HGM & CAM - [2006] FMCAfam 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HGM & CAM

[2006] FMCAfam 102

FAMILY LAW – Children – residence and contact – parties capacities to provide children with secure home life – where mother suffers from chronic depression – notwithstanding considerable community support the mother’s parenting capacity compromised and she is unlikely to meet the children’s physical and emotional needs to the same extent as the father – father awarded residence with the children exercising regular contact with the mother.

Family Law Act 1975

Re: K (1994) FLC 92-461

Applicant:

HGM

Respondent:

CAM

File Number:

PAM1867 of 2005

Judgment of:

Ryan FM

Hearing dates:

7 & 8 February 2006

Delivered at:

Parramatta

Delivered on:

14 March 2006

REPRESENTATION

Counsel for the Applicant:

Ms L. Boyle

Solicitors for the Applicant:

Griffiths Delaney & Co.

Respondent:

In Person

Solicitor Advocate for the Children’s Representative:

Mr C. Sperling

Solicitors for the Children’s Representative

Legal Aid Commission of New South Wales

ORDERS

All prior orders in relation to “the children” RICHARD (not his real name) born in 2001 and ADYN (not his real name) born in 2002 are discharged.
The father has sole responsibility for the children’s day to day care, welfare and development when they are living with him.
The mother has sole responsibility for the children’s day to day care, welfare and development when they are living with her.
The children live with the mother as follows:
(a)From the date of these orders until the first day Adyn commences school from 5 pm Friday until 5 pm on Sunday each three weekends in every four week cycle. The first weekend of the cycle commences the first Friday after these orders are made. During Richard’s school holidays the mother’s contact will end at 5 pm Monday (provided Monday is not a school day).
(b)From Adyn’s fourth birthday weekend contact is suspended during school holidays. Until Order 3 (c) becomes operative the children will reside with the mother week about during the school holidays. During short school holidays the children will be with the mother during the first week, from 9 am Saturday until 5 pm the following Saturday. In the Christmas school holidays the children will live with the mother from 9 am the first Saturday after classes end until 5 pm the following Saturday and each alternate week thereafter. This order is subject to any orders making provision for Christmas Day contact.
(c)Upon the first day Adyn starts school:
(i)During school term each alternate weekend from 5 pm Friday until 5 pm Sunday. In the year Adyn starts school she will have contact on the first weekend after school starts. If the children are with the mother on a weekend adjacent to a public holiday contact extends to include the public holiday.
(ii)For one half of all New South Wales school holiday periods as agreed between the parties provided that if there is no agreement then the mother shall have the first half of the holidays in 2008 and each alternate year and the second half of the holidays in 2009 and each alternate year thereafter;
(iii)If the mother has had the children during the second half of the school holidays she will have weekend contact commencing the second weekend after school resumes.
(iv)If the mother has had the children during the first half of the school holidays she will have weekend contact commencing the first weekend after school resumes.
(d)In the event Father’s Day occurs on a weekend when the children would otherwise reside with the mother, then the period when the children are residing with their mother that weekend shall cease at 2 pm on the Saturday immediately preceding Father’s Day.
(e)In the event Mother’s Day occurs on a weekend when the children would not otherwise reside with the mother, then the children reside with their mother on that weekend from 2 pm on the Saturday immediately preceding Mother’s Day until 5 pm Mother’s Day.
(f)Christmas:
(i)In 2006 the children continue to live with their mother that weekend until Monday 25 December 2006 at 11 am;
(ii)In 2007 from 3 pm on Christmas Day (Tuesday 25 December 2007) to 3 pm Boxing Day (Wednesday 26 December 2007);
(iii)From 3 pm on Christmas Eve to 3 pm Christmas Day in 2008 and each alternate year thereafter and from 3 pm on Christmas Day to 3 pm on Boxing Day 2009 and each alternate year thereafter.
(g)Such other periods of residence or variation of the above periods of residence as agreed between the father and the mother.
The children live with the father at all other times.
For the purposes of contact changeover the mother shall be responsible for collecting the children at the commencement of her periods of residence from the father’s home and the father shall be responsible for collecting the children at the commencement of his periods of residence from her home.
While the children are residing with each parent, that parent shall facilitate regular telephone contact between both of the children and for that purpose:
(a)Such telephone contact shall occur not less than on three occasions per week at times as agreed between the parties and failing agreement between 6 pm and 7 pm on Tuesday, Thursday and Saturday. If the children are unavailable the parent responsible for giving contact shall ensure the children return the other parties telephone call within 24 hours.
(b)The parent who does not have the children residing with them on each such occasion is to initiate such telephone contact;
(c)The mother and father advise the other of telephone contact details should that parent be away from their place of residence on any extended holiday period with the children or either of them, for more than five days.
School holiday periods shall be defined as to commence at 9 am on the day after the last day of school and excluding Christmas holidays shall cease at 5 pm on the day immediately before school resumes (whether the resumption of school is a pupil free day or not). Christmas holidays will be calculated to and end at 5 pm on the Sunday before school resumes.
Either party is restrained from denigrating, criticising, or speaking in a derogatory fashion about the other parent, either to or in the presence of either child.
Both parties shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent either to or in the presence of either child.
Both parties shall keep the other promptly informed or any major medical issues involving the children, particularly of any significant medical attention or treatment received by the children.
During any period referred to in these orders when the children are with their mother, in the event of either child being hospitalised or receiving emergency medical attention for serious illness or injury, the mother shall;
(a)Notify the father as soon as practicable after her first contact with a medical practitioner, medical centre or hospital;
(b)Advise the father of the nature of the serious illness or injury and the condition of the child;
(c)Advise the father of the name of the treating organisation, doctor; and
(d)Advise the father of the nature of the treatment including ongoing medications and further appointments if any.
During any period referred to in these orders when the children are with their father, in the event of either child being hospitalised or receiving emergency medical attention for serious illness or injury, the father shall;
(a)Notify the mother as soon as practicable after her first contact with a medical practitioner, medical centre or hospital;
(b)Advise the mother of the nature of the serious illness or injury and the condition of the child;
(c)Advise the mother of the name of the treating organisation, doctor; and
(d)Advise the mother of the nature of the treatment including ongoing medications and further appointments if any.
Within fourteen (14) days of the date of these orders and within fourteen (14) days of either child’s subsequent enrolment at any school, day care or kindergarten (“hereinafter referred to as “school”) the father shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school either of the children may attend from time to time, that school is authorised to forward directly to the mother:
(a)Copies of each of the school reports and merit cards;
(b)Copies of any progress reports;
(c)Any written material pertaining to either child’s academic and extra curricular activities;
(d)Notices of any events that parents are invited to attend or participate in;
(e)Notices of any upcoming functions or activities;
(f)Copies of order forms for all school photographs of the children or either of them; and
(g)Copies of any other information disseminated by the school to parents of children attending that school.
The mother and father are at liberty to attend the children’s school and any school functions to which parents are invited.
The mother and father advise the other in writing of any change of address or telephone contact number no later than fourteen days prior to any proposed change including the details of their new residential address and/or new telephone contact number.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Parramatta

