JEANES & SALINAS
[2019] FCCA 37
•14 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEANES & SALINAS | [2019] FCCA 37 |
| Catchwords: FAMILY LAW – Parenting – whether an order for equal shared parental responsibility is in the best interests of the children – whether the children should spend overnight time with the mother – whether there is a need to protect the children from exposure to the mother’s partner – whether the mother has the capacity to appropriately meet the needs of all of the children whilst they are in her care where two of the children have been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61DA(1), 65DAA. |
| Cases cited: MRR & GR (2010) FLC 93 424 |
| Applicant: | MR JEANES |
| Respondent: | MS SALINAS |
| File Number: | NCC 2547 of 2015 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 14 & 15 August 2018 |
| Date of Last Submission: | 22 August 2018 |
| Delivered at: | Townsville |
| Delivered on: | 14 January 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Carolyn Kelly Legal |
| Counsel for the Respondent: | Mr Wilkinson |
| Solicitors for the Respondent: | Winder Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Boyd |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
All previous orders are discharged.
The father have sole parental responsibility for the children [X] born …2007, [Y] born …2009 and [Z] born …2010.
The father will;
(a)keep the mother advised as to any school attended by the children;
(b)authorise any school attended by the children to provide to the mother all information ordinarily provided to parents including information about how the mother can order school photographs provided that the mother shall pay any costs to the school arising out of her request;
(c)keep the mother informed of all medical or therapeutic treating professionals seen by the children and authorise the medical or therapeutic treating professionals to discuss any issues pertaining to the children with their mother;
(d)the father will inform the mother of any decision he is to make in relation to major long-term decisions prior to making any decision;
(e)the father is to invite input from the mother in relation to that decision;
(f)the father is to appropriately consider the input from the mother prior to making the decision;
(g)and upon making the decision the father is to inform the mother within seven days thereof.
The children are to live with the father.
Unless otherwise agreed in writing the children will spend time with the mother as follows;
(a)during the first gazetted New South Wales school term in 2019 as follows, each alternate weekend on the Saturday and the Sunday from 9:00am to 4:00pm on each day commencing the first weekend after school commences in 2019.
(b)From the commencement of the second gazetted New South Wales school term in 2019 and thereafter each alternate weekend from Saturday at 9:00am until Sunday at 4:00pm.
(c)The mother is at liberty to collect [X] directly from school on Wednesday afternoon each fortnight during school term time and shall deliver [X] to school before the commencement of the following school day and the mother is to notify the father immediately of any inability to attend to collect [X] on the Wednesday at least four hours prior to the commencement of time each fortnight.
(d)The mother is at liberty to collect [Y] and [Z] from school on Thursday afternoon each other fortnight during school term time and shall deliver [Y] and [Z] to the school before the commencement of the next school day, or 9:00am and the mother is to notify the father immediately of any inability to attend at least four hours prior to the commencement of time each fortnight.
During School Holidays
(e)Commencing the spring school holidays in 2019 the children shall spend time with their parents for school holiday periods as follows;
(i)being the first half of the autumn, winter, spring and summer school holidays in even-numbered years with the father and in odd-numbered years with the mother; and
(ii)the second half of the autumn, winter, spring and summer school holidays in odd-numbered years with the father and in even-numbered years with the mother.
(f)For the purpose of these orders the school holiday time shall commence;
(i)When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculate to be half of the holidays;
(ii)When the parents time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term commences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
(g)The children shall spend time with their parents on Christmas Day commencing 2019;
(i)from 5:00pm Christmas Eve until 2:00pm Christmas Day in even-numbered years with their mother and in odd-numbered years with their father; and
(ii)from 2:00pm Christmas Day until 5:00pm Boxing Day in odd-numbered years with their mother and in even-numbered years of their father.
(h)On the children's birthdays the children shall spend time with their mother as follows;
(i)if a school day, from after school until 6:00pm;
(ii)if a non-school day from 1:00pm until 5:00pm;
(iii)with the mother to collect and return the children to the father.
(i)With their father on Father's Day from 9:00am until 5:00pm with the father to be responsible to collect and return the children.
(j)With the mother on Mother's Day from 9:00am until 5:00pm with the mother to be responsible to collect and return the children.
