HELU & MERTON
[2012] FamCA 723
FAMILY COURT OF AUSTRALIA
| HELU & MERTON | [2012] FamCA 723 |
| FAMILY LAW – CHILDREN – With whom a child spends time - Where the children have lived with the Father for several years - Where the residence of the children is not in dispute - Where there are allegations of illicit drug use by the Mother - Where the Family Report writer indicates the children are happy in the Father's care – Where the Mother has not filed any material in the matter. FAMILY LAW – CHILDREN – With whom a child lives - Where the Father has a child of the Mother’s in his care who is the biological child of the Intervenor – Where the Father and the Intervenor agree it is in the best interests of that child to live with the Intervenor – Where the child has spent significant periods of time with the Intervenor in the preceding twelve months – Where the Mother seeks that the child remain with the Father and not the Intervenor. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 MRR v GR (2010) 240 CLR 461 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Helu |
| RESPONDENT: | Ms Merton |
| INTERVENOR: | Mr Ewell |
| INDEPENDENT CHILDREN’S LAWYER: | Ms J Harrington |
| FILE NUMBER: | BRC | 3607 | of | 2010 |
| DATE DELIVERED: | 18 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 29-31 August 2012 |
REPRESENTATION
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Sayers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Harrington Family Law |
Orders
In relation to K Helu, born … March 1998 (“K”):
(a) Mr Helu (“the Father”) have sole parental responsibility for decisions in respect of the long-term care, welfare and development of K and in the exercise of that responsibility the Father shall:
(i)Notify Ms Merton (“the Mother”) in writing prior to making decisions about major long-term issues in relation to K including, but not limited to, the child’s education and health;
(ii)Invite the Mother to indicate her views in writing by a nominated date;
(iii)Consider the Mother’s views in making such decisions; and
(iv)Inform the Mother in writing of his decisions;
(b) K shall live with the Father;
(c) Subject to the requirements of Order 7, K shall spend time with the Mother at all times as may be agreed, but failing agreement, on the following terms:
(i)That K commence a course of personal counselling with a qualified practitioner, arranged by the Father and retained for the purpose of restoring a meaningful relationship between K and the Mother;
(ii)That at the discretion of the practitioner in Order 1(c)(i) above, the Mother be included in such counselling with a view to Family Therapy on not less than three occasions; and
(iii)That the cost of the counselling contemplated by this Order 1(c) be shared equally between the Mother and the Father.
In relation to Y Helu, born … November 1996 (“Y”):
(a) The Father have sole parental responsibility for decisions in respect of the long-term care, welfare and development of Y and in the exercise of that responsibility the Father shall:
(i)Notify the Mother in writing prior to making decisions about major long-term issues in relation to Y including, but not limited to, the child’s education and health;
(ii)Invite the Mother to indicate her views in writing by a nominated date;
(iii)Consider the Mother’s views in making such decisions; and
(iv)Inform the Mother in writing of his decisions;
(b) Y shall live with the Father.
(c) Subject to the requirements of Order 7, Y shall spend time with the Mother as may be agreed.
The Mother and the Father shall:
(a) Forthwith advise each other of the names and addresses of all educational and health care providers upon whom the children attend or have attended and forthwith upon any changes thereto;
(b) Forthwith authorise all educational and health care providers to release to the Mother and the Father any information and documents relating to the children upon request by the Father or the Mother and subject to the person making the request making payment of any costs associated therewith and providing these Orders to the relevant providers, and these Orders are in and of themselves sufficient authority for the release of information by those carers and service providers to all parents; and
(c) Keep the other informed from time to time of their current residential address and telephone number (including land line and mobile) as soon as is reasonably practicable.
From December 2012, the Father shall have leave to take Y and K to Tonga for not more than twenty-eight (28) days on the following bases:
(a) That the Father provides notice in writing to the Mother of his intended travel not less than six weeks before the date of such travel; and
(b) That he Father provides full flight details together with copies of return tickets to the Mother not less than four (4) weeks before the date of such travel;
(c) That the Father provides to the Mother a contact address and telephone number as to where Y and K will be staying not less than four (4) weeks before the date of such travel; and
(d) That any travel does not result in Y or K missing school.