PAM1867 of 2005

HGM

Applicant

And

CJM

Respondent

REASONS FOR JUDGMENT

Introduction

This is a residence application concerning two children, Richard (not his real name) born in 2001 and Adyn (not his real name) born in 2002. When their parents separated in March 2003 Richard was 2 years old and Adyn was approximately four months. By agreement, the children remained in their mother’s care. By June 2003 the parties established regular alternate weekend overnight contact between the children and their father.
Shortly after separation, the mother established a new relationship with BF. In July 2004 their daughter Jasmine (not her real name) was born. With Jasmine’s birth, at 21 years of age, the mother had full time care of three children less than four years of age. Approximately one week after BF ended his relationship with the mother, in a highly distressed state, the mother gave the children to their respective fathers. Within a few days the mother regretted relinquishing the children’s care and, after each of the fathers refused to return the children to her, on

22 April 2005 she filed residence applications, including applications for interim residence and recovery orders. On an interim basis, the court gave the mother continuous contact with the children provided she complied with a series of strict conditions. Relevantly, these included participation in the Charmian Clift Cottages program with her care of the children being supervised by Charmian Clift Cottages and/or Department of Community Services. After completing an intake assessment on 10 May 2005, the mother was accepted into the Charmian Clift Community Integration Program and was offered a placement at one of the community houses, commencing 16 May 2005. Upon the mother’s entry into the house, all three children returned to her. The mother, AC (the mother and children’s community integration case worker), MJ (Director Charmian Clift Cottages), FP (Family support worker), and AB (Family support worker) agreed Catherine Villa workers would remain involved with the mother and children. Thus a joint case management service was to be provided to the mother and children by Charmian Clift Cottages and Catherine Villa.
On entry into Charmian Clift Cottages the mother identified the following case plan goals:
·Develop parenting skills that re-establish routine for the children;
·Keep house clean and organised;
·Secure Department of Housing accommodation;
·Comply with Family Court (sic) orders;
·Attend day program at Charmian Clift Cottages;
·Attend counselling with Charmian Clift Cottages in house counsellor;
·Mood management, especially developing better coping mechanisms and addressing self harming behaviours.
Although the orders provided that the mother have continuous contact with the children, this was subject to the three children spending weekends with their fathers.
On 31 June 2005 Charmian Clift Cottages decided to discharge the mother from its program. The final assessment reports reveals, “This decision was based on the fact that the care and safety of the children was not improving, evidence HGM is unable to provide consistent and appropriate care for the children, she lacks the ability to work openly and honestly with Charmian Clift Cottages.”[1] Whilst the mother and children resided at the community house, Charmian Clift Cottages made four child protection notifications to the Department of Community Services Helpline about the mother’s care of the children.
[1] Exhibit E
Upon CAM’s discovery that Charmian Clift had decided to discharge the mother from its program, he sought further interim parenting orders. On 7 July 2005 this court ordered that the children reside with him and that the mother exercise contact from 4 pm Friday to 5 pm Sunday each weekend. The mother’s contact was conditional upon her accepting the supervision and direction of the Department of Community Services, not consuming alcohol or non-prescription drugs and attending upon a psychiatrist for a mental health assessment. Since then, the children have resided with their father and exercised regular contact with their mother.
The mother asks that the children live with her and agrees they should have regular contact with their father. She emphasises that from their births until April 2005 she has been the children’s primary carer. Importantly, that the father was content the children live with her until she asked him to assume their care in April 2005. Her case is that the father is an arrogant and insensitive partner who is relatively inexperienced with children’s full time care. The mother doubts his capacity to manage full time work and meet the children’s needs and is concerned he has delegated significant responsibility for the children’s care to his mother. The mother believes that the children miss living with her and is concerned that the father and his family will undermine her relationship with the children. Should the children remain with him the mother fears her relationship with the children is in jeopardy.
The father denies most of the mother’s allegations. For example, during cohabitation he disputes the mother’s claim that she was overwhelmingly responsible for the children’s care. The gravamen of his case, however, is that he believes that even with significant community supports, the mother has demonstrated an inability to meet the children’s physical and emotional needs. Whether because of her early life experiences, difficulties within her own family or depressive illness, the mother has shown that she is unable to manage the children’s full time care. In her care, the father says, the children face uncertainty about where they will live, inappropriate hygiene and when she is unwell, lack of attention to their children’s basic needs. Having secured interim residence of the children, the father believes he has demonstrated that he is able to balance child care and work commitments. He highlights that he and the children benefit from strong and skilled family support, which although not essential to his ability to meet the children’s needs, supplements his care and enriches their lives.
In anticipation of this hearing, pursuant to s.62(G)(2), I ordered that a family report is prepared. Norman Goodsell, an experienced social worker and counsellor, interviewed the parties, children and other relevant people on 19 January 2006 as well as observing the children’s interaction with their parents and paternal grandmother. His report[2] makes the following recommendations, “If there remains any doubt about the mother’s environmental conditions and the potential risk posed to the children, then Richard and Adyn continue to reside with their father …… Regardless of which parent obtains weekly residence, it is recommended that the children have contact with the non-resident parent each weekend according to the current interim arrangements. ... When Adyn commences school it would seem desirable for the children to spend one weekend in four at their residential home, in order for them to experience more regular peer relationships and leisure activities in their home environment as they develop. Half school holiday contact would also be in their interest”. At the end of his cross-examination, the family reporter’s recommendations were unchanged.
[2] Exhibit B
For numerous reasons, this case fell within the category of cases identified in Re: K (1994) FLC 92-461 as being appropriate for appointment of a children’s representative. Thus on 7 July 2005 this court ordered that Richard and Adyn are separately represented. Ms O’Donnell was appointed as the children’s representative. At the hearing, the children’s representative supported the father’s residence application and proposed contact largely along the lines recommended by the family reporter. Helpfully, the children’s representative provided a detailed minute of order which summarises the children’s representative’s position.[3] Aspects of these proposals are adopted by both parties while the residence recommendation was contentious.
[3] Exhibit F