(k)The mother is at liberty to telephone the children each Wednesday at 7:00pm the father will ensure the children are available to take the calls and the father and the father's wife will allow the children some privacy to take the calls and the father shall facilitate calls to the mother at the children's request;
(l)Should the mother obtain Skype or other video capability the father will facilitate the children calling the mother at 7:00pm on the Wednesday.
Changeover shall occur wherever it is a school day at the school and otherwise at the front of the Town A Police Station annexed to the Town A Courthouse in Town A. Ms H shall not attend at changeovers unless the father is incapable of attending in person.
The parents are to use text messaging for all communication apart from urgent communication, which shall occur by telephoning the other parent.
Mother and her partner Mr J are at liberty to attend the children’s school and all school activities which parents normally attend as well as any extracurricular activity or sporting event attended by the children and the parents and their partners are to greet each other cordially when they meet.
The parents are not to denigrate each other or each other's partners in the presence or hearing of the children and are to remove the children from the presence or hearing of any third party doing so.
The parents are to request and direct the Registrar of Births Deaths and Marriages New South Wales to forthwith give effect to any application for a change of birth registration details completed by Mr Jeanes to affect change of birth registration for [Z], born …2010 so as to affect the following two amendments;
(a)include the name of Mr Jeanes as the child's father; and
(b)to record the child's surname as Jeanes rather than Salinas.
The Independent Children's Lawyer is to explain the nature of these orders to the children within 7 days of today's date.
The Independent Children's Lawyer is discharged 14 days after today's date.
IT IS NOTED that publication of this judgment under the pseudonym Jeanes & Salinas is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2547 of 2015
| MR JEANES |
Applicant
And
| MS SALINAS |
Respondent
REASONS FOR JUDGMENT
Background
This matter concerns parenting arrangements for three children, [X] born …2007, [Y] born …2009 and [Z] born …2010.
The parents, Mr Jeanes, aged 31 and Ms Salinas, aged 30 were in a relationship from …2005 until 1 April 2010.
[Z] was born after the parties separated and the mother decided to use her surname, Salinas, as the child’s surname and did not include the father's details on the birth certificate.
In those circumstances the father sought a name change so that [Z]’s surname was consistent with the other two children. Whilst there was initially some resistance to that order, the mother conceded during cross examination that [Z]’s name should be changed.
The mother has four other children in her care, [A] aged 4, twins [B] and [C], aged 3 and [D] aged 18 months.
The father has re-partnered and lives with Ms H. The mother has re-partnered and lives with Mr J.
The main issue in this case was whether Mr J posed a significant risk of harm to the children.
A further issue in the case was whether the mother has the capacity to appropriately meet the needs of all of the children whilst they are in her care.
[Y] has been diagnosed with Autism Spectrum Disorder with speech and language impairment, [Z] has been diagnosed with Attention Deficit Hyperactivity Disorder, and [B], known as [B], has been diagnosed with Global Development Delay and Severe Autism.
Whilst initially the mother sought an order for the children to live with her at the commencement of the trial the mother tendered exhibit 2, her minute of orders sought, and therein sought an order that the children live with the father.
All of the children subject to these proceedings came to live with the father in January 2015.
The Material
The father relied upon the material set out in his case outline.
The mother relied upon the material set out in her case outline.
Independent Children's Lawyer relied upon;
a)the Family Report dated 31 May 2016;
b)Family Report dated 13 September 2017; and
c)a Child Inclusive Memorandum dated 22 October 2015.
Orders Sought
The father set out the orders he was seeking at page 10 through to page 12 of his case outline.
The father sought the following orders:
a. The father have sole parental responsibility.
b. The children live with the father.
c. Should the mother remain living in Town A and wants the children to spend time in the presence of Mr J, that time is to occur at the Town A Family Relationships Centre.
d. Should the mother relocate to Town B, the children to spend time with the mother on the second weekend of each month for 4 hours.
e. Telephone and Facetime between the children and their mother on Monday, Wednesday and Friday.
f. The mother be at liberty to collect each of the children individually from school one afternoon per fortnight and spend 3 hours with that child.
g. In the event the mother wished to spend time with the children at her home, then a support person is to be agreed between the parents and must be present.
h. That the children are not to be in the presence of Mr J, unless at the contact Centre or in such other supervised setting as agreed with by the father.
i. [Z] change his name to [Z] Jeanes.
j. Further non-denigration orders and restraints regarding the use of alcohol were sought.