In relation to W Merton, born … July 2002 (“W”):
(a) Mr Ewell have sole parental responsibility for decisions in respect of the long-term care, welfare and development of W and in the exercise of that responsibility, Mr Ewell shall:
(i)Notify the Mother in writing prior to making decisions about major long-term issues in relation to W including, but not limited to, the child’s education and health;
(ii)Invite the Mother to indicate her views in writing by a nominated date;
(iii)Consider the Mother’s views in making such decisions; and
(iv)Inform the Mother in writing of his decisions;
(b) Commencing from the beginning of the September 2012 school holidays and thereafter, W shall live with Mr Ewell;
(c) W shall spend time with Y and K at all times as may be agreed, but failing agreement:
(i)For ten days during each of the Easter, June/July and September school holidays in each year, to be agreed between Mr Ewell and the Father;
(ii)For ten days, in Brisbane, during the December/January school holidays in each year, such time to include Christmas Day in holidays commencing in odd-numbered years, and to not include Christmas Day in holidays commencing in even-numbered years;
(d) Until the Mother completes the requirements of Order 7 or otherwise is subject to the requirements of Order 10, W shall spend time with the Mother at all times as may be agreed, but failing agreement, not less than:
(i)During each school term, on up to three (3) occasions, from 9.00 am to 5.00 pm in South East Queensland, upon the Mother having given Mr Ewell seven (7) days’ written notice of her intention to spend such time;
(ii)Whenever W is spending holiday time with Y and K in Brisbane pursuant to these Orders, on up to three occasions per holiday period from 9.00 am to 5.00 pm, upon the Mother having first given Mr Ewell and the Father seven (7) days’ notice in writing of her intention to spend such time with W;
(iii)From 1.00 pm until 5.00 pm on Christmas Day as nominated by the Mother in odd-numbered years;
(e) When the Mother completes the requirements of Order 7 and whenever she is not subject to the requirements of Order 10, then W shall spend time with the Mother as all times as may be agreed, and failing agreement as follows:
(i)During each school term, on up to three (3) occasions from 9.00 on Saturday until 5.00 pm on Sunday upon the Mother having first given Mr Ewell seven (7) days’ notice of her intention to spend that time with W and having advised Mr Ewell of where she and W will be staying;
(ii)Whenever W is spending holiday time with Y and K pursuant to these Orders, on up to three (3) non-consecutive occasions from 9.00 am until 5.00 pm the following day upon the Mother having first given the Father and Mr Ewell seven (7) days’ notice in writing of her intention to spend such time with W;
(iii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in odd-numbered years.
Mr Ewell and the Mother shall:
(a) Forthwith advise each other of the names and addresses of all educational and health care providers upon whom the children attend or have attended and forthwith upon any changes thereto;
(b) Forthwith authorise all educational and health care providers to release to the Mother and the Father any information and documents relating to the children upon request by the Father or the Mother and subject to the person making the request making payment of any costs associated therewith and providing these Orders to the relevant providers, and these Orders are in and of themselves sufficient authority for the release of information by those carers and service providers to all parents; and
(c) Keep the other informed from time to time of their current residential address and telephone number (including land line and mobile) as soon as is reasonably practicable.
Until such time as the Mother has demonstrated that she has been free of illegal drugs for a period of six (6) months by providing to the Father and Mr Ewell a Urine Drug Analysis test result that shows a clear result each month for six (6) months, then:
(a) All of the Mother’s time with any of the children shall occur in a public place or such other venue (excluding the residence of any of the parents) as agreed by the individual with parental responsibility for the child.
Following the provision by the Mother of six (6) Urine Drug Analysis test results in accordance with Order 7 hereof, the Father and Mr Ewell together may jointly request the Mother to undergo Urine Drug Analysis not more than once every two (2) months and the Mother shall, upon receipt of such a request, attend upon a testing laboratory within twenty-four (24) hours to undertake that test, and shall provide the results of that test to the Father and Mr Ewell within seven (7) days of undertaking that test;
In the event that a drug test undertaken in accordance with Order 8 hereof is positive for the use of illegal or unprescribed drugs, then the Mother’s time with the children shall revert to occur in accordance with Order 7(a) hereof and shall not again be otherwise until the requirements of Order 7 are again met.
The cost of the Urine Drug Analyses required by Order 7 shall be borne by the Mother.
The cost of the Urine Drug Analyses required by Order 8 shall be borne equally by the Mother, the Father and Mr Ewell (one-third each).
In respect of all of three children:
(a) The Mother, the Father and Mr Ewell shall do all things, including signing all documents, necessary to enable a passport to issue in respect of each of the children;
(b) In the event that any parent fails to sign a document necessary for the issuing of a passport within seven (7) days of a request to do so, then a Registrar of the Family Court of Australia shall be empowered pursuant to s 106A of the Family Law Act 1975 (Cth) to sign such documents, and an affidavit of a parent as to such a request having been made shall be sufficient evidence of such a request;
(c) The Mother, the Father and Mr Ewell shall ensure that the passports for the children shall issue to and be retained by the parent with sole parental responsibility for each of the children respectively.
The children K, Y and W shall all have telephone contact with the Mother:
(a) At all times as the children may request it; and
(b) Each Tuesday and Thursday between the hours of 5.30 pm and 6.30 pm.
The Father shall facilitate K and Y having telephone communication with the Mother at all such times as either child requests it.
Mr Ewell shall facilitate W having telephone communication with the Mother:
(a) Each Tuesday and Thursday between 5.30 pm and 6.30 pm; and
(b) At all such other times as W reasonably requests.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helu & Merton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3607 of 2010
| Mr Helu |
Applicant
And
| Ms Merton |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for parenting Orders in respect of three children, namely Y Helu, born in November 1996, aged 15 years and 9 months; K Helu, born in March 1998, aged 14 years 5 months; and W Merton, born in July 2002, aged 10 years 2 months.
