Hill and Johnston
[2017] FCCA 772
•20 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HILL & JOHNSTON | [2017] FCCA 772 |
| Catchwords: FAMILY LAW – Parenting – with whom the child shall live – DHHS involvement – child from another relationship removed by the DHHS – consideration of 60CC(2) and (3) factors of the Family Law Act 1975 (Cth) – issues of neglect – child live with the father – child spend time with the mother. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 68L Children, Youth and Families Act 2005 (Vic), ss.162, 274 |
| Applicant: | MR HILL |
| Respondent: | MS JOHNSTON |
| File Number: | MLC 8923 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hale |
| Solicitors for the Applicant: | Peter Lynch |
| The Respondent: | In Person |
| Counsel for the Independent Children's Lawyer: | Mr Lethlean |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates Pty |
THE COURT ORDERS THAT:
All previous parenting orders are discharged.
The mother and father have equal shared parental responsibility for the child MS JOHNSTON born (omitted) 2010 (‘the child’) save for parental responsibility for the child’s education in relation to which the father shall have sole parental responsibility.
The child live with the father.
The child spend time and communicate with the mother as follows:-
(a)each second weekend from 5.00pm Friday until 6.00pm Sunday to commence on the second weekend following the child commencing to reside with the father;
(b)during the second half of each Victorian gazetted school term holiday period commencing at 10.00 on the middle Saturday of each term holiday and ending at 12.00 noon on the last Saturday of each term holiday;
(c)during the second half of the Victoria gazetted Christmas holiday period commencing at 10.00am on the midpoint day with the child to be back residing with the father 48 hours prior to the commencement of the new school year;
(d)in the event that the child's birthday does not fall on a day that the mother would normally spend time with the child, for at least three hours on the child's birthday at a time to be agreed and failing agreement, from 3.30pm to 7.00pm on a weekday or 2.00pm to 6.00pm on a weekend with the child to be collected by the mother from school or the father’s residence and returned by the mother to the father’s residence;
(e)in the event that the mother's birthday is not a day that the mother would normally spend time with the child, for at least three hours on the mother's birthday at a time to be agreed and failing agreement, from 3.30pm to 7.00pm on a weekday or 2.00pm to 6.00pm on a weekend with the child to be collected by the mother from the school on a school day or the father’s residence on a weekend and returned by the mother to the father’s residence;
(f)in the event that Mother's Day is not a day that the mother would normally spend time with the child, from 5.00pm on the preceding Friday to 6.00pm Mother's Day;
(g)by telephone at all reasonable times with the mother to instigate the call; and
(h)at such other and further times as agreed between the parties by text message or other form of written agreement.
The mother’s time with the child be suspended as follows:-
(a)in the event that Father's Day is a day that the mother would normally spend time with the child, from 5.00pm on the preceding Friday to 6.00pm Father's Day; and
(b)in the event that the child's birthday falls on a day that the mother would normally spend time with the child, for at least three hours on the child's birthday at a time to be agreed and failing agreement, from 3.30pm to 7.00pm on a weekday or 2.00pm to 6.00pm on a weekend with the child to be collected by the father from the mother’s residence and returned by the father thereto.
Unless otherwise agreed in writing by the parties or specified in these Orders, changeover for the child to move between her parents or their agents, occur at (omitted) Post Office.
The child attend (omitted) Primary School or otherwise as determined by the father. The father is to give to the mother at least 60 days prior notice of his decision as to the child’s future school enrolment.
Each party provide the other with their current address, mobile telephone number and email details and within 14 days notify the other party of any additions or changes to those details.
The parties advise each other as soon as practicable of any significant illness and/or injury suffered by the child whilst in their respective care and/or care periods along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child.
Both parties shall be entitled to receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents and shall make their own arrangements with respect thereto.
The parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence and/or hearing of the said child, and from permitting any other person so to do.
The Order made 15 June 2015 appointing the Independent Children’s Lawyer be discharged.
Otherwise all extant applications are dismissed and the matter removed from the list.
Pursuant to r.21.15 of the Federal Circuit Court Rules 2001 (Cth), the Court certifies that it was reasonable for the parties to employ an advocate.
IT IS NOTED that publication of this judgment under the pseudonym Hill & Johnston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8923 of 2013
| MR HILL |
Applicant
And
| MS JOHNSTON |
Respondent
REASONS FOR JUDGMENT
Preliminary
In these proceedings, each of the Applicant father, Mr Hill born (omitted) 1962 and the Respondent mother, Ms Johnston born (omitted) 1976 seek parenting orders with respect to their daughter X born (omitted) 2010 (‘X’). X is now six years of age and nearly 5 months. The Independent Children’s Lawyer seeks parenting orders in similar terms to those sought by the father.
There has been prior litigation between the parties concerning both the residence of X and X spending time and communicating with her father.
On 19 February 2014, the Court made final parenting orders in its (omitted) circuit sittings, relevantly as follows:-
“…
2. The mother have sole parental responsibility for the child MS JOHNSTON born (omitted) 2010 (“the child”).
3. The child live with the mother.
4. The father’s time with the child be reserved.
5. The father be authorised to obtain information regarding the child’s health and wellbeing from any medical or other professional involved with the child.
6. The father be at liberty to obtain from the child’s day-care centre, kindergarten or school at his expense copies of any reports, photographs, newsletters or other information usually provided to parents.
…”
The above orders signalled the end of litigation which had commenced with the father filing an application in October 2013 seeking to spend time with X. In essence, the father withdrew from the proceedings.
In May 2014, the Department of Health and Human Services (‘the DHHS’) became involved with the mother’s family via the DHHS Child Protection Unit (‘Child Protection’). Child Protection had received a report in relation to concerns that the mother had assaulted W born (omitted) 2006 (‘W’), a sibling of X. W was approximately eight years old at the time. Further concerns were raised in that report around the unrealistic expectations placed on W by her mother, and information given that W was providing basic care and being an attachment figure for her younger siblings. Child Protection investigated the matter. Grounds as set out in s.162(c) and (e) of the Children, Youth and Families Act 2005 (Vic) (hereafter referred to in paragraph 9) were established by the Children’s Court of Victoria at Ballarat in 2014.
The proceedings in the Children’s Court of Victoria at Ballarat in respect of W were listed for final hearing in October 2014 and August 2015, with a decision being handed down on 26 November 2015. In those proceedings, the mother in these proceedings and W’s father, Mr B, gave evidence and were the subject of cross-examination. Other witnesses also gave evidence in the proceedings. The DHHS urged the court to make a finding that the requirement of s.274(a) of the Children, Youth and Families Act 2005 (Vic) had been satisfied and that the protection application was proven. Section 274(a) is as follows:-
“CHILDREN, YOUTH AND FAMILIES ACT 2005 - SECT 274
When Court may make order under this Part
The Court may make an order under this Part in respect of a child if the Court finds—
(a) that the child is in need of protection; or
(b) that there is a substantial and irreconcilable difference between the person who has care of the child and the child to such an extent that the care and control of the child are likely to be seriously disrupted.”
The DHHS and W’s father submitted to the court that it should make a twelve month supervision order in respect of W providing for W to live with her father, Mr B. The court found the protection application proven and made orders as sought by the DHHS and Mr B for twelve months. Thereafter and in November 2016 the DHHS sought effectively a twelve month extension of the supervision order. At trial, W remained living with her father.
Otherwise, the terms of the order made by the Children’s Court of Victoria in November 2015 were relevantly as follows:-
“(a) The mother must accept visits from and cooperate with DHHS.
(b) The father must accept visits from and cooperate with DHHS.
(c) The mother must accept support services as directed by DHHS.
(d) The father must accept support services as directed by DHHS.
(e) The father must advise the nominated DHHS worker of any proposed change of address on 24 hours notice prior notice.
(f) The mother must not hit or hurt the child for any reason.
(g) The father must ensure that the child attends formal schooling each of the school year, save for circumstances of illness, in which case a medical certificate is to be provided to the relevant school principal within 24 hours and a copy of the same provided to DHHS.
(h) The maternal grandmother may have access with the child at times and at places as agreed between the father and the maternal grandmother.
(i) The maternal grandfather may have access with the child at times and at places as agreed between the father and the maternal grandfather.
(j) Save for any periods of joint counselling or family therapy undertaken in accordance with condition (m) below, the mother may have access with the child:
(i) for a minimum of three times per week at times and places as agreed between the parties. Such access will be supervised unless DHHS (having received a report recommending non-supervision of access) assesses that such supervision is not necessary;
(ii) for a minimum of three times per week by telephone (to a maximum of 30 minutes) with the mother initiating the call at a time agreed with the father, and the father is to monitor the call unless DHHS (having received a report recommending non-monitoring of access) assesses that such monitoring is not necessary.
(k) The child may have respite with the maternal grandparents or another person assessed as suitable by DHHS. Respite will be as agreed with the father.
(l) The mother must continue to engage with her treating psychologist and allow reports to be given to DHHS as to her attendance.
