Herbst and Wadsworth

[2010] FMCAfam 164

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HERBST & WADSWORTH [2010] FMCAfam 164

FAMILY LAW – Parenting orders – living arrangements for parties’ twin sons aged four years – mother’s application that father have supervised time only because he has a history of drug use, violence and is emotionally unavailable – father’s application for change of residence on basis that this is the only possibility of him being able to establish a meaningful relationship with the children – intervenor paternal grandmother seeking orders initially for supervised time to progress to unsupervised time on a monthly basis – ordered children to spend supervised time with the father and paternal grandmother.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 62G(2), 65DAA

B v B (1993) FLC 92-357
Russell and Close (25 June 1993, unreported)
Re Andrew (1996) FLC 92-692
A v A [1998] FamCA 25
Goode v Goode (2006) 36 Fam LR 422

Applicant: MS HERBST

First Respondent: MR WADSWORTH

Intervenor: MS W

File Number: MLC 493 of 2007

Judgment of: Bender FM

Hearing dates: 22 & 23 February 2010

Date of Last Submission: 23 February 2010

Delivered at: Melbourne

Delivered on: 15 April 2010

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: Ms Tarrant

Solicitors for the Respondent: Stella Stuthridge & Associates

Counsel for the Intervenor: Ms Spehr

Solicitors for the Intervenor: Hillier Quinn Law

ORDERS

1. The mother have sole parental responsibility for the parties’ children [X] (“[X]”) and [Y] (“[Y]”) born [in] 2005.

2. [X] and [Y] live with the mother.

3. [X] and [Y] spend time and communicate with the father as follows:

   (a)from 1.00pm until 5.00pm on Sunday 18 April 2010 and every third Sunday thereafter;

   (b)from 1.00pm until 5.00pm on Father’s Day;

   (c)on [X] and [Y]’s birthdays and the father’s birthday from 1.00pm until 4.00pm. Once [X] and [Y] are at school and such birthdays fall on a school day, from after school until 5.30pm;

   (d)on the Sunday preceding Christmas Day from 1.00pm until 5.00pm; and

   (e)as otherwise agreed between the parties.

4. [X] and [Y] shall spend time and communicate with the intervenor paternal grandmother for a period of up to three hours during the time [X] and [Y] are with their father pursuant to order 3 herein.

5. [X] and [Y]’s time with the father and paternal grandmother pursuant to orders 3 and 4 herein shall be supervised by either of the maternal grandfather Mr H or Mr R, or such other person as agreed to by the parties in writing.

6. Unless the father and paternal grandmother consent in writing, the mother is not to be present when the father and/or paternal grandmother are spending time with [X] and [Y] pursuant to orders 3 and 4 herein.

7. [X] and [Y]’s time with the father and paternal grandmother pursuant to orders 3 and 4 herein take place alternating between a location nominated by the mother and/or supervisors in or around the [C] region and a location nominated by the father in the Bendigo region, such locations not to be at the residences of the mother, father or paternal grandmother.

8. Each party shall text the other with details of the nominated location pursuant to order 7 herein, including any formal name and address, no later than 48 hours prior to the commencement of [X] and [Y]’s time with the father and paternal grandmother.

9. The mother shall do all things necessary to authorise any kindergarten or school that [X] and [Y] attend to provide to the father, at his expense, copies of all reports, photograph order forms and newsletters as are usually provided to parents.

10. The father and paternal grandmother shall be at liberty to attend [X] and [Y]’s kindergarten and school concerts, speech nights and sporting events as are usually attended by parents and grandparents.

11. The father shall be at liberty to attend parent/teacher interviews in relation to [X] and [Y], such interviews to be, at the discretion of the school, at a time different to the mother.

12. The mother shall notify the father of any serious illness or injury suffered by either of [X] and [Y] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the father to obtain information directly from any treating medical practitioners.

13. Each party shall keep the other appraised at all times of their current residential address and telephone contact details.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 493 of 2007

MS HERBST

Applicant

And

MR WADSWORTH

Respondent

MS W

Intervenor

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter with a long history before this court.  The applicant and first named respondent have twin sons [X] (“[X]”) and [Y] (“[Y]”) born [in] 2005 who are accordingly four and ¾ years of age.

2. After protracted proceedings in this court, final consent orders were made on 1 April 2008 which provided for the parties to have equal shared parental responsibility for [X] and [Y], for [X] and [Y] to live with their mother and spend time with their father for 16 weeks on a supervised basis and thereafter on a slowly graduated unsupervised basis which was ultimately to build up to alternate weekends from

   
   

   5.00 pm Friday to 5.00pm Sunday.

3. In June 2008, shortly before [X] and [Y] were to commence spending unsupervised time with the father pursuant to the 1 April 2008 orders, the mother ceased to make the children available for time with the father.

4. On 29 January 2009, the mother instituted these proceedings seeking orders that the father spend only supervised time with [X] and [Y] and that the paternal grandmother not be in attendance during the father’s supervised time with the children.

5. At the final hearing of the matter the mother, who was by then self-represented, clarified her proposal for the time [X] and [Y] should spend with their father as four hours once a month at either the [omitted] Gardens or at her home supervised by one of either herself, her partner Mr R or her father Mr H.

6. The father initially responded to the mother’s application by seeking that it be dismissed.  Shortly prior to the final hearing, the father filed an Amended Response in which he sought orders that [X] and [Y] live with him and spend time with the mother as deemed appropriate by the court.  At the final hearing he too clarified his position for the court.  It is the father’s application that [X] and [Y] live with him for eight nights in each fortnight and spend time with the mother for six nights in each fortnight.  The practical breakdown of how this is to occur was to be subject to [X] and [Y]’s kindergarten and school commitments.

7. In November 2009, the paternal grandmother sought leave to intervene in the proceedings and that orders be made for [X] and [Y] to spend time with her each alternate weekend gradually increasing over a

   
   

   12 month period to alternate weekends from Friday to Sunday, as well as school holiday time.  The paternal grandmother was given leave to intervene.  At the final hearing, the paternal grandmother also clarified the orders she sought.  She is seeking to spend time with [X] and [Y] once per month, initially on a supervised basis building up to unsupervised time.

Background

1. The mother was born [in] 1985 and is 25 years of age.  She is engaged in home duties. She has re-partnered with Mr R and they have a daughter, [Z] born [in] 2007 (“[Z]”), who is two years old.

2. The father was born [in] 1983 and is 26 years of age. He is unemployed and has been for several years.  He lives with the paternal grandmother.  He has recently re-partnered with Ms N. They do not currently cohabitate but spend most of their time together at either the home of the paternal grandmother or in Ms N’s home.

3. The parties commenced cohabitation in 2003, initially living with the paternal grandmother. The mother was admitted to hospital in February 2005 because of complications with her pregnancy.  [X] and [Y] were born [in] 2005 and remained in hospital for three months.  When strong enough to go home, the parties and the children moved to their own accommodation.

4. The parties’ relationship was acrimonious and in late 2005 the parties separated when the mother left the parties’ property after the father advised her he had a long standing problem with intravenous drug use.

5. In or around 2005, the father was prescribed Buprenorphine to address his addiction to intravenous drugs.  He continues to be prescribed that medication but his dosage has reduced from 34 milligrams to

   
   

   5 milligrams daily.

6. The father was a heavy user of marijuana during and after the parties’ relationship.  It is his evidence that he continues to smoke marijuana, but that his usage has dramatically reduced so that he now ‘only’ smokes three times per week.  It was the father’s evidence, supported by regular drug screens undertaken by him, that other than marijuana he only takes medication that is prescribed by his long term treating general practitioner.

7. After the parties separated, [X] and [Y] saw their father when the mother took them to see him at the home of the paternal grandmother or otherwise when the father visited the children at the mother’s home.  This was not particularly successful because of the level of acrimony between the parties.  In January 2007, the father made application to this court for parentage testing which confirmed he is the boys’ father.  Orders were then made for the father to undergo drug screens and for him to spend supervised time with [X] and [Y].

8. In August 2007, the father produced a drug screen which was positive for ‘speed’.  The father admitted he used this drug on that occasion, but it is his evidence that this is the only time he has ‘relapsed’ since 2005.

9. In 2006 and 2007, both parties sought intervention orders against the other.  The mother obtained an intervention order against the father in both 2006 and 2007.

10. In June 2007, the father obtained an intervention order against his brother Mr W arising from an incident when Mr W attempted to strangle him. Mr W was living with the father and paternal grandmother at that time and had a serious drug problem as well as involvement in criminal activities.  Mr W was subsequently jailed for other matters.

11. In late 2007, the father was convicted of shoplifting.  He received a Community Based Order for six months.

12. In September 2007, the father appeared in the Bendigo Magistrates Court on charges of unlawful assault, and throwing a stone to injure/danger/damage property.  The charges arose from an incident where the father was arguing with an ex-girlfriend who had her four year old daughter with her.  The father’s evidence is that the

    
    

    ex-girlfriend was yelling at him outside her home, she asked him to leave and he threw a stone in ‘her direction’ to scare her off.  It hit a fence, shattered and hit her four year old child.  The father was not convicted and was fined $200.00.

13. When the mother’s current application first came before the court on

    
    

    16 March 2009, I made orders for [X] and [Y] to spend time with their father on two occasions at [F] Contact Centre (“[F]”) and for two occasions on an unsupervised basis.  Orders were also made for the father to undergo supervised drug screens and for his time to continue to be supervised at [F] in the event any screen was positive for illegal substances.  The matter was otherwise adjourned to 5 May 2009.

14. On 5 May 2009 when the matter next came before the court, the father’s drug screens were positive for cannabinoids and methadone.  In those circumstances, orders were made for the father’s time with [X] and [Y] to continue to be supervised at [F].