The parties are Mr Helu (“the Father”), who is the biological father of Y and K, but who is not the father of W, but in whose household W has been living, in circumstances discussed further below, since last year.
Ms Merton (“the Mother”) is the biological mother of all three children.
The intervenor, Mr Ewell, is the biological father of W. For convenience only, and recognising that Mr Ewell, and not Mr Helu, is the biological father of W, in these reasons I refer to Mr Helu as “the Father”, Ms Merton as “the Mother”, and to the intervenor as “Mr Ewell”.
The Father filed the current Initiating Application on 30 March 2011, seeking Orders that, inter alia:
·That K and Y live with him;
·That K and Y be able to see the Mother, “…when they like,”;
·That both children be enrolled into a new school;
·That all birthdays, Easter and Christmas holidays be split evenly in terms of time between the Mother and the Father;
·That each party keep the other informed of any medical emergency involving either of the children, including the name and address of any medical practitioner.
The Initiating Application referred to did not make mention of W. W is first mentioned in the Father’s affidavit filed 18 November 2011 as being, “…subject to these proceedings…” That is because an Order was made for Mr Ewell, as W’s biological father, to be joined in the proceedings on 13 October 2011.
In the Father’s affidavit filed 18 November 2011, he deposes that he would like W to change from P State School (a twenty-five minute round trip from the Father’s home) to H State School, which is a five minute walk from the Father’s house and where the Father’s child, J Helu, also attends school. The affidavit refers to the Father’s desire that W then, “…remain…” living with him.
Neither the Father nor the Mother complied with the notation in Registrar Coutts’ Order of 16 April 2012 that their Case Information Documents and trial affidavits be filed and served no later than 30 April 2012. Indeed, in the case of the Mother, she has not filed any material at all since the filing of her affidavit of 27 January, 2011.
Mr Ewell filed a response on 29 March 2012, seeking Orders to the following effect:
·That W live with the Mother if the psychiatric reports are in her favour, or with Mr Ewell if the reports are adverse to the Mother with the Mother and Mr Ewell to confer regarding W’s welfare in the latter situation;
·W to spend equal time with Mr Ewell, the Mother and W’s half-siblings on school holidays and birthdays, if possible;
·W be able to communicate with all parties by telephone, e-mail or visits, and specifically:
oW to spend every second or third weekend (Friday to Sunday) with Mr Ewell;
oMr Ewell to telephone W every Wednesday for 15 minutes between 5.30 pm and 6.00 pm;
oW to spend half of the June/July, September/October and Christmas holiday periods with Mr Ewell;
oW to spend the Easter holidays entirely with one parent, to alternate each year;
oW to spend from 7.00 pm on Christmas Day until midday on Boxing Day with the party caring for him at that time, and the other party to have W from 8.00 am on Christmas Eve until 7.00 pm on Christmas Day, and from 8.00 am to 7.00 pm on Boxing Day;
·Mr Ewell to have, “…full custody…” of W;
·If the Father receives, “…full custody…” of W, then the Father not be permitted to leave Australia with W;
·The Mother to undergo a, “…Parenting Guidance Course…”;
·The Mother to declutter her house of boxes and bags that would normally be put into storage;
·W to have his own room and access to television, lounge and play areas.
By his affidavit filed on 21 August 2012, Mr Ewell altered the Orders he sought. By that affidavit, it is clear that he sought to have W live with him, with the Mother (and the Father, Y and K) to come and visit W. Thus, it is clear from that affidavit and it was clear at the trial, that Mr Ewell no longer supports the Mother in her attempts to have W returned to her care in terms of an Order for W to live with the Mother.
The interests of each of the children Y, K and W in these proceedings were independently represented by a lawyer, namely Ms Julie Harrington of Harrington Family Lawyers (“the Independent Children’s Lawyer”). By her Case Information Document filed on 16 April 2012, the Independent Children’s Lawyer proposed, at least tentatively, parenting Orders with respect to each of the children. However, in the result, at the trial before me (which commenced on Wednesday 29 August 2012), the Independent Children’s Lawyer sought substantially different Orders in the form of proposed Orders which were admitted and marked as Exhibits 1 and 2 in the proceedings. Shortly stated, the Independent Children’s Lawyer supported Orders which would see Y and K living with the Father with the Father to have sole parental responsibility for them and W living with Mr Ewell with Mr Ewell having sole parental responsibility for W.
The ICL’s proposed Orders included the Mother and K engaging in therapy in an effort to repair their relationship and in the Exhibit 1 version for there to be a period of supervision of the Mother’s time with the children pending the Mother meeting certain conditions which, if met, would see a move to the Mother spending unsupervised time.