(m) The mother must attend any family therapy counselling arranged or otherwise facilitated by the DHHS in respect of the (omitted) Centre or other family therapy centre approved by DHHS, and allow reports in respect of such therapy to be provided to DHHS.”
The Children’s Court of Victoria noted in the proceedings referred to above its expectation that W’s time with her mother would increase as soon as progress in relation to required family therapy had been made by the mother, sufficient for the therapy provider to make recommendations as to the frequency of time spent with between the mother and W, and as to whether ongoing supervision or monitoring was required. There had been little progress at the time of trial in this Court in relation to an enlargement of the mother’s time spent with W due in part to the mother’s refusal to spend time with W in the presence of W’s father, a person deemed appropriate by the DHHS. Instead, the mother has spent only one occasion each week with W, supervised by the DHHS, and limited unsupervised time with W at the school gate when collecting X from school. The mother has not instigated telephone communication with W. The proceedings in respect of W had as participants in the proceedings (which took place over a period of eight days), the maternal grandparents, who submitted to the court that W was in need of care and protection and that the court nominate Mr B as “the custodial parent”.
The next piece of relevant litigation was in respect of X and her sibling Z's when the DHHS filed a protection application in respect of those children on 25 August 2014 in the Children’s Court of Victoria at Geelong. The application sought orders pursuant to s.162(1)(c) and (e) of the Children, Youth and Families Act 2005 (Vic). Those sections are as follows:-
“(1) For the purposes of this Act a child is in need of protection if any of the following grounds exist—
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type
…”
The protective concerns of the DHHS were substantiated. On 25 August 2014 the court made an interim accommodation order (‘IAO’) in respect of both Z's and X to the mother. That IAO was breached on 1 September 2014 when, as a consequence of the mother presenting at the (omitted) Health Services Emergency Department with thoughts of self-harm, a further IAO was made to an out of home service. In this foster care environment the evidence before the Court established that X, who at 3 years and 10 months of age was not toilet trained, became so, and that her speech, which Ms M described as ‘unintelligible’ improved. X and Z's were returned to their mother’s care by a further IAO to the mother on 15 December 2014. A condition of such return was that the mother engage with the organisation known as ‘Families First’. By that time X’s youngest brother Y had been born and he also was subject to a Supervision Order being also found to be in need of care and protection. He too was placed in his mother’s care.
Throughout their investigations in 2014 and 2015, Child Protection provided for the father to have supervised weekly visits with X. These were initially supervised by the DHHS and then by Ms M, the father’s now wife. These supervised periods increased from periods of three hours to periods of eight hours duration upon Child Protection, in March 2015, receiving a report prepared by forensic psychologist Ms W, who had engaged in personal counselling with the father from August 2014. Ms W assessed that the father had successfully extinguished any previous tendency towards attraction to pre-pubescent girls, a matter of historic concern and a predilection volunteered by the father to the mother early in his relationship with the mother, and Ms W unequivocally supported the father’s parenting capacity (Ms W’s assessment is more fully canvassed hereafter in these reasons). Upon the father commencing these proceedings, the first of a series of time spent with between X and the father Court orders, made on the 18th day of June 2015, was in identical terms to that time provided by the DHHS save the father did not seek time with X on the first Saturday of each month, hoping that X would spend that time with her maternal grandparents. The mother refused to allow any time with the maternal grandparents to occur.
The father filed the current application seeking parenting orders with respect to X on 22 May 2015. His application was lodged after Child Protection ceased for the most part, their involvement with the mother’s family on 13 May 2015. That withdrawal left no mechanism by which the father, his wife, the maternal grandparents and the mother’s extended family could freely spend time with X save for the institution of court proceedings. The fact that there were changed circumstances existing, which required a further consideration of what parenting orders were in the best interests of X beyond the final parenting orders of February 2014, was conceded by all parties. In that initiating application, the father sought that X live with him. The initiating application was amended by amended initiating application filed on 7 March 2016. Both the initiating application and the amended application named as the Applicants in the proceedings the father and his wife, Ms M. By further amended initiating application filed on 24 June 2016, it was only the father who sought parenting orders in respect of X, he and his wife having determined that to proceed in that manner was in the best interests of X.
Pursuant to an order made on 8 December 2015, Ms H, the maternal grandmother, was joined as a party to the proceedings. By further order made on 9 August 2016, the Court granted leave to the maternal grandmother to withdraw as a party to the proceedings. The maternal grandparents became witnesses of the father in the proceedings. Additionally, and by order of 15 June 2015, the Court ordered that, pursuant to s.68L(2) of the Family Law Act 1975 (Cth) (‘the Act’), X be separately represented, and as a consequence of the making of that and other consequential orders, an Independent Children’s Lawyer became a party to the proceedings. When the final hearing commenced, the parties were the mother, father and the Independent Children’s Lawyer.
The father sought that he and the mother have equal-shared parental responsibility of X and that X live with him. In the alternative to the residence arrangement proposed by the father, the father sought that X spend time with him:-
a)during school term every second weekend from after school Friday to 6.00pm Sunday; and
b)for one half of the school term and Christmas holidays.
The father sought that if X resided with him, the mother be afforded the same ‘spend time with’ regime. The father further sought that X attend the (omitted) Primary School.
The mother in her response filed 17 June 2015 sought a sole parental responsibility order in her favour with respect to X and that X live with her. She sought the father have supervised time spent with X and it be for three hours each alternate weekend and otherwise very limited special occasion days in the same manner. Thereafter, she proposed to the Court that the father spend time with X for one day of a weekend every two to three weeks in accordance with X’s wishes. She sought such time take place in (omitted) being in her locale. She sought, should X reside with her father, an order for equal shared parental responsibility and that she spend ‘every available minute possible’ with X. She noted in her evidence however the difficulties in seeing X with considerable frequency given the geographical distance between the parties respective homes and her need to care for her other children and make them available to their father. The mother sought an order that X be home-schooled, but in the event that the Court would not make such an order, she indicated her preparedness to continue X’s enrolment at the (omitted) Primary School, albeit a school she did not have a high opinion of. The mother also sought an order that the father not consume alcohol whilst X was in his care.
The Independent Children’s Lawyer in outline of case document dated 9 August 2016 and filed in the proceedings expressed a view that a change of residence of X from her mother’s home to her father’s home may be warranted. The Independent Children’s Lawyer expressed concern in relation to the mother’s ability to encourage and foster a meaningful relationship between X and her father and further expressed concern that X’s continuing residence in the care of her mother may pose an unacceptable risk of emotional and psychological harm to X. In closing, the orders sought by the Independent Children’s Lawyer were those as sought by the father, as referred to earlier in these reasons.
Orders in relation to Z and Y were made on 2 December 2016 in the Federal Circuit Court at the Ballarat circuit sittings. Mr I, the father of these children, now resides in (omitted) in (omitted). The orders accommodate that residence on a Sunday meaning the mother is required to travel to (omitted) each Sunday. Some consideration will need to be given by all the parents involved to the perhaps impracticality of that in light of the changed residence arrangements for X consequent to the making of these orders. I understand those arrangements for Z and Y are to be revisited next month. Those orders made 2 December 2016 are as follows:-
“(1) The children Z (also known as Z) born (omitted) 2013 and Y born (omitted) 2014 live with the mother.
(2) The children spend time and communicate with the father as follows:
a) Each Thursday between 9am and 4pm;
b) Each Sunday (except 01/01/2017) from 10.30am to 6.30pm, except Christmas Day 2016 when the father shall spend time with the children 9am to 7pm;
c) On Boxing Day 2016 from 9am to 5pm with changeover at (omitted) Post Office at commencement and (omitted) Primary at conclusion;
d) By telephone each Monday 5.15pm to 5.30pm and the mother endeavour to be contactable;
e) As otherwise agreed between the parties in writing.
(3) Orders 1 & 2 of the Orders dated 7 September 2016 be discharged.
(4) The mother shall spend time with the children on New Year’s Day 2017 and the father’s Sunday time will occur (on that occasion only) on Tuesday 3 January 2017 being 10.30am to 6.30pm with changeover at (omitted) Primary.
(5) The mother shall forthwith enrol the child Z in (omitted) Kindergarten for 2017 and provide evidence of enrolment with the father to be notified immediately of all absences.
(6) Both parties:
(a) Ensure the children, particularly Z, go to the toilet immediately before they return the child to the other parent.
(b) Inform the other parent as soon as practicable in the event that the children, or either of them, are ill or injured and/or hospitalised.
(c) Ensure the children attend changeover in appropriately-sized clothing that has been laundered.
(d) Ensure the children are bathed daily.
(e) Keep the other parent informed, within 48 hours, of any change of mobile telephone number and/or their residential address.
(7) Changeover take place at (omitted) Post Office on Thursdays and (omitted) Primary on Sundays.
(8) If Z cannot be enrolled at (omitted) Kindergarten, he will take his place at (omitted) Kindergarten.
(9) The mother do all such acts and things and sign all documents necessary to record the father as the father on Z's birth certificate, at the father’s cost.
