Hickson and Hickson

[2012] FamCA 1064

FAMILY COURT OF AUSTRALIA

HICKSON & HICKSON [2012] FamCA 1064

FAMILY LAW – CHILDREN – Whether there has been a significant change in circumstances – Whether the children should remain in the father’s care or whether the children should change residence into the mother’s care – Where final Orders were made by consent in 2007 – Where the mother has not made out her allegations as to the inadequate or negligent care of the children in the father’s household – Whether the parties should continue to have equal shared parental responsibility where there is evidence they cannot communicate and have failed to consult each others on matters relating to the children’s long term care in the past – Whether the father has overcome an alcohol abuse problem – Where the mother has several convictions of assault – Where the youngest child of the parties was removed from both parties’ care as an infant and remains under the care of the Director-General of the Department of Family and Community Services in placement with the paternal grandparents

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

G & C [2006] FamCA 994
Mazorski & Albright [2007] FamCA 520

APPLICANT: Ms Hickson

RESPONDENT: Mr Hickson

INDEPENDENT CHILDREN’S LAWYER: Ms Crawford

FILE NUMBER: PAC 2697 of 2010

DATE DELIVERED: 25 October 2012

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Collier J

HEARING DATE: 23, 24 and 25 October 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented Litigant

COUNSEL FOR THE RESPONDENT: Ms Paraska

SOLICITOR FOR THE RESPONDENT:

Mr Ginges

Hal Ginges & Co

SOLICITOR ADVOCATE FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Harland

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Crawford

Legal Aid Nsw Penrith

Orders

1. That I will deliver Judgment today at 2.45 pm orally, and I stand the matter over until that time.

Later

1. That I discharge all existing Orders relating to the children B, born … March 1999, and C, born … February 2000.

2. That the parties have equal shared parental responsibility for the children.

3. That the said children live with the father.

4. That I make orders in accordance with Orders 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Orders made by consent on 14 May 2007, as follows:-

   3.That the mother spends time with the children from 30 June 2007 as follows:

   a) Alternate weekends from 5pm Friday until 5pm Sunday during school terms. In the event of this period falling on a Public Holiday weekend, this time is to continue until 5pm Monday, or 6pm during daylight savings.

   b)For half of the NSW gazetted short school holiday periods, to commence at 9am on the first day of the school holidays and to continue until 5pm on the Sunday of the second weekend, or 6pm during daylight saving.

   c)For three weeks over the Christmas school holiday period, commencing on the first day of the school holidays from 9am in odd numbered years commencing in 2007, for a period of 22 days excepting 5pm Christmas Eve until 5pm Christmas Day; in even numbered years commencing in 2008 from 5pm Christmas Eve until 5pm Christmas Day, and for a period of 21 days commencing 9am on 3 January, concluding at 5pm on 24 January.

   d)On the Mother’s Day from 10am until 5pm.

   e)On the children’s and mother’s birthdays as follows:

   (i)If the birthdays fall on a school day, for a minimum of two hours after school as agreed between parties, or failing agreement, from 5pm until 7pm.

   (ii)If the children’s birthdays fall on a weekend when the children are not with the mother, for four hours from 9 am to 1 pm.

   f)At such other times as agreed between the parties.

4. The mother’s time with the children is suspended from 10am on Father’s Day, and for 4 hours on the father’s birthday.

5.For the purpose of order 3 above, changeover is to take place at D Town McDonalds.

6.The mother is to have liberal telephone communication with the children between 5pm and 6pm in Winter, and 6pm and 7pm during daylight savings, and the children may telephone the mother at any time they wish to speak with her.

7.The father shall authorise the children’s school reports to send the mother copies of all school reports and any other specifically addressed reports, in relation to the said children.

8.Each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.

9.Both parties undertake to comply with all programs or treatments recommended by professionals for the children’s health, education and welfare.

10. The father undertakes to retain all school reports, reports, merit certificates, school photographs, exercise books, or forward them to the mother for her to retain.

11.The father is to arrange an email address for the children and to advise the mother of the email address, and to ensure that emails from the mother are accessed and read to or by the children.

1. That the parties commence communication between themselves on any issue involving the children by email and SMS communication.

2. That the mother shall ensure that the subject children not be brought into contact with Mr E.

3. That both parties enquire as to the availability of an after separation parenting course, and if need be, as recommended by the Independent Children’s Lawyer.