15. On 30 June 2009, the matter was again before the court.  On that occasion, the matter was listed for final hearing in December 2009 and orders made for a continuation of the father’s time with [X] and [Y] at [F].  A Family Report was also ordered.

16. When the matter came before me in December 2009, the intervenor’s application was first before the court.  Whilst filed on 2 November 2009, her application unfortunately was not been listed at an earlier date.  As the mother had had no opportunity to respond to the intervenor’s application, the final hearing was adjourned to

    
    

    22 February 2010 and an addendum to the Family Report was ordered to address the intervenor’s application.

17. In relation to the intervenor’s application, the mother at trial proposed that the intervenor spend two hours each month with [X] and [Y] during the period the boys were seeing their father, with such time to be supervised by either herself, her partner or her father.

The mother’s evidence

1. As set out earlier in this judgment, it is the mother’s proposal that the father spend time with [X] and [Y] once a month for four hours at [omitted] Gardens or at her own residence, supervised by either herself, her partner Mr R or her father Mr H.

2. In relation to the paternal grandmother’s application to spend time with [X] and [Y], it’s the mother’s proposal that she spend time with the boys at the same time as the father and under the same supervision but for a period of two hours only.

3. It was the mother’s evidence that because of the father’s history of drug addiction, his violence and the impact that his long-term drug usage has had on his mental capacity and ability to function, the father posed and continues to pose a serious risk to [X] and [Y].

4. It was the mother’s evidence that she does not accept that the father is no longer using intravenous drugs.  In support of this, she pointed to the father’s demeanour as observed by Mr Tony O’Dwyer who prepared two Family Reports in this matter, as well as the observations of the father by the Coordinator at [F].

5. It was put to the mother that, save for one supervised drug screen in 2007, all of the drug screens undertaken by the father over the last four years had been clear of intravenous drugs. It was the mother’s response that those drugs are only detectable in the system for 48 hours, and hence the screens were not conclusive proof of abstinence.

6. The mother also challenged why the father was still needing to take Buprenorphine some five years after it was initially prescribed.

7. Further, the mother was concerned about the high level of prescription medication that the father is required to take and the tranquilising effect that has on him, which in turn may impact on his capacity to care for two lively young four year olds.

8. It was the mother’s evidence that she questioned the father’s motives in pursuing applications before the court to spend time with the boys and posited that it was motivated more by revenge against her for disclosing his intravenous drug usage and breaking up their relationship than by any desire to have a meaningful relationship with their sons.  In support of this, it was the mother’s evidence that she had invited the father on many occasions to visit the boys at her home for birthdays, Christmas and other special occasions and that, save for two occasions, he had declined any such invitations.

9. In relation to the mother’s concerns as to the father’s violence and criminal activities, she made reference to his recent court appearances for larceny and also the incident where he was charged with unlawful assault involving a young four year old child.

10. The mother was also concerned in relation to the father’s new partner Ms N.  Ms N has a daughter [A], aged 10 years.  [A] is currently the subject of a Department of Human Services Protection Order and is in the care of her maternal grandmother.  It would appear that this is as a result of a previously extremely violent relationship that Ms N was in, but unfortunately as the father chose not to call Ms N to give evidence on his behalf and the mother, who was self-represented, did not know to issue a subpoena to the Department of Human Services, very little else is known about Ms N’s circumstances. Understandably, the mother was concerned as to Ms N’s background and her suitability as a person with whom [X] and [Y] should be brought into contact.

11. The father has been seeing [X] and [Y] on a supervised basis at [F] for some time. A report was prepared by [F] in relation to their observations of the boys’ time with their father. Generally speaking, [F] spoke positively of the interaction between the boys and their father.  An affidavit was filed by the father’s solicitors on behalf of [F], sworn by Ms C.  Ms C is a Key Worker at [F] and she swore the affidavit on behalf of the organisation as the previous Coordinator, a gentleman by the name of Mr K, had only recently left the organisation and at the time the affidavit was required, [F] had not appointed an alternative Coordinator.

12. The mother gave evidence that Ms C is known to the intervenor paternal grandmother, and therefore she did not accept that the report as provided was unbiased or an objective observation of [X] and [Y]’s interactions with their father.

13. When it was put to the mother that Ms C at no time had supervised the boys’ time with their father and that the report was nothing more than a reproduction of notes that had been taken by the actual supervisors, the mother still did not accept that it was an objective observation of that relationship or of the interactions that had taken place between the boys and their father.

14. The mother raised real concerns about the quality of supervision provided by [F] and it was her evidence that there had been instances where [F] had placed [X] and [Y] at risk.

15. In particular, the mother gave evidence about the visit that took place on 29 January 2010.  It was her evidence that when she arrived to collect the boys, she had pulled up in the carpark, [X] saw her arrive and ran unsupervised through the carpark, being chased by the supervisor.  It was her evidence that the supervisor had apologised and indicated that [X] had ‘got away from him’.

16. [F] have a policy which requires that the parent who is delivering the children for supervision and the parent who is having the supervised time with the children arrive in separate carparks and enter by separate doors.  It was the mother’s evidence that she and the father had agreed at the commencement of supervised time that they would both arrive in the same carpark and that the mother would actually make sure that the boys were settled with the father before she departed and that this arrangement had been approved by the previous Coordinator of [F],

    
    

    Mr K.  Accordingly, this is how supervised time proceeded over quite a considerable period of time in breach of [F]’s normal protocol.

17. With the departure of Mr K, [F] were then enthusiastic to ensure that their protocol was properly adhered to by the parties.  It was the mother’s evidence that this was raised with her and her partner, Mr R, on the last occasion there was supervised time at [F] and that there had ensued a somewhat heated discussion in which she indicated that she was not prepared to agree to supervised time continuing other than in accordance with the pre-existing arrangement.  The mother thereafter ceased to make the children available to spend time with the father at [F].

18. In relation to the paternal grandmother’s application, it was the mother’s evidence that she had similar concerns in relation to her and her lifestyle as she did with respect to the father.  It was the mother’s evidence that the paternal grandmother has four sons, all of whom have a history of serious drug addiction, and in the case of her son Mr W, an extensive criminal history.

19. To put it quite simply, it was the mother’s evidence that she did not want her sons associating with the paternal grandmother as it was her belief they faced the risk of turning out like the paternal grandmother’s children.

1. It was the mother’s evidence that the impact of the ongoing continuous litigation and her genuine fears in relation to the father and his family spending time with the children on her capacity to parent was quite severe. She indicated that she was suffering severe health issues, including stress, a sporadic heartbeat and depression. She expressed real concerns about the impact these health issues and the ongoing proceedings are having on her ability to properly parent both her sons and her daughter.

2. The mother was challenged in relation to her admitted non-compliance with orders of this court and in particular her failure to progress the father’s time with the children to unsupervised time, her failure to undertake a parenting course which was ordered after she had been found to have contravened the court’s orders, her failure to undertake supervised drug screening and her failure to comply with the orders for the children to have supervised time at [F] with the father.

3. In relation to her failure to undertake supervised drug screens, the mother conceded that she had only taken one supervised drug screen and that it had returned a finding positive for cannabinoids.  It was her evidence that she found having to give supervised drug screens embarrassing, but conceded that if she were to undertake screens, they would be positive to cannabinoids as she does smoke marijuana.

4. In relation to her failure to undertake a parenting course, it was the mother’s evidence that she had been parenting the boys and her daughter [Z] for almost five years now and that she was a good parent who did not need to undertake a parenting course.

5. In relation to [F], it was the mother’s evidence that she did not believe such time in that environment was in the boys’ best interests as it was not real time but like

   “going to a beauty parlour”

   as

   “all they do is play games with each other”. 

   She also expressed a genuine belief that such time was not necessarily safe, especially after the incident where she claims [X] was running unsupervised through the carpark where he could have been run over.  In her words:

   “I don’t know the [F]’s supervisors.  I wouldn’t let a stranger drive my car, let alone look after my children.”

6. It was the mother’s unequivocal evidence that she would continue to do what she considered to be in the best interests of her children and that she would not comply with any order of this court that she believed would put her children in danger.

Mr H

1. The mother gave evidence that on 24 April 2009 at the conclusion of supervised time at [F], and at the invitation of the father, she and the maternal grandfather visited the father’s home so that they could see the room the father had set up for the boys.

2. It was the mother’s evidence that the hallway of the home had multiple punch holes and that in the father’s bedroom, she saw a pair of scissors, a shot glass and an assortment of tablets sitting in his drawer.  She also observed a huge poster of mushrooms on his wall which she said he told her was a picture of magic mushrooms.

3. Mr H, the maternal grandfather, filed an affidavit in support of his daughter and gave very brief viva voce evidence at the final hearing of the matter.

4. Mr H confirmed that he had attended the father’s home, noting that is the home of the paternal grandmother, but did not accompany his daughter to the father’s bedroom or see any of the matters to which she gave evidence.

5. Mr H confirmed that he assists his daughter from time to time in looking after the children.

6. At my specific request, Mr H reluctantly indicated that he would be willing to supervise the father’s time with the children, but only for a couple of months.

The father’s evidence

1. It was the father’s evidence that he has been trying to put in place arrangements for him to develop a meaningful relationship with [X] and [Y] since the parties separated.  He first commenced proceedings in this court in January 2007 in an attempt to develop that relationship.  It is the father’s evidence that the mother has refused to comply with any of the court’s orders that did not accord with what she believed was in the children’s best interests, which in reality means that they had not spent unsupervised time with him.

2. It was the father’s evidence that he has formed the view that the only way he will be able to have a meaningful relationship with [X] and [Y] is if they were to live with him and to spend significant and substantial time with their mother.  To this end, it is his proposal that [X] and [Y] live with him eight days in each fortnight and spend six days in each fortnight with their mother.