(10) Until further order, the father, his servants and agents be and are hereby restrained by injunction from
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the mother, and
(b) discussing these proceedings,
to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
(11) Until further order, the mother, her servants and agents be and are hereby restrained by injunction from
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the father; and
(b) discussing these proceedings,
to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
(12) The mother authorise Medicare and the immunisation register, together with (omitted) Group Practice to provide the father with all medical and immunisation records for the children (Medicare number (omitted) with Z being number 5 and Y being number 6).
…”
For completeness sake, interim orders made in these proceedings post June 2015 are set out hereafter. They continued X’s residence with her mother and siblings and provided for increased time spent with her father. Such time progressed from supervised to unsupervised time and from daily to overnight to include holiday periods. On 22 March 2016 the Court made further interim orders, relevant as follows:-
“(1) Order two of the Orders dated 18 June 2015 be discharged.
(2) The child X born (omitted) 2010 (‘the child’) spend time with and communicate with the father as follows:-
(a) from 2:00pm on 26 March 2016 to 4:00pm on 27 March 2016;
(b) from 2:00pm on 1 April 2016 to 4:00pm on 2 April 2016;
(c) from 2:00pm on 8 April 2016 to 4:00pm on 9 April 2016;
(d) from 10:00am on 23 April 2016 to 4:00pm on 25 April 2016;
(e) from the conclusion of school on 6 May 2016 to 4:00pm on 8 May 2016;
(f) from the conclusion of school on 20 May 2016 to 4:00pm on 22 May 2016;
(g) from the conclusion of school on 3 June 2016 to 4:00pm on 5 June 2016;
(h) from the conclusion of school on 17 June 2016 to 4:00pm on 19 June 2016;
(i) from 4:00pm on 1 July 2016 to 4:00pm on 6 July 2016;
(j) from the conclusion of school on 15 July 2016 to 4:00pm on 17 July 2016; and
(k) such other times as maybe agreed between the parents in writing including SMS.
(3) In order to facilitate changeover when same does not occur at the child’s school the father or his nominee shall collect the child from the mother’s residence at the commencement of time and the mother and father or their nominee shall meet in (omitted) outside the Police Station at the conclusion of time.
(4) The parents forthwith do all acts and things necessary to cause the child to commence Term two of the 2016 school year at (omitted) Primary School.
THE COURT ORDERS THAT:
(5) The mother shall do all acts and things necessary to ensure that the father is listed as an emergency contact for the child with (omitted) Primary School.
THE COURT ORDERS, BY CONSENT, THAT:
(6) The parents shall be entitled to:-
(a) receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents;
THE COURT ORDERS THAT:
(b) attend all school related events including but not limited to assemblies, sports day and concerts that parents are normally invited to attend.
THE COURT ORDERS, BY CONSENT, THAT:
(7) The parents advise each other as soon as practicable of any significant illness and/or injury suffered by the child whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child.
(8) The Maternal Grandmother spend time with and communicate with the child as agreed between her and the Applicants, but not to include overnight time.
THE COURT ORDERS THAT:
8B. The maternal grandmother is restrained by herself, her servants and/or agents from discussing, in the presence and/or hearing of the child the following:-
the mother’s unmarried status; and
the maternal grandmother’s religious beliefs.
On the 12 August 2016 the Court made further interim orders, relevantly as follows:-
“…
(2) Until further order X born (omitted) 2010 (‘X’) continue to attend the (omitted) Primary School.
(3) Until further order X live with the mother.
(4) Until further order X spend time and communicate with the father as follows:
(a) for three consecutive weekends in each four commencing Friday 12 August 2016 from after school (approximately 3:20pm) until 4:30pm Sunday with the father or his agent to collect X from school and return her to the (omitted) Police Station where changeover between the father or his agent and the mother or her agent shall occur outside such Police Station. In the event Friday is not a school day (by virtue of it being a public holiday and/or school curriculum holiday);
(b) in the September/October school holidays from the end of the school day on the last day of school of Term 3 until 5pm on the middle Saturday of the school holidays with the father or his agent to collect X at the commencement and the parties or their agents to attend changeover at (omitted) outside the Police Station, at the conclusion;
(c) at the conclusion of the September/October school holidays and being the last weekend before the resumption of the school Term 4 from Friday at 3:20pm to Sunday at 4:30pm . This weekend shall become the commencing weekend of the three consecutive weekends in the four week cycle referred to in Order 4 herein. The father to collect from the wife’s home and on return changeover to be outside the (omitted) Police Station;
(d) on X’s birthday being (omitted) from 3pm to 6pm in (omitted) if it is the fourth weekend in the four week cycle and otherwise by telephone with the wife to instigate the call to (omitted) at 4pm; and
(e) at all reasonable time by telephone with the father to instigate the call.
(5) X is to sleep in her own bed in both her mother and father’s household.
(6) Order 8 of 22 March 2016 is discharged.
(7) Until further order the mother is restrained from discussing with X the mother’s views as to home schooling or allowing any other child in the household or person to do so.
...”
On 16 December 2016 the Court made further interim orders, relevantly as follows:-
“(1) The child X born (omitted) 2010 spend time with the father in the school Christmas 2016/2017 holiday period as follows;
(a) from 10.00am on 24 December 2016 until 5.00pm on 1 January 2017;
(b) from 10.00am on 9 January 2017 until 5.00pm on 16 January 2017; and
(c) from 10.00am on 23 January 2017 until 5.00pm on 28 January 2017.
(2) Otherwise the Orders made 12 August 2016 continue in full force and effect.”
One further set of proceedings requires mention. On 28 April 2016 the Magistrate Court of Victoria dismissed the mother’s application for an intervention order against the father wherein she had named herself and her children as proposed protected persons. Such application of the mother was in response to the commencement of the father’s overnight time with X and was tactical, seeking to both stymy and influence inappropriately this Court’s consideration of the proceedings.
The father relied upon affidavit evidence as follows:-
a)affidavits sworn by him on 20 May 2015; 6 March 2017; and 23 June 2016;
b)affidavits of Ms M, the father’s wife, sworn 7 March 2016 and 23 June 2016;
c)affidavit of Mr B sworn 1 March 2016;
d)affidavit of Mr I sworn 1 March 2016;
e)affidavit of Ms E, partner of Mr I, sworn 1 March 2016;
f)affidavit of Ms S, former friend of the mother, sworn 1 March 2016;
g)affidavits of Ms H and Mr L, the maternal grandparents, sworn 27 February 2016 and 21 June 2016;
h)affidavit of Ms R, maternal aunt, sworn 3 March 2016;
i)affidavit of Ms W, consultant forensic psychologist affirmed 9 March 2016; and
j)affidavit of Ms B, Consultant Forensic Psychologist, sworn 1 March 2016.
The mother relied upon affidavit evidence as follows:-
a)affidavits affirmed by her on 3 March 2016; 25 November 2015 and 17 June 2015.
The mother also tendered in evidence as exhibits:-
a)report of Ms A, worker at Families First Child and Family Services, (omitted) dated 25 June 2015; and
b)report of Dr A, clinical and forensic psychologist dated 23 September 2014.
Neither of the authors of these reports were required to be cross-examined by the other parties. These reports really went to the circumstances which existed around the time of the protection application proceedings in respect of the child W. Families First spent approximately 30 hours in the home of the mother and prepared a report for the DHHS during the course of those proceedings. The mother cooperated with the visits of Families First and participated to a high degree. She was anxious to secure the return of W to her home. Ms A noted that the mother had and continued to present when in the presence of Child Protection as either combative or unresponsive however that was not the experience of Ms A who attended the home of the mother for nearly all visits. She found that the mother was capable of reflective dialogue about her family when given the opportunity. Families First also interacted with Mr I who’s ongoing support for the mother at that time assisted in Child Protection’s decision to return Z's and Y to the mother’s care under a Supervision order.
Prior to the intervention of Families First in the lives of the mother and Mr I, Dr A, in September 2014 provided a report which was subsequently made available to Families First wherein she observed the following:-
“From a psychological perspective Ms Johnston is not considered to have a diagnosable mental illness; however, she does present with difficulties relating to interpersonal interactions and reports experiencing difficulties dealing with conflict and with assertive behaviour; both of which are likely to affect the way she presents to and interactions with others. As noted previously, Ms Johnston tends to respond in an intellectual rather than an emotional manner when challenged or confronted and may have difficulty with emotional expression in such contexts. Throughout her assessment Ms Johnston indicated her distress regarding the removal of her children from her care and concern regarding further protective involvement following the birth of her baby; however, she did not present as suicidal or report any prior suicidal ideation. Regarding her reported expression of suicidal ideation at the hospital, it is likely that this expression of her level of distress rather than an indication of risk which may have been further misconstrued due to her interpersonal style.
The current assessment was of Ms Johnston and related to her parenting capacity; rather than an assessment of the children, their best interests or a comparison of alternative care arrangements.