4. That the parties shall enrol in and complete such course.

5. That the subject children be made available to the Independent Children’s Lawyer, Ms Crawford, at the Penrith office of the Legal Aid Commission of NSW at 4.00 pm today for Ms Crawford to explain the nature, meaning and effect of these Orders.

6. That I dismiss all outstanding applications and cross-applications.

7. That I remove all issues from the Active Pending Cases List.

8. That all material produced upon subpoena be returned not before fifty-six (56) days of the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hickson & Hickson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2697 of 2010

Ms Hickson

Applicant Mother

And

Mr Hickson

Respondent Father

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

1. This case concerns the future living arrangements to be made for two of the parties’ children, B born in March 1999 and C born in February 2000.  Those two children presently live with the father pursuant to consent Orders made in this Court on 14 May 2007.  The parties have a third child, F, who was born in April 2001.  F lives with his paternal grandparents as a result of proceedings in the G Town Children’s Court brought by the then Department of Community Services.  Each party spends some time with F.  The father and his present wife are also the parents of a child, H, born in April 2007.

The parties’ applications

1. The present application before the Court was filed by the mother on 8 June 2010.  In that application, she sought that the children live with her and that the children spend time with the father on alternate weekends and for half school holidays.  She sought no specific order as to parental responsibility in that application, but in her most recent affidavit indicated that she sought “full” parental responsibility for the children.

2. What the mother seeks, in effect, is a reverse of the existing Orders.  At the commencement of submissions, the mother indicated to me that the part of her application that sought “full” parental responsibility was a mistake; that was something that her lawyers had done apparently without her knowledge or awareness.  (This I find hard to accept when it is within her most recent affidavit, which she drafted herself when unrepresented.)  She made it clear that what she was in fact seeking was for the parties to have equal shared parental responsibility. 

3. Equal shared parental responsibility is the present situation.

4. The father, in his Response filed on 2 August 2010, sought a dismissal of the mother’s application and that the Court confirm the existing Orders, that is the Orders of this Court made on 14 May 2007.

5. During the course of submissions, the Independent Children’s Lawyer put forward further proposed orders.  The orders sought were that the children not be brought into contact with Mr E, and that the Independent Children’s Lawyer should be the person to explain the orders (to be made) to the children.  In addition, it was suggested that I should order that the parties’ communication, if I maintain equal shared parental responsibility, should be initially by email or SMS.

The parties’ documents

1. The parties’ documents were as follows.  The mother, in addition to the application to which I have already made reference, relied upon:-

   ·Her affidavit sworn 20 September 2012 and filed 21 September 2012;

   ·Her earlier affidavit sworn 13 May 2010 and filed 8 June 2010; and

   ·An affidavit of her sister, Ms I, sworn 19 September 2012 and filed 21 September 2012.

2. The father, in his case, relied upon a significant number of affidavits as set out in the practice direction document filed on his behalf.  I must say that I find the fact that a party would seek to rely upon some four affidavits by himself and two by his father is somewhat against the rules of this Court which provide one trial affidavit by a party and each witness. 

3. However, in the circumstances of the case, because the affidavits are relatively short, I have allowed them all to be relied upon and they are:-

   ·The father’s affidavit filed 14 November 2005, which of course, predates the existing Orders;

   ·His affidavit sworn 1 August 2010 and filed 2 August 2010;

   ·His affidavit sworn 20 April 2011 and filed 2 May 2011;

   ·His affidavit sworn 20 September 2012 and filed 24 September 2012;

   ·Affidavits of his father, Mr K -  one sworn 2 August 2010 and another sworn 21 September 2012 and filed 24 September 2012; and

   ·An affidavit of his present wife, Ms L, sworn 15 October 2012 and filed 17 October 2012.

4. The Independent Children’s Lawyer relied upon a number of documents in her case.  Firstly, she relied upon the Child Responsive Memorandum prepared by Family Consultant Ms M dated 8 September 2010 and two reports from Mr Q in relation to substance abuse, the report relating to the father bearing date 9 January 2012 and to the mother bearing date 16 January 2012.  She also relied upon a Family Report prepared by Ms M on 16 October 2012.  I note here that Ms M was not required to give evidence.  Neither party wished to cross-examine her about the report.

5. In addition, there were a large number of documents tendered by the parties and the Independent Children’s Lawyer.  Each provided to me the most helpful schedules of the documents they sought to tender.  For simplicity, I will mark all of those documents that are set out in the mother’s schedule as exhibit A1, those in the father’s schedule as exhibit R1 and those of the Independent Children’s Lawyer as ICL1.  I will return to make specific mention of some of those documents later in these reasons for Judgment.

