Johansen and Scottley

FAMILY COURT OF AUSTRALIA

JOHANSEN & SCOTTLEY

[2007] FamCA 1469

FAMILY LAW – CHILD – Equal shared parental responsibility – Family violence – Relevant matters for s60CC(3) – Separation of siblings – Best interests of children

Family Law Act 1975 (Cth)

APPLICANT:

Ms Johansen

RESPONDENT:

Mr Scottley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

2187

2006

DATE DELIVERED:

18 December 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

25, 26 & 27 June 2007;
30 & 31 July 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

M. Juhasz

SOLICITOR FOR THE APPLICANT:

Levy Partners

COUNSEL FOR THE RESPONDENT:

P. Davies

SOLICITOR FOR THE RESPONDENT:

Craney Family Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

G. Sundstrom

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

Orders

That the parties have equal shared parental responsibility in relation to the three children of their relationship C born … July 1994, B born … January 1997 and N born … May 1999 (“the three children”) AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the three children live with the father.
That the parties ensure that the two youngest children communicate and spend time with the mother as follows:-
3.1During school term each alternate weekend from 7.30pm Friday until 6.15pm Sunday the first of such periods shall commence on Friday of the first week of each school term.
3.2Half of the school holiday periods at the conclusion of each school term being the first half in each odd numbered year and the second half in each even numbered year commencing at 10.00am on the first day concluding at 6.15pm on the last day PROVIDED THAT for the latter period the last day shall be on the Saturday immediately preceding the commencement of the new school term.
3.3The first occasion of such school holiday periods shall commence on the second half of the current school holidays.
3.4From 5.00pm Christmas Eve until 5.00pm Christmas Day each alternate year commencing on 24^th December 2007.
3.5For a period of two [2] hours on each of their birthdays provided that the mother has given the father fourteen [14] days written notice and such periods of time shall take place in the general area in which the children live unless otherwise agreed between the parties.
3.6On Mother’s Day from 7.30pm Saturday until 6.15pm Sunday in the event that it does not fall on a weekend when the two children would otherwise be in the care of the mother.
3.7Such alternative or other periods as the parties may agree upon from time to time.
3.8Subject to the parties otherwise agreeing from time to time the mother may have telephonic communication with the two youngest children each Monday and Thursday between 7.00pm and 7.30pm with telephone calls initiated by the mother and in the event that both or either of those children are unavailable to speak to the mother then the father shall ensure that the mother’s telephone call is returned as soon as possible.
That the parties shall ensure that the mother is able to spend periods of time with the two youngest children in accordance with Order 3 as follows unless otherwise agreed between the parties from time to time:-
4.1The father shall deliver the two youngest children to the mother at Hungry Jacks at … Railway Station in Sydney at the commencement of the period of time that the two youngest children are due to spend with the mother.
4.2The mother shall deliver the two youngest children to the father at McDonald’s Family Restaurant T at the conclusion of the period of time that the children have spent with her.
That the mother may communicate and spend periods of time with the eldest child as agreed between the parties.
That each of the parties shall ensure that the other has his or her current residential address, landline and/or mobile telephone numbers at all times.
That in the event of any of the three children suffering any serious illness or injury whilst in the care of either of the parties then that party shall promptly inform the other party of the details of such injury or illness and the name and address of any relevant hospital or medical practitioner.
That the father shall forthwith provide written authorisation to the Principal of all schools attended by the three children to enable the Principal to furnish to the mother at her expense, if necessary, copies of all school reports, notices and correspondence in relation to academic progress, sport, extra-curricular activities and school functions relevant to each of the three children and the father shall immediately forward to the mother a copy of such written authorization.
That the mother is restrained from bringing any of the three children into the company of Mr L and she shall use her best endeavours to ensure that Mr L shall not approach or be in the presence of any of them.
That each of the parties is restrained from making any derogatory comment about the other to or in the presence or hearing of any of the three children and each of the parties shall use his or her endeavours to ensure that no other person conducts himself or herself in that fashion.
That the father shall ensure that N is able to continue remedial therapy and the other two children have counselling as to their relationship with each of the parties for such duration as the therapist and counsellor may advise.
That the parties attend a post-separation parenting programme to improve communication between them with regard to child related issues.
That the Manager Child Dispute Services in the Newcastle Registry of the Court or her nominee assist each of the parties in relation to choice of suitable separation parenting programmes for the purpose of compliance with Order 12 AND the parties shall forthwith attend her for that purpose.
That each of the parties may publish a copy of these Orders and the Judgment given this day to such therapist, counsellor or medical practitioner that either of them or any of the three children may consult.