3. The father indicated that he was not able to give a specific structure for the fortnightly arrangements for [X] and [Y] until such time as there was clarity around their kindergarten and school commitments.

4. The father confirmed that he had formed a new relationship with Ms N, who has a daughter [A].  He further confirmed that [A] is currently subject to a Protection Order and lives with her maternal grandmother.

5. It was the father’s evidence that the Protection Order arose because of a violent relationship that Ms N was in and that she is optimistic that [A] will shortly be returned to her care.  It was the father’s evidence that, subject to the approval of the Department of Human Services when [A] is returned to live with Ms N, it was his intention to move from the paternal grandmother’s residence where he currently resides to live with Ms N and her daughter.  The father did not explain why he and Ms N did not live independently of the paternal grandmother at this time.

6. The father did not call Ms N to give evidence on his behalf, nor did he place before the court any independent evidence as to the basis for

   
   

   Ms N’s daughter being subject to a Protection Order.  Further, he did not place any evidence before the court as to Ms N’s accommodation or what the environment would be for [X] and [Y] in the event that he was successful in his application and he and the boys moved to live with her.

7. The father was questioned by his own Counsel in relation to his proposals for the arrangements for the boys in the event that he was successful in his application.  The evidence given by him in this regard can, at best, be described as vague and, at worst, as completely nonsensical.

8. In relation to the kindergarten that the boys would attend if orders were made for them to live with the father, it was the father’s evidence that there was two that he knew of, one behind the railway station and one in [omitted].  When asked if he had spoken to the kindergartens, the father gave vague evidence that he had spoken to the ‘one behind [omitted] Station’ but was unable to confirm whether his discussions involved the possibility of that kindergarten being able to accommodate the boys, what the hours involved were, any fee structures or any other requirements relevant to the boys being able to attend that kindergarten.

9. The father was asked as to how he would be able to get the boys to kindergarten and it was his evidence that he would drive them in his new car or push them in a pusher which he has in his possession.  This evidence was very concerning as the boys are now almost five years of age and one wonders why they would need to be in a pusher.

10. The father was questioned as to what the care arrangements would be for [X] and [Y] when they were not at kindergarten.  The father’s evidence was that he would be able to do everything for them, that he has clothing for them and that he’d take them down the street.  Again, the father’s evidence was completely lacking in any specificity and more importantly in any indication that he had even the most fundamental understanding of what would be involved in the care of two very lively four year old twin boys.

11. The father was then asked what would be the living arrangements for [X] and [Y] in the event that he returned to work.  This question was relevant as the father had given some vague indication that he had ambitions in this regard.  The father’s evidence was that he would probably be working in Melbourne ‘doing the roads’.  When asked who would look after [X] and [Y] if that were to be the circumstances, it was his evidence they would be looked after by his mother or his brothers and that he had lots of friends who could care for the boys.

12. As the father has had very limited time with [X] and [Y] since the time of separation, it is understandable that he has a very limited knowledge of their day to day routine, including their food preferences, sleeping patterns, interests, what is used to calm them if they become upset or overtired, their sleeping habits including what time they normally go to bed, whether they still have a nap etc.  However, the father’s evidence had to give rise to a real concern that he lacked any fundamental knowledge or understanding in relation to the care of children.

13. There was no evidence that whilst the father had been denied the opportunity to care for his children, he had cared for nephews and nieces or friend’s children.  It is apparent to this court that the father has no hands-on experience in the day to day care of children and the enormity of what that task entails.

14. It was the father’s evidence that he has not used intravenous drugs since 2005, save for one relapse in 2007.  It was his evidence that he has been on Buprenorphine since 2005 and that his dosage of that drug had reduced from 34 milligrams a day to 5 milligrams a day.  It was the expectation of himself and those treating him that within the next few months he would have no requirement to be taking that drug at all.

15. The father gave evidence that he regularly sees his general practitioner, Dr M, and that currently he is prescribed one Endep tablet for depression, Panadeine Forte which he only takes when suffering from pain related to his dental issues, Tramal which he takes for back pain, Valium which he takes approximately every third day and no more than three at any given time and two milligrams of Xanax.  It was the father’s evidence that this drug regime makes him feel better and does not impact upon his daily functioning.

16. In relation to his relationship with his brother Mr W, it was the father’s evidence that he and his brother now have a good relationship. The father indicated that Mr W had been released from jail some months ago and that he had ‘cleaned himself up’.  It was the father’s evidence that his brother had done a fitness course, was now working in [omitted], was in a steady relationship and that his partner had two young girls.  It was the father’s evidence that he had visited his brother in Melbourne in the last six months and that his brother came up to Bendigo fairly regularly.

17. The father tended to downplay the incident in 2007 when his brother Mr W had attempted to strangle him and it was only when he was referred to paragraphs 36 and 37 of his affidavit sworn 18 February 2008 which set out in very graphic detail the circumstances of that incident that the father conceded it might have been quite serious at that time. 

18. The father was questioned in relation to the incident in 2007 which resulted in the assault charges.  It was his evidence that he threw a rock and it shattered, that it was a total mistake and that the judge had understood.  The father indicated that he hadn’t directed the rock at anyone and that it had just shattered.  He seemed to accept little responsibility for his behaviour on this occasion as well as little remorse that a four year old child had been witness to and injured by his behaviour.

19. The father was questioned as to why he was late when the first Family Report was prepared by Mr Tony O’Dwyer in March 2008.  The father gave evidence that he could ‘not go back that far’ and that he was ‘lost’.  The father was then questioned as to whether he used or uses morphine, to which he said ‘no’ and then ‘yes’.  It was quite apparent at this time that he was having issues with his memory.  The father’s evidence was confused and inconsistent.

20. The father was questioned as to why he had not taken advantage of the mother’s offer for him to come and spend time with [X] and [Y] at her home on special occasions such as Christmas and birthdays, and further as to why he was resistant to her proposal that he spend time with the boys supervised by her, her partner or her father.  It was the father’s evidence that this would give rise to a real potential for argument and that further, the mother would use such interactions as an excuse to pursue further intervention order proceedings against him.

21. The father confirmed that he continues to use marijuana.  It was his evidence that he had considerably reduced his use of this drug to the extent that he was only using half to one gram a week, that he no longer used the drug by way of a bong and that he was only having one joint every two or three days.  It was his evidence that he believed he was once addicted to the use of marijuana but that was no longer the case.  The father gave no indication that he had any intention of stopping the use of marijuana into the future.

22. In both of the Family Reports prepared by Mr Tony O’Dwyer, he raised concerns that when he saw the father, the father was drug-affected.  The father denied that he was drug-affected on these occasions.

23. Mr O’Dwyer also raised concerns in relation to the father’s presentation and in particular his very flat affect, concerns as to his capacity to remember and the possibility that there had been some permanent incapacity brought about by the father’s long-term drug usage.  It was the father’s evidence that he did not believe there was anything unusual in his behaviour when he saw Mr O’Dwyer.  It was his evidence that as he presented to Mr O’Dwyer and how he was presenting in court is how he is normally and how he has always behaved.

Dr M

1. Dr M is the father’s treating general practitioner and he filed two affidavits with the court on behalf of the father, the first on

   
   

   9 June 2009 and the second on 11 February 2010.  Dr M also gave viva voce evidence by telephone at the final hearing of the matter.

2. It was Dr M’s evidence that he has been the father’s treating general practitioner for the last four or five years.

3. The mother indicated that she had gone to the chemist and printed off the relevant information in relation to the current medications taken by the father.  She put to Dr M the various quite serious possible side effects that such drugs could have.  It was Dr M’s evidence that whilst these serious side effects could occur, in his some 50 plus years of general practice, he had never seen those side effects manifest themselves in any patient of his.

4. In Dr M’s affidavit sworn on 8 December 2009 and filed on

   
   

   11 February 2010, Dr M stated as follows:

   “There are no specific side effects of the above drugs which to my knowledge have been taken according to prescription and have produced the desired tranquilizing effect.”

5. Dr M was questioned as to what he meant by this.  It was his evidence that if a person is agitated, the drugs prescribed would quiet that agitation.  He was asked if the patient was not agitated at the time he took the drugs, whether they could lower the patient’s functioning.  It was Dr M’s evidence that if the patient was not agitated, then these drugs could lower the person’s affect by there being some quieting.

6. Dr M indicated that he understood that the father continued to use marijuana, but that otherwise he had addressed his addiction to hard drugs and that he had always found the father to be a quiet and sensible person, and that he had not noticed anything unusual or striking in his presentation when he had seen him.

Ms C

1. The father filed an affidavit sworn by Ms C, who is a Key Worker at [F] Children’s Contact Service. Attached to this affidavit were the session reports and notes from [F]’s file in the matter of Wadsworth & Herbst.  Such an affidavit would normally be sworn by the Coordinator of [F], but Ms C swore the affidavit as there is currently no Coordinator at [F] arising from the recent resignation of the long-standing Coordinator Mr K.

2. The record of sessions and communications covered the period

   
   

   27 March 2009 to 12 February 2010.  The session reports related to five separate supervised times between the father and [X] and [Y], being 19 June 2009, 14 August 2009, 23 December 2009,

   
   

   15 January 2010 and 29 January 2010.

3. Perusal of the description of the interactions between [X] and [Y] and their father in the session reports can generally be described as positive, with the father engaging well with the boys and them engaging well with him.

4. In the session report dated 23 September 2009, in the notes prepared by Mr K, the following is set out:

   “It has been reported by the Family Report writer that

   
   

   Mr Wadsworth has blunted affect, and appears to be drug affected.  Mr Wadsworth has consistently presented with limited emotional range and quite a passive facial expression that rarely smiles.  He has never appeared drug affected, although his sometimes slow speech patterns, hesitations, and blunted affect looks like someone who has used drugs.