Brief history

1. As far as the background to the matter is concerned, there does not seem to be a great deal of dispute.  I am therefore confident that I can set out the following matters:- 

   ·The father was born in 1966 and the mother in 1976. 

   ·The parties married in 1996.

   ·In March 1999, B was born. 

   ·In February 2000, B was born.

   ·In 26 April 2001, F was born.

   ·In about mid 2001, F was removed from the parties’ care by the Director-General of the then Department of Community Services.  A Joint Investigative Response Team (JIRT) investigation was carried out, which was unable to ascertain whom had caused the injuries to F.  What does appear clear is that F suffered a subdural haematoma and a fractured rib consistent with Shaken Baby Syndrome.

2. As to how that injury was caused, each party blames the other.  In the hearing before me, there has been no great use made, nor cross-examination directed to the issue of how F was injured.  In my view, it may have been of some importance to address this matter but neither of the parties particularly sought to pursue it.

3. Continuing on with the background of this matter:-

   ·The subject children were then temporarily removed from the parties’ care and subsequently returned to their care.

   ·The parties appeared to have separated on 30 September 2001 and thereafter, the subject children lived primarily with their mother.

   ·An order was made on 3 October 2002 in the G Town Children’s Court for the child F to remain in the Department’s care until 18 years of age, in placement with the paternal grandparents.

   ·On 28 December 2002, the parties divorced.

   ·In about 2003, the father commenced a relationship with his current wife. 

   ·On 28 April 2003, final consent Orders were made in this Court for the children to live with the mother and spend time with the father.

   ·Thereafter, it seems the mother has had some difficulty with the justice system in New South Wales and has suffered a number of convictions for assault. 

   ·On 14 May 2007, Final Orders were made in this Court, by consent, for the mother to relinquish her care of the children and for the children thereafter to live with the father.  Those Orders conferred equal shared parental responsibility upon the parties and for the mother to spend time with the children on alternate weekends and for half of school holidays.  I will return to those Orders later in these reasons for Judgment.

   ·It follows that since July 2007, the subject children had been in the father’s care with the mother exercising time with the children, although certainly not in accordance with the maximum time afforded to her by the Orders.

   ·I understand that in December 2008, the mother was convicted of Assault Occasioning Actual Bodily Harm and Common Assault.

   ·In mid 2008, the father underwent a thyroidectomy and says (as appears to be borne out by material produced on subpoena, now tendered before me) that he experienced depression at that time.

   ·In about August 2008, the father was involuntarily admitted to N Hospital for detoxification, and medical reports from that hospital are also exhibited before me.

   ·It is not in contention that in September 2008, the father was convicted of a mid range driving with Prescribed Concentration of Alcohol offence.  That appears in police records produced on subpoena and tendered.

   ·There was an episode in early May 2010 where the mother retained the children because of concerns she said she held at that time as to the father’s alcohol abuse.  She kept the children out of school for some weeks thereafter.

   ·Also in May 2010, the father was admitted to a hospital for excessive alcohol consumption and detoxification.  It appears from the material that I have read that he suffered a seizure at about the same time.  The father says, and it appears to be again borne out by the material that I have read, that following the detoxification course that he undertook, he worked with a Ms O, a case manager of the Salvation Army aftercare service, in relation to his alcohol problem.

   ·In about June 2010, the father enrolled the children in a new school, P School.

   ·On 2 August 2010, Registrar Tran ordered an Independent Children’s Lawyer be appointed and for the parties to attend upon a Family Consultant.

   ·There is no doubt that between mid August 2010 and August 2011, the father undertook liver function testing.

   ·The matter then progressed through the Less Adversarial Trial process with the parties agreeing to vary certain existing Orders when the matter was before me for a first day intake on 17 December 2010.

   ·On 28 April 2011, Orders were made for Mr Q, an expert in substance abuse, to prepare reports in respect of each of the parties and for Family Consultant Ms M to prepare a Family Report for the Court’s assistance in relation to matters set out in section 60CC(3) of the Family Law Act 1975 (Cth).

   ·In January 2012, Mr Q delivered those reports in respect of each of the parties as previously ordered by the Court.  Those reports I find to be relevant for these proceedings.

   ·On 16 October 2012, Ms M prepared the Family Report, and that report was thereafter released to the parties.