There was no indication during the current assessment that Ms Johnston does not have the skills and attributes which would leave to the capacity to effectively parent her children. Whilst it is clear that there have been concerns in the past, particularly in regard to Ms Johnston’s expectations of W, W’s school attendance and capacity to care for the younger children independently (i.e., without the assistance of her older children), Ms Johnston has expressed a willingness to address these issues in order to facilitate the return of the children to her care.”
The Independent Children’s Lawyer relied upon the family reports of Ms U, family consultant, dated 7 February 2016 and 7 June 2016. The Independent Children’s Lawyer also called as witnesses in the proceedings Ms N; Ms T, whose evidence was limited and not necessary to canvass hereafter; and Ms C.
Statements of fact in these reasons are findings of fact on the balance of probabilities.
Legislation
Section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) requires the Court to make orders that are in the best interests of the child:-
“FAMILY LAW ACT 1975 - SECT 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In determining the best interests of the child, the Court must consider the matters set out in s.60CC(2) and (3) of the Act which are relevantly as follows:-
“ FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
…
Primary considerations
(2) The primary considerations are:
(a) the benefit to 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.”
The Court is mindful of these mandatory considerations when examining the evidence which is set out hereafter.
Evidence
The father resides in (omitted), an (omitted) suburb of Melbourne. He is employed as a (occupation omitted) at (employer omitted) on a salary of approximately $91,000 per annum. He pays and has always paid child support to the mother for the support of X as assessed. The father works flexible hours that will allow him to walk X to school should she attend (omitted) Primary School. Those hours otherwise allow him to be substantially available to X were she in his care. In the hours he is not so available, his wife Ms M is currently at home. The father commenced a relationship with Ms M, a qualified (occupation omitted) in approximately February 2014. Their cohabitation commenced in (omitted) 2014, and they married on (omitted) 2015. Their respective evidence is that they are both committed to their relationship and to X and to the advancement of her welfare. Ms M is the father’s third wife. X is the father’s only child. Ms M has three adult children with whom she has a good relationship.
The mother has five children to four different fathers. She remains at home engaged in home duties and carries out farming tasks on her approximately 28 acre property in (omitted) outside of (omitted). The mother’s children are Ms J born (omitted) 1999 (‘Ms J’), who is now aged approximately 18 years; W born (omitted) 2006 (‘W’), who is now aged approximately 10 years; X born (omitted) 2010 (‘X’), who is now aged approximately six years and fourth months; Z born (omitted) 2013 (known as ‘Z’), who is now aged approximately four years; and Y born on (omitted) 2014 (‘Y’), who is now aged approximately two years. At trial Y was continuing to breast feed.
The father of Ms J is Mr O. Ms J is now an adult. She did not see her father as a child until she was approximately nine and a half years old, and she then saw little of him thereafter. Mr O lives in (country omitted), he was and/or is a (occupation omitted) at (employer omitted). Mr O sends child support payments directly to Ms J. The father of W is Mr B with whom W lives. The father of X is the Applicant and the father of Z and Y is Mr I. Mr I sees Z and Y pursuant to orders of this Court made following the ending of his relationship with the mother in January 2015. He was married whilst conducting his sexual relationship with the mother, who wished for children with him, and was not known to be the father of Z and Y until after Y’s birth. The mother at trial was attempting to have a further child with Mr P. Save for Mr O, each of the fathers of the children placed evidence before the Court in affidavit form.
The mother has now re-partnered with Mr P but they do not reside together. Mr P is in receipt of a disability support pension and resides with his father who is his carer, or was at trial.
The distance between the parties’ homes is around 175 kilometres and it takes approximately 2 hours and 15 minutes to drive one way.
The father and mother met in 2001. In 2006 they commenced a sexual relationship which continued for about 18 months, unknown to the father’s then wife, Ms O. The father and the mother subsequently recommenced their relationship in 2009 and X was born in (omitted) 2010. The father and his then wife had separated some three months prior. Immediately before X’s birth, the mother and her children Ms J and W moved into the father’s rental premises in (omitted). In the next 12 months, the mother and her three children moved between the father’s home and the mother’s then very primitive accommodation, comprising of a shed and later, a caravan, in (omitted), near (omitted). In this 12 month period the father supported the mother financially in the payment of rent and utility bills at (omitted), food and clothing and paid $500 each fortnight in child support payments. The father saw X regularly but usually with the mother present. There were many stresses in the relationship which included the father on one occasion, in 2011, becoming angry with W, who was approximately four years old at the time, and picking her up and shaking her. He further ‘threw her onto the bed’. This was violent and abusive conduct which has never been repeated. The father has always admitted to this conduct and is ashamed and remorseful in respect of it. It did not however lead, at that time, to the parties separation. The relationship was in some respects without commitment, the mother initially seeking to have a child with the father, and the father acquiescing without thinking, at that time, he would be involved in the ongoing daily care of any child that was born to the parties. The mother and father ended their relationship in late 2011 and at the father’s instigation. The mother was upset. X remained living with the mother.
After the cessation of the relationship the father had difficulty in seeing and speaking with X. This pattern was a repeating one with each of the children’s fathers when they tried to keep in contact, in a usual way, with their child or children. Mobile phone reception at the mother’s home in (omitted) was and remains poor. Communication by this means is unreliable. The mother has no landline. The mother would only allow the father supervised time with X, being always in her presence. The father would visit the mother’s home and the mother would visit the father’s home. By March 2013, the mother would allow the father to see X only in the presence of a member of the maternal family. The mother conveyed to the father that no longer was he to take X (as he had done previously in the company of the mother) to parks, the zoo or any type of trip away for any period of time. Some months passed. The father instigated the 2013 proceedings in an attempt to spend reasonable time with X. On 18 November 2013 the father agreed to orders that the maternal grandmother would supervise his time spent with X for X’s birthday at the end of the month and over the following Christmas. By February 2014, the father had determined that the mother would simply never allow him to have a relationship with X and he ceased trying. There were elements of his personality which also contributed to his withdrawal from proceedings.
Dr C
Given the history of the parties, including a history of the father, as set out in reports of experts in evidence in the proceedings hereinafter referred to, psychiatric assessments of the parties were obtained to be put before the Court.
Dr C is a Consultant Psychiatrist who prepared a report regarding the mother dated 30 November 2015. His opinion and recommendations were as follows:-
“Ms Johnston has suffered from significant difficulties in terms of her moods and impulsivity. I believe there are a degree of borderline personality traits although insufficient to diagnose and disorder.
She has a history of a difficult upbringing which is likely to contributed to her relationship difficulties and deficits in her personality development.
I do not find sufficient evidence to diagnose a depressive disorder, but it appears she has had some adjustment-related depressive symptoms in the context of the end of several relationships.
I believe that Ms Johnston lacks insight into her deficits as a parent and I believe that this would interfere with her ability to be reflective about her past issues and implement positive changes.
In my opinion, it would be important for her psychological input to focus on the issue of insight, as well her difficulties with her moods and behaviour. “
Dr C also prepared a report in respect of the father dated 26 October 2015. He had earlier completed a report with respect to the father dated 11 December 2013 for the purposes of the earlier proceedings.
Dr C, in his earlier report, was of the opinion that the father suffered from a dysthymic disorder or chronic depression which was not at the severity as to significantly impact his ability to parent a child. He noted that the father had a history of alcohol dependence that had been in remission since May 2013. He further noted the father, in the context of his reporting a period of about one month of indecent exposure when he was aged 13 years and his describing being attracted to pubescent girls, had never acted on that nor committed any offences of any type since aged 13. Dr C said:-
“Mr Hill was surprisingly frank about his sexual issues, and wants to work on them. This is a positive factor, which is important in terms of further treatment.
He has in the past briefly displayed exhibitionistic behaviours, but these have not continued and he does not meet the threshold for diagnosis of exhibitionism as a disorder.
Whilst Mr Hill expresses a sexual interest in the pubescent age group, his sexual contact as an adult and use of pornography has exclusively involved adult females, so he does not meet the threshold for the diagnosis of hebephilia.”
Dr C’s opinion and recommendations in October 2015 were as follows:-
“My diagnoses are unchanged from my previous assessment, although I find Mr Hill does not have any ongoing signs of the dysthymic disorder or the alcohol abuse.
I do not believe any changes to treatment are necessary.
I believe that Mr Hill has had some interest in exhibitionism clearly but does not meet the criteria for it to be diagnosed a disorder of sexual functioning.
I believe that Mr Hill currently is not showing any signs of hebephiliac or an exclusive sexual interest in pre-pubescent children and I wonder whether part of his preoccupation with his offending has been with the age of victims rather than the exhibitionism itself.
I believe that ongoing psychological work around these issues would be important.
I do not believe that significant current sexual risk exists in relation to his contact with X.”
The evidence of Dr C was not challenged by the parties and is accepted by the Court.
Family Reports
Before moving further through the evidence it is useful to set out here the evidence of Ms U, family consultant, both in the family reports prepared by her and introduced into evidence in the proceedings and in her oral evidence to the Court. Her evidence was pivotal in these proceedings. It was highly persuasive. It was supported by the other evidence before the Court and gave to the Court an expert opinion as to what it was that would promote that best interests of X. Ms U was also empathetic to the situation in which X is now placed. If the decision was to be ruled by the heart she said, then X would remain with her mother. If it was to be determined by the head, then X would live with her father going forward.