   What I would like to comment on here is that the same can be said of [Y] and [X].  They rarely smile or show any large emotional range.  They are either emotionally neutral, engage in activity or being loud and aggressive.  [X] in particular screws up his face and speaks or vocalises aggressively even when he seems to be enjoying himself, for example on the Zippy bikes.  During play they can be communicative and sound content but I would never describe them as cheerful.  I would not describe them as playfully animated, except when being aggressive.  It seems they like their time with Mr Wadsworth and relate to him well, but I would not use the word ‘enjoy’ in relation to them.”

5. Perusal of [F]’s notes reveal that of the 13 appointments made for supervised time, only five took place and the eight that did not take place were as a result of the unilateral decision of the mother not to attend and not to make the children available.

6. Perusal of [F]’s notes also indicate that of the five supervised visits that did occur, the father was late to three of them and the mother was late to one of them.

7. The notes accompanying the last time the father spent supervised time with the boys on 29 January 2010 were prepared by ‘Mr M’.  Prior to Mr K’s departure from [F], it would appear that there had been tacit approval given for the mother to personally bring [X] and [Y] to the contact room, in contravention of [F]’s usual policy and practices.  Further, the mother insisted on using the same carpark as the father, rather than the usual separate carpark for those parents who are delivering children for the purposes of spending supervised time.

8. The notes indicate that ‘Mr M’ organised to speak to the mother and her partner, Mr R, with a view to seeing if the usual practices of [F] could be reinstated for these parties.  Mr M’s notes depose to a 45 to 50 minute conversation which became quite heated in which the mother absolutely refused to alter the existing arrangements.

9. [F]’s notes also indicate that Mr R spoke very negatively of the father, referring to him as ‘a fucking junkie’ as well as him ‘having failed as a parent and as a human being’.

10. The mother had challenged the objectivity of the [F] report and of [F] itself on the basis that she was of the belief that Ms C is a personal friend of the intervenor paternal grandmother.

11. Ms C was questioned in relation to the mother’s concerns in this regard and she indicated that she would have described herself and the paternal grandmother as ‘friendly acquaintances’. It would appear from her evidence that she had had involvement with the paternal family as part of her previous employment as housing advocate with the appropriate local government department.

12. It was Ms C’s evidence that when the Wadsworth/Herbst family engaged with [F], she specifically asked the Coordinator to not involve her with the family because of her prior involvement with the paternal family.  It was her evidence that she had only ever interacted with the family on one occasion and that was for five or six minutes when

    
    

    Mr K, who was then supervising [X] and [Y], had to leave the room and there was no other worker at [F] able to supervise the father, [X] and [Y].

1. Ms C gave evidence that subsequent to the filing of her affidavit, the mother had rung her to accuse her of a conflict of interest. It was

   
   

   Ms C’s evidence that she had explained to the mother why there was no conflict and that the mother had become very accusatory, very angry and confrontational and had sworn at her.  At this time Ms C indicated she politely terminated the call.

2. Ms C confirmed that all session reports were prepared by the relevant supervising workers at the conclusion of their time supervising the family.

Mr M

1. Mr M is a Key Support Worker at [F] and was the worker referred to as ‘Mr M’ in the session report dated 29 January 2010.

2. It was Mr M’s evidence that he did engage in a conversation with the mother and her partner as it was [F]’s wish that the arrangements for the drop off and collection of the boys revert to the usual [F] protocol.  Mr M gave evidence that he spoke to the father in relation to this and the father told him that he had never consented to the arrangement but had gone along with it as it appeared that [F] had agreed to that being the arrangement.

3. It was Mr M’s evidence that the discussion with the mother and Mr R became quite heated at times and that his conversation with Mr R was focussing on Mr R’s negative views of the father as a parent.  Mr M indicated he could understand the expectations of the mother and Mr R regarding the arrangements remaining as they were given [F]’s previous concession to that.

4. Mr M was also questioned in relation to an incident that the mother alleges occurred whereby [X] was able to run unaccompanied into the carpark during supervised time at [F], therefore placing him at risk.

   
   

   Mr M indicated that whilst [X] was running ahead of him, at no time did he run into the carpark and at all times the boys were being properly supervised by him.

5. Mr M confirmed that there had been no further supervised time between the children and their father since the date of the aforedetailed incident and that [F] had been advised by the mother that she would not be bringing the children in the future.

The intervenor’s evidence

1. The intervenor paternal grandmother initially sought orders in her application that she spend time with [X] and [Y] each alternate weekend.  At the final hearing of the matter, it was indicated through her Counsel that she proposed that she spend time with [X] and [Y] one day per month and, because she is to all extents and purposes a complete stranger to the boys, that such time initially be supervised and that she was open to such supervision taking place at a Contact Centre until the relationship between herself and the children had been given the opportunity to develop.

2. It was Ms W’s evidence that she desperately wants to have a relationship with her grandsons and just as importantly she wants her grandsons to have an opportunity to meet and be part of the larger extended paternal family.

3. Ms W has four sons and she conceded that all of them and in particular her three eldest sons (including the father in this case) have had issues with drug abuse.

4. It was Ms W’s evidence in relation to her eldest son Mr W that in the last 12 to 18 months he has remained ‘straight and clean’, he now has a partner with three children and two weeks ago he started a full-time position as a [tradesman].  It was her evidence that for the first time in many years Mr W is clean and proud of himself. In these circumstances, she indicated that she and Mr W now have a positive relationship and that she sees him regularly.

5. Ms W gave evidence that the last five years had been very difficult for the father, firstly in relation to the ongoing issues in trying to arrange to spend time with his sons and also because of a protracted Supreme Court proceeding against the police relating to an alleged assault by them on him which ultimately was unsuccessful. It was Ms W’s evidence that it was “a miracle that the father was still vertical” as there had been a number of times he had been so low as to be suicidal, but that he had reached out to all assistance needed, being his general practitioner and various counsellors, and had been able to pull himself through.  It was Ms W’s evidence that she believed the father was indeed moving forward with his life.

6. In the Addendum to the Family Report prepared by Mr O’Dwyer, he observed the paternal grandmother to be a strong advocate for all of her sons.  This was very apparent in her evidence when she spoke strongly and passionately about them, the support she was giving them and the positive steps that they had all taken to get their lives back on track.

7. The paternal grandmother was questioned as to her own drug usage.  She indicated that she smokes marijuana approximately two or three times per week. It was her evidence she had a right to smoke marijuana and that both her general practitioner and her cancer specialist have no issue with her marijuana consumption.

8. Further, it was the paternal grandmother’s evidence that she had smoked marijuana with all her sons and that she still smokes marijuana with the father and his now partner, Ms N.

9. In the interviews for the Addendum to the Family Report prepared by Mr O’Dwyer, Ms W denied any illicit drug use.  It was her evidence that because she smokes marijuana so infrequently, she didn’t feel compelled to tell him.  It was her evidence that:

   “If I had a couple of sherries at night I wouldn’t have felt I needed to tell him that either.”

10. Further in Mr O’Dwyer’s Addendum Report at page 11, Mr O’Dwyer indicated that he suggested to the paternal grandmother the father may have been substance affected when seen by the writer.  In his report, he noted that Ms W stated that she couldn’t discount that view but couldn’t make any further comment as she had not been in attendance at the time.  When asked to expand on this in her evidence, Ms W indicated that she was referring to the possibility that he may have smoked marijuana prior to attending for the appointment but she is of the very strong belief that the father has not used intravenous drugs for many years.

11. The paternal grandmother was specifically questioned as to the impact of marijuana usage on the father.  It was her evidence that:

    “We have some of our best discussions when Mr Wadsworth has had a smoke.  It allows him to speak about the things that are in his gut.”

12. It was the paternal grandmother’s evidence that she does not believe that there is any difference in the presentation of the father since his use of serious illicit substances and that she does not consider that the use of those drugs has affected him in any way.

13. The paternal grandmother conceded that since the parties separated, she had only seen [X] and [Y] on three occasions and that she is a complete stranger to them.  It was her evidence that she wished to establish a relationship with them, ideally separate to their relationship with their father, but made it clear that she did not want any arrangements for her to see the boys to interfere with their time with their father.

14. When cross-examined, the paternal grandmother conceded that she had never contacted the mother or the boys herself.  She also conceded that she had never taken up the mother’s offers for the paternal family to spend time with [X] and [Y] on their birthdays, at Christmas, at the mother’s home or at a park near them.  She agreed that the father and other of her sons have done so.

15. The paternal grandmother was questioned as to whether she would be agreeable to spending time with the boys if that time was supervised by the mother or the maternal family.  It was her evidence that she and the mother do not have a good relationship and that she did not believe that such arrangements would be practicable because of the tensions in their relationship.

Anthony Dennis O’Dwyer

1. Mr O’Dwyer is a Regulation 7 Family Consultant with the Federal Magistrates Court of Australia.  He has prepared a total of three Family Reports in this matter.  The first was dated 31 March 2008 and was prepared for the previous proceedings heard in this court.  He prepared a further Family Report for the current proceedings which was released on 12 November 2009. With the intervention of the paternal grandmother, Mr O’Dwyer prepared an Addendum to the latter Report and it was released on 18 February 2010.  Mr O’Dwyer also provided oral evidence at the final hearing of this matter.

2. In Mr O’Dwyer’s first report of 31 March 2008, Mr O’Dwyer made the following observations of the father at page 14:

   “Upon initial attendance the writer noted the slowness with which Mr Wadsworth seemed to speak and think.  The writer noted that he pondered before responding and this was so pronounced that the writer queried if he had been drug-affected…

   Over time the writer came to accept that this was his general presentation although he appeared to improve slightly as time progressed.  The writer considered that Mr Wadsworth was emotionally impoverished.”

