaterally withheld the children from the mother, he overreacted to the incident which occurred between Y and Mr B in February 2012, he has called the mother vile names during periods of his mental health being unstable and he made a number of untrue and alarmist statements to Ms L (such as the maternal grandparents having connections with the (omitted)).

30. In summary, I have a number of serious concerns about the father’s parenting capacity and no serious concerns about the mother’s parenting capacity.  

31. I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.

32. This does not assist me as a separate consideration.

33. I must consider if the children are Aboriginal children or Torres Strait Islander children:

    a)the children'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

    b)the likely impact any proposed parenting order under this Part will have on that right.

34. The father is aboriginal through a grandfather in Victoria. The mother’s unchallenged evidence was that the father researched his family tree and identified as aboriginal shortly after separation and that the children were first identified as aboriginal at school when the father enrolled them at (omitted) Public School in November 2009.

35. The father tried to make a case that the mother was not supportive of the children’s aboriginal identity but I do not accept this. The mother told (omitted) Primary School in 2012 that the children were aboriginal and there was no evidence that the children had been exposed to racial taunts and vilification while with the mother. The mother disputed the father’s claim that she had grounded X because he had an aboriginal flag as a background on his computer and said that X had no computer and I accept her evidence.

36. Certainly the mother is not aboriginal and the father is the person most likely to ensure that the children attend aboriginal cultural events and celebrations. Through the father the children will mix with other families and children who proudly identify as aboriginal. It is far less likely that they will do so through the mother although I do not accept that she would actively try to prevent it.

37. The children will not be cut off from any connection with their aboriginal culture however if they live with the mother and they can attend aboriginal cultural events while with the father whether they live with him or spend time with him.

38. The maternal grandmother agreed that she had told the Department of Family and Children’s Services that the father’s aboriginality was a recent invention and the father’s counsel submitted that it was undesirable that the children have exposure to this attitude although she did not explain what evil would flow from it. It was not suggested (either to the maternal grandmother in cross-examination or during submissions) that the maternal grandmother disparaged or disrespected aboriginal people, indeed she claimed that she had aboriginal heritage herself although she did not identify as aboriginal.

39. The children know that they are aboriginal. It would be undesirable if their aboriginality through their father was questioned by the maternal grandmother but this would not be sufficient reason to refuse to make an order that they live with the mother if other factors in the case pointed to this being the preferred outcome. 

40. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents.

41. This does not help me as a separate consideration.

42. I must consider any family violence involving the children or a member of the children's family.

43. I have discussed the family violence issue at length elsewhere in the judgment and made findings but one point which can usefully be made here is that I accept that the mother genuinely finds the idea of returning to live in (omitted) intolerable and that she is still afraid of the father or at the very least always wary of him.

44. The father’s counsel submitted that I should reject the mother’s claims in this regard because in 2013 she had done some exchanges of the children outside his home (which is opposite the children’s school) and on one occasion had sat down for nearly half an hour outside his home soothing one of the children.

45. I do not accept that this means that the mother has overcome her fear or wariness of the father and when Ms L was asked about it during cross-examination, she said that she was unconvinced that this could be read into the mother’s actions. Ms L prepared a thorough and insightful report and I place weight on her opinion.

46. I also mention here that the father’s counsel asked me to have regard to part of a paragraph in the Family Report which she said suggested that on one occasion during the relationship the mother had been violent to the father. I do not accept that this conclusion can be drawn from that paragraph, rather it suggests that the mother was defending herself from the father.

47. As for family violence orders, the mother applied for an ADVO against the father in December 2011, quite understandably in my view and it was extended in March 2012 after the car windows were broken at the mother’s home. The ADVO has now expired.

48. The first ADVO restrained the father from approaching or contacting the mother when intoxicated or under the influence of illicit drugs. The second ADVO restrained him from in addition to coming within 50 metres of her home. This did not prevent the mother’s partner’s car being set alight in the mother’s yard.

49. The fact that the ADVO’s were made does not establish the truth of the allegations made against the father because no hearing was ever conducted, the fact that the mother applied for an ADVO in December 2011 and an extension of the ADVO in March 2012 corroborates her claim that during this period she was fearful of the father.  

50. How the father came to obtain an ADVO against the mother in January 2012 I am unable to say, because he made no allegations against her in these proceedings which would if true, have founded an ADVO. That ADVO has also now expired.

51. I must consider whether it would be preferable to make the order least likely to lead to further proceedings.

52. The order least likely to lead to further proceedings is that the children live with the mother but given the father’s issues and the fact that on two occasions since separation he has withheld the children, there is a risk of further proceedings in this matter even with this outcome.  