Ms U’s family reports were released to the parties on 8 February 2016 and 7 June 2016. Their contents were not challenged to any real extent by the parties, and if challenged not successfully, save and importantly, that Ms U altered her recommendation as to with whom X should now live as described hereafter.
Paragraph 5 of the Family Report released 8 February 2016 is as follows:-
“(5)Limited allegations of family violence have been made. Ms Johnston referred to Mr Hill as being violent towards her child W (age 9 years) during their relationship “three (separate) times he picked her up and threw her”. Ms Johnston confirmed “no family violence against me or against X”. However, Ms Johnston continues to raise concerns about the children’s safety in the father’s care. Documents on file report on Mr Hill’s juvenile history of transgression of sexual boundaries and depression, alcohol dependency and emotional regulation issues as an adult. Mr Hill has presented for various psychological and psychiatric assessments dating from 2013 which consistently report that Mr Hill has addressed these issues in counselling, learnt a range of self-management strategies developed his parenting skills. The various reports conclude that Mr Hill does not present a significant risk if having contact with his daughter, X. DHHS support Mr Hill spending time with X.”
Paragraphs 20 and 21 of the Family Report released 8 February 2016 is as follows:-
“(20) In relation to future parenting arrangements, Ms Johnston suggested “X should have a choice” about whether or not she sought to spend time with her father. Ms Johnston was confident that X did not wish to spend time with Mr Hill and she could see no benefit to X of expecting her to do so. If time was supported by the Court, Ms Johnston proposed for it to be “supervised at the Contact Centre… not by his wife”. Ms Johnston viewed the professionalism of staff at the Contact Centre positively, “they watch you very closely”. In a formally supervised environment, Ms Johnston believed that X would be safe.
(21) Ms Johnston maintained that X was at risk in Mr Hill's care. She opposed extended and overnight time. Ms Johnston went to lengths to impress her belief that all pre-pubescent children were at risk in Mr Hill's care, and as X approached pre-pubescence the child would be placed at higher risk. Despite findings outlined in various assessments and reports, and the DHHS position, which identified little risk in Mr Hill's care, Ms Johnston remained immovable in her view that Mr Hill presented a risk to X.”
Paragraph 37 of the Family Report released 8 February 2016 is relevantly as follows:-
“(37)…X was observed to enjoy a close and connected relationship with her mother and siblings.”
The Family Consultant further noted:-
“(39) Interactions between X and the adults in her life were overwhelmingly positive. Mr Hill and Ms M interacted with X in an age appropriate, energetic and fun loving manner and X was responsive to their efforts. X was observed to seek out Mr Hill's company and contact and they were observed to enjoy a loving relationship. X sat on her father’s (lap) while they read a book together, he encouraged her reading and language skills. No concerns arose with regards to interactions between X and her father and step mother.
(40) Interactions with Ms Johnston were also appropriate. Ms Johnston placed herself at X’s level and engaged in age appropriate activities. Ms Johnston adopted a pedagogical approach of interacting with X which seemed forced at times. Ms Johnston asked X questions in an instructive manner and used statements, affirmations and negations that seemed to dismiss or correct X’s responses to her questions as though X somehow answered wrongly. For example Ms Johnston asked these types of questions “What colour is that? (X responds ‘Red’) Yes, that’s red… but more red-brown because it’s not real red. (And) What colour is that? (X responds ‘Pink’) It’s not pink at all it’s a more purplish pink… more orange pink isn’t it? (And) What's Z's’s favourite colour? (X responds ‘Z likes red’) No, I think he likes yellow more than he likes red. What colour is the ground at our place? (X responds ‘Brown’) Brown yes, but it is a lot of different colours” and other such examples.
(41) While no significant concerns arose with regards to the interactions between Ms Johnston and X, of interest was Ms Johnston's parenting approach of the infant Y (aged 14 months). Ms Johnston kept Y with her at all times, she either carried in in (sic) a front pouch or placed him on the floor. Y walked around aimlessly. He bumped into furniture, walked under the desk and bumped his head causing him to fall constantly. Ms Johnston did not intervene or redirect Y. Y did not cry or show any signs of distress, and Ms Johnston did not speak to Y or offer any soothing words. It seemed that this level of autonomy was typical of Ms Johnston's parenting style.
(42) Seen alone, X spoke of living in two homes, she identified her mother and siblings as living in one home and her father and step mother as living in another home. X informed that W was living with her biological father. X enjoyed living in two homes. In her mother’s home, X identified having many “chores”. She shared “I don’t mind chores but I hate it when everyone tells me all the time to do them”. According to X, her sister Ms J was bossy “Ms J… she shouts at me even when I’ve got a headache… lots of times she says she hates me… she’s mean to me a lot of the time… she yells at me about doing chores”. X said “it makes me feel sad… I feel sad if Ms J hates me”.
(43) X spoke of feeling “safe with daddy and mum” in the separate homes. According to X, “mum is worried… she worries that I am not safe in dad’s home”. X assured “I feel safe with daddy and with Ms M… mum doesn’t need to be worried”. X was aware “mum is worried if I sleep over… because she’s scared daddy won’t bring me back”. X was cautious “I want to sleep over at daddy’s but I’m scared he won’t bring me back”. Provided her father made assurance X was prepared to sleep at Mr Hill's “if he promises to bring me back home… then I might sleep one night first”.
(46)…X should be supported to continue to live with Ms Johnston and her siblings. X has lived primarily with her mother. In 2014, she, and Z's, were removed temporarily care and placed in alternative care. X has since settled back home. She would miss her mother and siblings if a dramatic change of living arrangements was implemented.
(48) X is of an age where she should be attending school. While Ms Johnston claims she is “home schooling” X, she did not appear to be following any formal structure or recognised curriculum. This may need to be tested by the Court. In addition, it seems unrealistic to expect that Ms Johnston can and will divide her time between educating X and parenting the children in her care. If the home schooling arrangement is inadequate and continues, then this will be potentially damaging to X’s normative development. X should be provided with the opportunity to attend school and learn in accordance with a recognised curriculum. An additional benefit in X attending school is that external professionals, teachers and welfare officers can monitor X’s presentation and development and report to protective services if need. It is recommended that X is enrolled to attend school as soon as possible. If Ms Johnston cannot commit to doing this, then a change of living arrangements may be warranted.
(49) Time with Mr Hill and his wife should be supported. In the first instance unsupervised time should be introduced.
...”
In her updated family report released 7 June 2016, Ms U set out the content of her exchanges with the father and his wife and the mother relevantly as follows:-
“(14) … Mr and Ms M were concerned “X says she doesn’t’ like school… says it’s ‘unkind’ of us to force her to go to school… she asks ‘Daddy why are you making me go to school?’” They worried that Ms Johnston was sharing adult information with X and causing the child to be suspicious of them and devalue the importance of their parenting role. Mr Hill and Ms M believed X should live with them and be protected from exposure to adult information and be able to enjoy a relationship with both parents.
(15) Developmentally Mr and Ms M said, X has found the change of routine “unsettling”. They spoke of Ms Johnston’s attempts to impeded X’s time with them causing distress to the child. At the time of interviews, X had only spent three full weekends with her father. They reported on unsettling incidents that have occurred “the first weekend… she (Ms Johnston) applied for the intervention order… second weekend she (Ms Johnston) asked to return X early… because of mother’s day and she’s never celebrated mother’s day before… third weekend X had a meltdown at the railway station because we changed the routine”. They blamed the mother for not assisting X to develop resiliency skills.
(16) A further issue of concern to Mr and Ms M related to X’s social skills and behaviour. They spoke of X as “poorly behaved… bad manners”. They described X as disrespectful of others “she keeps interrupting… her use of cutlery, non-existent… she doesn’t know how to sit at a table”. Mr Hill and his wife continued “she’s naïve and vulnerable… too trusting with strangers… neglect of social norms and behaviours”. They believed that Ms Johnston's parenting approach (was one of) “neglect” due to having to attend to the competing needs of all of the children in her care, (and) has potentially rendered X vulnerable to abuse in the world. In addition to these concerns, Mr and Ms M suggested that X possibly had health problems. They presented as genuinely concerned that X was “underweight… a picky eater” and possibly had “coeliac disease”. They hoped that Ms Johnston would take the child to a general practitioner and/or paediatrician for review and offered their support to facilitate medical assessment and treatment if necessary.
(25) Ms Johnston (aged 39 years) again presented as a self-assured woman who expressed strong opinions. Ms Johnston continued to feel wronged by the legal system and protective services. She seemed defensive at times but generally she engaged well. Ms Johnston dismissed Dr C’s psychiatric assessment. She was confident that she did not suffer impaired mental health and she was critical of Dr C’s professional capacity to make an assessment of her functioning in the little time she said that he saw her. Ms Johnston rejected any evidence of borderline personality traits.