3. In his second report of 11 November 2009 at page 7, Mr O’Dwyer noted the following in relation to the father:

   “Mr Wadsworth was noted to be heavy eyed and blunted in affect and gave the impression that he was possibly affected by some substance.  The writer gained the view that this may be his general presentation and began to query if he has some permanent deficit as a result of past behaviours.  The writer conferred with staff at [F] who also agreed that generally

   
   

   Mr Wadsworth has a blunted affect which may limit his emotional availability…

   The writer also noted that he was late as he could not locate the writers address despite being told it was across the road from the Bendigo Cinemas prior to the interview process taking place.  The writer recalled that something similar occurred during the last assessment.”

4. Mr O’Dwyer was cross-examined in relation to these observations and it was his evidence that he found the father’s presentation as ‘striking’ and that it had caused him some concern, particularly when comparing the father’s presentation to that of the general presentation of the many people he has seen over the many years he had been preparing reports for Family Law proceedings.

5. Mr O’Dwyer flagged the possibility that there may be some kind of deficit in the father’s functioning arising from his past drug use, but conceded that he did not have the qualifications to make such a diagnosis.

6. It was Mr O’Dwyer’s evidence that he had some concerns as to whether the father posed a risk to the children, particularly children who are as young as [X] and [Y].  Mr O’Dwyer’s concerns arose because of the father’s presentation, his blunted affect, his difficulty in remembering things, the query as to his emotional availability to the children, the instances of violence when placed in stressful situations and in particular the instance where he was prepared to pick up a rock and throw it at someone which inadvertently led to a child being hurt.

7. Notwithstanding the aforedetailed, Mr O’Dwyer observed that the father genuinely seeks an ongoing relationship with [X] and [Y] and spoke positively of his efforts in addressing his addiction to amphetamines.

8. During the interview process for the preparation of the second report, Mr O’Dwyer had an opportunity to speak to the father’s new partner, Ms N.

9. In his November 2009 report at page 10, Mr O’Dwyer indicates that Ms N explained that her daughter [A] aged 10 had been placed in the care of her maternal grandmother after Ms N had been assaulted by a previous partner.  Ms N explained the placement as being to protect [A].  Mr O’Dwyer indicated that Ms N had told him that she had recently argued with her mother and that in those circumstances

   
   

   Mr O’Dwyer would not be able to speak to her mother to confirm the current arrangements for [A].  Mr O’Dwyer indicated that Ms N gave him her father’s telephone number so that he could explore this matter further with him but that when he attempted to contact her father, the call was blocked.

10. Mr O’Dwyer contacted the Department of Human Services in an endeavour to clarify the situation in relation to Ms N’s daughter, but they of course refused to speak to him.  It was Mr O’Dwyer’s evidence that when he contacted Ms N to seek that she provide him with written authorisation to the Department to release this information to him, she told him she was ‘too busy’ to provide him with that written authorisation.  Ms N’s lack of cooperation in facilitating the provision of this information caused Mr O’Dwyer concern as to the veracity of the information that was being provided by her in relation to the circumstances in which the Department had become involved with her and her daughter.

11. In relation to the mother, Mr O’Dwyer noted a marked improvement in her between the first time he interviewed her for the first report and the second time he interviewed her for the second report.  He spoke of her at page 12 of his second report as looking well, being much more in control of her emotions and being able to communicate her fears and anxieties in a comprehensive and clear manner.

12. In his viva voce evidence, Mr O’Dwyer indicated that the mother felt there was an unacceptable level of risk to the children in them having unsupervised time with their father because of his drug use and violence.  Mr O’Dwyer noted that he felt the mother’s concern was genuine, was based on her experience of having been involved with the father, her belief that he hadn’t changed, that that posed an unacceptable risk to the children and that accordingly she was acting protectively.

13. Mr O’Dwyer noted that the mother was quite resistant to the court process and was challenged by the concept that she was being questioned as a parent when, from her perspective, she was parenting her children very well and was doing nothing more than acting protectively in ensuring that she kept them safe from harm.

14. Mr O’Dwyer commented that he felt the mother was growing in her role as a parent.  He compared this with his observations of the father in whom he had observed absolutely no change.  It was his evidence in this regard as follows:

    “I’d seen change in Ms Herbst, I’d seen her evolve and take on the role of parenthood.  With Mr Wadsworth, I just saw this blunted affect, which was unexplained, and I didn’t see that he’d changed.  He kept telling me that he was on a lower dose of Buprenorphine, and that things were improving, and there was change occurring.  But I wasn’t observing change, like I was seeing in Ms Herbst.”

15. The negative emotional impact upon the mother and her capacity to parent if orders were made that caused her, as the boys’ primary carer, significant distress was also of concern to Mr O’Dwyer.  It was his evidence that such a circumstance would not be in the best interests of [X] and [Y], as well as [Z] and the mother’s relationship with Mr R.

16. Mr O’Dwyer also expressed concern about the mother’s wellbeing in the event that the court were to make orders in accordance with the proposal being put by the father.  It was his evidence that he would be most concerned for the mother’s well-being, to the extent he expressed concern that she might self-harm.  Mr O’Dwyer indicated that he did not believe that the mother would harm the children in these circumstances, but was more concerned for the mother’s well-being.  It was his evidence that this would not be in the children’s best interests because of their primary attachment to the mother.

17. During the course of the mother’s evidence I had made the observation that she was a very protective mother in that the boys had not been to sleepovers other than a couple of times at their grandparent’s house and that the mother stayed with the children when they went to birthday parties.  I asked Mr O’Dwyer whether the mother was ‘over-protective’.  It was his evidence that he didn’t see the mother as being over-protective as she had no difficulty with the children going into care or kindergarten or school, and that they would be allowed to develop independently of her as they got older.  It was his evidence however that the mother identifies the father and his family as a risk factor that’s unacceptable and that he didn’t think anything would ever change her mind on that whatever the evidence would be.  He said:

    “I don’t believe she will ever see that any differently.”

18. Mr O’Dwyer agreed that if this court were to make orders that challenged the mother’s fundamental belief in the safety of her boys she would actively resist compliance with those orders.

19. It was put to Mr O’Dwyer in cross-examination that in light of the mother’s attitude, the only possibility for [X] and [Y] to have a relationship with their father would be in circumstances where there was a change of residence and they came to live with him in accordance with the proposal that was now being put by the father.

    
    

    Mr O’Dwyer acknowledged the veracity of this argument, but was very strongly of the view that, from the perspective of [X] and [Y], a separation from their mother and their sister would be very traumatic for them and would not be in their best interests.  He did not support a change of residence for [X] and [Y].

20. It was Mr O’Dwyer’s evidence, having read the [F] Report and from his observations of the parties, that theirs is a highly conflicted relationship and that the mother’s proposal that the father spend time with the children supervised by her would also not be an appropriate way forward for this family.

21. Mr O’Dwyer was asked in all these circumstances what orders or arrangements could be put in place that would enable the boys to develop a meaningful relationship with their father.  It was his evidence that from his observation, the father coped with the boys in a structured setting such as at [F] or in the interview process, but there had to be concerns about his parenting capacity at this time in an unsupervised setting.

22. It was Mr O’Dwyer’s evidence that he believed that the father’s time with the boys would need to continue to be supervised for some time into the future and wondered whether such supervision could be provided by either of the mother’s father or her partner, particularly in the circumstances that the mother was now resistant to [F]. 

23. Mr O’Dwyer also indicated that he believed that the mother would need intensive counselling and therapy to enable her to move beyond her fears and concerns for the safety of [X] and [Y] with the father and his family, but was at a loss to suggest who could provide such counselling for the mother in the [omitted] region.  I note a certain irony here in that Mr O’Dwyer noted that he probably would have been the person best suited to provide this assistance but was excluded from doing so because of the role he was already performing in the matter.

24. In relation to the paternal grandmother, Mr O’Dwyer was of the view that the time that she spent with [X] and [Y] should coincide with the time they spend with their father.  He also agreed that this should initially commence in a supervised setting to enable [X] and [Y] to develop a relationship with the paternal grandmother.

Best interests of the child

1. Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):

   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.

   2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

   (d)parents should agree about the future parenting of their children; and

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

1. Section 60ca of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders.  Subsections 1 and 2 of that section provide as follows:

   1.  When making a parenting order in relation to a child, the court must 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.

   2.  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

3. Both parties are seeking orders that they have equal shared parental responsibility for [X] and [Y] and this reflects the orders that are currently in place.

4. The reality however is that since separation, the father has had absolutely no input into any decisions made for the long-term care, welfare and development of [X] and [Y], and that the mother has been solely responsible for these decisions.  Further, at no time has the mother sought to involve him in the decision-making process in respect to [X] and [Y].

5. It was the father’s evidence that he has no desire to speak with the mother at all, nor to interact with her on any level in relation to either of [X] and/or [Y].

6. Where parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.  It 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.

7. Sections 65daa (2) and (3) of the Act provide as follows:

   2.If:

   (a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b) 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 must:

   (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.

   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.

8. If the presumption for equal shared parental responsibility has been rebutted, this raises the question as to whether the court should in these circumstances consider whether the children should spend equal time with each parent or substantial and significant time with the non-resident parent.  This matter was considered by the Full Court in Goode v Goode (2006) 36 Fam LR 422. In paragraphs 46 and 47 of the decision of the Full Court, it was held as follows:

   46.Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child’s best interests in accordance with the objects in s 60B and the primary and additional considerations in s 60CC.

   47.Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests. 

1. Section 61da(4) of the Act provides that:

   4.  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.