Procedural orders

That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2187 of 2006

MS JOHANSEN

Applicant

And

MR SCOTTLEY

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant Ms Johansen (who for convenience I shall refer to as “the mother”) sought parenting orders with respect to the three children of the relationship of the parties pursuant to her Amended Application filed 13^th December 2006.
In her Amended Application the mother sought orders that the three children live with her and that the father spend periods of time with them each alternate weekend during the school term; half of the school holiday periods, other than the Christmas school holidays during which time the period of time that he should spend with them would be for two weeks commencing on the 2^nd January in each year.
Orders were also sought by the mother in the alternative that in the event that parenting orders were made that the three children live with the father, that the three children spend periods of time with her which were the mirror image of the orders sought by her in relation to the father to which I have made earlier reference.
At the commencement of the trial I was informed by counsel for the mother that she no longer sought parenting orders in relation to the eldest child.
It was made clear in the Case Outline document lodged on behalf of the mother and dated 21^st June 2007 that the mother did not seek to rebut the presumption of equal shared parental responsibility in accordance with Section 61DA. Counsel for the mother and father submitted that orders should be made that reflect the parties having equal shared parental responsibility.
The respondent father Mr Scottley (who for convenience I shall refer to as “the father”) sought parenting orders in accordance with his Amended Response filed 18^th December 2006. In substance the father sought orders that the three children live with him and that they spend periods of time with the mother each alternate weekend during school term and for half of school holiday periods, as well as other specific occasions.
The father also sought injunctive relief to restrain the mother from using any illicit drugs and requiring her to undergo urinalysis for drug screening. He also sought an order restraining the mother from bringing any of the three children into contact with Mr L. Other ancillary orders were sought.
Exhibit “D” is a minute of orders sought by the independent children’s lawyer. The orders so sought are that the three children live with the father and that the two youngest children spend periods of time with the mother each alternate weekend during school term and for half school holiday periods. An injunction was sought restraining the mother from bringing any of the children into contact with Mr L. Ancillary orders were also sought.
The parties cohabitated for approximately 10 years during which they had a volatile relationship marked by a number of brief separations. Cohabitation commenced in about 1993 and continued subject to varying periods of separation until they finally separated on 17^th December 2003. They have lived separate and apart from each other since that time.
The mother is 30 years of age and engaged in home duties.
The father is 33 years of age and is a student.
The three children of the relationship of the parties (“the three children”) are:-
a)C 13 years of age having been born in July 1994 (“[C]”). C is completing Year 7 at T High School.
b)B 10 years of age having been born in January 1997 (“[B]”). B is in Year 4 at W Public School.
c)N 8 years of age having been born in May 1999 (“[N]”). N is in Year 2 at W Public School.
At the time when the parties finally separated their three children, who were then aged 9, 6 and 4 years respectively, lived with the mother.
C has lived with the father since 21^st November 2005.
B and N have lived with the father since 3^rd August 2006.
The circumstances in which the three children commenced to live with the father will be the subject of subsequent findings made in this judgment.
The mother lived with Mr L for the period from about November 2005 until they separated in October 2006.
The mother and Mr L have a child H 18 months of age having been born in June 2006 (“[H]”). H has always lived with the mother.

Relevant orders

In June 2003 in the Local Court an interim apprehended violence order was made for the protection of the mother from the father.
In November 2005 in the Local Court an interim apprehended violence order was made for the protection of the father from the mother and Mr L.
In December 2005 in the Local Court a final apprehended violence order was made by consent for the protection of the father from the mother and Mr L.
On 26^th January 2006 in the Local Court interim parenting orders were made by consent which provided for the mother to have alternate weekend periods of time with C, the father alternate weekend periods of time with the two youngest children. In addition an order was made transferring the proceedings to this Court.
On 11^th September 2006 Ryan J made orders providing for the three children to live with the father.
On 12^th September 2006 Ryan J made interim parenting orders which provided for the three children to live with the father and that the mother spend periods of time with B and N each Saturday from 9.15am until 6.15pm with telephone communication twice weekly. An injunction was granted restraining the mother from bringing B and N into contact with Mr L (“the current interim orders”).