The mother sought orders as set out in exhibit 2, her minute of orders.
In summary, the mother sought the following orders:
a. The children live with the father.
b. The parents have equal shared parental responsibility for the children.
c. That the children spend time with their mother as follows;
i.each alternate weekend from after school on Friday until 5:00pm on Sunday;
ii.for one half of each of the New South Wales school holidays by agreement or failing agreement first half in even-numbered years and second half in odd-numbered years;
iii.Mother's Day;
d. Telephone time each Tuesday, Thursday and Saturday.
e. Up to 4 hours with each of the children on their birthday.
f. Further orders regarding communication, consultation, restraints and non-denigration.
The Independent Children's Lawyer sought orders in accordance with exhibit 1B.
The Independent Children's Lawyer in summary, sought the following orders;
a. The father have sole parental responsibility;
b. Daytime only on each Saturday and Sunday for a period of one month.
c. thereafter each alternate weekend from 9:00am Saturday until 4:00pm Sunday;
d. The mother spend time with [X] from after school on a Wednesday each fortnight during school term for a period of 4 hours.
e. The mother spend time with [Y] and [Z] from after school Thursday each fortnight during school terms for 4 hours.
f. Half of school holidays.
g. The mother spend time with the children on the children's birthdays for a period of 3 hours if a school day and 5 hours if a non-school day.
h. The children spend time with the father of Father's Day and the mother on Mother's Day.
i. The children spend telephone time with their mother each Wednesday.
j. A non-denigration clause.
k. That [Z]’s name be changed to Jeanes.
The Issues
This issues for determination were as follows;
a. whether there is a need to protect the children from exposure to Mr J;
b. whether the children should spend overnight time with their mother; and
c. whether an order for equal shared parental responsibility is in the best interests of the children.
The Law
Guided by the objects and principles set out in section 60B and having the children's best interests as my paramount concern in accordance with section 60CA, I must make orders that are in the best interest of the children.
In determining the orders that are in the best interest of the children, I must consider the matters set out in section 60CC of the Family Law act.
I must also consider section 61DA with regards to the orders sought for equal shared parental responsibility or sole parental responsibility.
In the event that I make an order for equal shared parental responsibility, the provisions of section 65DAA are triggered and I must, in accordance with the principles set out in MRR v GR[1] consider whether an order for equal time is in the best interest of the children and reasonably practicable and if both questions are answered in the affirmative consider making such an order.
[1] 2010 FLC 93 424
In the event that both questions are not answered in the affirmative, then I must consider whether it is in the children's best interests and reasonably practicable for the children to spend substantial and significant time with their mother and if both questions are answered in the affirmative consider making such an order.
Assessment of the Evidence
The father
The father is an Aboriginal man and as a result all of the children are of Aboriginal heritage.
The father has two further children to his current wife, [E] born in …2011 and a son born on …2017.
The father is a stay-at-home dad and his wife Ms H works.
[X] had initially lived with her mother after separation but in 2012 [X] came to live with her father for the first time. It is the father's evidence that [X] then changed residence between her parents on a number of occasions before finally settling to live with the father.
The father says that the mother informed him that her partner, Mr J, had issues with drinking as early as July 2013.
At the beginning of 2015 when the mother went to hospital to give birth to her twins, the other two children subject to these proceedings came to live with the father by agreement.
The father attended the mother's home and he says that when he attended the home to obtain some belongings for the children, the home was in a very unhygienic state and there was no food in the house and rubbish was scattered throughout the house. As a result, the father retained the children.
The father's evidence is that once the children came to live with him and his wife the children, over a period of time, made many allegations of being abused and/or assaulted by Mr J.
Once the mother had recovered from the birth of the twins, she attended the children's school on or about 29 April 2015 and in the presence of the children a violent incident occurred. As a result an Apprehended Domestic Violence Order was taken out protecting both the father and his wife from the mother. That order remained in place for a period of two years.