2. In the circumstances of this very difficult matter, it will be necessary to consider [X] and [Y]’s best interests before making a determination as to parental responsibility.

3. Further, in addition to determining parental responsibility, the court must also determine which of the parties’ proposals, or such other arrangements as the court may determine is in the children’s best interests.

4. Section 60cc(1) of the Act provides that

   In determining what is in the children’s best interests, the court must consider the matters set out in subsections (2) and (3).

5. Each of the matters set out in those subsections are assessed in the context of each of the parties’ behaviours and proposals and a decision made as to what, in all the circumstances, are the arrangements for the children that are in their ‘best interests’.

6. Section 60cc(2) of the Act sets out the primary considerations which are as follows:

Section 60cc 2(a)     the benefit to the child of having a meaningful relationship with both of the child’s parents

Section 60cc 2(b)     the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The father does not challenge the mother’s care of [X] and [Y].

   
   

   His issue with the mother is her complete failure to promote the children having any relationship with him and her refusal to comply with the orders of this court that make provision for him to spend time with [X] and [Y].

2. In contrast, the mother is of the view that [X] and [Y] are at serious risk of harm in their father’s care, particularly if unsupervised.  She genuinely believes that the father is still at risk of ongoing illicit drug usage, that his propensity to violence, high level of prescription drug usage and his presentation, including his blunted affect, poor memory and lack of emotional availability pose an unacceptable risk to [X] and [Y] if they are left in his unsupervised care.

3. Many of the mother’s concerns were also raised by Mr O’Dwyer, the Family Report writer, in relation to the father’s presentation to the extent that he too questioned whether the father posed an unacceptable risk to the boys.

4. When observing the father giving his evidence, I too had these concerns.  There were aspects of his evidence that were quite nonsensical and there were a number of occasions where he was unable to remember relatively recent events that occurred in his life.

5. Of more concern was his evidence in relation to the arrangements that he would put in place in the event that he was successful in his application that [X] and [Y] live with him.  Even allowing for the very limited opportunities that the father has been given to care for the boys, he exhibited minimal knowledge or understanding of the requirements for the care of two active four year old twin boys.  Of equal concern was that the father had little insight into how limited his skills were in this regard and put forward no suggestions as to how he would address this deficit.

6. The father tended to downplay the instances of violence in his past and showed little remorse for the trauma that must have been afforded the young four year old who was the unintended victim when he threw a rock at a former girlfriend.

7. The father’s new relationship with Ms N must also be of concern in the circumstances that the court was not provided with any information in relation to the involvement of the Department of Human Services with Ms N’s family and the basis upon which her child [A] was removed from her care.

8. It is noted that Ms N did not cooperate in providing authority for

   
   

   Mr O’Dwyer to speak to the Department of Human Services to clarify this situation, nor was she called to give evidence on the father’s behalf.

9. Ms N told Mr O’Dwyer in November 2009 during the report preparation process that it was her expectation that her daughter would be returned to live with her within the month. When this matter proceeded before me some three months later, it was the father’s evidence that Ms N’s daughter was still not living with her.

10. In circumstances where it is the father’s evidence that it is his hope to live with Ms N and her daughter at some stage in the future, the unanswered questions, lack of evidence and cooperation must be of significant concern to the court.

11. There is no question that [X] and [Y] have a close and loving relationship with the mother and that she has been their primary carer since birth.

12. [X] and [Y]’s relationship with their father is very limited.  They have only spent spasmodic, supervised time with him over the last three years.  The continued breaching of the courts’ orders by the mother, as well as his ongoing use of marijuana has not enabled this relationship to properly develop.  The father has been actively seeking to develop a meaningful relationship with his sons since separation.

13. The reality is that the mother resists the development of such a relationship because of her genuinely held fears for the children’s safety and because of her belief that the father has nothing of a positive nature to contribute to the boys and their development.

14. Section 60cc(3) of the Act sets out the additional considerations to be taken into account and, where relevant, each will be considered in turn.

Section 60cc 3(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. As [X] and [Y] are only four years of age, they are not in a position to express any views in relation to what arrangements would work best for them.  In his Report of 11 November 2009 at page 15, Mr O’Dwyer noted that [X] and [Y]:

   “showed no sign of concern about being separated from their mother or others and in being in the company of their father.”

2. Mr O’Dwyer observed that he had no concerns with [X] and [Y] spending time with their father in a ‘structured setting’.

3. Similarly, [X] and [Y] were observed to interact well with their father at [F].

Section 60cc 3(b)     the nature of the relationship of the child with:

(i)         each of the child’s parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. The mother is [X] and [Y]’s primary carer and they have a close, loving and trusting relationship with her.

2. The boys’ relationship with their father is extremely limited because of the limited time they have been able to spend with him.

3. The mother has re-partnered with Mr R and they have a daughter [Z] who is aged two years.  It is apparent that for [X] and [Y], Mr R is their ‘father figure’ and it is he that they refer to as ‘Dad’.

4. [X] and [Y] are [Z]’s big brothers and they very much see themselves as part of the family unit that consists of the mother, Mr R and their little sister.

5. [X] and [Y] also have relationships with the extended family of the mother and of Mr R, and from the mother’s evidence they spend considerable time with the extended families of that family unit.

6. The intervenor paternal grandmother has only spent time with [X] and [Y] on three occasions and she is a stranger to them.  They also have had very limited contact with the extended paternal family. It was apparent from the intervenor paternal grandmother’s evidence, that a major factor influencing her decision to intervene in these proceedings is her strongly held desire to be able to give [X] and [Y] the opportunity to meet and know their extended paternal family.

Section 60cc 3(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:

   4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)     has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child; and

   (b)     has facilitated, or failed to facilitate, the other parent:

   (i)     participating in making decisions about major long term issues in relation to the child; and

   (ii)    spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

2. It is quite apparent that the mother cannot accept that it is in [X] and [Y]’s best interests that she facilitate a relationship with their father at this time in anything other than a supervised setting.

3. It was Mr O’Dwyer’s evidence, which I accept from my own observations of the mother, that it is unlikely she will ever accept that it is in [X] and [Y]’s best interests to facilitate that relationship in any circumstance that she believes will place the children at risk.

4. I accept that this is not done maliciously by the mother, but reflects her genuinely held belief that [X] and [Y] are at risk in the father’s care and that she, as their mother, has a positive obligation to protect them from harm.

5. The father indicates that he has no desire to communicate or interact with the mother and has resisted her suggestions and invitations to come and spend time with the children at her home or in a neutral setting with her present on special occasions for [X] and [Y] such as their birthdays or Christmas. 

6. Whilst the parties have been seen to interact reasonably well with each other in supervised settings such as at [F] and during the report writing process, there have been at least two instances during the running of these proceedings where the parties have interacted negatively outside the courtroom. One instance involved both the father and the intervenor paternal grandmother being abusive to the mother and the other occurred during the final hearing of this matter when the father apparently started recording the mother’s behaviour outside the courtroom on his mobile telephone. It is apparent that, other than in the most structured of settings, the parties quickly become embroiled in conflict.

7. [X] and [Y] have been heard to speak of the father as ‘an idiot’ and to call him ‘[first name omitted]’ rather than ‘Dad’.  The mother conceded the boys would have overheard her referring to their father as ‘an idiot’.  She also indicated that she does not encourage them to call the father ‘Dad’ as Mr R is ‘Dad’ as far as [X] and [Y] are concerned and it would be confusing for them to have two ‘Dads’.

8. The father’s proposal is that the children live with him and spend six days in each fortnight with their mother.  However he was unable to give any specificity as to how this would occur and how he and the mother would be able to cooperate in putting into place arrangements to bring this to fruition in circumstances where, on his own evidence, he is very reluctant to engage with her and would prefer as little interaction with her as possible.

9. In the circumstances, it is very difficult to see how either parent would willingly encourage a relationship between the boys and the other parent.

Section 60cc 3(d)     the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)         either of his or her parents; or

(ii)        any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The father’s proposal would have the effect of removing [X] and [Y] from their primary carer and from their little sister, as well as Mr R who they see as the major male figure in their lives.

2. It was Mr O’Dwyer’s evidence that such a separation would be traumatic for [X] and [Y] and would not be in their best interests.

3. As noted earlier in this judgment, the father was unable to give the court any explanation as to what the practical arrangements would be if orders were granted in the terms sought by him.  The father was unable to indicate where the boys would go to kindergarten, what the care arrangements would be in the event that he was to go to work, what the living conditions would be for the boys in the event that he was to move in with Ms N, nor what the arrangements would be for the boys to spend time with their mother.

4. The father also showed absolutely no insight as to what effect a move away from their primary caregiver would have on the boys emotionally. Nor could he show that he had the capacity to be emotionally available to them to assist them through such a dramatic and traumatic transition in their lives.

Section 60cc 3(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The father lives in Bendigo and the mother lives in [C], a distance of approximately 30 kilometres. 

2. Historically, the mother has complained about the expense involved in bringing the boys to Bendigo for supervised time at [F], and to this end, orders were made for the father to assist by placing $20.00 in the mother’s bank account prior to each supervised visit.

3. Whilst the mother makes this complaint, the reality is that the parties are not so geographically distant that arrangements for [X] and [Y] to spend time with either of their parents are insurmountable.

Section 60cc 3(f)     the capacity of:

(i)         each of the child’s parents; and

(ii)    any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. As set out earlier in this judgment, Mr O’Dwyer speaks positively of the development of the mother into her role as a parent and he observed [X] and [Y] to be healthy and robust in their play activities, inquisitive and close to each other.

2. I am satisfied that the mother can provide for the emotional and intellectual needs of [X] and [Y] and has been doing so since birth.