   ·At the time of the hearing, which commenced on 23 October 2012, the father, his wife and the subject children together with their daughter H were living in P Town in central NSW.  The mother was living in R Town.  B was attending S School in Year 7 and B was attending P School in Year 6. 

The mother’s case

1. The mother’s case, as I understand it, is that the children want to live with her, that they are the subject of neglect in the father’s home, that the father particularly does not feed them enough food, the premises are cold and the children generally are not well cared for.  The mother asserts their clothing is dirty when they come to her, and she says he is generally neglectful of their condition and well-being. 

2. She asserts the children are frightened of the father and that they tell her he is still consuming alcohol.  She says the children do not like their step-mother and according to her (the mother), have said quite horrible things about their step-mother, her lack of care, her preference for their half-sister, H, and generally, a lack of love and affection for them.

The father’s case

1. The father’s case is that the children are better off with him, that the children are living in an established routine with him, their step-mother and their half-sister, the children are able to spend time with their younger brother, F, on most days at the paternal grandparent’s home. 

2. It is very much a cornerstone of the father’s case that he is no longer affected by alcohol, and that indeed, he has not consumed alcohol for a substantial period of time.

The hearing before me

1. In the hearing, the mother was unrepresented.  Notwithstanding that, she put her evidence before the Court with, I thought, some skill.  I must say, however, that her submissions were such that they were short and were not of great assistance to me.

2. I heard evidence in the hearing from the mother, the father, Ms I, Mr Q, Mr Hickson senior and the current Mrs Hickson.  I do not propose to traverse that evidence at length. 

3. However, the effect of the mother’s evidence was unconvincing.  She was not able to put before me any concrete proposals for the future care of either of the boys.  She was asked where she might live; she was not sure.  She was asked where the boys would attend school; she was not sure, and indeed, appeared uncertain as to what was required in this regard, that is to say as to enrolment of the boys at any particular school. 

4. In my view, she had not thought about these matters in any depth whatsoever, notwithstanding that a proper reading of the report of the Family Consultant would have indicated these were the very questions the Family Consultant was putting to her and which, at the time, that is the time of interview, she had not turned her mind to either.

1. She was not sure about her work hours.  She seemed to be of the belief that there would be no difficulty in her either obtaining a job with shorter working hours or in some way reducing her current hours at her current employment.  In particular, she could not explain to me in any satisfactory or acceptable manner why it was she did not spend holiday time with the boys.  This is particularly significant, in my view, because she is saying that the boys should come and live with her and thus spend very much the majority of their time with her.  The fact of the matter is that she has no experience of the boys living with her for any extended period of time recently (that is since about July 2007, some five years ago).

2. On the evidence that I heard, she spent some time with the boys in the middle of 2010 and somewhere between four and nine days last Christmas, depending on which version of events is accepted.  She tells me that she does have up to six weeks leave, two of those weeks perhaps being without pay.  It is of real concern to me that the mother could not explain why she had not then taken the opportunity to spend time with the children.  She did not give any reason for this, such as, she had to work.  I am not told that there is any particular reason for her having to work for economic reasons rather than taking leave to spend time with the children. 

3. The mother accepts that there is at least an admitted sum of arrears of child support.  I have not been told how such arrears came to be in existence when the mother has been continuously working full time since the children have been in the father’s care, apparently to the extent of giving up time with the children so that she could continue to work.

4. The mother said that she would rely upon both her mother and her sister in the proceedings.  Her sister, of course, gave evidence and spoke of spending time with the boys at weekends, either at her place or at the mother’s place, and that the boys seemed keen to spend time with her.  This causes me some concern because it does appear that the mother, even when she has time, which is moderately limited, has on occasion left the children with her sister so that she is a free agent.  Her sister insists that the mother only goes home on those occasions, but the evidence does not satisfy me that that is so. 

5. In addition, the mother said that she would rely upon her mother to assist her care for the children if they lived with her majority of the time.  Her mother, whilst not on affidavit, was at Court.  Despite my suggestion to the mother that she should consider her position as to whether she called her mother, she chose not to do so.

6. It was clear from the evidence that the mother and her mother, and the mother and her sister, have in the past had periods where they have not communicated with one another.

7. The mother made it very clear that there was no effective communication between her and the father. 

8. She offered no explanation as to why she had not been more proactive in obtaining information, not from the father, but from the authorities who would provide that information, for example, various treating health professionals and schools.  She said that she had tried to make some arrangements with the schools, but as I understood her evidence, she believed the schools had fallen down on the arrangements that had been made.