The trial was due to commence at 10.00 am on Wednesday last. The Mother resides at A suburb, approximately 30km southeast of the Brisbane Central Business District. In the event due, she says, to difficulties with her car breaking down, the Mother did not actually arrive at Court until 2.30 pm on the first day of trial. In the meantime, the Independent Children’s Lawyer and Counsel for the Independent Children’s Lawyer, Dr Sayers, had discussions with each of the Father and Mr Ewell, who each appeared representing themselves for the purpose of the trial. In the result, each of the Father, Mr Ewell and the Independent Children’s Lawyer reached agreement as to the Orders proposed as contained in Exhibit 1 prior to the trial commencing.
When the Mother eventually arrived at Court, she was informed of the agreement of the other parties to the Orders as contained in Exhibit 1. Against the background that the Mother had not filed any current material, the Court sought to ascertain from the Mother her position in terms of the parenting Orders she sought with respect to the children by reference to Exhibit 1, that is, in what manners and respects the Orders she would seek differed from Exhibit 1. In summary, with respect to W, the Mother proposed that W live with the Father rather than with Mr Ewell. That is, despite the agreement of the Father and Mr Ewell (and the Independent Children’s Lawyer) that the Orders should provide for W to live with Mr Ewell, the Mother sought that the Orders provide for W to live with the Father. Apart from that major difference, the Mother also had issues with the funding of her drug testing as provided for in the Orders proposed in Exhibit 1, and in respect of the amount of time the children ought spend with the Mother. In short, the Mother sought substantially more time with each of the children, and it became clear that much of her motivation for seeking an Order for W to live with the Father rather than Mr Ewell (who resides in South East Queensland), was focussed upon the greater accessibility for W to spend time with the Mother that would occur if W was living primarily with the Father in the Brisbane metropolitan area rather than him living with Mr Ewell in South East Queensland.
The Mother did not take issue with Orders being made for the allocation of sole parental responsibility to the parent with whom the child would be living.
Exhibit 2 were the Orders proposed by the Independent Children’s Lawyer in light of the evidence, in particular the evidence of Ms D, the expert Family Report writer. A further iteration of such Orders, with minor amendments, were handed up during final submissions. In essence, the Independent Children’s Lawyer’s final position on Orders to be made were that in respect of the older two children, Y and K, their time with the Mother should be as agreed between their parents, relying upon the capacity of the Father to respond to the children’s views, albeit with therapy to occur involving K with a view to repairing the relationship between the Mother and K, rather than specific times being provided for in the Orders.
Brief Background
The Father is now 60 years of age, and was born in Tonga and is of Tongan descent. He has lived in Australia since 1971. He has five adult or near-adult children from other relationships. He also has an 11 year old son, J, from his relationship with Ms Anderson. As a consequence of recent final Orders, J resides in the Father’s household. Since about the year 2000, the Father has been in a relationship with Ms V, and Ms V’s daughter from another relationship, Ms N, as well as Ms N’s daughter, have from time to time been part of the Father’s household. The Father lives in a suburb of Brisbane and is employed in cleaning.
Exhibit 3 before me comprises extracts submitted by the Independent Children’s Lawyer from subpoenaed material from the Department of Communities, Child Safety and Disability Services and the Queensland Police Service respectively. Included in that material is the criminal history for the Father, which discloses a history of the Father’s propensity for aggression and violence. For example, in 1991, the Father was convicted of the offence of assault occasioning bodily harm; in 1997, the Father was convicted of stalking with circumstances of aggravation stemming from conduct in March 1997, and in 1997 and 1998, the Father was convicted of offences involving breaches of Domestic Violence Orders, common assault and stalking with circumstances of aggravation. In 2000, the Father was again convicted of breaches of Domestic Violence Orders and unlawful stalking with circumstances of aggravation, and in 2008, was also convicted of assaults occasioning bodily harm whilst armed in company for conduct in 2006 and 2008 for which he received a suspended sentence of one (1) month’s imprisonment.
The material from the Department of Communities, Child Safety and Disability Services records a total of some 23 intakes recording the Father and the Mother as parents between 2000 and August 2011. Of the total 23 intakes, 5 matters were assessed as substantiated physical or emotional harm, with the Father being recorded as the person responsible.
On the face of the records, this is a concerning history regarding the Father of aggression and violence. However, leaving aside the Father’s own version about at least some of that history, which he would say is unfair to him, it is the fact that it is now some years since the Father was convicted of any offence of violence and likewise, it is now some years since any notification to the Department of Communities, Child Safety and Disability Services was substantiated in respect of the Father presenting as any risk with children in his care.
Balanced against that history is the evidence indicating that the Father has overcome his past to a significant extent. There is evidence from each of the children as recorded by Ms D. Indeed, when asked as to why it was her preference that W live with the Father rather than with Mr Ewell, the Mother herself acknowledged that she has confidence that the Father has, “…grown…” as a person and, as she put it, she, “…trusts the changes…” that the Father has been able to effect. Dr G, psychiatrist, undertook, at the request of the Independent Children’s Lawyer, a psychiatric evaluation of both the Father and the Mother, and with respect to the Father, having reviewed relevant records which supplemented his own investigation, Dr G noted:
There was no evidence on cross-sectional assessment of [the Father] of any signs of significant mental illness. Specifically, there was no evidence of any affective disturbance or psychotic symptoms. I note that in the past he had significant problems with alcohol use and anger and spent periods of time in jail for assault. I note, however, that he has not had any significant charges for over 17 years, by his account, and he states that he has “put all those things behind him”. He denied any domestic violence towards the mother and there appears to be considerable dispute of fact in this regard.