Relevant law

Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68(F)(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.

The mothers circumstances

The mother was born in Sydney in 1982. She is the elder of three children.
In about September 2005 the mother obtained employment as a store person. She worked Monday to Friday from 1.30 pm until 5.30 pm. This work continued until shortly prior to this hearing. Since stopping paid work, the mother is reliant on social security income. On

2 September 2005 the mother and BF entered into consent orders which provide that Jasmine resides with her from 10 am Sunday to 5.30 pm Wednesday each week. Most weeks Jasmine remains with the mother until Thursday afternoon.
The mother resides with her mother at Blackett in a three bedroom townhouse the maternal grandmother rents from the Department of Housing. The mother has a bedroom which she shares with Jasmine, her mother has her own bedroom and Adyn and Richard share the third bedroom.
When the parties separated, the mother and children moved into the maternal grandmother’s home. In about June 2003 the mother moved into premises at Shalvey where she lived until November 2004 at which time she moved to another home in Shalvey. When the mother swore her affidavit on 21 April 2005 she was living at the second Shalvey home. At the court’s direction, the mother moved to the community house where she remained until moving in with friends at Moorebank and then into her mother’s home. Presently, the mother is hoping to find a rental home nearby to her mother. She can afford to pay up to $200 rent per week and is experiencing difficulty finding a home in this price range. The mother attempted to hide from the father that she had returned to live with her mother. The mother agrees with the father’s proposition that her mother’s house is untidy and at times unhygienic. When the parties lived with her mother in the early months of their relationship, her mother’s house was unacceptably dirty and because it was so unhygienic it was unsuitable for child rearing. It is revealing that the maternal grandmother did not give evidence supporting her daughter’s residence application and I was left with considerable disquiet that this is because her evidence would not have assisted the mother’s residence application. Whilst the father’s failure to pay child support undoubtedly placed the mother under financial pressure, since separation she has not been able to establish a permanent home for herself and the children. I am far from satisfied that even with regular child support; the mother demonstrates the capacity to provide the children with reasonable residential stability. As they have endured so many residential changes these children have a more acute need for stability than many others. This is a factor that carries weight.
The mother’s parents separated when she was about 12 years old. Not long after their separation the mother attempted suicide. As the catalyst for these proceedings was the mother’s threats in April 2005 to take her life, for this hearing the mother consulted a psychiatrist,