9. Another matter that caused me some concern was a lack of explanation as to why she consented to the 2007 Orders.  The significance of this, to my mind, is that I can only infer that she, as a responsible parent, thought it was best for the children, at that time, to live with the father.  To my mind, it is not open to her to say, in absence of any proper explanation, that at that time the father was not, as between the parents, the parent best capable of caring for the children.

10. The end result of the mother’s evidence left me with the impression she had given no real or proper thought as to the practical effect of her proposals, nor had she engaged in any meaningful planning for the future.  I was left with the clear impression she was pursuing her application in the hope of being shown in a better light than the father, perhaps flowing from his use of alcohol, which would hopefully result in her obtaining the orders she sought, at which time she would then decide what she would do about where she would live, where the boys would go to school and before and after school care, medical treatment for the boys and so forth.  This, to my mind, clearly demonstrated that the mother had not come to terms with what was required of her were the boys to be returned to her care.

11. The father gave his evidence in a fairly clear-cut fashion.  He made admissions, when pressed, that he had failed to involve the mother when making decisions regarding the children.  He could offer no explanation as to why he did not do this.  He said, however, that he had taken the children to some appointments, and I am satisfied that he understated the number of times he had done that. 

12. A very significant part of the father’s evidence was that he was no longer addicted to alcohol, or indeed used alcohol in any quantity whatsoever.  He said that he had been “dry” for a considerable period of time.

13. He asserted that both of the subject children were indeed happy at their present schools, in which he had placed them, and that they were happy living in his household.  He insisted that they were properly fed and clothed. 

14. The food issue is one that caused me some little concern, particularly when I was informed that one of the boys is significantly overweight. 

15. It seems to me that in the father’s household – and the father himself does not necessarily get the credit for this – there was an awareness of that child’s situation and that child was being provided with appropriate food in an endeavour to control his weight. 

16. As to the incident of the child stealing someone else’s food at school, it may well be that the child thought that things that appeared in other children’s lunchboxes were more attractive than the food he was provided with.  I am not told at any time what food he was said to have stolen, whether it was what might be described as basic food or whether it was something more attractive, but not as good for him, having regard to his weight.

17. The father’s evidence clearly indicated to me that he is heavily dependent upon his present wife to organise and direct him.  I am of the view that, having heard from both he and his wife, without her assistance, direction and involvement, the father would find things very much more difficult than he has to date.

18. The maternal aunt was clearly endeavouring to assist her sister (the mother) and, I am satisfied, she has been quite involved in the boy’s lives.  She supported her sister in the hearing before me and clearly dislikes the father.  However, she works full time, which is to her credit, and the amount of assistance she could provide during the week, which is, of course, the time the mother asserts the children should live with her, would be indeed minimal.

19. Mr Q had prepared two reports in these proceedings.  Those reports deal with the alcohol use or abuse of each party.  His oral evidence, however, I found to be compelling and of great assistance.  He had been shown documents, which he made clear were not directly within his field of expertise.  He spoke of a number of available tests and what could be made of them.  He made it clear to me that his view was consistent with, but not determinative of, a finding that there was no abuse of alcohol on the part of the father as a result of the material he saw.

20. I accept his evidence, particularly as Mr Q went to entirely appropriate lengths to make it clear what his expertise was and what it was not.  I am prepared to accept that he has been involved in the treatment of alcohol dependency for a long period of time and, whilst not a medical practitioner, can indeed make something of the content of the reports that he read.  I therefore accept his evidence.  I find that the father is not abusing alcohol at this time.

21. The paternal grandfather is clearly actively involved with the subject children, effectively on an almost a daily basis.  I am aware from the material tendered that he and his son (the father) in the past have been on poor terms.  However, I am satisfied that when he gave his evidence before me, he and his son had recovered a degree of stability in their relationship.  I am satisfied that the paternal grandfather is a loving parent and grandparent.  Having said that, I am also satisfied he is a person who has no illusions about his son and the difficulties that have beset him in the past.  I am satisfied that the paternal grandfather, if he felt it were necessary, would intervene so as to protect the subject children.  I am satisfied he would not in any way cover up, disguise or camouflage the drinking of his son if he believed his son had returned to consuming alcohol.

22. The father’s present wife, Ms L, was the last witness called.  I considered her to be down to earth and practical.  She is clearly, as she said in words to the same effect, the brains of the operation.  She is a person who has done the hard yards within the household and family and, to some extent, has relieved the father of responsibilities that should be his.  She is certainly aware of her husband’s shortcomings.  Clearly, it has fallen to her to manage and arrange, not only things for her husband and herself, but for the subject children who are presently living with them. 