Relevant legal principles

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in Section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in Sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in Section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in Section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
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.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in Section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the three children and other relevant factors

C has a conflicted relationship with the mother which sets the scene for the views expressed by her.
Whilst the mother does not seek a parenting order in relation to C nonetheless, her views together with the other relevant matters to which I will refer pursuant to Section 60CC, must still be the subject of findings made by me. The father seeks parenting orders in relation to C which require me to make findings in relation to her best interests being the paramount consideration for the purpose of making an order pursuant to Section 60CA. In addition, C is the eldest of the three children and with whom of the parties she will live, is relevant to other issues in the proceedings including, but not limited to, the possible separation of the three children given the orders sought by the mother.
Each of the parties gave evidence in relation to this particular matter. Whilst the mother accepts that C’s consistent view since she commenced to live with the father and members of his extended family has been that she wants to remain living with him with little time spent with the mother, the mother claims she has been influenced by negative comments about her by the father and his family members.
The father gives the same evidence in relation to C’s views. However, he denies that either he or members of his household have negatively influenced C against the mother, but rather it has been her emotional abuse of C together with violence by the mother’s former partner Mr L and having been left to baby sit for the two youngest children and Mr L’s 10 year old sister until late at night, or until the early hours of the morning, which have resulted in C expressing and maintaining the views that she holds.
Ms R, family consultant (“the family consultant”) prepared two family reports dated 17^th January 2007 and 30^th July 2007 which are Exhibits 1 and “B” respectively.
In Exhibit 1 the family consultant concluded that “[C] was able to state her clear views regarding future parenting arrangements.” Her views were that “she does not want to live with the mother, does not want to come into contact with Mr [L] and does not want to spend time with the mother until she and the mother have been able to sort out some issues via counselling.”
In Exhibit 1 C’s views are also described as regarding the father as “an involved parent” whilst expressing some resentment towards the maternal grandparents due to their perceived favouritism of B over herself and N.
During the course of her oral evidence there was little challenge if any to the family consultant’s conclusions in respect of C’s views as set forth in Exhibit 1.
I accept the evidence of the family consultant that C has expressed the clear views to which I have referred.
In Exhibit 1 the family consultant records that “[B] has expressed the view that she would like to see the mother more and would like to spend overnights with the mother.” That was subsequently expanded upon in Exhibit 1 in that B’s further recorded views were that she wanted to live with the mother as she missed her and that in the event that the Court decided that she should remain living with the father, her expressed view was that it would be “OK but she would like to spend some weekends and holiday periods with the mother.”

During the course of her oral evidence the family consultant emphasised the dilemma that was facing B in that she would miss one parent and his or her family should she live with the other parent.
The family consultant’s evidence was consistent throughout and I accept it. I find that B has the views expressed by the family consultant to which I have referred.
Exhibit 1 included N’s views. He did not express a view regarding where he preferred to live. Otherwise his views were that the mother should not be abusive towards him and that the father should spend more time with him and the other children. He “wanted the parties to stop fighting.” On the whole, he had negative views so far as Mr L was concerned.
The three children expressed positive views in relation to the father’s partner Ms G and her two children as set out in Exhibit “B”.
The family consultant’s oral evidence did not depart from Exhibits 1 and “B”. I accept Exhibits 1 and “B” in relation to this matter and make findings accordingly.

The nature of the relationship of the children with each of the parties and other persons

Unfortunately, the mother’s relationship with C is at a low ebb. The family consultant in Exhibit 1 and in the course of her subsequent oral evidence described the relationship as being a damaged one.
Yet it was apparent from the evidence that the mother was anxious to repair the relationship with C, but C was not yet ready for a future improved relationship. The difficulty appeared to be that the mother lacked the necessary insight for the purpose of improving the relationship whilst C did not want to take any steps at this stage in furthering the relationship. I will subsequently refer to the issues that are relevant to the relationship between the mother and C.
There was no issue that B and the mother share a close, loving relationship complicated by living with the father, C and N, with whom she also has a loving relationship.
There is also no controversy that C lacks a positive relationship with her maternal grandparents. C together with B and N have a negative relationship with the mother’s former partner Mr L.
He does not have a relationship of substance with H. B and C are very fond of him.
The three children have a loving relationship with each other, with the father, the paternal great-grandmother and paternal grandmother.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the children and the other party