53. I must consider any other relevant matter.

54. One relevant matter is that the maternal grandmother has a strongly negative view of the father. She told Ms L that she considered him “a very manipulating man” and “bad, evil.”[26]

    [26] Family Report paragraph 84

55. Given that the maternal grandmother observed the mother with injuries after an assault by the father when W was a baby and that she believes (correctly) that the father committed the arsons, this is understandable.

56. The maternal grandmother denied ever expressing negative views about the father in front of the children and I have no reason to doubt this but it is unlikely the children are unaware of the maternal grandmother’s opinion of the father.

57. The father has a strongly negative view of the maternal grandparents so this is not a one-sided problem and while it is not a desirable situation for the children to find themselves in, there is nothing I can do by way of court orders to change what appears to be a long standing antipathy on both sides.

58. The children will not be living with the maternal grandparents if an order is made that they live with the mother. They will have school and sport and social activities to occupy them and will be seeing the father regularly. I do not consider that the maternal grandmother’s views are likely to undermine the children’s relationship with the father if the children live with the mother.  

59. A second relevant matter is the impact, if any, which an order that the father be restrained from attending (omitted) Public School during school hours will have on the father.

60. There is a lot to be said for the children continuing to attend (omitted) Public School. They commenced there in 2010 in the case of the older two and once they started school in the case of Y and Z. It is a small school, the children are familiar with the teachers and the environment, they have friends there, they are being well educated and looked after at that school and X is school captain this year.

61. (omitted) is about 45 minutes from (omitted) but there is a bus which the children could catch to (omitted) Public School and (omitted) is a similar distance from (omitted) where the mother would prefer the children to go to school.

62. It would be easier for the mother however, if the children attended school in (omitted). They would be closer to where she is working and close to where the maternal grandparents live so that they could provide some backup on school days if needed.

63. Another reason why the mother would prefer to change the children’s schools is that she wants to be involved in their school life and said that she felt unwelcome at (omitted) Public School because she perceived some staff to be aligned with the father. On the other hand she feels confident about being accepted by staff at (omitted) Primary.

64. The mother also said that after all that had happened she would feel fearful if she ran into the father at (omitted) Public School. She described being verbally abused in the school grounds on one occasion before she relocated to (omitted).

65. There are valid reasons for the mother to feel that way.

66. During cross-examination, Ms L said that she was concerned about whether it would affect the children’s adjustment to living with the mother if they were always seeing the father around the school.

1. The position of the Independent Children’s Lawyer at the end of the hearing was that the children should remain at their schools in (omitted) in 2014 after which the mother would be free to change their schools and the mother during final submissions said that she would accept this outcome.  

2. However the Independent Children’s Lawyer also proposed that the father be restrained from attending (omitted) Public School during school hours unless he was attending events such as assemblies or sports days which were open to all parents.

3. The father did not say anything in his affidavit about the extent of his connection with (omitted) Public School. He said that he was employed by (omitted) and that he worked 25 hours a week although sometimes up to 45 hours a week.

4. The mother said that the father was involved in a supported (omitted) group which was held in the (omitted) room at (omitted) Public School and I infer that this is run by (omitted).

5. During his interview with Ms L, the father said that (omitted) had a presence at a number of schools and during cross-examination, he did not make it clear how often he went to (omitted) Public School in particular. He brushed aside any suggestion that the mother need fear seeing him at the school saying “You would hardly know I was there.”

6. It is impossible for me to be certain about how an order that the father not attend at (omitted) Public School would affect the father but he appears to have other strings to his bow and there was certainly no clear evidence that it would affect his ability to earn a livelihood.

Parental responsibility

1. Pursuant to s.61DA of the Family Law Act 1975, I am obliged to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence.

2. The father has committed acts of family violence and the presumption is rebutted but the court can still make an order for equal shared parental responsibility if it considers that this would be in the children’s best interests and this is what the father sought. The mother on the other hand sought an order for sole parental responsibility.

3. Ms L supported an order for sole parental responsibility and said as follows:

   It is recommended that the parties not have shared parental responsibility for decisions regarding the subject children and that sole responsibility be given to the parent with whom they are living. That parent should notify the other of any major decisions in writing.

4. I respect this opinion but this is one of those rare cases in which I consider that I need to determine the issue of where the children are to live before determining the issue of parental responsibility.

5. If I order that the children live with the mother, then it would be in the children’s best interests for the mother to have sole parental responsibility for them. The mother has endured a great deal at the hands of the father and is wary of him and sometimes afraid of him and it would not be in the children’s best interests if she was caused stress by being forced to discuss with him major long term issues about the children and attempt to reach agreement with him.

6. The mother also needs to be able to take effective action about the children’s school enrolment or medical treatment or counselling without any risk that the father will try to hold the decision up, as he did when the mother moved to (omitted) with the children.