23. I am satisfied she decides what has to be done and then, where possible, delegates the doing of it to her husband (the father), but retaining at all times overall control in her hands.  She has paid, from her own funds, money for treatment of the subject children.  She paid for B’s school transport at a time when there was a difficulty within the Department of Education for those travelling to school by subsidised bus.  She is clearly the father’s greatest asset.

The Family Consultant’s Reports

1. The contents of the Family Report prepared by Family Consultant Ms M has been of assistance to me in this matter.  I do not proposed to detail the entirety of it in these reasons for Judgment, but the report clearly identifies, in far more detail than the mother’s own evidence, that which she asserts to be the shortcomings in the father’s home.  She clearly identifies the wishes of the subject children, and it cannot be denied that the children have said that they wish to live with their mother.  However, and I will return to this shortly, the Family Consultant sounds a real caution, having regard to the level of the cognitive functioning of both the boys.

2. The Family Report also deals in far greater detail than the father does as to what his case is, and it significantly makes mention to various assaults that he alleges against the mother. 

3. I have read the criminal histories of both parties and it appears to me that the mother has on a number of occasions been convicted of assault.  I have read the entries produced by police in relation to police being called in respect of the mother and male persons.  There is no doubt that there are a significant number of occasions where the mother has claimed that she is in need of assistance from police because of what has been done to her by a male partner.  Unfortunately, as someone in the New South Wales Police service has redacted the name of all those persons, I am unable to ascertain whether it was Mr E or whether it was some other person referred to in that material.  Mentioned during the hearing as partners of the mother since the parties separated were Mr E and a Mr T.  Certainly, the number of those incidents as disclosed in the police subpoenaed material is disquieting.

4. That is the evidence that I would wish to review in these reasons for Judgment.

5. I turn then to the law to be applied.

The Law to be Applied

1. The first of the sections to which I must have reference is section 60CC(2) of the Family Law Act 1975 (Cth) as to the primary considerations in parenting matters. Those considerations are as follows:-

   (a) the benefit of the child of having a meaningful relationship with both of the child’s parents; and

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

2. A balancing act is required in relation to the primary considerations.

3. In reaching a determination concerning the primary considerations, I am referred to the additional considerations, which are set out in section 60CC(3) of the Act.

4. The first of these subsections deals with any views expressed by the children and factors underlying those views (subparagraph (a)).  Clearly, as I have said, the subject children have expressed a wish to live with their mother.  The Family Consultant makes it clear that those wishes are to be given minimal weight because of both of the boy’s cognitive reasoning deficiencies.  I accept that to be so and therefore I accept that no great weight should be placed on the boys’ wishes as a result.

5. Further, I am of the view that when the boys have spent time with their mother, that time has been enjoyable and made more so by both the mother and her sister making available to the boys freedom and activities that perhaps they do not enjoy in their father’s home, where they are made to be the subject of discipline and have time structures as to going to school, homework and so forth.  I am satisfied that the boys, having regard again to their mental development, have been invited, wittingly or unwittingly, to enjoy themselves more in the mother’s home and thus they find spending time in their father’s home less enjoyable than it actually is.

6. The next consideration is the nature of the relationship of the children with each of their parents and other significant persons (subparagraph (b)).  I am satisfied that the children dearly love their mother.  I am satisfied that she loves them.  Certainly, she would wish to change the nature of the relationship she presently has with them from being a spend time with parent to a live with parent.  I am not satisfied, on what I have heard and read, that the relationship that the mother presently has with the subject children could easily be changed to one where they revert to living with her and where she is their primary provider.  I am satisfied that the subject children love their maternal aunt and, indeed, ask to spend time with her. 

7. I am satisfied that the subject children have said that their father is stern, sometimes angry, and that they perceive that their step-mother does not love them as much as she might.  However, I am satisfied the relationship these boys have with their father and step-mother is the most significant relationship for them. 

8. I am satisfied that the subject children certainly enjoy a close, loving and consistent relationship with their paternal grandparents who, as I have said, they see on an almost daily basis.  I am satisfied the boys have a close attachment to their youngest brother.  I am satisfied that with their younger brother living with the paternal grandparents, the subject children currently see their brother on almost a daily basis and have an extensive opportunity to interact with him. 