From about 2000, the Father has been in a permanent relationship with Ms V, who has children from previous relationships. It is clear on the evidence before me that the Father’s relationship with Ms V is a stable one and Ms V provided affidavit evidence for the purpose of the trial. Her evidence was not challenged and she was not required for cross-examination. Ms V has clearly undertaken significant assistance of the Father in terms of his care of the children, and is obviously a significant adult in the lives of each of Y, K and W. I find on the evidence as a whole that whatever may have been the position historically, the Father does not currently pose any risk to the children of physical or psychological harm or abuse, neglect or family violence within the meaning of those terms as they appear in the legislation.
With respect to the Mother, she herself reported to Dr G an unfortunate history. She was exposed to violence by her stepfather, as well as verbal abuse, and as a child, was the victim of sexual abuse by a teenage uncle. The Mother reported to Ms D, the reg 7 Family Report author, that her own mother was a, “…heavy drug user…” throughout the Mother’s childhood. The Mother reported that as a child, “I had to score marijuana for her.” The Mother reported a difficult relationship with her own mother, and reported to Ms D that this relationship remains strained. Exhibit 3 containing the Mother’s criminal history reflects that the Mother historically (in 1993) assaulted her mother, occasioning bodily harm.
The Mother became pregnant at the age of 18 with her son, M. M was removed from the Mother’s care when he was five years of age, which the Mother attributes to the Father’s violence in their relationship, which she says subsisted between the years when they commenced cohabitation in about 1994 until they separated in about the year 2000. The Father disputes the allegations of violence during the relationship and in the end, given that the Mother supports Orders for the children to live with the Father and for him to have sole parental responsibility, there is no forensic need for me to determine this issue.
When seen by Dr G in February 2012, the Mother reported that she had commenced taking anti-depressants since March 2011 because, she stated she had been, “…tearful, could not think and was unable to sleep for a period of two to three weeks.” Her other medical history includes suffering, “…bulging discs…” in her spine as a result of a work accident. At the time of her interview with Dr G, the Mother reported taking Panadeine Forte (2-4 tablets a day), as well as Diazepam (morning and night) for the two years prior to her interview with Dr G. She was also taking prescribed Mobic.
The Mother reported to Dr G a significant history of marijuana use. While she told Dr G at the time of the interview that she was not using marijuana, she reported that she had smoked more heavily in the past, up to, “…5 cones a day…” The Mother acknowledged to Dr G that her teenage children (Y and K) had accused her of being, “…stoned all the time,” but the Mother reported that this may be because she was, “…resting…” because of her, “…back pain....”
As earlier noted, the Father and the Mother were in a relationship between about 1994 (or 1996) and 2000, when they finally separated. The Mother has alleged significant domestic violence during the relationship perpetrated by the Father, whilst acknowledging that the relationship ended when she, “…smashed a frypan over his head to end it.” In any event, following their separation in 2000, Y and K lived with the Mother, but it seems that not long after separation, Y and K came into the Father’s care for about twelve months, and he has reported that this was instigated by the Mother, “…calling the kids mongrels and there were junkies in the home.” On the Father’s version, he was trying to encourage the Mother to return to the relationship and to live with himself and the children, but she refused. After that twelve month period, the children went back to live with the Mother, on the Father’s version, because the Mother, “…started getting clean…”
Thereafter, it would seem that the position was that Y and K primarily lived with the Mother, but spent regular weekend time with the Father and Ms V until early 2011. However, in or about February 2011, Y started running away from the Mother’s home. After each occasion, Y was returned to the Mother’s care. However, on the third occasion, both Y and K ran away from the Mother’s care in about March 2011, and following that occasion, both children have remained in the Father’s care since that time.
W lived in the Mother’s primary care from the time of his birth. On Mr Ewell’s version (disputed by the Mother), he had a role in W’s life for the first three years, and that role included the provision of financial support. On the Mother’s version, Mr Ewell did not have any relationship with W at this time. In the event, against the background of these proceedings, an Order was made on 12 August 2011 in the Federal Magistrates Court for W to reside with the Father, and he has resided there since.
The evidence before me establishes that since W has been in the primary care of the Father, he has had the opportunity to spend significant periods with Mr Ewell and his family in South East Queensland. Living with Mr Ewell is S, who is now about 16 years of age. S suffers from Asperger’s Syndrome, a form of autism, although it would seem on all the evidence that it is in a relatively mild form although S was, in 2010, suspected of considering, if not attempting, suicide. Also in Mr Ewell’s household is his daughter R, who is about 14 years of age, and Mr Ewell’s sister-in-law, Z, who provided affidavit evidence before me but who was not required for cross-examination.