(26) While Ms Johnston was respectful about the court ordered arrangements in place, she continued to oppose them. According to Ms Johnston, the Court had no legitimate authority to pressure her to send X to school and not home school the child. Ms Johnston did not instil confidence that she would continue to send X to school in the longer term. Ms Johnston was adamant that home schooling did not require a recognised curriculum. She believed that X had progressed well academically under her tutelage. She suggested that X’s education had suffered since attending mainstream school “I can see for myself her education is not as good… her language… (and) …she comes home most days and says school was awful”. Ms Johnston did not believe the school would support her view “they don’t like me… they don’t like home schoolers… politics… money”, but she said other home school educators supported her right to home school X.
(28) While Ms Johnston accepted that there were potential benefits to X of attending school, including X attending the same school as W and so that external authorities could monitor her safety and wellbeing, she remained unsupportive of this outcome. Ms Johnston offered an alternative, she suggested that friends of hers could monitor X’s welfare thus negating the need for X to attend school. Ms Johnston said W was attending at her home “once a fortnight for a few hours supervised by ‘(omitted) and sometimes when I collect X, she sees W”. Ms Johnston appeared to believe these proposals negated the need for X to attend school.
(29) With regards to future arrangements, Ms Johnston expressed fixed views and rigid views. She became fixated on the notion that X and W were at risk of harm while spending time with their respective fathers and in need of her protection. Ms Johnston repeatedly referred to Mr Hill as “a paedophile” and W’s father, Mr B as “a porn addict”. Ms Johnston seemed unable to temper her appraisal and showed no insight into her presentation. Ms Johnston seemed to genuinely believe that it was her responsibility to protect X from Mr Hill and W from Mr B. The more her reasoning was questioned, the more fixated Ms Johnston became about the potential for X, and W, to be subject to sexual harm. Ms Johnston was critical of authorities for not sharing her view that X, and W, were at risk of harm as a result of the requirement that she supports them to spend time with their father’s.
(30) Since unsupervised and extended time between X and Mr Hill has commenced, Ms Johnston said she has noticed a deterioration in X’s behaviour. Ms Johnston attributed this to X discomfort at the requirement that she spends time with her father “she says the drive to (omitted) is awful… takes so long”. Ms Johnston continued “and X is so angry all the time”. Ms Johnston inferred that this was a result of X’s discomfort and her unwillingness to spend time with Mr Hill and she implied that the appropriate outcome would be to cease the requirement for X to spend time with Mr Hill.”
In summary, Ms U stated:-
“(33) Ms Johnston’s views and proposals remained unchanged since the earlier report. She proposed sole parental responsibilities and for X to live with her and a cessation of time with Mr Hill. Ms Johnston opposed the making of Court Orders requiring her to support time between X and the maternal grandparents. Ms Johnston wanted to home school X.
(35) … While she did not raise specific concerns about school, she understood that her attendance was not supported by her mother “I don’t like being at school… it’s okay but… it’s quite normal for my family not to like being at school”. According to X, “mum hated school… Ms J never went to school… W never used to like school at all”.
(41)… Her rigid thinking and her apparent fixation on matters of a sexualised nature are worrying. Ms Johnston does not impress as having the capacity to alter her cognitions to be supportive of X’s relationship with Mr Hill into the future. While it is unlikely that Ms Johnston will engage with mental health professionals it is recommended that she consider this option to assist her manage the altered arrangements and support X to enjoy a relationship with Mr Hill…
(43)… To ensure X’s safety and welfare, her ongoing attendance at school is considered to be important. There are more identifiable benefits to X of remaining at school than not. X will benefit from opportunities offered in mainstream education, she will extend her social skills and external authorities can monitor her safety and wellbeing. Changes to this arrangement should be made in a collaborative manner between the parents and occur only by agreement.”
In her updated family report, Ms U made the following recommendations:-
“(1) Shared parental responsibilities are recommended
(a) Mr Hill should independently liaise with educational and medical professionals associated with X
(2) X should remain at school
(a) changes should occur only by agreement with Mr Hill
(3) It is recommended that X continues to live with Ms Johnston.”
Ms U gave further oral evidence. In summary it was:-
a)that the father was capable of adaptation and change and receptive to input from others. He was guided by therapeutic advice which was commendable and possibly necessary. With the support of his wife, he was committed to embracing a larger family life for X. The mother by contrast, was rigid and inflexible, and very committed to her values and way of life. Her willingness and capacity to change was, Ms U observed, very limited. The mother valued her approach to parenting and did not value other approaches. This limitation was also an observation made of the mother by Ms C in the evidence given by her referred to hereafter. Ms U found the mother to have limited insight into her behaviours and their adverse effect on her children;
b)in commenting on two emails, of June 2014, written by the mother to Mr I prior to W being removed from the home by the DHHS, in which one of those emails the mother has said:-
“I don’t love her (W) like I do the others, there just isn’t that connection”,
Ms U agreed with the suggestion that the content of the emails was very disturbing. W was considered a “slave” in the home of her mother and required to perform exhausting and onerous chores. The Court notes this was exacerbated by the absence of Ms J who had gone to spend school weeks with her grandparents at that time. W’s removal from the home precipitated Ms J’s return. Despite her attempted performance of such chores, her mother remained highly critical of W. It was breathtaking for the Court to read what the mother required of the child. The emails were evidence of a complete disconnect with the reality of what a very young child could, and should, be required to do. Ms U observed that for children, just to play, was a normal environment conducive to their growth;
c)when discussing the benefits of attending school for X, which included as described by Ms U, developing friendships; having a sense of belonging in a community broader than your family and family relationships; and navigating differences of opinion, all things that would not be learnt in the mother’s home, Ms U noted that the mother would not restrain herself in voicing to her children her opposition to school attendance for them. Thus in the process the mother would undermine formal schooling. Ms U noted further that in her view, X attending school was a protective issue and not a conclusion as to which of formal schooling or home schooling was better.
Ms U concluded that X’s best interests into the future through primary school into teenage years and into adulthood require a change of living arrangements. She conceded there will be short term difficulties and cost for X in the move as she loves her mother. Ms U’s opinion is that the bond between X and her mother is sufficiently strong however, that it will be able to be retained. Likewise, X’s sibling bonds will be able to be retained through the agency of her father.
Ms B
Ms B is a Senior Consultant and Forensic Psychologist who prepared a report with respect to the father dated 11 December 2015. Her opinion, unchallenged, was as follows:-
“The configuration of risk factors on the Risk of Sexual Violence Protocol (RSVP) indicates that Mr Hill has had some past difficulties in the problems with self-awareness (psychological adjustment); depressive disorder, alcohol abuse and suicidal ideation (mental disorder); and communication deficits within intimate relationship (social adjustment). In this instance, the conviction for sexual offence as a 14 year old (Wilful and Obscene Exposure), together with his reported sexual intent in the assault perpetuated when he was 13 years old and approaching girls at a supermarket, are considered to be a reflection of his developmental stage on a backdrop of significant family discord and instability, as well as the impact of a procedure to address undescended testicles. AS there is no other evidence of inappropriate contact with children, his offending is contained to that period and not considered a reflection of his behaviour as an adult.
Based on the clinical interview designed to assess empirically derived static and dynamic risk factors (RSVP), Mr Hill presents with few factors known to be associated with sexual reoffending. Specifically development of self-awareness and coping with stress/mood management (intimacy), which is likely to have stemmed from a development history of instability and poor difficulties coping with the discord of his parents. Ultimately, Mr Hill is considered to fall into a low risk category.
The areas that are considered to contain his risk are:
There is no evidence of pervasive sexual abuse pattern
No evidence of anti-social attitudes or pervasive behaviours
No evidence of deviant sexual arousal
No evidence of recent drug abuse”
Ms M
Ms M was an impressive witness. She has insight into the initial difficulties for X in any move to reside with she and the father. She acknowledged X would miss her mother, her siblings and the (omitted) School and had thought as to how to make that transition easier for X. Her ability to communicate with the mother she sees as unproblematic and she is willing to engage with the mother in a constructive dialogue about all things relating to X. She has been concerned about X presenting in shoes that were too small; ill-fitting clothes; being unwashed at times; having knots in her hair; and about other matters going to X’s hygiene while living with the mother. She has endeavoured to provide X with skills, such as how to disentangle her hair, to assist her. Ms M has now also been able to speak with the mother as to X’s health needs and together with the mother attempted progress attending to these. She and X have a warm and good relationship. Ms M supports the role of X’s mother in her life and will encourage their ongoing communication and time spent with.
Ms R
Ms R was an impressive witness. She is one of two older sisters, being the eldest, of the mother. She is a (occupation omitted) by occupation and the mother of two children, A and B, who at trial were 16 and 14 years of age respectively. She resides in (omitted). Her daughter A and the mother’s daughter Ms J are very close in age and when younger saw a lot of each other. In recent years, with the mother’s estrangement from her family members, the children have seen little, if anything, of each other.