9. I am also satisfied that the boys have a closer relationship with their half-sister, H, than perhaps they were at first prepared to indicate. 

10. In the mother’s household the children would see their mother and their maternal aunt.  In their father’s household, they see their father, their step-mother, a great deal of their younger brother, they live with their youngest half-sister and they have a close and ongoing relationship with their paternal grandparents (with whom their younger brother lives).

11. I turn then to the willingness and ability of the parents to facilitate a relationship between the children and the other parent (subparagraph (c)).  Neither party does at all well under this particular subparagraph.  The father in his evidence made it clear that he had not thought to try and involve the mother, and I was not particularly impressed with his assertion that he would do better in the future.  The mother, while certainly not having the subject children living with her, I also found not particularly keen to encourage their relationship with the father.  Indeed, my impression from her evidence was that she was quite willing to be destructive of that relationship to achieve the result she sought. 

12. The next matter I will consider is the likely effect of any changes in the children’s circumstances (subparagraph (d)).  If I accede to the mother’s application, or something approaching it, the children’s circumstances will be changed.  They will move away from the household in which they have lived for some years.  That is the household which in 2007 their mother thought was the best place for them to live.  They would lose their day-to-day relationship not only with the father and step-mother, but with their half-sister and to a very large extent with their younger brother and paternal grandparents whom, as I have already said, they see on an almost daily basis.  To my mind, that, of itself, would be a very significant change. 

13. Notwithstanding what the boys appear to say (as to their wishes in relation to living arrangements), and the mother’s blasé attitude that if the boys went to live with her everything would be all right and she would do something about it then, I am satisfied that having regard to these boys and the particular difficulties both of these boys face, a change would have a far more negative effect upon them than would be the situation if they remain living with their father.

14. I turn then to the practical difficulty and expense of the children spending time with and communicating with a parent (subparagraph (e)).  There are existing Orders in force.  The mother appears to comply with those Orders in part, but not particularly with respect the provision for her having the children for longer periods of time during school holidays.  Indeed, in my view, this could be seen as a precondition of her seeking to change the children’s residence from the father to herself.

15. Next is the capacity of the children’s parents and other persons to provide for the needs of the children (subparagraph (f)).  The father and his present wife are an effective team.  If I were dealing only with the father, that which I am about to say, would be different.  However, with the assistance of his present wife, the father is, I am satisfied, able to provide for the needs of the subject children.  I am satisfied that he does clothe them adequately.  I am satisfied they are properly fed.  I am satisfied that they go to their medical appointments.  I am satisfied they get to school.  All of those things are to a greater or lesser extent down to his present wife with the assistance of the father, rather than the other way around.

16. The mother, as I have said, simply says, in words to this effect, “let me have the boys and I will prove my capacity.  I will do all the things that have to be done.  I will make all the arrangements and changes and everything will be fine.”  I do not accept that is the case. 

17. So far as the children’s maturity is concerned (subparagraph (g)), I take into account that both boys have developmental delays and require special education.  I am concerned that in the past the mother appears not to have recognised this and thought that there was something disadvantageous to the boys being enrolled in special education classes.  I accept that she now has come to the conclusion that such classes are necessary for the boys.  My concern is it only appeared to be during the course and conduct of this hearing that she made that concession. 

18. As to the attitude to the children and the responsibilities of parenthood (subparagraph (i)), I am satisfied both parents love the children.  I am not satisfied that the attitude of either of the parents is exemplary.  I am satisfied the father, to a very large extent, is saved by his present wife.  The mother, in my view, is as much, if not more, concerned with winning the contest and being proven right than actually assuming the care of these children.  To that extent, I am satisfied that she has been prepared to see the children as a means of punishing the father for what she perceives he has done to her by keeping the children from her.

1. I take into account family violence involving the children or a member of the children’s family (subparagraph (j)).  I am satisfied that the mother has been involved in episodes of domestic violence at the hands of a number of previous partners.  She has also been convicted of perpetrating a number of assaults herself.

2. I am not satisfied or convinced that if the children were to return to live in her household there would be no risk of violence reoccurring.  I am concerned by the mother’s evidence that Mr E seems to come at present to her home every six weeks or so to deal with mechanical issues involving her car.  I am also concerned with the mention of Mr T in respect of whom apparently allegations were also made.  I am not satisfied that the mother would be able to adequately protect the children if they were to live with her and one or more of these men in some way sought to come back into her life. 