Dr A. As well as his medical qualifications and consultancies, it is worth noting that he is an assessor with the New South Wales Children’s Court Clinic. With the Children’s Court Clinic, he evaluates parental capacity, including those affected by mental illness and disability and is experienced in assessing children in relation to allegations of abuse and neglect. I accept Dr A is well qualified for the task he undertook and I give his opinion considerable weight. Other than a misunderstanding that the mother’s parents separated when she was 10 years old, rather than 12, Dr A’s understanding of the salient facts is reliable and he establishes a sound factual foundation for his opinions. I accept his evidence and give it considerable weight.
After her parent’s relationship failed, the mother lived between her parent’s homes during which time she felt, and still feels rejected by her father. By the time she reached 14 years old, the mother lived with Pete (not his real name), who was 40 years old. She told Dr A that in this relationship she was physically and sexually abused. After her relationship with Pete ended, the mother had a relationship with Trevor (not his real name). When this relationship ended the mother had a six month relationship with Carl (not his real name), which relationship resulted in a pregnancy and miscarriage or termination in 1999. She then had a brief relationship with a friend of Carl’s. When this relationship failed, the mother commenced her relationship with the father in about April 1999. When the parties separated in March 2003 the mother entered another relationship which appears to have resulted in a pregnancy and miscarriage or termination. Finally, she started her relationship with BF.
A review of the mother’s records produced by Blacktown Hospital, Nepean Hospital and Mt Druitt Community Health Centre reveals a pattern of episodic depression, with the mother being prescribed Zoloft in 1999/2000 and Arapax in 2004. Between August 2004 and May 2005 the mother attended a group called “Meet a mum”. The mother received assistance from Ms W, Psychologist in 2005. The mother received psychiatric assistance while an in-patient after her first suicide attempt as well as considerable community support from Mt Druitt Community Health and Catherine Villa. When depressed, the mother was forgetful and lethargic describing difficulties managing the children. Dr A described the mother in the following terms:
“……HGM developed a number of vulnerabilities relating to her personality. She was unable to fulfil her strong need to establish satisfactory relationships. She formed relationships with men who were abusive, rejecting and uncaring. Her mental state, self esteem and mood were strongly influenced by her chaotic and unstable relationships. She made attempts to harm herself. She felt chronically unhappy, her level of sadness influenced by her relationships. This pattern of sadness is diagnosed as dysthymic disorder in psychiatric terms. HGM was increasingly burdened with the arrival of each successive child. By the time she gave birth to Jasmine she was struggling with looking after Richard and Adyn. She found managing Richard’s defiant and uncooperative behaviour especially difficult. There may have been periods when she neglected her house and her children’s needs. Managing her children remained a struggle despite community support towards them. In this context she experienced an exacerbation of her depressive symptoms, diagnosed as post-natal depression. Anemia may have contributed to her depression and tiredness during this period. Three factors contributed to the crisis she experience in April 2005. The first was that she was a single parent, trying to cope with an infant and two boys with challenging behaviour. The second was the rejection by her partner and loss of hope for the future of that relationship. This triggered the third factor a depressive relapse associated with suicidal thoughts.
It is likely that drugs and alcohol contributed to her difficulties. She reported using alcohol, amphetamines and cannabis in 2005 and possibly earlier. Drugs may have had a negative effect on her depression, irritability and functioning. She, however, described her drug use as infrequent, apart from cannabis, which she appears to have used with her partner. I have not found evidence in the documents provided to indicate chronic and significant drug use. On this basis I formed the view that drugs affect the way HGM copes in crisis, but probably do not exert significant influence on her, day to day.
HGM will remain vulnerable, with her functioning and mood dependant on the state of her relationship. Community supports and counselling have been of limited assistance in the past, unable to fully compensate for the effect of the relationship on her mental state. She is likely to continue experiencing depressive symptoms from time to time, which may respond to antidepressant medication. She is not, however, clinically depressed at present. She may resort to drugs in times of crisis, and this would need monitoring. I recommend further counselling addressing her self esteem, relationships and crisis management. I cannot say to what extent this would be helpful. These factors will continue to exert an effect on her parenting.”
During his oral testimony, Dr A explained that dysthymic disorder is a label used to describe chronic depression. Chronic relates to duration rather than severity. This disorder starts in adolescence and may fluctuate in degree depending on stress levels. He explained that supportive counselling can be useful, particularly helping with self esteem and coping ability. However, counselling is often not of long lasting benefit and its effect is ameliorative and not cumulative. For sufferers in the mother’s situation, it will be of limited assistance because her problems persist. With HGM her symptoms may all but disappear while at other times are likely to be debilitating. Dr A emphasised that the mother is particularly vulnerable to crisis in relationships. Notwithstanding that she has had extensive support over lengthy periods the mother still has difficulty coping, both in terms of managing her depression and her children. He explained that when a person is depressed they are much less likely to care for those who are dependant on them, particularly children. This is what has occurred in this case.
The mother’s counsel obtained Dr A’s agreement to the proposition that the mother may particularly benefit from continuing treatment from a psychiatrist, which she has never previously received. However Dr A explained that continuity of psychiatric care is generally more available in the private health sector rather than public sector. In the mother’s circumstances, access to private health treatment is unlikely and thus continuity of psychiatric assistance unlikely. The effect of this is that it heightens the risk the mother’s depressive illness will receive medical support at times of crisis rather than continuously. Basically that she is likely to fall between gaps in medical services and only receive psychiatric help when her symptoms become extreme.
I am far from satisfied that the mother’s reliance on relationships and her vulnerability to relationship breakdown has resolved. Although presently well and apparently not having re-partnered, this period of recovery and relationship stability is recent and of relatively short duration. In my view it is reasonably likely the mother with continue a pattern of difficult relationships which heighten her risk of debilitating depression. When depressed, the mother’s capacity to meet the children’s physical and emotional needs is considerably undermined. This is a factor to which I attach considerable weight.
In October 2005 and December 2005 the mother attended counselling with a counsellor at Catherine Villa. When this counsellor returns from holidays the mother plans to resume counselling. The mother’s commitment to services which require her attendance outside the home is somewhat unreliable. Whilst the mother willingly accepts assistance from those who visit her at home, in the past she has demonstrated an inability to maintain appointments and thus continuity of external supports. For example while at Charmian Clift they report “HGM commitment to regularly attending groups within the Day Program was, she did not attend the following:
·‘What is mental illness – anxiety’
·‘Self esteem’
·‘Social and emotional wellness and wellbeing’
·‘Social phobia’
·‘Coffee and chat’
·‘Domestic violence 2’
·‘Tips and ideas on parenting skills.”
These are all group sessions the subject matter of which is relevant to the mother’s circumstances. I have no doubt that attendance would have been beneficial. That she failed to attend shows limited insight on her part to her predicament. FP, a social worker from Catherine Villa Centre telephones her weekly, but no longer visits. The mother placed considerable reliance on FP’s evidence concerning her observations of the mother and children as well as emphasising that Catherine Villa workers continue their support. Catherine Villa’s outreach program became involved with the mother in May 2004. FP became the mother’s case worker approximately twelve months ago and relies on her own observations as well as those compiled by her previous support worker for her opinion, “There is no evidence of any child protection concerns or worries about HGM’s ability to parent the children or keep her house clean”. In mid-April 2005, when the mother was depressed, drinking alcohol to excess, threatening to take her life and recognised that she could not cope with the children’s care, Catherine Villa workers were in regular contact with the mother and had an established relationship with her and the children. Their notes reveal that in April 2005 the mother told them she was depressed. The workers accepted her stance that she did not wish them to visit, preferring to be alone. This decision, whilst respectful of the mother’s privacy, in child protection terms was unfortunate. The point I wish to emphasise is that the workers knew the mother had a history of depression and at times of not coping with the children. On all parties’ accounts, when the mother called the fathers to collect their children, she was greatly distressed and her house was in chaos. It was dirty, the mother was using drugs and alcohol, and she was unable to care for herself, the children, or the house. This establishes two important matters. Firstly, I am satisfied I should give considerably greater weight to observations made by Charmian Clift workers of the mother’s ability to manage the children and her home than those from Catherine Villa workers. Simply put when she was in a state of crisis and unable to care for herself or the children they did not realise how serious the situation was. Secondly, while Catherine Villa workers provide the mother and children with important community support and guidance, the level of input she requires if the children live with her, is more than they offer. The mother requires considerably more input and assistance in order to ensure the children’s physical and emotional needs. Particularly when she is unwell.