The parents reached an agreement for the children to spend time with their mother and on the first occasion that occurred in September 2015 the mother refused to return the children. As a result a recovery order was sought and one was issued from the Town A local Court. It was further ordered that the children live with the father, that he have sole parental responsibility and that the children spend time with their mother each alternate weekend provided Mr J was not present.[2]
[2] annexure H to the father's affidavit, filed 24 April 2017
The father says that he subsequently found out that Mr J was spending time with the children and as a result, an Application in a Case was filed seeking that the children's time with the mother be supervised.
That application was heard on 18 December 2015 and the parties entered into a consent order whereby the children’s time with the mother was to occur in a public place known as Play Centre, Town A.[3]
[3] annexure K to the father’s affidavit filed 24 April 2017
On 11 March 2016 the parents reached a further agreement for the children's time with the mother to be supervised at the Town A Family Relationships Centre.[4]
[4] annexure L to the father's affidavit filed 24 April 2017
On 12 October 2016 the parties reached further agreement for the children to spend time with the mother one afternoon each fortnight, [X] alone one fortnight and [Y] and [Z] together in the other fortnight for a period of 3 hours. It was a requirement that should the mother wish to take the children to her home, then a support worker from the Family Support Service was to be present.[5]
[5] annexure M to the father's affidavit filed 24 April 2017
The father's evidence continues that he has concerns that the mother is unable to cope with all of the children when they are in her care, and he has real concerns about Mr J.
On 9 October 2017, the father filed a subsequent affidavit in these proceedings. The evidence contained within that affidavit confirms the father's concerns about Mr J and his concerns about the mother's capacity to meet the needs of the children. The affidavit contains many allegations and complaints about the mother, as reported to the father by the children.
The father was cross-examined and he initially struggled to come up with any alternate plan for the children to spend time with the mother in the event that I was not satisfied that Mr J posed a risk of harm to the children.
The father could not accept that it was likely, if not possible that the children were complaining to each of their parents about the other parent so as to garner favour.
The evidence certainly establishes that the children made complaints that could not possibly be true in both parents homes. The father acknowledged that the children lied when the complaint was about him but doggedly accepted the children's allegations about their mother and Mr J.
The father conceded that he had no evidence that Mr J had committed any crimes of violence, that he had been charged with any crimes against children and, that the only evidence he had of these things was the comments made by his own children.
The father conceded that people could reduce their alcohol consumption if they wanted to. The father was not convinced, nor would he ever be convinced that Mr J could ever be safe around the children.
The father produced photographs of Mr J at a barbecue allegedly groping his own penis. It was alleged by the father the children were present at the barbecue and that the photo proved this to be the case. It was this sort of behaviour that concerned the father about the children being exposed to Mr J.
Annexure B to the father's affidavit filed 9 October 2017 includes photographs of the barbecue incident.
Those photographs do not satisfy me that there were children present at the barbecue and as there was no other evidence to support the allegation that the children were present at the barbecue at the time the incidents displayed were carried out. I cannot be satisfied the children were present.
After hearing the evidence of the father and considering all of his evidence in chief, it is clear that the father wants total control over when and how the children should spend time with their mother. It is clear that the father holds concerns however whether those concerns are supported by the evidence is the real test.
The father conceded in cross-examination that if the court were to find that Mr J did not pose a risk to the children, he would be content with the children spending unsupervised time with their mother and in the presence of Mr J. Overall I formed the view that Mr Jeanes was a witness of credit who was doing all that he could to protect his children.
Ms H
The evidence contained within Ms H’s affidavits confirms that Ms H has a distinct dislike for the mother in these proceedings.
It is clear that Ms H has taken on the role of record keeper in terms of making notes about all of the children's visits with their mother. Ms H is absolutely adamant that the mother does not have the capacity to care for the children and is equally adamant that Mr J poses a risk to the children.
In a similar fashion to the father, Ms H will not accept that the children could possibly be lying about incidents in each of the parents homes.
Ms H was taken to Exhibit 8, which contained an allegation of abuse in the father's home and she was asked whether it was true and she said no.