Ms R has a very warm and close relationship with her sister (omitted) and a very good relationship with both of her parents. Her relationship with the mother is currently dysfunctional. Ms R has not seen her sister often in the past ‘three or so years’. Ms R’s evidence is that she has always loved her sister, and been loving toward her, a matter disputed by the mother. The mother sees her sister as supportive of the maternal grandmother whom she claims rejected her when she was a twelve month old baby. Ms R has come into conflict with the mother about the issue of education. Her evidence is that the mother is “quite opposed” to education in the normal school setting, and that she has tried to talk to her about the children attending school with little success. Her conversation with both the mother and Ms J as to whether Ms J was in fact being home schooled by the mother in years seven, eight and nine of school led her to the conclusion that no home schooling was occurring at all. When put by the mother to her that Ms J was now enrolled in a TAFE course doing a (omitted) qualification, Ms R responded that she thought Ms J had “taken control of her life and started to seek that out on her own, despite the initial disadvantages”.
Ms R’s further evidence was that she had not visited her sister’s residence for many years. When she did visit, she was:-
“very shocked by the conditions that she and her children were living in at the time. A house has since been built, so I am sure things are better now, but I actually found it really distressing hygiene-wise and I-I made a choice a choice that I didn’t want to see it again.”
The mother considers her sister’s lack of interest in seeing her now completed house is indicative of her sister’s general lack of interest in her. However, the mother’s own evidence is that she is estranged from her mother and her sisters and that she does “not attempt to have contact with them or their children” (affidavit affirmed 25 November 2015 paragraph 9). Unfortunately this is a relationship that has broken down entirely and the support which it provided to the mother in the past no longer exists. Ms R’s evidence that the mother “is extremely hostile to our own mother and father and actively tries to prevent her children from having healthy relationships with those grandparents” is borne out by other evidence in the proceedings to the same effect.
Ms R has observed, in a limited way, the father and his wife to be “kind, warm and loving to (X)” She supports the father’s application and understands how damaging that is to the relationship with her sister, the mother. The need for her to act so, deeply saddens her.
Maternal Grandparents
Both Mr and Ms Johnston love their daughter, the mother in these proceedings. The mother loves her father and would be happy for him to visit her but she has not in the last three years, sought to visit him. That would not be too difficult for her. The grandparents and the mother’s sister Ms R, live in a reasonably proximate geographical location to the mother. The mother is highly critical of her mother and wants her children to not be in her presence. If that must occur, then supervision by an independent person is warranted she claims, on the basis that her mother is disapproving of her lifestyle and will denigrate her (the mother) in front of her children. There is a long history of discord between the mother and her mother. The mother accuses her mother of verbally and physically abusing her. When the mother was a child, a highly intelligent child, she ran away from school and at another time from home. The mother disliked school and has seemingly no positive memories of it. The grandparents were worried about their “angry and alienated girl” and sought out treatment for her. The mother then progressed in her education through to the first year of a (omitted) degree before ceasing formal study. The grandparents were supportive of their three daughters’ education and remain supportive of their grandchildren’s education. The maternal grandmother was a (occupation omitted) prior to retirement. The maternal grandfather was a (occupation omitted) at the (employer omitted) for many years and in later years, amongst other occupations and before his retirement, a (occupation omitted). His (occupation omitted) skills enabled him to help his daughter, the mother, build her current home and he spent much time and application of his expertise in that exercise. The mother’s now lack of acknowledgement of his considerable input without which she would still be living in a caravan was extraordinary, and disappointing to her father. The grandparents also provided their daughter with much needed funds by way of loan which the mother has ceased to repay without explanation. They are owed approximately $28,000 to $30,000 but accept that such funds will never be repaid.
The grandparents have a loving relationship with their two daughters (omitted) and Ms R. They would like to have the same relationship with the mother in these proceedings but their expression of their concern for all the children’s welfare whilst living with the mother, both in these proceedings and in the Children’s Court of Victoria in Ballarat, together with historic matters have rendered that not possible presently, if ever. The maternal grandmother has been critical of the mother’s lifestyle choice to have a number of babies to different fathers with no apparent intention for the children born to live with their mother and father and of the mother’s lack of Christian religion, and has conversed with the mother to that effect, and on occasion in front of the children. The grandparents have been considerably dismayed by the number and responsibility of the chores required to be done by the children, as directed by the mother. They did provide support to the mother over many years and to their grandchildren. They were able to provide a home for Ms J with them in (omitted) in her final term of year 9 at school, she being then enrolled at school but attending very infrequently whilst residing with her mother, which proceeded through to year 10. Ms J benefited by that exposure to, and support for, a formal schooling education.
Until he ceased to attend at the mother’s property, the maternal grandfather assisted his daughter slashing back grasses and mowing lawns where necessary and collecting firewood, the mother having a firewood burning stove and heating. When giving evidence, Mr Johnston presented as a man who did what he could for as long as he could before he could do nothing more. He, in essence, chose to disengage. No doubt because it was causing him far too much stress. Ultimately he and his wife saw the intervention of the DHHS as necessary and they supported W’s removal from the home. They now support X’s removal in the sense that she lives with her father and can spend time with her mother. In this way they will be able to see X. If X remains living with her mother, she will have no relationship with them at all, but their position is more than this aspect. Their evidence goes to X’s best interests being served by a change in her residence. It is distressing for them to be involved in this litigation. For many years they acted to assist their daughter, the mother, in caring for her children. They provided financial, physical and emotional support. The provision of such support by the maternal grandmother is now not acknowledged at all by the mother.
Ms C
The Court accepts Ms C’s evidence. It found the basis of the protection application for W.
Ms C is a child protection practitioner working for the DHHS. She was the case worker for the mother’s family from about April 2014 until December 2015. She was a witness called by the ICL and cross-examined by the parties.
Her evidence was that X settled well into foster care, settled well on her return to her mother’s care and settled well when she commenced contact with her father. Her observation was that X was quite an adaptable child. The contact visits supervised between X and her father were positive. X enjoyed the time she spent with her father and the father was responsive to her needs and was able to prioritise them. Ms C gave evidence that she has no concerns about X residing with her father and his wife. She was however concerned that X would miss her siblings, she being quite close to them. She was also concerned that the mother would undermine and damage X’s relationship with her father if X was to spend time with her mother. This included living with her mother where Ms C was concerned that X’s emotional wellbeing would be damaged in the mother not allowing X to have a relationship with the father.
Ms C did not witness emotional warmth from the mother to her children over the period of her involvement with the family. This evidence differed from that of Ms A who did witness an emotional connection.
Ms C’s observation of the home environment of the mother in 2014 and 2015 was that goat droppings surrounded the house; quite often a half carcass of a rabbit that the cat would have chased in was inside the house; and food would be stuck to the chairs and/or the floor. Piles of dishes would be in the sink, though water was in short supply on the farm. Generally, the environment was not a hygienic one. The mother considers Ms C biased and hostile. Ms C is no longer personally engaged with the family.
Ms N
Ms N is the principal of the (omitted) Primary School. She had occupied that position at the time of trial for some five and a half years. She had been a teacher for 35 years. She has considerable experience and expertise. She was an impressive witness.
X started her attendance at the (omitted) primary school around the last day of term one 2016. Her mother completed her enrolment pursuant to an earlier order of the Court and in the process did not list the father as an emergency contact as also earlier ordered by the Court. This was a blatant breach.
X was placed in the prep/grade one combined class. By August 2016 X had settled well into school. On those weekends that X was collected from school by the father Ms N observed X to “skip up to him (her father), excited to show him some work that she had done during the day and headed off happily with him.” Ms N has observed X to enjoy playing with other students after initially struggling to play with other children, and learning new games. She had improved academically considerably and “seemed to be happy and enjoying herself” in the school environment. In her view, a change of school would not be difficult for X.
When cross-examined by the mother at some length, about a comparison between “home educated children and mass educated children” Ms N’s evidence was that she has no issue with home schooling so long as it was carried out appropriately. An example she gave of that is a child who has a breadth of subject knowledge, with a well-documented history of subjects studied and levels attained, and an understanding of social norms. These attributes were absent in X when she commenced school.
Ms W
Ms W is a Consultant Forensic Psychologist who prepared two reports in respect of the father. The first was dated 7 October 2014 and the second the 5 March 2015. Her evidence was also unchallenged. The father attended upon Ms W for psychological counselling commencing in August 2014. He attended regularly and for a six month period. The counselling had a particular focus upon the father’s emotional regulation as it impacted upon his parenting capacity for X. In the first report Ms W noted the opinion and recommendation of Dr C (his earlier reporting having been provided to her by the father) and commented that she found the report to be astute, considerate and constructive. In the second report, at the conclusion of the counselling sessions, Ms W’s own opinion as to the father’s functioning was as follows:-
“Mr Hill has now successfully completed the six-month period of counselling by a forensic psychologist as recommended by Dr C in December 2013. Personal issues as outlined in the report of Dr C have been addressed in counselling, including low-grade chronic depression, alcohol dependence, anxiety in relation to previous vulnerability to transgression of sexual boundaries (many decades ago), and anger management and emotional regulation.