It would seem that most holiday periods that have occurred since W came into the care of the Father have involved W spending the holidays with the Ewell family in South East Queensland, and as well there have been weekends, including long weekends, which W has spent with the Ewell family. It also became readily apparent at the trial that Mr Ewell and the Father actually get on quite well and there have been opportunities for Mr Ewell to visit the household of the Father and thus W over the period since August 2011 because of the level of cooperation that exists.
It would seem that Mr Ewell initially became involved in these proceedings because the Mother sought his assistance in the proceedings, mainly to prevent W being taken to Tonga with the rest of the Father’s family and children, given the Father’s proposal to undertake such a visit. It seems that at least at one stage, the Mother was concerned that the Father would remain in Tonga with all of the children. In any event, over time, Mr Ewell chose to no longer support the Mother in these proceedings, but rather was supportive of the Father’s position and of his own position in terms of seeking an Order for W to live with him, which was his position, as noted, as at the trial stage.
Mr Ewell has a history of self-employment by conducting his own businesses, including engagement in the transport industry. He suffered an accident in the year 2000 which led to him closing his business in June 2004. He now receives a disability pension because of his injuries, and is unable to work. However, he owns his acreage property in South East Queensland, subject to a mortgage. Mr Ewell returned to South East Queensland after closing his business to be closer to his immediate family. His son, S, born in 1996, and daughter, R, born in 1998, are the product of his prior relationship with a woman called Ms O. Their relationship ended in approximately the year 2000. Following court proceedings, Mr Ewell was, “…awarded custody…” not only of S and R, but also Ms O’s other three children from a previous relationship, namely T, I and L. On Mr Ewell’s evidence, L is still a significant part of his household currently. L assists Mr Ewell with the children in terms of picking them up from school and the like.
There was a very short-lived relationship between the Mother and Mr Ewell, a matter of weeks, and the child W is the product of that.
For the purpose of these proceedings, Mr Ewell obtained and provided to the Court his criminal history, which was admitted and marked as Exhibit 4. That confirms that in the year 2004, Mr Ewell was dealt with for offences occurring in 2003, including possession of dangerous drugs, possession of utensils or pipes and possession of weapons. One penalty was imposed for these offences, being a fine of $1,800.00, with no conviction being recorded. Mr Ewell gave evidence and was cross-examined before me. I accept his evidence that he does not use illicit drugs or substances.
On the evening of Tuesday 28 August 2012, the eve of this trial, events occurred which assumed significance in the hearing before me. In summary, by agreement Y and W were collected by the Mother, who took them to Hungry Jack’s for a meal. She returned them to her residence, but by 7.45 pm, fell into a deep sleep. It appears that neither Y nor W, or both of them combined, were able to wake the Mother. They became distressed and concerned for her safety. They contacted the Father, who attended the Mother’s residence. He, too, was unable to wake the Mother. The Father has reported to the effect that whilst the Mother was not unconscious, he was not able to wake her from her sleep.
Against the history further discussed of the children’s concerns and those of the Father and Mr Ewell with the Mother’s drug use, the events of Tuesday evening and the fact that the Mother was unable to provide care for the two children then in her care on the eve of this trial has obvious significance. In circumstances where, for some time, the Mother’s time with the children has been sporadic and limited, it is striking that this is what occurred on an opportunity to have them in her care at her home.
Statutory Framework
Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.
At [13], the High Court held:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
At paragraph [15] of the judgment, the High Court held:
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered parenting Orders in an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At paragraph 140 of their reasons, the Full Court said:
…however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.
At paragraphs 334 and 335, the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations, and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).
After considering the requirements in section 65DAA, at paragraph 374 of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.
At paragraph 375 of their reasons, the Full Court said:
Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.
The Full Court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.
Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case:
a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
Section 60CC Considerations
As already noted, no issue is raised by any of the parties in respect of Y and K living with the Father. That is, each of the parents and the Independent Children’s Lawyer are in agreement that Orders should be made for Y and K to live with the Father and that the Father have sole parental responsibility. The dispute concerning parenting Orders with respect to these two children is confined to questions about the funding of drug testing of the Mother and the time that ought be ordered for them to spend with the Mother and any conditions, particularly as regards supervision, that should apply with respect to that time.
Likewise, as already noted, there is no issue as between the Father, Mr Edmonds and the Independent Children’s Lawyer as to Orders now being made for Edward to live with Mr Edmonds. The Mother disputes that Order and seeks that an Order be made for Edward to live with the Father. She similarly disputes the Orders that ought be made for Edward to spend time with her, and the conditions upon which that should occur.
The scope of the areas of dispute necessarily informs the process of application of the statutory considerations. Put another way, the statutory considerations are to be analysed in light of the actual proposals of the parties. Thus, as but one example, whilst each of s 60CC(3)(c), (i) and s 60CC(4) set out the consideration of the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, including (by s 60CC(4A)) by reference to events and circumstances since the separation of parents, there would be little utility or forensic need to examine, in detail, what has occurred over the period since the Father and the Mother separated in the year 2000 in assessing Y and K’s best interests and, likewise, the separation of the Mother and Mr Ewell following their short-lived relationship which occurred prior to W’s birth.