Ms H was then taken to Exhibit 6, which contained an allegation of neglect and abuse in the mother's home and she was asked whether that was true and she said yes unreservedly.
It was put to her that if the children could lie about an incident in the father's home, could they not possibly be lying about an incident in the mother's home and Ms H could not accept that as a possibility at all.
Ms H has taken the children to the police and has photographed the children and is very disparaging of the mother.
At paragraph 21 of her affidavit of 10 April 2017, Ms H sets out an incident as told to her by [Y]. [Y] was allegedly choked, thrown into the shower called names held down and locked in a bedroom still in his wet clothes for a period of two days where he was not allowed to eat and had to soil his own pants rather than go to the toilet.
Ms H in cross examination said she believed that allegation. She was asked whether she had made a complaint to the police about that allegation and she said no.
Ms H stated that she will continue to keep notes about the children's time with their mother.
Having considered all of Ms H’s evidence and having watched her give evidence, I formed the view that she is determined to be disparaging of the mother and that as a result of her disdain for the mother and Mr J, the children would be well aware of the animosity between Ms H and the mother.
The mother
It is the mother’s evidence that up until approximately 2012 the father was very sporadic in spending time with the children.
Her evidence is that [X] asked to live with the father in 2012, she agreed but that shortly after going to live with the father, [X] started to complain that Ms H would yell at her and smack her.
Her evidence continues that when [X] came back to live with her after about six months she would then tell her father that she was yelling and smacking [X].
The mother says she approached both the father and Ms H to see if they could reach an agreement as to how they would deal with the repeated lies that [X] was telling.
The parents could not reach an agreement as to how they could manage [X]’s lies.
The mother then gives evidence that the children begged her to retain them when they came to visit her in 2015. It is the mother’s evidence that the father and/or Ms H tell the children what to say about the mother and Mr J.
At the time of swearing her affidavit in October 2017, the mother was intending to move closer to Town C where her partner, Mr J had obtained work.
The mother filed a subsequent affidavit on 9 August 2018 and at the time of trial the mother confirmed that she would be remaining in Town A and that she and Mr J were in the process of moving to a bigger home owned by Mr J’s sister in the Town A area.
The mother gives evidence that she has been receiving assistance through a caseworker who assists her with not only parenting issues but also with her issues regarding managing her own emotions.
The mother has completed a turning into kids course and had been attending a turning into teens course.
The mother was cross-examined and she conceded that in April 2018, the Department of Child Safety had been called to her home in answer to some allegations of neglect for her younger children. Since that time the mother has continued to work with Ms K from the Department of Child Safety.
The mother conceded that on 5 May 2018, Police attended her home after a domestic dispute. The subpoenaed notes reveal that the mother was named as the person of interest and Mr J was named as the victim on that incident. The notes reveal that the incident was a verbal disagreement and that both Mr J and the mother had been drinking. The mother denied that she had been drinking and indeed Mr J confirmed that she had not been drinking when he gave evidence.
It is the mother’s evidence that Mr J comes home on weekends to assist her in caring for their children.
The mother conceded that she committed a crime in 2010 when she tried to hurt Ms H and furthermore, conceded that she attended the school in April 2015 and threatened the father and Ms H again. Notwithstanding that the mother said she did not hate Ms H.
The mother was taken to a Facebook entry wherein she made some heated comments about the fact that her daughter's hair had been coloured without her permission. The mother conceded that she did make the comments, that she was venting to a friend and that she should not have done so publicly.
The mother conceded that Mr J had a history of violence when drunk, but stated that she and he do not have violent altercations. They do from time to time have heated verbal arguments.
It is the mother’s evidence that Mr J has been slowly cutting back on the amount of alcohol that he drinks and that he has done so over a number of years.
The mother further conceded that there had been times during supervised visits where the workers at the centre had to step in to assist her in managing the children's behaviour. Her evidence is that she is learning skills with the assistance of the Department of Child Safety Caseworker.
The mother stated that she and Mr J could adequately manage extracurricular activities for the children should they be spending time with her and stated that she had not attended sports games in the past, or other events because she was made not to feel welcome.
It is the mother’s evidence that she accepts that the children lie about incidents in each of the parents’ home and she confirmed that she has approached both the father and stepmother on many occasions about it.