The father’s circumstances

The father was born in 1982 and is 23 years old. The father resides with the children in a four bedroom house he rents at Narwee. Each of the children has their own bedroom. The father is self employed and runs a telecommunications, printing and sales business from home. He also works as a debt collector. This work is undertaken between 10 am and 3 pm Monday to Friday. The business does not have employees. Last year his business and debt collecting contract produced approximately $160,000 in gross fees. Because the father runs the business from his home he is able to legitimately offset a portion of expenses incurred in the home as business expenses. The father deposed “… this provides a steady and significant income, all the while allowing me the flexibility to cater to my circumstances” He was unable to reconcile this statement with his poor child support record. The father’s refusal to pay more than minimum child support suggests as far as money is concerned he has hitherto been unwilling to provide financially for the children. His stance demonstrates a childish disregard for the effect of his actions on the children’s well being and his parental responsibility. While I am satisfied the father is willing and able to financially support the children while they live with him, unless forced by the Child Support Agency to pay adequate child support to the mother, he is unlikely to do so.
The father’s parents live nearby at Illawong in a home they share with his grandmother and sister. The paternal grandfather works full time in his own business and the paternal grandmother works full time as a primary school teacher. The father’s parents, grandmother and sister give him practical support with the children’s care. His mother helps out with childcare, frequently after school Fridays and at other times if the father requires it, as well as assisting with contact changeovers.
This year, Richard started school at a local primary school where he is in kindergarten. This primary school is a short drive from the father’s home. Adyn attends a local preschool two days each week. Richard is settling into school well and Adyn has managed the transition to preschool with ease. The father organises his work commitments around the children. As far as possible business meetings occur when the children are in school, day care or with the mother.
The father is in good health.
The father disputes the mother’s assertion that prior to separation she was primarily responsible for the children’s care. However, he concedes that following Richard’s birth he often worked 12 to 14 hours a day, on occasions seven days per week. Inevitably, primary responsibility for Richard’s care fell on the mother. When the parties separated in January 2003 there was a gap between separation and when the parties established regular contact. By June 2003 the parties agreed that the father would have contact with the children every second weekend. From this time onwards they implemented an arrangement whereby the father collected the children from the mother’s home on alternate Friday evenings, returning them to her on Sunday evenings. After separation, the father resided with his parents at Como and this is where he took the children during contact. When Richard arrived for contact, his eczema was usually pustulous and weepy. Richard’s eczema is easily treated with a topical cream and clean environment. After most weekends the eczema would be cleared up, only to erupt again before the next occasion of contact.
Not long after separation, at the mother’s request, the father cared for the children for one week whilst the mother underwent surgery. During the week the children were in the father’s care, Richard’s eczema disappeared and each child gained about 1 kilogram. The father challenged the family reporter’s description of him, “CAM, by comparison, impressed as an arrogant man, who expressed strong and fixed views on most topics discussed. Many of his comments about HGM and her family were extremely derogatory, indicating that he considered himself superior to them. He accepted no responsibility for the breakdown of his relationship with HGM (she, did accept some mutual responsibility) preferring to view all of the problems are due to HGM’s intrinsic failings as a partner and parent. He also seemed insensitive to her reported post natal depression and gave the impression that he regarded this, too, as a sign of weakness.” Within only minutes of making his way to the witness box, the father behaved in much the same fashion as described by the family reporter. Rather than focus on counsel’s questions, he took every perceived opportunity to make derogatory remarks about the mother and her family. He discussed the mother’s and his family’s different circumstances with unsavoury class overtones. Whilst I accept that during the period the father lived with the maternal grandmother and in the Shalvey area he experienced car theft, exposure to unhygienic standard of living and deprivation, this does not excuse or explain his insulting language.
After the children came into his care, the father imposed discipline and routine, which has worked well for both children. Both children are now toilet trained, take their meals at a dining table, and respond to direction and guidance. Although at the end of contact with their mother the children can be upset at leaving her, their upset resolves quickly and the children settle back into their father’s home. I am satisfied that the father has established a safe and secure home environment into which both children have settled and which in the long term is likely to serve them well. It seems likely the children benefit from his capacity to contain and guide their behaviour.