Mr Hill’s tendency towards Dysthymia (chronic, low-grade depression) appears to be resolved. Any periods of low mood now are reactive to on-going organisational difficulties surrounding contact with his young daughter X, but are likely to resolve completely once Mr Hill has more meaningful, overnight contact with his daughter. Certainly his low moods have dissipated as contact with his much-loved daughter has increased.
Mr Hill is aware of the risks of alcohol dependence. His GP is monitoring him on-going in that regard. Meanwhile, Mr Hill informs that he consumes no alcohol his daughter is in his care. It is understood that Mr Hill will not ever consumer alcohol whilst his daughter is in his care.
Anger management and emotional regulation has been addressed in counselling, and Mr Hill is equipped with a range of self-management strategies of to ensure that at all times he maintains an appropriate parenting style. His confidence in this regard has increased considerably as he has been tested via more regular contact with his daughter without incident. His parenting skills are developing appropriately naturally as his contact with his daughter progresses.
With regard to any risk of inappropriate management of sexual boundaries, it is my opinion that Mr Hill has successfully extinguished any previous tendency towards attraction to pubescent girls. At no stage was Mr Hill diagnosed with Pedophilia or Hebephilia and he has not offended in this regard. I also note that the child X is of a relatively young age and that Mr Hill presents n risk to her whatsoever in terms of transgressions of sexual boundaries.
Mr Hill’s anxieties and self-doubt have been resolved via counselling and I do not consider him to be at any significant risk of offending. Mr Hill is enjoying a stable, sexual relationship with his adult partner Ms I, aged fifty-two years. His confidence as a parent has strengthened as a result of the regular contact with his daughter.
Mr Hill is aware of the significance of the siblingship in his young daughter’s life. He currently has contact with X on Saturdays and during that time, regularly arranges for X to enjoy contact with her half-sister W who resides in the care with her natural father. Mr Hill also ensures that his contact time with X includes time for visits to X’s maternal grandparents with whom he reports he has a positive and strong relationship.
Overnight stays for X with Mr Hill would further increase the constructive bonding and attachment between him and his daughter. Given positive feedback received in relation to current contact arrangements, this can only be seen as good for X: the opportunity to develop and strong child/parent relationship with her biological father from a young age will serve to assist her psychological development and self-esteem, and increase the strength of her developing identity within a family structure challenged by the multiple relationships formed by her mother over time.
In conclusion, Mr Hill has now completed his counselling with me and will only consult further on an ‘as needed’ basis should the occasion arise. I remain part of his support network and safety plan in that regard. If I had any continuing concerns with regard to Mr Hill’s parenting capacities I would have encouraged him to continue to attend for regular counselling, and I would have communicated such concerns directly to DHS. My support for Mr Hill’s parenting capacities at this stage is unequivocal.”
The father returned to Ms W in May 2016 for counselling in respect of the stress occasioned to him by the continuation of these proceedings. That stress condition was successfully resolved.
Ms E, Mr I and Ms S
These witnesses have known the mother for over a decade. Theirs is a chorus of evidence as to the mother’s neglect of her children at various times. The children would often be hungry and unkempt and placed in danger. They were left to fend for themselves. Each of these persons at some time and for a lengthy period offered assistance to the mother in her care of the children. Mr I went further and became a father to two of the children. He finally announced he was the father of two children to the mother, upon the birth of the second. Ms E commenced a relationship with Mr I in August 2015. She had lived with Mr I following the breakdown of his marriage in November 2014.
Ms E’s evidence corroborated where it could that of her de facto. X was often observed by them to be unwashed and smelling. The mother expected others to attend to X’s hygiene, including her daughter Ms J. Z and Y often presented in the same manner, dirty, unkempt and smelling. Ms E’s evidence was further that X and her sibling brothers were treated roughly by the mother and at times placed in danger. Only Ms S was cross-examined by the mother, nearly the entirety of which was irrelevant. These witnesses evidence was thus unchallenged.
Other Evidence
X has enjoyed immensely the opportunity to spend unfettered time with her father. Whilst the mother has enjoyed X in some physical activities such as swimming and gym which she enjoys, the father has also engaged X in many activities, all beneficial and directed to variously her emotional, physical and academic advancement. They also provide for X’s engagement with her sister W, and with the maternal side of the family. Some brief part of the father’s time with X is given over to X’s interactions with the maternal grandparents and their extended family. This is a tradition he will continue.
The mother has sought to inculcate X with a fear that her father would not return her to the mother’s care after time spent with periods. This has never been an issue. The father is supportive of X’s relationship with her mother and encouraging of it. He also has throughout complied with all the Court’s orders. By contrast, the mother puts to the Court that her father’s behaviour over the last two years is not beneficial to X. The mother’s evidence was that X did not want to see her father over a weekend. She claimed to support X in the expression of her views by proposing the Court let X only see her father on a single day each two or three weeks at (omitted). She added further that X has said to her “if W was living at home she (X) wouldn’t need to see Dad at all”. Further, that in respect of both X and Z and Y and their respective fathers, the children did not want to be “dragged away to go and visit somebody”, the somebody being the father in these proceedings and in respect of Z and Y, their father. The mother claimed W used to love her father until she got to know him. The mother’s further evidence was that X would be angry and unhappy if made to live with her father. This is not established on the evidence and rejected by the Court.
The mother does not support X’s attendance at school and will continue to undermine any progress made by X both socially and academically in the school environment. She will not ensure ongoing school attendance without a Court order and the Court could not be satisfied that the mother would comply with an order in the longer term. The mother earlier refused to place X in school on the basis that her health would be “adversely affected by being in the school environment”. The mother supports home schooling and indicated her desire for X to be educated in that manner but she failed to engage in that system at all. She did not register X with the Victorian Registration and Qualifications Authority to commence some structured form of curriculum and a Court order was required to allow X the benefits of a formal education. X is well aware of her mother’s views and despite the evidence of Ms N that X enjoys school and what it offers, X will express to her father that she hates school.
In her mother’s household X slept until Court order prohibiting it, with her mother and her younger brothers. This resulted in X sleeping badly. The mother proposes a continuation of this arrangement. Indeed the mother claims that X is resentful and angry that she is not allowed to sleep with her mother and also that she wants to be allowed not to go to school. The father argues that the sleeping arrangement proposed by the mother is not in X’s best interests. Such an arrangement has the mother and three children sleeping in a bed together. The youngest child is two years old. During the night at least one of the children, in a cramped space, is restless and disruptive. The mother’s evidence is this is not detrimental to X who can sleep elsewhere in the room. The mother’s rigid views have had an adverse impact on X’s sleep. The implementation of those views resulted in the Court making an order on 12 August 2016 that X was to sleep in her own bed. The mother again demonstrated a rigidity and unusual lack of concern for X’s welfare. X has her own bedroom and bed in her father’s home, she enjoys the space and privacy it affords her. Importantly, she is able to sleep soundly.
The mother will not consult with the father as to any educational matters pertaining to X. She has sought, over a considerable period, to exclude the father from any decision-making concerning X. The father proposes that X attend the (omitted) Primary School into the future which is in close geographical proximity to his home. X has an enrolment available to her at that school in this year.
The mother does not observe Christmas and there are no celebrations in her household on Christmas day. The father does observe Christmas and his evidence is that X enjoys everything associated with Christmas. There is no issue for the parties in providing for the father to always have X in his care over the Christmas period given the parties beliefs and religious affiliations.
Conclusion
X is not at risk in the care of either of her parents, though there are elements of neglect in the mother’s care of her. There is also at times a lack of insight in the mother’s care and failure to make provision for the emotional needs of X.
X will not be able to have a meaningful relationship with her father whilst in the care of her mother. She will have such a relationship with her mother in the care of her father.
X loves each of her parents and is loved by them. Any expression of her wishes is not maturely held and given little weight. Each of the parents gave evidence that X wishes to live with each. The father understands that X is telling him what she thinks he wants to hear. The mother asserts, wrongly, it is a genuine expression of X’s wishes.
Any separation of X from her siblings will be difficult for X but when considering the totality of the evidence, is necessary. In her father’s care she will see more of W. In her mother’s care, she will see more of Z and Y. Z and Y will spend time away from their home and with their father. Ms J, as an adult, will be able to make her own arrangements to see each of her siblings. The father will act to support X with respect to any separation and be effective in that support. X will also spend time with her siblings regularly.
The father understands the responsibilities of parenthood, at this time in X’s life, to a greater extent than the mother. He understands a child’s need to play, to engage in school and in the broader family and other community.
X’s best interests are served by her residing with her father and spending substantial and significant time with her mother.
The presumption as to equal shared parental responsibility is rebutted in respect of X’s education decision making on the basis of the evidentiary findings herein. Otherwise, the parties are open to attempt a dialogue as to other matters and so despite their past lack of communication they will be afforded the opportunity to reach agreement about other matter pertaining to X’s long term care.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 20 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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