3. The mother is [X] and [Y]’s primary carer and they are, at their young age, completely dependent upon her for their care, both emotionally and physically.  Mr O’Dwyer flagged the impact on the mother of her capacity to parent [X] and [Y] in circumstances where orders were made that she perceived would place [X] and [Y] at risk, whether that be unsupervised time or orders in the terms that are being sought by the father.

1. This too is of major concern to me.

2. The mother gave evidence, by way of her affidavit material, of the impact these proceedings have had upon her.  In paragraph 12 of her affidavit filed on 15 February 2010, the mother deposes as follows:

   “My concerns range from why is [F] necessary, to a possible health risk for myself and my family; including stress, tumour, and sporadic heartbeat (ailments only affecting me since these proceedings began).  Stress is the number one thing to avoid for a happy and healthy life, I feel I cannot enjoy parenthood as I am constantly being questioned as a parent, but yet I am the one who took the children away from the dangers their father was providing our young family.”

3. Mr O’Dwyer gave evidence that there had been two occasions where the mother had contacted him in a distressed state to the extent that he was most concerned about her and her well-being.  He recalled in particular a telephone call when the matter was before this court in November 2009 where the level of his concern was such that he called the court himself to ascertain whether it would be possible for the Volunteer Service or some other friend of the court to provide assistance and support to the mother.

4. At the centre of this case is the capacity of the father to provide for the physical, emotional and intellectual needs of [X] and [Y]. I have already set out at some length in this judgment my concerns about the father’s capacity to meet those needs.  It was apparent from the father’s evidence that he has no real understanding or insight as to the practical needs for the care of two young lively four year old boys.  Further, his presentation as noted by Mr O’Dwyer and myself is such that there has to be concern as to his capacity to support them intellectually or emotionally.

5. In paragraph 9 of his Family Report dated 11 November 2009,

   
   

   Mr O’Dwyer notes the following under the heading of ‘The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs’:

   “Mr Wadsworth seemed limited.  Why this is the case is not fully clear to the writer.  That is, the writer is curious about his presentation and reasons for such and noted his passive nature around the boys.  [F] will possibly suggest he is adequate but again, this is a structured environment. The writer cannot fathom the passiveness with the historical involvement of violence as noted toward Ms Herbst and a subsequent partner (rock thrown and hit child instead episode).  The writer queries the capacity to manage such behaviours. The writer also notes the reluctance of Ms N to assist with enquiries in regard to [A] and considered this curious.”

6. This latter point in the quotation from Mr O’Dwyer also touches on a concern in relation to the capacity of the father to provide appropriate care for the children if the father were to be successful in his application. On his evidence Ms N, a very much unknown quantity, would have an active involvement in the lives of [X] and [Y].

7. By contrast, the mother’s partner, Mr R, impressed as a positive influence on the mother and as an appropriate supportive and caring figure in the lives of [X] and [Y].

8. The intervenor paternal grandmother and her lifestyle also gives rise to concern.  It would appear that all of her sons have had issues in relation to drug addiction.  Her son Mr W has been involved in serious criminal activity, involving periods of incarceration.  She is a strong opponent of the use of intravenous drugs, but concedes that she herself uses marijuana and has no issue with the use of that drug by the father and Ms N.

9. The paternal grandmother is a vocal and committed advocate on her son’s behalf, and this does have to call into question her capacity to place the needs of [X] and [Y] ahead of the needs of the father in this case if there were circumstances that arose that placed the children’s best interests in conflict with those of her son.

Section 60cc 3(g)     the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. In the first Family Report prepared by Mr O’Dwyer in March 2008, he makes reference to the difficulties of the matter arising from:

   “the impoverished childhood history of the parents that has left them relatively ill equipped to manage a parenting role in an ongoing/consistent manner.”

2. There is no doubt that both of the parties had difficult childhoods that involved separated parents, exposure to violence, drug usage and alcohol issues.

3. To the credit of the father, he seems to have addressed his addiction to intravenous drugs but it is noted that some five years on, he still requires Buprenorphine to manage that addiction.

4. Mr O’Dwyer has already commented on the measurable improvement in the mother between the first and second Family Reports in the context of her managing herself and her parenting role.

5. It is noted however that all parties in this matter continue to use marijuana and it would seem all parties consider this to be an acceptable lifestyle choice.

Section 60cc 3(h)     if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

Section 60cc 3(i)      the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The mother has been the primary carer of [X] and [Y], and has devoted herself to the best of her ability to their care, welfare and upbringing.

2. Mr O’Dwyer has noted that the mother continues to grow into her role as a parent and takes no issue with her care of [X] and [Y].

3. The father desperately wishes to have the same opportunity to be actively involved in the lives of his sons and has been seeking to do this through this court for well over three years.  He is understandably very frustrated that he has been unable to develop that relationship.

4. The mother is genuinely of the belief that [X] and [Y] will be at risk if left in the unsupervised care of the father and is adamant that she is acting protectively by resisting this court’s orders when they make provision for that event.

5. The mother is resistant to orders that provide for the father to spend supervised time with [X] and [Y] at [F].  Her belief or stated concerns that the boys aren’t properly supervised or protected at [F] must be challenged, particularly in circumstances where any alleged risk cited by her have come about because of her refusal to comply with [F] protocols.

6. It is open to the court to draw a conclusion that the mother makes claims in relation to [F], not because she genuinely believes that they’re unsafe but because she doesn’t think it is an appropriate environment for time to take place and that it is incredibly inconvenient for her to have to bring the boys to Bendigo each fortnight.  However on balance, I am satisfied that the mother does have genuine concerns about [X] and [Y]’s safety at [F] and an inherent distrust of those supervising arising from Ms C’s prior involvement with the paternal family.

7. The court also has to be concerned about the father’s proposal that the boys live with him in circumstances where he has made no proper enquiries as to what kindergarten or schooling arrangements would be available for the boys.  Further, it is apparent that the father has no real understanding or knowledge of how to care for two young boys.  Finally, he exhibited no insight as to what impact it would have on the boys if they were to be taken from the care of their primary carer.

Section 60cc 3(j)     any family violence involving the child or a member of the child’s family

1. Not relevant.

Section 60cc 3(k)     any family violence order that applies to the child or a member of the child’s family, if:

(i)         the order is a final order; or

(ii)    the making of the order was contested by a person

1. Not relevant.

Section 60cc 3(l)      whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. The mother in this matter has continuously flaunted this court’s orders when they don’t accord with what she believes are in [X] and [Y]’s best interests.

2. At the conclusion of the taking of evidence of this matter in February 2010, orders were made for [X] and [Y] to continue to spend time with their father at [F] pending the handing down of this decision.  The mother became visibly distressed with this order and it was apparent to me that she was unlikely to comply with it.

3. The solicitors for the father have confirmed with my Chambers that the mother has not complied with the order and the father has spent no time with [X] and [Y] since 29 January 2010.

4. There is little doubt that if this court makes orders that don’t accord with the mother’s strongly held beliefs as to what is in her children’s best interests, she will not comply with them.  This does not mean the court will not make the orders it determines are in [X] and [Y]’s best interests, even if they don’t accord with the mother’s views, but rather that if such orders are made, there will be further proceedings.

5. Similarly, if the court were to make orders in terms that the mother supervise time between the father and [X] and [Y], there is little doubt that there would be real potential for conflict and confrontation between the parties.  This in turn would have to lead to further court proceedings, either in this court or more concernedly the potential for police intervention and/or intervention orders in the State courts.

Section 60cc 3(m)    any other fact or circumstance that the court thinks is relevant

1. The court in this matter has been greatly hampered by the absence of an independent children’s lawyer.  Unfortunately, the lengthy history of this matter before this court meant there was no funding for same.

2. The absence of the independent children’s lawyer and the reality that the mother was self-represented resulted in vital subpoenas never issuing.

3. The mother did not call her partner, Mr R, to give evidence on her behalf and this too limited the information available to the court.

4. The father, who was represented, chose not to call his new partner,
   Ms N, to give evidence.  This, coupled with Ms N’s refusal to authorise the report writer Mr O’Dwyer to speak to the Department of Human Services to enquire as to the circumstances in which her daughter is currently in care, could only leave real questions and concerns for the court as to whether Ms N was an appropriate person for [X] and [Y] to be spending time with.

Conclusion

1. This is an extraordinarily difficult matter to determine.

2. I am satisfied that it would not be in [X] and [Y]’s best interests to live with their father.  I do not believe that he has the capacity to care for them on any kind of full time basis.  I have real concerns in relation to the father’s presentation and observed him to be flat in affect, lacking in memory and disorganised in his thinking.

3. Of equal concern was the father’s obvious lack of any understanding of the practical needs for the care of two young and active four year old boys. Prior to putting his proposal that [X] and [Y] live with him before the court, the father made no enquiries as to where the boys could be sent to kindergarten, to school or to day care in the event he should be able to obtain employment.

4. The father also exhibited no insight as to what the impact on the boys would be if they were taken away from their primary carer. I am satisfied that he would not have the capacity to emotionally support [X] and [Y] through what would be a very very difficult adjustment period if a change of residence was ordered.

5. There also has to be real concern in relation to Ms N.  There was no independent evidence as to why her daughter had been taken out of her care and she did not cooperate in the provision of that information to the court via Mr O’Dwyer.

6. Accordingly, I have determined that [X] and [Y] will continue to live with their mother and she will have their primary care.

7. The question then becomes what time, if any, should [X] and [Y] spend with their father.  In conjunction with that issue, the issue of whether such time needs to continue to be supervised must be considered.  If the answer to that question is yes, then for how long and how can that supervision be put in place, particularly in circumstances where the mother is totally and completely resistant to the ongoing involvement of [F], the only supervised contact facility available geographically to the parties.