7. However if I decided that despite everything, another change of residence would not be in the children’s best interests and that they should remain with the father, it would be impractical for the mother to have sole parental responsibility for them and because of my findings about family violence, undesirable for the mother to be taken out of the picture altogether as a contributor to long term decision making. In that event, despite the difficulties between the parties, an order for equal shared parental responsibility would be in the children’s best interests.

Ms L’s recommendations

1. Ms L said as follows in her report:

   Factors identified which may impinge on the father’s ability to parent were identified as whether or not he was involved in fire-bombing activities in relation to the mother and her associates. This is likely to impinge greatly on the children’s well-being because if this is the case then the father has used criminal measures to intimidate the mother, made her need to leave the area due to fears of being harmed and in addition by such behaviour he would have impaired her parenting capacity. He would also have potentially placed the children at physical risk if they were present and would present an extremely poor role model for appropriate non criminal behaviour.[27]

   [27] Family Report paragraph 80

2. The father’s counsel did not challenge the validity of this opinion; rather she submitted that the court could not be satisfied on the balance of probabilities that the father was responsible for the fires.

3. I am satisfied that he was and that he has also committed other acts of violence and family violence and Ms L’s recommendation in the event of the court making such findings was as follows:

   If the Court finds that the father perpetrated family violence against the mother and/or was involved in any of the fire bombings or malicious damage incidents perpetrated against the mother, her then partner, friend and then partner’s parents then it is recommended that the children live with the mother. Any time that the children spend with the father may need to be supervised if the Court so determines.

4. Ms L prepared a thorough report. She made one entirely forgivable error in recording the year in which something occurred but it was not suggested that she had made any other factual errors or that she had misreported what someone had said to her or misunderstood anything in the subpoena material she read. Her conclusions and opinions were soundly based on the information available to her.

5. I therefore place weight on Ms L’s opinions and recommendations but of course I have had the advantage of seeing the witnesses cross-examined and certain issues explored which were less thoroughly touched on in the report and in order to determine which orders would be in the best interests of the children, I must consider all of the evidence available to me of which the report is just one piece.  

Conclusion

1. I am comfortably satisfied that it would be in the children’s best interests for them to live with the mother.

2. The father has committed acts of family violence including but not limited to the fires although the fires are of the utmost seriousness. 

3. For that reason alone I cannot leave the children with the father.   

4. The father has the children in his care at present as a direct result of the impact on the mother of his lawless and violent behaviour. 

5. The mother fled (omitted) after the fires and move into an overcrowded home in (omitted). She had no other option available to her at the time. The father refused to agree to the mother enrolling the children in school in (omitted) and they missed eight weeks of school. Then, six months after the mother left (omitted), he withheld the children after a weekend visit citing an issue of the mother having a physical altercation with the maternal grandfather in the overcrowded home. He now seeks to have that translated into a permanent change of residence for the children.

6. To leave the children with the father in these circumstances would send an appalling message to them, namely that lawless, destructive and frightening behaviour could be engaged in without any adverse consequences and might even result in the perpetrator eventually getting their own way, in this case getting the father getting the children into his primary care permanently.

7. I accept that the father suffers from a mental illness and that it is quite possible that everything which happened in 2011-12 flowed from his mental illness – the father’s DUI charge, driving into the fence, damaging the mother’s screen door and abusing her and entering her home in the early hours of the morning, barraging her with text messages, calling her vile names in the street and in front of the children, assaulting her work colleague, smashing the windows of her car and her partner’s car and setting fire to her partner’s car, her work colleague’s car and her partner’s parents’ home.

8. However, the father only admitted to having committed the DUI and the assault for which he was charged by the police. He denied everything else including responsibility for the fires and did not seek to excuse any of his behaviour as being the result of his mental illness.

9. Another reason why I am satisfied that it is in the children’s best interests to live with the mother, is a concern about the father’s mental health and what may happen with it in the future.

10. The father is not under the care and supervision of a mental health professional and takes charge of his own medication. His relapse in 2011/12 was prolonged and had dire consequences. It came about because he ceased taking his medication and it was not the first time the father had struggled with his mental health since the original diagnosis. He could well have further difficulties with his mental health in the future and the mother in contrast does not suffer from any mental health problem.

11. Other concerns I have about the father are about his cannabis use, which could be more extensive than he admits, his alcohol consumption, his lack of insight into the effects on the children of his behaviour in 2011/2012 and his failure to demonstrate any empathy for the children in this regard.

12. The father’s attitude to the mother also causes me concern and makes it preferable that the children do not remain in his primary care.

13. I acknowledge that Ms L observed a warm and loving relationship between the children and the father and that the father has appropriately attended to the children’s educational needs since the interim orders were made.

14. I acknowledge that two of the children told Ms L that they would prefer to remain living primarily with the father.

15. I acknowledge that the father has a suitable house for the children to live in.

16. I acknowledge that the father is the person best placed to ensure that the children have maximum involvement in activities connected with their aboriginal heritage and grow up proud of their aboriginality.