It was the mother’s evidence that the children all want to spend longer periods of time with her. The mother agreed that it would be a good idea for the Independent Children's Lawyer to tell the children that the parents had agreed to the orders and/or to explain the orders after the trial.
I formed the view that the mother accepted that she had difficulties in the past but also she was addressing those difficulties with the assistance of her caseworker.
Overall, I formed the view that the mother was child focused and doing all that she could to ensure that she could meet the needs of all of the children in her care.
Mr J
Mr J says he has been in a relationship with the mother since 2012 and that he had developed a very good relationship with [Z] and [Y].
His evidence is that his relationship with [X] was not as strong as with the boys because she had been spending some time living with her father and the relationship was different as a result.
Mr J also gives evidence that [X] would make up stories about what had been happening in each of the parents homes, and that this had caused tension between the mother and father.
Mr J concedes that there have been arguments between he and the mother that had become quite heated at times. He says that those arguments do not occur in front of the children but did on one occasion.
He says that on two occasions, the police have attended the home because of an argument, on one occasion he called the Police and on the other occasion the mother called the Police.
His evidence is that he acknowledged that he has been a big drinker in the past and had Police dealings when under the influence of alcohol. He confirms that the last occasion this occurred was in June 2014.
His evidence is that he has been reducing the amount that he drinks over a period of 18 months to 2 years, with the goal to stopping altogether.
He gave evidence that his current occupation, that of a tradesman, requires that he has a zero blood alcohol content at all times that he is driving and that he can be randomly checked on any given day.
Mr J denies ever physically disciplining the children or harming them in any way.
Mr J was cross-examined and he gave evidence that he stays at Town B during the week for his work and returns to Town A on a Friday evening and leaves again at approximately 3:30am on a Monday.
He gave evidence that he will be working with …Employer for 60 hours a week working between Town D and Sydney. He confirmed that he and the mother would be moving into a new four-bedroom home in the Town A area.
Mr J said that he believed that he could work with Mr Jeanes in managing the children's transport needs and the like, and that he would be happy to meet with Mr Jeanes.
Mr J confirmed that he could abide by and had no difficulty with an order that he not consume alcohol whilst the children are in the care of their mother. He also agreed that if any of the children became sick he would contact the father and return them to the father if the father wanted that to occur.
I formed the view that Mr J gave evidence in an honest and forthright fashion. He appeared child focused and I am satisfied that he will provide considerable support for the mother noting that when the children are in her care there will be seven children in the mother's home.
Family consultant Ms L
Ms L had prepared a Memorandum dated 22 October 2015, a Family Report dated 31 May 2016 and a further Family Report dated 13 September 2017.
It is a consistent theme throughout all of the material prepared by Ms L that she is of the view that the co-parenting relationship could not support an order for equal shared parental responsibility. It is also a consistent theme that the children all miss their mother.
Ms L assesses the mother’s ability to understand and effectively meet the needs of the children as adequate and says that the children's needs would be best met by continuing to live in the father's home.
It is Ms L’s view that if the supervised notes reveal that the children have an improved relationship with Mr J and the court is satisfied that Mr J does not pose an unacceptable risk of harm, then the children should spend unsupervised time with the mother and Mr J at the mother's home.
Ms L was cross-examined and she confirmed that Mr J would provide an appropriate support for the mother provided he was not assessed as being a risk.
Ms L confirmed that she was extremely concerned about Mr J’s alcohol use and the effect it may have on his behaviours. Ms L was very concerned that the Police had been called to the mother's home as a result of a domestic argument in May 2018.
Ms L confirmed her opinion that Mr Jeanes will continue to facilitate the relationship between the children and their mother and that he will continue to put their safety first.
It was Ms L’s view that the children should continue to live with the father, that he have sole parental responsibility, that an order be made that the mother and Mr J not consume alcohol whilst the children are in their care.
Provided I was satisfied that Mr J did not pose a risk, the children should spend alternate weekend time with their mother and half school holidays.
Assessment of the Evidence
Primary considerations
All of the children are missing their mother and their stepsiblings in the mother's home. [Y] and [Z] were primarily attached to the mother prior to them coming to live with the father in 2015 and it is therefore not surprising that they want to spend more time with their mother and miss her greatly.