8. For the same reasons as set out earlier in this judgment as to why [X] and [Y] should remain in the primary care of the mother, I am of the view that it would not be in [X] and [Y]’s best interests at this time to spend overnight time with their father.  I am not of the view that the father has the capacity to properly care for [X] and [Y] for overnight periods.  Further, because of the very limited time [X] and [Y] have spend with their father, together with their young ages and very limited time away from their mother, it cannot be seen that such arrangements would be in their best interests.

9. The next step is to consider whether the father should spend unsupervised periods with [X] and [Y] during the day time only.
   Mr O’Dwyer’s evidence was that whilst he had:

   “no concerns with the boys spending time with their father in a structured setting”

   he retained concerns as to whether the father would pose an ‘unacceptable risk’ if he were to have time with [X] and [Y] on an unsupervised basis.

10. I am satisfied that the father, to his credit, is not using intravenous drugs and has taken all reasonable steps to address this addiction.  He does continue to use marijuana.  I accept that his usage of this drug is at levels greatly less than was once his habit, but do not accept that his long term and ongoing use of this drug is not impacting on his day to day functioning.

11. Like Mr O’Dwyer, I am concerned about the father’s presentation.  He is blunted in affect, is heavy eyed, has issues with his memory and speaks and responds slowly.  There were times his answers to questions were non-sensical and contradictory. If I accept that this is, as was his and the paternal grandmother’s evidence, how he ‘usually is’, then there must be a real question as to whether he is able to be emotionally and intellectually available to properly care for [X] and [Y].

12. The father evidenced little understanding or possession of the requisite skills needed to care, on an unsupervised basis, for two active four year old children.  His lack of any proposed practical arrangements for the care of [X] and [Y] has been commented on earlier in this judgment.

13. Finally, the lack of evidence from the father’s new partner Ms N, the involvement of the Department of Human Services with her daughter and her lack of cooperation in allowing Mr O’Dwyer to clarify matters with the Department of Human Services in circumstances where the father is proposing to live with her, must cause the court concern as whether she is a suitable person for [X] and [Y] to be spending time with.

14. Whilst in no way doubting the father’s genuine commitment to wanting a relationship with his sons, rejecting out of hand the mother’s allegation that his pursuit of time with the children was purely motivated by his desire to effect revenge for her leaving him, the matters set out in paragraphs 243 to 245 herein have to give rise to real concerns as to the father’s capacity at this time to have unsupervised time with [X] and [Y].

15. I am therefore of the view that any time that the father spends with [X] and [Y] will need to be supervised. In circumstances where

    
    

    Mr O’Dwyer noted that he had seen no improvement in the father’s demeanour in over two years and given the very young ages of [X] and [Y], such supervision will also need to be for a considerable period of time, potentially years rather than weeks or months.  Mr O’Dwyer in his evidence made the comment that the need for an intervening third party to assist these parties could be ‘forever’.

16. In the ideal world, there would be paternal family members who could step into the breach and place themselves in the position of supervisor and enable the children to develop a meaningful relationship with their father and with the extended paternal family.

17. Unfortunately, that is not a solution available in this matter.  Two of the father’s brothers have long-standing substance abuse issues.  Other than the paternal grandmother, there is no member of the paternal family living in the [omitted] region.  The paternal grandmother is very strongly aligned with the father and has a very fractured relationship with the mother.  Her strong advocacy for her son must bring into question her capacity to prioritise the safety of [X] and [Y] over her desire to support her son, especially in circumstances where she does not believe there is any reason for the father’s time with the boys to be supervised.  As the Full Court in  B v B (1993) FLC 92-357 noted at 79,781:

    “Fami1y and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary.”

18. Mr O’Dwyer flagged the possibility of either of the mother’s father or her partner, Mr R, assuming the role of supervisor.  The maternal grandfather agreed he would be prepared to perform this role, but indicated that he would only be prepared to do so for a very limited period of a couple of months.  Mr R indicated a willingness in open court to perform that role on an ongoing basis. 

19. In the report from [F], Mr R was noted to have spoken most derogatively about the father to one of the [F] supervisors.  By contrast however, Mr O’Dwyer in his November 2009 Report on page 16 found Mr R to be genuine in being pleasant to the father and observed:

    “he (sic Mr R) seemed open to quietly assisting the boys to have a relationship (sic with the father) as long as they were safe and there was no conflict”.

20. Unfortunately, Mr R did not give evidence in the matter and thus it was not possible to test his true attitude to the father and support of [X] and [Y] having a relationship with him.  However, he was in court for the entirety of the proceedings supporting the mother and readily volunteered his assistance in open court on an ongoing basis as a supervisor of the father’s time with [X] and [Y].

21. Of great concern was the evidence of Mr O’Dwyer as to the negative impact on the mother’s parenting capacity arising firstly from these ongoing proceedings and secondly from orders being made that she believed would place [X] and [Y] at risk.

22. In the course of the proceedings, the mother was observed by me to become extremely distressed by the process and by orders or interventions which she felt would place [X] and [Y] at risk.

23. Mr O’Dwyer canvassed the possibility of the mother self-harming if orders were made that she felt placed the boys at risk and in particular if orders were made in the terms sought by the father.

24. In A v A [1998] FamCA 25, the Full Court, confirming the judgments of Russell and Close (25 June 1993, unreported) and Re Andrew (1996) FLC 92-692, held that where there is a finding objectively that there is no acceptable risk of harm to a child if time takes place, the primary carer’s genuinely held belief of the existence of such a risk is a factor that must be considered by the court where it impinges upon the carer’s capacity to look after the children. In paragraph 3-28, their Honours held:

    “… if the wife genuinely holds that belief (sic that the child is at risk of abuse when with the other parent) that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.”

1. Having found that it is in [X] and [Y]’s best interests that they remain in the care of the mother, the court must be concerned about any orders that it makes which impact on her capacity to provide that primary care to [X] and [Y].

2. Having determined that it is in [X] and [Y]’s best interests that their time with their father be supervised in the medium to long term, the issue of who such supervisor should or can be looms large.

3. I have already determined that it is not appropriate for a member of the paternal family to perform this role.

4. Whilst objectively, the mother’s concerns about [F] performing this role can be challenged, I am satisfied that she genuinely holds real concerns as to their capacity to protect [X] and [Y] and that this is having a serious impact on her parenting of the boys. In these circumstances I do not believe orders continuing supervised time at [F] would be in [X] and [Y]’s best interests.

5. Neither party is in a position to engage independent paid supervisors.  Thus, the only real way for the father to spend time with [X] and [Y] is if such supervision is provided by either of the maternal grandfather, Mr H or the mother’s partner, Mr R.

6. Whilst the mother proposed she too supervise the father’s time with [X] and [Y], the parties’ conflicted and antagonistic relationship does not support such an order.

7. The mother proposed such time be monthly for a period of four hours.  Because of the limited availability of the maternal grandfather, the primary supervision will fall to Mr R.  Mr R’s commitments, including a full-time job and a growing family, will mean that these commitments will need to be balanced against the importance of the father spending as much time with [X] and [Y] as is achievable.

8. In these circumstances, I intend to make orders that the father spend time with [X] and [Y] for four hours every three weeks supervised by either of the paternal grandfather or Mr R every third Sunday from

   
   

   1.00 pm to 5.00 pm, alternating between a location nominated by the mother in [C] and a location nominated by the father in Bendigo, such locations not to be at the residences of either of them or the paternal grandmother.

9. I will also make orders for the father to spend supervised time with [X] and [Y] on their birthday and on his birthday.

10. When [X] and [Y] commence school, the father and paternal grandmother shall be permitted to attend school events involving the boys as are usually attended by parents and grandparents.

11. I note that the father was resistant to the maternal grandfather or Mr R supervising his time (and, it goes without saying, supervision generally) and it will be a matter for him if he chooses to exercise time with the boys in these circumstances.  He is encouraged to do so as these orders should not be seen by him as closing the door on his spending unsupervised time with [X] and [Y] in the future when they are older, more self-sufficient and less dependent upon the care and health of their primary carer.

12. In relation to the paternal grandmother, I do not believe that it is in [X] and [Y]’s best interests that they spend time with her independent of the father.  This too was the opinion of Mr O’Dwyer.

13. I am of the view that it is very important for [X] and [Y] that they do have a relationship with their paternal grandmother, but as part of the development of their relationship with their father.  Accordingly, I intend to make orders that the paternal grandmother spend time with [X] and [Y] for up to three hours during the time they spend with their father.

14. Such time shall be supervised.  This is in part because the paternal grandmother is at the moment a complete stranger to [X] and [Y].  This will assuage the mother’s concerns about the paternal grandmother.  It will also assuage the court’s noted concerns about the paternal grandmother and in particular her acknowledged marijuana usage, her condoning of the father’s ongoing use of this drug and the concern she would be unable to place [X] and [Y]’s safety ahead of the father’s needs.

15. The final issue to be determined is parental responsibility for [X] and [Y]. Whilst both parties have sought equal shared parental responsibility, my findings in this matter are such that an order in these terms can not be seen to be in [X] and [Y]’s best interests.

16. My concerns in relation to the father at this time are well set out in this judgment, and are such that I have determined that his time with the children be supervised.  Further, the father himself gave evidence that he had no desire to communicate with the mother and accordingly it is impossible to envisage how these parents would be able to effectively communicate in such a way that would enable them to make informed, co-operative decisions in their children’s best interests.

17. Accordingly I will make orders that the mother have sole parental responsibility for [X] and [Y].

18. However, the orders will also provide for the mother to advise the father of [X] and [Y]’s school details, authorise him to receive all school reports, notices, photographs and newsletters usually received by parents as well as require the mother to advise the father of any medical emergency involving [X] and [Y], and authorising any treating medical practitioner to speak to him.

I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate:         Sarah Hession

Date:                  15 April 2010