Moreover, in circumstances where Y is now aged 15 years, 9 months, K is aged 14 years, 5 months, and W is 10 years, 2 months, the views of children of their ages and stages of development can have, in the circumstances of this case overall, important, if not determinative, significance.
Whilst there is evidence that for significant periods of each of the children’s lives, the Mother has been capable of providing for their needs and indeed, has been their primary carer, there is a body of evidence which raises concerns as to the Mother’s capacity from about the end of 2010 or the beginning of 2011.
It is to be noted that in September 2010, the Mother ceased her employment of the previous five years or so and has not worked since. Whilst the Mother attributes this to a back injury she sustained about twelve months before she finished working, there is no medical evidence before me to identify with any particularity the Mother’s injury or its effects upon her as would explain why it is that she has been unable to work since late 2010.
This assumes some significance in light of other evidence pointing to difficulties for the Mother in terms of her parenting capacity from late 2010 or early 2011 onwards.
Exhibit 3 includes notes as to the content of interviews with each of K and Y and officers of the Department of Child Safety, Communities and Disability Services, which took place on 10 March 2011 at the office of the Department. Without detailing the contents of these interviews in their entirety, it is clear that both children reported significant concerns about the Mother to the Department in the course of these interviews, both as to the Mother’s demeanour and conduct generally and as to her use of drugs.
For example, K reported that she was at the interview, “…to talk about her mum yelling all of the time.” K described an inability to focus, complaining that the Mother’s household is, “…not a normal household…” and she repeatedly refers to the Mother yelling and screaming at the children. K reported the Mother to be screaming at the children when in the car and screaming at them to get out of bed in the mornings. K reported that her mother’s screaming would include calling the children names, such as, “…black cunts…”, “…niggers…” , “…black coconuts…” etc. As to that alleged verbal abuse, it is to be noted that both K and Y are partly of Tongan origin given that their Father is Tongan, and there is evidence from other sources that the children are interested in their Tongan heritage. In relation to this, I note also that Exhibit 3 records the Mother, when taken to the allegation about this, suggested herself in interview with officers of the Department that she could recall saying, “…damn bunch of coconuts…” which, according to the Mother, was a reference to, “…the Islander race being physically violent.” When cross-examined about this aspect, the Mother attempted to suggest that reference to “coconuts” was light-hearted and in the nature of a joke and treated as such by the children, but that evidence is at odds with what is contained in the Department records and I do not accept the Mother’s evidence.
Returning to the notes of K’s interview, it is clear that K repeatedly made references to the Mother’s use of marijuana. Indeed, K herself seems to have attributed to the Mother’s drug use a change in the Mother’s demeanour. The relevant note reads, “[K] stated that her mum has ‘changed’ and this is due to her ‘smoking weed’.”
K stated to officers that she knew the Mother, “…smokes weed as she has seen it before.” K referred to being able to, “…smell the weed in the bathroom.” K also made reference to the Mother using a, “…bong to smoke weed…” and reported that she had seen the bong in a cupboard in her mother’s bedroom. K repeatedly referred to the Mother smoking, “…weed…” in the bathroom and being able to smell the Mother smoking such marijuana.
K reported to the Departmental officers, amongst other things, that the Mother, “…talks bad about her father,” and that the Mother, “…says horrible things about her father that ‘destroy her inside’.”
By the time of that interview, K had run away from the Mother’s care and she repeatedly asserted that she would not return to live with the Mother.
When he was interviewed on the same day, Y likewise made references to the Mother using marijuana. There is a note, “[Y] stated he knows that his mother smokes pot in a bottle. [Y] described the bottle in the following way as ‘a garden hose thing’.” There is also a note, “[Y] then stated he saw his mum smoke pot in the bedroom last March (2010) and he knows that his mum has friends come over to the house and smoke pot with her.”
Y also alleged in that interview inappropriate physical discipline of him by the Mother, including being struck with a strap and being injured by a fork in his shoulder. On inspection, officers did not observe any strap marks, but reportedly observed, “…a fork mark…” Y is recorded as stating, “She (mother) just hits me all of the time,” and further stated, “She hits me because I’m always naughty.”
Some question surrounds the accuracy of Y’s reports because he also told officers that his younger brother, W, had been hit with a strap by the Mother, but when inspections were carried out of W by officers of the Department, no marks were found.
Nevertheless, the only reading of the interview between Y and Departmental officers leads to the conclusion that Y was very negative as to the Mother and any prospect of living in the same residence as the Mother.
It should be noted that W was also interviewed, and he made no adverse references to the Mother. Officers of the Department also attended the family home when W was still living with the Mother in March 2011. There is a specific record of no injuries, bruises or welts being apparent on W’s body, and W appeared to be comfortable then in the care of the Mother.
The Department notes in Exhibit 3 record the Father telling Departmental officers of his experience when with the Mother that she was prone to passing out at night time soon after dinner when she had been using marijuana.