All of the children are well bonded with their father and feel secure in his care.
The evidence supports a finding that there is a real benefit to each of the children in having a meaningful relationship with both of their parents.
As there is no great distance between the parents’ homes, orders can be framed to ensure that the children are able to have a meaningful relationship with both of their parents.
I must of course consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
The evidence establishes that there is ongoing family violence in the mother's home. As late as May 2018, Police were called to the mother's home as a result of a domestic dispute. The Police records indicate that it was a verbal dispute, and that Mr J on that occasion was nominated as the victim. No action was taken as a result of the incident however it is clear that a heated argument took place in May 2018 and I am further satisfied on the evidence that Mr J had been drinking.
The evidence further establishes that the incidence of domestic violence seem to occur in the context of consuming alcohol. I am satisfied that the mother drinks rarely, and that Mr J has reduced his consumption of alcohol.
The mother and Mr J both confirmed that they could abide by an order that they not consume alcohol whilst the children are in their care. I am satisfied that they will comply with such an order. Such an order in those circumstances is a protective measure.
In relation to the other allegations regarding Mr J that he abuses the children and is physically violent towards them. I am not satisfied on the evidence that this has occurred.
The evidence certainly establishes in my mind that all of the children have either made up allegations or seriously exaggerated allegations about each of the parents and Mr J and Ms H from time to time.
There is no independent evidence to support that any of the allegations have occurred. In those circumstances, the words of the children cannot be relied upon to satisfy me that Mr J poses an unacceptable risk of harm.
It is important to note that when all of the children are together in the mother's home there would be seven children, four of whom have behavioural and or developmental issues.
The mother will require assistance in caring for all of those children. Mr J, in circumstances where I have found that he is not a risk to the children, will provide appropriate support for the mother. This too amounts to a protective measure protecting the children from the potential of being neglected.
One further issue that arises as a result of the evidence is the lack of relationship between the mother and Ms H. It is clear that Ms H has no regard for the mother and that she will continue to believe that the mother is an unfit person.
In those circumstances, I am persuaded that it is appropriate to make an order that Ms H does not attend at changeovers unless there is an emergency.
Additional considerations
[X] wanted to spend more time with her mother particular one-on-one time. In relation to Mr J she said “I kind of like him, but I kind of don't.” Her view was that she could initially spend day time at her mother's home and that she would feel comfortable at increasing the time to overnight time once she felt more comfortable with him. She was of the view that Mr J had changed for the better.
[Y] has been diagnosed with Autism Spectrum Disorder with speech and language impairment. He immediately informed the family consultant that he was going to go and live with his real mum and Mr J. He said that he is still scared of Mr J but thinks that he is nicer now and that he had tested him by calling him weird and Mr J did not hit him.
[Y] said he likes living with his father but he needs to see more of his mother.
It was Ms L’s view that [Y] views things very simplistically and that his maturity and his diagnoses do not allow him to properly consider the effect of an order where he were to live with the mother and Mr J. Ms L was also of the view that his views expressed were consistent with his attachments.
[Z] said he likes to spend time with Mr J and also said that Mr J seemed nicer now. He said he was not scared of Mr J like he was before and did not believe Mr J would hurt him.
[Y] also stated that he wanted to live with his mother and he did not mind whether Mr J was there as well. He was asked whether he could live with his dad if an order was made in that regard and he said yes he could but he felt more of the Salinas family not the Jeanes family.
The family consultant explained that the wishes of [Z] were consistent with his attachments as a child but that he lacks the developmental maturity to fully understand how a change in residence would impact upon his life.
The evidence establishes that the children all have a strong loving secure attachment with both of their parents. I am also satisfied that the children have a solid and secure attachment with Ms H. In relation to Mr J, I am satisfied that the children have had some concerns about Mr J’s behaviour in the past but they all like spending time with him and they no longer appear to fear him.
Of particular relevance is Exhibit 10, the supervised contact centre notes. The material shows that the children accept Mr J and do not appear to fear him. The children appear to be comfortable with him and happy to spend time with him.