Following the final separation of the parties on 17^th December 2003 I accept the evidence of the mother that she facilitated periods of time that were spent by the father with the three children. Difficulties in that regard arose following the mother’s commencement of cohabitation with Mr L in about November/December 2005 so far as the youngest two children were concerned. C had already commenced living with the father.
The parties conflicted relationship rose to a new level fuelled by the violent conduct by Mr L to the father and his at times abusive conduct to the three children as well as violent conduct to the mother.
So far as the father is concerned, once C commenced to live with him and members of his extended family he adopted a restrictive attitude to the mother communicating with C. He did not show a willingness or ability to facilitate periods of time to be spent by the mother with C even allowing for C’s difficulties in her relationship with the mother.
Once B and N commenced living with the father communication between the parties sank to new depths no doubt due to the circumstances in which those two children were left by the mother with the father to which I will subsequently refer.
Fortunately so far as B and N are concerned, the parties reached agreement at the beginning of this year regarding periods of time to be spent by the mother with them. Agreement was reached directly between them following correspondence that passed between their respective solicitors. The agreement was confirmed in writing as set forth in Exhibit 3. It provided the mother have periods of time with B and N each alternate weekend from the 5^th January 2007 commencing at 7.30pm on Friday and concluding at 7.30pm Sunday. Changeover was agreed to take place at the commencement of such periods at a Railway Station in Sydney and concluding at a McDonald’s Restaurant near the father’s residence.
At the end of 2006 the parties also directly reached agreement regarding B and N having an overnight period of time with the mother at the residence of the maternal grandparents from December 2006. The relevant document is Exhibit 4.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty and expense in relation to B and N spending time with the mother. That is due to the distance between the residences of the mother and father which are in the Sydney area and in the Newcastle area respectively, travelling time by motor vehicle outside peak hours being approximately 1 hour 40 minutes.
There is no difficulty or significant expense so far as telephone communication is concerned.
All of the above considerations also apply so far as C and the mother are concerned.

The capacity of each of the parties and any other person to provide for the needs of the children including emotional and intellectual needs