At Charmian Clift the mother was observed as being unable to contain both boys to the extent they were concerned, which concern I share, that Richard was keeping an eye out for Adyn and both children potentially at risk because she expected Richard to supervise and contain Adyn. As demonstrated to the family reporter the children respond to the father’s supervision and direction in a manner which, particularly with Richard the mother has been unable to achieve. This is matter which weighs in favour of the father’s residence application.

Other relevant considerations

One of the important matters addressed by the family reporter is the nature of the children’s relationship with each of their parents. This is particularly important in this case as the mother asserted she has been the children’s primary carer and the children are routinely distressed at separation from her. The family reporter observed each of the children with the parties. He writes –
“Two interactive play sessions involving Richard and Ashleigh were observed- the first with their mother; the second with their father, which included a short segment attended by the paternal grandmother. Both sessions demonstrated close and loving relationships between the children and their parents. The father and mother showed abilities to lead and engage in supportive and interactive play with the boys. As well as being able to equally divide their time between their sons. The reactions of their children to both parents were similar, apart from Adyn becoming upset, when HGM left the room at the conclusion of her session. He continued to cry and call for her for about five minutes after the father entered the room. CAM then used distraction to settle Adyn and this seemed to work. The grandmother participated in the play activities and Richard and Adyn behaved naturally in her presence. It was observed in the main waiting room (where the parents sat together with the children) that on one occasion Adyn loudly refused to surrender a toy when asked to by his mother. HGM then requested CAM to intervene. The father was able to get Adyn to surrender the toy by lifting him in the air and making a game of the situation. Whilst this was a “one off” and should not be taken out of context, it did seem to demonstrate effectiveness on the father’s part to manage challenging behaviour.”
The family reporter opined – “Richard and Adyn share positive relationships with their parents, though it seems likely that Adyn, on account of his young age, could react negatively to parental changeovers from time to time. Notwithstanding this probability, it is thought that neither child would be likely to maintain significant separation anxiety from either parent over any length of time, as both CAM and HGM have established secure attachments and relate warmly to both boys.”
The mother’s counsel pursued the proposition that the children are primarily attached to their mother. This flowed from the demonstrably greater time she spent with them until April 2005. The family reporter did not concede this proposition asserting that on the basis of his observations the children are strongly attached to each parent. Insofar as the children’s attachment to their parents is concerned there was nothing he saw which suggested the children are more attached to one parent than the other. Notwithstanding that until April 2005 the mother was primarily responsible for the children’s care there is a real possibility that her depression rendered her emotionally unable to connect with the children sufficiently strongly enough to establish a clear primary bond and from their perspective attachment. Although the children had less time with their father, he invested a great deal of energy and enthusiasm when with the children to which they appear to have responded with an obviously strong attachment.
The children’s representative pointed out the “parentification” observed at Charmian Clift by Richard of Adyn. They report –
“The parentification of Richard is also a serious concern in this family. In observing Richard and Adyn’s responses, there is little doubt HGM relies on Richard to help in managing Adyn and Jasmine when she experiences levels of stress or an inability to deal effectively with the younger children’s behaviours as observed in the situation in the child care unit. Richard presents as a pseudo mature 4 year old who is overly observant and concerned about his younger sibling. This suggests he has developed a level of responsibility for them beyond what is acceptable for a four year old.”
The significance of these observations is that although the boys share strong relationships with each of their parents, there are aspects of the boys’ relationship with their mother which are concerning. To a reasonable extent these difficulties appear to stem from her depression, which as I already found is a continuing disability. In terms of emotional stability and responsiveness there are no similar concerns in the children’s relationships with their father. This is a matter which weighs in favour of his residence application.
The observations made of the mother’s child care at Charmian Clift including the following:
“On the 6/6/2005 HGM took all three children to childcare and attended day program at Charmian Clift Cottages. Childcare worker noted following concerns and a child protection report was made to the DOCS help line: All three children appeared untidy and dirty, had dried mucus over their faces - Jasmine had dark coloured dirt between her fingers on both hands - Richard, Adyn and Jasmine all appeared sick – coughing, sneezing, runny noses - when childcare worker attempted to change Adyn’s nappy he refused and said, “Richard do it”. . Adyn had ingrained dirt covering the whole foot area - childcare worker concluded (based on observations) highly likely the children had not been bathed for at least two days -. Adyn did not have nappies packed and staff needed to use one of Jasmine’s nappies -. Adequate supplies were not packed for the children – i.e. change of clothes, drinks etcetera. When this was discussed with HGM caseworker noted HGM did not appear concerned that the children were not properly provided for, were ill, and were presented in a dirty, unwashed condition. HGM displayed no level of empathy regarding her children’s poor condition and lack of food.”
The next child protection notification related to observations by the childcare worker on 15 June 2005. The notification provides –
“HGM stated Richard hadn’t been eating so she packed only sachets of toddler formula for the boys stating, ‘what Adyn eats Richard wants’. HGM was told that she needed to pack food for the children regardless of whether they, ‘were eating or not’. To this HGM replied she had not bought groceries and had no food in the house. HGM was observed taking food (packet of biscuits) from another resident, which she opened and gave to the children. Richard was observed to drink of three cups of formula and Adyn drank one”. Richard reported to staff that he had vomited the night before whilst sleeping his mother’s bed - Packet of antidepressant medication (Aropax, Paroxentine 20 mg) was found in the front pocket of the baby bag. It was also noted that the script was dated 27/05/2005 for one tablet daily and only five tablets were missing. Evident HGM was not taking her medication - concern children have access to prescribed medication”.
The next notification related to Jasmine’s appearance on 16 June 2005 at day care. The notification is in the following terms:
“When HGM dropped Jasmine off she stated that due to running late she had not had time to change Jasmine out of her pyjamas and informed staff that spare clothes were in the baby bag. When staff went to change Jasmine it was discovered that the warm clothes (Skivvy and pants) had dried food and stains on them and the only clean clothes provided were not warm enough for the weather conditions.”