The evidence establishes that the father has taken every possible opportunity he could to be fully involved in the children's lives. Making decisions and spending time with them.
Due to the nature of the proceedings and the allegations concerning Mr J, the mother's ability to be fully involved with the children has been curtailed as a result of orders consented to.
I am satisfied that the father has made unilateral decisions regarding the children, but more importantly that those unilateral decisions have been to the benefit of the children.
I am satisfied that both parents have to the best of their ability fulfilled their obligation to maintain the children from time to time.
If I were to make orders consistent with the mother's proposal, it would require the children immediately spending overnight time with their mother and Mr J in the mother's home. This would be a significant change to the children who have not spent time in the mother's home for some years now, nor have they spent overnight time with their mother for years.
If I were to make orders consistent with the father's proposal, this would seriously curtail the mother's involvement in the children's lives and would have a serious impact on the benefit to the children of having a meaningful relationship with their mother.
The orders of the Independent Children's Lawyer best meet the needs of the children in my view, and the evidence supports the making of those orders.
There will be a real benefit to the children in that they will continue to live in the stable and secure home of the father and will have the opportunity to have a meaningful relationship with their mother.
It is appropriate in my view that there be some period of time where the children spend day time only each alternate weekend with their mother and Mr J before increasing to overnight time and holiday time.
There is no evidence to suggest that there is any practical difficulty and expense involved which would significantly affect the children's rights to maintain personal relationships and direct contact with both of their parents.
I am satisfied that the father has the capacity to provide for the needs of the children including their emotional and intellectual needs. There is clear evidence in the school reports that the children are flourishing and making gains notwithstanding the diagnoses of [Y] and [Z]. [X] has also improved considerably since living with the father.
I am persuaded by Ms L’s opinion that the mother has the ability to understand and effectively meet the needs of the children. I am also persuaded that she will need the support of Mr J to meet those needs on a day-to-day basis when the children are in her care, having regard to the fact that there will be seven children in her care at those times four of whom have developmental or behavioural issues.
Nothing turns on subsection 60CC (3) (g).
As noted, all of the children are of Aboriginal heritage. I am satisfied that the father involves the children in appropriate cultural traditions and note that the children all engage in NAIDOC celebrations from time to time. The orders that I made will not adversely impact upon the children's right to enjoy their aboriginal culture.
The evidence supports a finding that the father has displayed an exemplary attitude towards the children and towards his responsibility as a parent at all times. I am satisfied that he has taken appropriate protective steps to ensure that his children are safe from harm.
The evidence establishes that the mother has at times demonstrated a less than ideal attitude towards her responsibilities as a parent. On her own evidence she has exposed the children to family violence in her home and I am satisfied that she has at times downplayed the alcohol consumption of Mr J. In doing so, she has put her needs above that of the children in the past.
I am further satisfied that the mother has voluntarily reached out to a number of organisations over the years to gain assistance in meeting her responsibilities as a parent and she is now engaged with a caseworker from the Department of Child Safety and is obtaining further assistance.
I am satisfied that the mother will place her children's safety at the forefront moving forward and that she takes her responsibilities as a parent very seriously now.
I have already commented on the family violence in the mother's home. As was previously set out, family violence seems to be associated with the consumption of alcohol. The order that I have made will protect the children from exposure to family violence moving forward. I am also satisfied that Mr J has taken positive steps to reduce his alcohol consumption and this too will reduce the impact of any future family violence or indeed the potential for any future family violence in the presence of children.
Parental responsibility.
As I have found that there has been family violence in the home of the mother and Mr J, the presumption contained within section 61DA(1) one does not apply.
Furthermore, the evidence clearly establishes that the co-parenting relationship between these parents is dysfunctional.
The father does not trust the mother and the mother does not trust the father. They have each made allegations and complaints to the Police based upon information they received from their children.
In those circumstances an order for equal shared parental responsibility is not in the best interests of the children.
I am satisfied, however, that the father should inform the mother of any decision to be made, seek her input, appropriately consider the mothers input and ultimately inform the mother of the decision that has been made.
For these reasons I am satisfied that the orders I have made are in the best interests of the children.
I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 17 January 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Jurisdiction
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