By her own admission to Dr G, there had been times when the Mother has been a heavy user of marijuana. In that context, the events of last Tuesday evening on the eve of trial have particular resonance.
The Father gave evidence before me and was cross-examined. I found the Father to be a convincing and genuine witness, and genuine in his concerns raised to the effect that the Mother currently has some problem or difficulty that impacts upon her parenting capacity, attributable in some way to her use of drugs.
Whether the Mother is heavily using marijuana (which she denies) or is over-medicating herself with her prescribed medication, it is difficult to conclude otherwise than that the events of the evening prior to trial can only be explained, or at least the Mother’s inability to wake from a deep sleep, by reference to the influence of drugs of some kind. I note also that when cross-examined about her failure at times to participate in telephone contact with the children, the Mother acknowledged occasions when she would fall asleep in the afternoon and not wake up until 9.00 pm or later.
I accept that the Father, with the assistance of Ms V, has the capacity to provide for the needs of Y and K, including their emotional and intellectual needs. I find that currently, because of her difficulties, the Mother does not have such capacity but it is to be hoped that if the Mother can address her difficulties, she will return to the position that she is capable of providing as a caring parent and is perceived by each of the children as having such capacity.
I accept that Mr Ewell has the capacity to provide for such needs for W. I accept that Mr Ewell has appropriately dealt with the difficulties he has experienced with S in relation to S’s Asperger’s Syndrome and I accept his oral evidence, when he was taken to W’s current poor performance at school, that Mr Ewell will address W’s academic needs, including the need for tutoring if necessary. Mr Ewell has historically addressed such needs with his other children, and I am satisfied he would do so with respect to W.
I note that with respect to W, even the Mother accepted that it was his genuine desire to live with Mr Ewell and that, in reality, it was the Mother’s convenience and practicability of time and communication that dictated her position of preferring an Order that W live with the Father.
I am concerned that the Mother’s lifestyle includes socialising with persons who engage in the use of illicit drugs. The Mother conceded having friends in Brisbane that she would not expose her children to, and I infer that from this and other evidence, that this refers to persons who engage in illicit drug use. Whilst the Mother’s evidence is to the effect that she has twice evicted flatmates from her residence because of the use by those flatmates of drugs, in one case the use of crack cocaine, the fact is that consecutive flatmates of the Mother have been engaged in the use of illicit drugs, even on the Mother’s own account. Given the evidence of Dr G as to the potential effect upon the Mother of illicit drug use or the overuse of prescribed medication, the Mother needs to address lifestyle issues if she is to repair her relationship with Y and K and if she is to be able to provide in future an environment where W feels comfortable and safe and protected.
I am satisfied that K and Y have the right to enjoy their Tongan heritage on the Father’s side and that it is in their interests to have the opportunity to experience a visit to Tonga to advance their knowledge and interest in their own Tongan heritage and culture. I find that the Mother has, at times, been derogatory of persons of the Father’s origin and that it is harmful to K and Y to be exposed to such views.
I accept Mr Ewell on his evidence that he sought to fulfil his responsibilities as a parent to W and that the Mother brought this to an end when she became concerned more permanent arrangements for W might see W living in his care. I am satisfied that since mid-2010, Mr Ewell has actively pursued a role in W’s life and that W’s views and perceptions as earlier referred to are a reflection of the positive experience that has been for W.
I find that whatever may have been the historical deficiencies in the Father in terms of his capacities, that those have been addressed by the Father. As the Mother herself put it, the Father has effected changes and, “…can be trusted…” in respect of the changes he has effected. I am satisfied that with the assistance of Ms V, he is able to fulfil his parental responsibilities.
For the reasons already expressed, I find that there is an hiatus currently in the Mother’s previous capacity to fulfil her parental responsibilities.
Given the significantly strained relationships between the Mother, on the one hand, and the Father and Mr Ewell on the other, the best interests of all three children dictate that there be no Order for equal shared parental responsibility, and indeed the Mother did not seek such an Order. She acknowledged that the Father should have sole parental responsibility with respect to Y and K, and that is obviously in accordance with their views.
Likewise, with respect to Mr Ewell, if W resides with Mr Ewell, which is the Order I propose to make, I consider that it would not be in W’s best interests on my findings overall as to best interests for there to be an Order for equal shared parental responsibility and parental responsibility should vest in Mr Ewell with respect to W.
I consider that the conditions sought by the Independent Children’s Lawyer in terms of supervision for a period as well as the urine drug screening of the Mother and the proposed apportionment as to the costs of such testing are reasonable and are conditions which are imposed in the best interests of the children.
For these reasons, I make Orders largely in terms of the Orders as sought by the Independent Children’s Lawyer, which are the Orders supported not only by the Independent Children’s Lawyer but each of the Father and Mr Ewell and which are the Orders assessed by Ms D, the expert, as being those which best meet the best interests of all three children.
I therefore make Orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 September 2012.
Associate:
Date: 18 September 2012
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Family Law
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Jurisdiction
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