A recurrent theme in the Charmian Clift report is concern about the mother’s housekeeping, in particular tidiness and hygiene and the impact this has on the children. On a number of occasions, both planned and unannounced visits revealed a home which is described as variously extremely messy, dirty, and chaotic. On other occasions the home is observed to be clean and tidy, an observation which shows Charmian Clift workers were even handed, reporting both concerning and positive aspects of the mother’s childcare. I accept MJ’s evidence, that even with considerable support, the mother is unlikely to consistently maintain a clean and hygienic home environment. This is particularly so if she is responsible for her three children. Cleanliness and tidiness can be subjective and the mother says Charmian Clift imposed an unreasonably high standard of cleanliness and order. However the mother is not criticised by Charmian Clift for one or two misunderstandings or failure to abide their directions. Whilst their concerns include relatively trivial incidents, they also include serious events. Packing antidepressant medication in the children’s day care bag posed, at least to the elder children, a real risk that they may have taken their mother’s tablets. Sending the children to day care without food when the mother was aware that it was her obligation to provide food, is neglectful. Sending Jasmine in dirty clothes and without nappies is neglectful. Although this is a snapshot, these observations as well as numerous others outlined in their report, were made over a two month period. They corroborate in a real way the father’s evidence concerning the mother’s inability to consistently provide the children with a safe and appropriate home life.
During the latter part of 2005, the father invited the mother into his home on a number of occasions. It seems he was trying to encourage reasonably easy interaction by giving the children the chance to share meals with both parents, go to the movies as a family and build up friendly co-parenting. One weekend the mother saw a pile of washed but unironed clothes in the lounge room in situ for the weekend. The kitchen dishes appeared not to have been done for two days and the garbage bin contained beer cans. On one occasion Adyn came on contact changeover with soiled pants and on another without a nappy. While these instances raise similar issues to those which concerned Charmian Clift Cottages about the mother, there is a difference in the impact on the children. In the father’s care the children are well fed, organised, attending day care and school regularly and Richard’s eczema is under control. There have been no instances of the father’s house being in the chaotic mess observed at the mother’s in April 2005. Nor have the children had access to unguarded prescription medication. The father is alert to concerns that in the mother’s care more has been expected of Richard viz a viz Adyn and Jasmine’s care than is appropriate. Thus he takes responsibility for Adyn, relieving Richard from believing that he must do so.
As between the two parents, I have formed the view that caring for these two boys, whilst demanding, is less likely to be the struggle for the father that it is for the mother. In her care, while there will be periods that the mother manages their care reasonably well, there is a real likelihood that there will also be reasonably regular periods when she is unable to manage. Community support workers and attendance upon psychiatrist are likely to moderate the impact of some of her difficulties. However not sufficiently to the extent that the court can be confident the children’s needs will be consistently met. If the mother has these children’s full time care, as well as predominantly Jasmine’s care, it is highly likely that at reasonably regular intervals the children’s physical, emotional and intellectual needs will be unfortunately overlooked. Similar concerns do not arise if the children reside with their father. Although his mother’s attitude towards the mother are patronising she offers strong support to the father and the children. Her practical guidance and demonstrable commitment to the children’s wellbeing means that any deficits in the father’s childcare experience are addressed. Whether he needs practical support or merely child care information, this is available from his mother.
The mother has good reason to be concerned about the father’s and his mother’s attitudes towards her and her family. The paternal grandmother’s affidavit is offensive. As a teacher, she should have the requisite language skills needed to give a factual account of events without the repeatedly snide remarks directed towards the mother. Fortunately, the father resisted the same temptation, but in his oral testimony and with the family reporter spoke in terms similar to those used by his mother. If the father and his family expose the children to these attitudes the children are likely to be unfavourably influenced about their mother. The father adamantly stated he would never criticise the mother to the children. There are no signs that during the period the children have lived with the father, which has included significant time with the paternal grandmother, either child has absorbed ideas about their mother of the type described in the paternal grandmother’s affidavit.
The father and his mother were cross-examined at length about the father’s refusal to allow the mother to attend Richard’s first day at school. A child’s first school day is a significant day for children and their parents. The father explained that he invited the mother to come to his home for photographs before school, but refused to allow her to come to school because he believed that as the resident parent this is his right. Keeping in mind his mother’s occupation, I was surprised that she supported his stance. The father’s position was unreasonable and deprived Richard and his mother of an important event they were entitled to share. The mother’s counsel submitted this simple example shows that if the children live with their father it augers poorly for her involvement in the children’s lives. I agree with the submission. However the force of the submission is undermined by the father’s ready acceptance of the child representative’s suite of orders which will ensure the mother’s right to participate in similar events and actively co-parent the children. Since the children have lived with the father, he has complied with contact orders. Although inconvenient to him, he has also facilitated variations to contact arrangements without which contact might otherwise have failed through the mother’s inability to comply with the orders. For example when she obtained work or had car difficulties. Although on occasions his concessions were grudgingly given, the simple fact is he complied. When needed his mother helped, for example, with after school care and transport, in order to make contact work. If the father was determined to make contact difficult, he has had an opportunity on a number of occasions to put barriers in the mother’s path. I have decided I can accept the father’s evidence he will not expose the children to his unfortunate attitudes and will do his best to ensure others do not do so. I am satisfied the father will ensure contact occurs as ordered and where flexibility is needed it will be reasonably available. On balance I am satisfied the risk of the father and his mother undermining the children’s relationship with their mother is not so great that it outweighs the benefits to the children of living with their father.
The remaining critical consideration for the residence applications is separation of siblings. If the children reside with the father they are separated from their half sister, Jasmine. These three children are close in age. Living with the mother gives the three children’s relationship with each other the best prospects for strong and healthy sibling relationships. I accept the mother’s evidence that the three children enjoy each other’s company and the boys look forward to seeing their sister. If I was satisfied the mother could adequately care for the three children, giving all three children the opportunity to live together, would weigh strongly in her favour. For reasons already explained, I am not satisfied the mother can manage all three children and thus, notwithstanding the benefits to the children if all three live together, the boys best interests are served living with their father. With regular contact, the three children will still have an opportunity to enjoy each other’s company and although their relationship as siblings is unlikely to be as strong as it would be if they lived together, they should still have a strong sibling bond.
If the children live with their mother, further litigation is reasonably likely. This follows from the likelihood of future relapses of the mother’s depressive illness. As these occurrences will almost certainly result in her inability to attend to the children’s care, the father will need to step into the breach. If the children live with the father I consider these arrangements are far more likely to endure and the risk of future litigation is considerably more remote. This finding weighs in favour of the father’s residence application.