3. It seems to me then that a balancing exercise is in play between the benefit of a meaningful relationship with both parents and the need to protect the children from any risk of harm.  “Meaningful” is of course not defined in the Act.  Brown J in Mazorski & Albright[1] concluded that the phrase did not involve or connote quantitative concepts.  Her Honour was satisfied that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive (sic) one.”[2]  I am satisfied, having regard to the matters discussed by Bennett J in G & C[3], that what is required is an evaluation of the extent to which a relationship is going to be of advantage to a child.

   [1] [2007] FamCA 520

   [2] Ibid at paragraph 26.

   [3] [2006] FamCA 994

4. I am satisfied that when conducting a balancing exercise in this case, I find the need to protect the subject children takes precedence over the benefit of having a meaningful relationship with both parents.

5. The next of the matters to which I must turn is section 61DA.  This deals with the presumption of equal shared parental responsibility when making parenting orders.  The presumption can either be found not to apply in the case of abuse, or in the event the whole of the evidence indicates that it should be rebutted.  In this present case, the mother’s position is now that there should be equal shared parental responsibility.  That is also the father’s position.  I am of course not bound by what the parties say and I must make my own determination.  The violence, to which I have referred, is such that, in my view, it does not of itself make the presumption not apply. 

6. Were I not to allocate equal shared parental responsibility, one or other of these parties would be very much excluded from the lives of these children in the sense of being involved in the decisions that parents must make on behalf of their children.  At one level that which has occurred in the past might well indicate that such a hope is a pious one.  I am left with an uncomfortable feeling that no matter whom the children live with, and no matter what order the Court makes, these parents will find it very difficult to cooperate and communicate and establish trust in each other to the extent that would be required to make equal shared parental responsibility workable.

7. I am not satisfied, however, that subsection (4), providing for the presumption to be rebutted by the weight of the evidence, has been met.  I am satisfied that, notwithstanding the difficulties I have expressed, I should make an order for equal shared parental responsibility.  The parents will have to make the best of this as they can.  That will mean that from this time onward they will have to deal with each other by virtue of that order.  This will require them to act in a much different manner towards each other than they have done in the past.  They will have to communicate with each other, and if that is not easy, then so be it.  The situation is that if they want to share parental responsibility, and both of them seek this course, then they will have to make the most of the situation.  This may well mean some frustration, some anger, and some uncomfortable feelings towards the other. 

8. In this regard, I will make an order for the parties to initially communicate by email or by SMS text.  I hope that the parties will try to move forward in this regard and understand that they are getting exactly what they asked for, that is to say, equal shared parental responsibility, and the obligations that go along with it.

9. Having found that equal shared parental responsibility is appropriate, I must then consider, pursuant to section 65DAA of the Act, whether equal time or significant and substantial time is in the children’s best interests.  Neither party seeks equal time, but, again, that is not the end of the matter.  In my view, when one examines the practicality of the situation, equal shared time would be impossible to effect.  This would mean as to schooling that one or other of the parties each week, or however long the period of time that the children were to spend time with each parent, would be travelling considerable distances to schools.

10. In my view, the prospect of these children spending equal time in one household and then the other, with the level of distrust and the lack of communication that presently exists between these parties, notwithstanding what I have said about equal shared parental responsibility, would make such an arrangement entirely impractical.

11. I turn then to the consideration of substantial and significant time.  Substantial and significant time must be time that, if possible, includes school and non-school time, week and weekend time, and is as balanced as possible.

12. I therefore have to decide where is best for these children to live and what arrangements should be put in place for them to spend time with the other parent.  I am satisfied that, in this case, all of the evidence, and the lack of evidence on the mother’s part, clearly indicates that the children must remain living with their father.  I am satisfied that, in the circumstances, it is entirely appropriate that the parties, for the reasons I have endeavoured to set out, should have equal shared parental responsibility.  I am satisfied that the existing Orders, in effect, should continue as to the provision of time the mother is to spend with the boys.

13. However, I would hope that in the event that the mother elects not to spend holiday time with the boys (as is provided under the existing Orders), that she would notify the father of this fact so that other arrangements can be made for the children during such school holiday time.  I propose to discharge the existing Orders and then remake them in identical terms, together with the additional orders that I propose to make.  The purpose of this is so that all the orders in respect of these subject children will appear in the one single set of orders.

14. Accordingly, the orders that I make are those set out at the commencement of these reasons for Judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Collier delivered on 25 October 2012.

Legal Associate:       

Date:    13 December 2012