17. I acknowledge that there was nothing to suggest that right at the moment the father is acutely mentally ill, although the evidence on this issue was far from satisfactory.

18. I acknowledge that the mother is not without her flaws and has a DUI conviction in 2011 and that the maternal grandmother has cast doubt on the genuineness of the father’s identification with his aboriginal heritage.

19. I acknowledge that the children will have to adjust to a change if they move to live with the mother - a change of place from (omitted) to (omitted) and a change of primary carer.

20. However, none of these things tip the balance back in favour of the children living with the father.

21. The children have lived in the mother’s primary care for four of the five years since separation, so they will be returning to something familiar and the countervailing problems of the father’s criminal behaviour and mental health together with other concerns about him mean that I cannot leave the children with the father.

22. The children have a warm and loving relationship with the mother and Y proposed 50/50 time and Z wanted more time with the mother and Ms L expressed the view that the children were compliant children who were likely to settle in the mother’s care. The mother said that she was willing to re-engage with Brighter Futures to obtain support and as she voluntarily sought out help in 2012, I am satisfied that she can be trusted to seek help again in the future if she needs it.

23. As I intend to order that the children live with the mother, I intend to order that she has sole parental responsibility for the children.

24. I intend to order as proposed by the Independent Children’s Lawyer that the children remain at (omitted) Public School until the end of the year but I also intend to order that the father not be at the school during school hours except for events normally attended by parents.

25. It is unclear from the evidence the extent to which this will impact on the father’s employment but there was no compelling evidence that it would do so in a significant way. (omitted) Public School is not the father’s employer and even if the order does have some impact on his employment, it is still necessary to make it to ensure that the children do not become unsettled after the change of residence and to ensure that the mother does not feel discouraged from attending at the school and doing what she chooses to do to become involved in their education.

26. I then need to consider the time the children should spend with the father.  Ms L said that if the court found that the father was responsible for the fires, then consideration might need to be given to an order that the children spend supervised time with the father.

27. Neither the Independent Children’s Lawyer nor the mother sought an  order for supervised time and it would be fraught with difficulty in terms of the parties getting to a place where it could occur if professional supervision was required or in terms of identifying an appropriate alternative supervisor.

28. The Independent Children’s Lawyer proposed that the children initially spend six hours each alternate Saturday with the father and that father be required to obtain a report from his psychiatrist which confirmed that his mental health was stable and that he was compliant with his medication. Once this report was obtained, he proposed that the children spend alternate weekends and half of the school holidays with the father.

29. The mother agreed with this proposal.

30. I can understand why the Independent Children’s Lawyer proposed this, as the children have lived with the father for the last fourteen months and have come to no obvious harm in his care, but I am concerned about the children spending unsupervised time with the father.

31. There is a risk of the father becoming intoxicated while the children are with him; he has failed to comply in the past with restraints about consuming alcohol to the point where it affected his parenting capacity. There is also a risk of him using cannabis while the children are with him which will not only set them a bad example but could place them at risk of being neglected.

32. Most troubling of all, the father denies that he verbally abused the mother in 2011 and denies responsibility for the fires and the malicious damage to motor vehicles and his attitude to the mother is poor. He could be a troubling influence on the children even if he only sees them on alternate weekends.

33. However, the children have spent regular time with the father since separation five years ago; the mother has countenanced it despite her concerns about the father and it would represent a dramatic change for the children if their time with him was severely limited from this point on.

34. The children are aboriginal and it is through the father that they will have the best opportunity to maintain their connection with aboriginal culture and develop pride in their aboriginality and from that perspective, it is preferable that they spend a reasonable amount of unsupervised time with him.

35. Therefore without enthusiasm and with misgivings, I intend to make the orders about the children’s time with the father as proposed by the Independent Children’s Lawyer and the mother.

36. I intend to order that each party be restrained from using illicit drugs or consuming alcohol to excess while the children are with them.

37. I toyed with the idea of ordering that the father not consume alcohol at all while the children were with him but the mother did not seek such an order and the alternative was to make a vague order designed to highlight that the parties ought not to be intoxicated while they have the care of the children. I am not happy with the wording and may need to look at the issue more closely in the unfortunate event that the matter comes back before me on a contravention application but I consider that it is the best I can do without straying too far toward making orders which it would be procedurally unfair for me to make.

38. Although I have given the mother sole parental responsibility for the children, I have made this order subject to her not changing the children’s names or moving them from the (omitted) area without the father’s consent or an order of the court. I intend the phrase “the (omitted) area” to encompass (omitted) and other similar outlying areas around (omitted).

39. As foreshadowed, I intend to make an order requesting the Independent Children’s Lawyer to meet with the children and explain the orders to them.

40. For all of the above reasons, the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding three hundred and forty seven (347) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  17 March 2014