Contact and other arrangements

Having determined the children should live with their father, it is necessary to consider contact arrangements. The children’s representative supported the family reporter’s recommendation that until Adyn starts school, the pattern of the children spending weekends with their mother should continue. The family reporter mistakenly believed that since separation the children’s time has been divided so that during the week they lived with one parent and each weekend the other parent. This is wrong. The pattern of the children spending Monday to Friday with one parent and weekends with the other was only established in April 2005. Previously the children had alternate weekends with each parent. Thus the argument for continuity is not so strong. Now that Richard is attending school, if he spends every weekend with his mother there is virtually no time available with his father for fun. The notion that children should share, not necessarily equally, leisure time with both parents has long found favour in the case law. The father’s desire to have weekends so that the children can spend time with his family and also enjoy reasonable social activities, such as camping is understandable. There is also benefit for the children having an occasional weekend at their father’s home when they do little other than enjoy the comforts of their own home. This would come at the expense of the children seeing their mother and sister every weekend. Potentially reducing the frequency of this contact may adversely impact on these relationships. However children are able to have viable and healthy relationships with close family even if they see the other person only fortnightly. In my view allowing the children to spend one weekend in four with their father enhances the sense of permanency of placement with him and provides an opportunity to enrich their lives through the leisure activities they will enjoy with him. So that the children do not miss out on too much time with their mother, until Adyn turns four during school holidays her weekends will continue until Monday afternoon, unless Monday is a school day. By the time Adyn is four, block holiday periods will start. By then he should have developed an understanding he resides with his father and longer periods with his mother are unlikely to cause confusion. Until Adyn starts school however, I consider a one half block of the Christmas school holidays is premature because it may send Adyn a subconscious message that he has returned to live with his mother. Thus I take a different approach to Christmas school holidays with the children alternating week about until Adyn starts school.
I agree with the family reporter that once both children are at school contact should reduce to alternate weekend contact. If the parties lived closer to one another, I may have ordered the mother to have one overnight contact in the week following weekends when the children have been with their father. However, the mother has no plans to leave the Bidwell area and mid week overnight contact is impractical. Extending the weekend to Monday morning is a less onerous arrangement, which is feasible at least until Jasmine starts school. Adyn is likely to start school in 2008 and Jasmine in 2010. Kindergarten is an exciting yet tiring time for children and placing too many demands on them at the same time is often counter productive. If children are tired it is more difficult for then to cope with the rigours of school life. For this reason I am usually loathe to order contact to finish on Monday mornings, unless this routine is established before the child started school. If longer weekend contact was to be introduced, I would start this when Adyn was in first class. However the following year Jasmine starts school. The mother would not be able to get Jasmine to school at Shalvey and the boys to school at Narwee without at least one child always at school very early or late. On balance I consider it better to establish a routine for weekend contact finishing Sunday evening, as this is an arrangement that will endure. Essentially I consider the children, probably also the parties, will benefit from a reasonably clear structure for contact finishing times.

I have tried to strike a balance that enables the children to share special occasions with both parents and gradually build holiday contact arrangements which are commensurate with the children’s ages. Until school holiday contact starts, the father will have an opportunity to suspend the mothers contact on two, non consecutive occasions annually so that he can take the children away on holidays. These arrangements do not enable him to suspend the mother’s contact on special occasions such as mother’s day or Christmas Day. The father must give the mother adequate notice so that she is able to organise her own commitments. Twenty eight days strikes the balance between forward planning and a provision which is not too onerous. I have not made similar provision for the mother as it seems she is less likely to be in a position to holiday with the children and I consider this would start to send a confusing message to these children about which parent they actually live with.
Otherwise there is a suite of orders the purpose of which is to facilitate better communication between the parents and ensure the passage of important child related information. For the reasons advanced by the children’s representative there are non denigration orders, telephone contact and orders which delineate long and day to day parental responsibility.
These orders are in the children’s best interests. For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S.Mashman

Date: 14 March 2006