I find that the mother has the capacity to provide for the physical needs of B and N so far as their accommodation is concerned. That is demonstrated by Exhibit 2 which contains 14 photographs of bedrooms and other internal features of the mother’s premises.
There is considerable evidence in relation to the mother’s alleged restricted capacity to provide for the physical needs of N as well as the emotional needs of B and N. Due to her lack of protection of them from violent and abusive behaviour of Mr L. I accept the opinion of the family consultant given in Exhibit 1 “that [N] in particular has been displaying aggressive and defiant acting out behaviours since Mr [L] joined the mother’s family unit. This behaviour is cited in the current research as a common behaviour in children of [N]’s age when they witness domestic violence or are the victim of physical, verbal or emotional abuse.” The family consultant’s oral evidence did not show a departure from that opinion nor is there other evidence to suggest that it was opinion which was not soundly based. However, I accept the evidence of the mother that she has ceased to live with Mr L since October 2006 although she has occasionally visited him with N, on one occasion in breach of the injunction which was granted as part of the current interim orders.
There is also evidence of the mother physically chastising N and it is agreed that he has expressed angry resentment to that conduct in circumstances that it was not discounted by the family consultant. I accept her evidence in that regard.
I further find that the mother has a significant limited capacity to provide for the emotional needs of B and N. Whilst I do not doubt that she loves them, she lacks control so far as dealing with them is concerned due to use of foul language, particularly to N and otherwise in the hearing of both of them, her lack of insight into the effects upon N of ignoring him whilst devoting herself to B, her negative comments about the father and members of his extended family in the presence or hearing of those two children and her lack of ability or willingness to prevent the maternal grandparents from also making negative comments about the father as well as C in the presence of B and N.
The mother’s abusive conduct towards C and her lack of insight into the adverse effects upon C and her relationship with the mother by having frequently used her as a baby-sitter for B and N, not to mention Mr L’s sister at times, leaving C in charge of the household without prior discussion with her whilst she apparently socialised at night, demonstrates a disturbing lack of sensitivity and care in relation to C’s feelings which have undoubtedly played a large part in the deterioration of the relationship between the mother and C.
The circumstances in which C and subsequently B and N were left by the mother in the care of the father are relevant to the capacity of each of them to provide for the emotional needs of the three children.
The affidavit evidence of the mother is that upon her and Mr L informing the three children that she was pregnant with H, C was distressed and asked if she could stay with the paternal grandmother “for a couple of days and think about the news of the baby.”
Following a discussion that the mother says she had with the father whilst he was at work she took C to the paternal grandmother’s home on 21^st November 2005, informed her that she would return and collect C implicitly a few days later, she claimed in her affidavit that she did not want the child to miss many days from school. The father claims that the mother said to him “come and get her . . . I don’t want her any more.”
On the day that the mother claims that she was due to collect C she spoke to her by telephone and C stated that she would not return if Mr L was there irrespective of the mother being at home full-time.
The mother further stated “in view of [C]’s reluctance to return home I did not go and get her as arranged on 23^rd November 2005.” The mother then gave further evidence in her affidavit of difficulties that she had in telephoning C, that the father was obstructive in that regard as well as preventing C and the mother from spending periods of time together. The affidavit evidence of the father is that on the relevant date the mother took C to the paternal grandmother’s home which is the home where the father, the three children together with the paternal great-grandmother apparently live. I was informed by the paternal grandmother that the mother allegedly said that she did not want C. The father further states that a few days later he made arrangements for the paternal grandmother to take C to the Department of Community Services for interview and that the child indicated a preference to live with him. The child informed him that Mr L was violent to her and always screaming at her.
The paternal great-grandmother in her affidavit sworn 6^th September 2006 stated that the mother delivered C to her home and said to her “here she is, she wants to be with her father, he can have her, I don’t want her.” The paternal great-grandmother replied “are you coming back” to which the mother said “no”. The paternal great-grandmother was not required to attend for cross-examination.
Oral evidence given by the mother was that C either lied or exaggerated in relation to alleged ill-treatment by the mother and that she has not sworn at C. The mother’s evidence was otherwise vague in relation to using swear words in the course of conversation with C. Otherwise the mother confirmed that C was unhappy about the mother’s pregnancy to Mr L.
There was no substantial challenge, if any, to the affidavit evidence of the father. I find his affidavit evidence and that of the paternal great-grandmother, who was not required for cross-examination, to be plausible and more reliable than that of the mother. It does not suggest that she made any real effort to persuade C to return to her care by, for example, visiting C at the father’s home and phone calls, albeit there being difficulties in speaking to C that may have been brought about by the father or other adults in the household. The father for his part claims that he was following the advice given by the Department of Community Services to the effect that arrangements should not be made for C to spend further periods of time with the mother until orders were in place. Interim parenting orders were made on 16^th January 2006 in the Local Court.
With regard to the circumstances in which B and N ceased to live with the mother and commenced living with the father on about 3^rd August 2006, the affidavit evidence of the mother is that she took those children to the father’s home to ‘leave them there until the following Sunday.” The mother denies assaulting the father on that occasion. The mother further states that on the following Sunday during the course of a telephone conversation with the father in which she informed him that she would be arriving to collect the children he threatened to call the police, that he had “an AVO on you and you are not to come here.” The mother further states that she had a conversation with a police officer who informed her that her attendance at the father’s home would be in breach of the AVO and that she could be arrested and charged. The mother’s further evidence is that in the light of that information she did not collect the children.
The mother’s further affidavit evidence is that during the following week she spoke by telephone with B and N and that they informed her that they wanted to return home with her. The mother states that she attended the father’s home accompanied by her mother on 14^th August 2006 and they were met by the paternal great-grandmother who told them that the children had gone shopping and would not be home “for hours.” The mother states that “consequently I did not collect the children on this occasion.” No explanation is given by the mother as to why she attended the home on the 14^th August 2006 but did not do so on the previous Sunday, notwithstanding that she claims that the police information was a deterrent to her in attending the home on that Sunday. In addition no evidence was given as to further steps, if any, that she took to collect the children on a subsequent occasion prior to the current interim orders that were made.
In his affidavit sworn 16^th August 2006 following a telephone call received by the father from the paternal great-grandmother, he made a telephone call to the mother on 26^th July 2006 during which she asked him to collect B and N, she did not want them. He said he would travel to collect them from W police station
The father further states that he together with the paternal great-grandmother and the paternal grandmother travelled to the W police station and were met there at about 11.30pm by the mother who left B and N with him saying that she would collect them on the following Friday afternoon. Subsequently the mother collected those two children on Saturday rather than Friday.
The father’s further affidavit evidence is that on 3^rd August 2006 he received a telephone call from the mother who abused him in relation to affidavits that were served upon her solicitor and then subsequently that day received a SMS message from the mother threatening to kill him.
During the afternoon of Thursday 3^rd August 2006 the father states that the mother arrived at his home. At that stage she had N with her. As the door opened the mother hit him in the face with bags that she was holding. He took N inside and closed the door. The mother returned B. The child was crying. The mother allegedly said to the father “I don’t want to go to court they are yours, don’t worry you are going to get it you are going to get yours.” The mother then left in her motor vehicle. B and N have lived with the father in his household since that time.
The father’s further affidavit evidence is that when the mother left N with him N was only wearing school shorts and shirt with a pullover that was too small whilst B had a pair of ripped stockings, a school dress, a school shirt and pullover which were in poor and dirty condition. Both children were crying.
An affidavit was sworn by the paternal grandmother on 6^th September 2006. The paternal grandmother states that she was present on 3^rd August 2006 when the mother left N and B with the father. Her evidence corroborates the substance of the father’s affidavit evidence.
In addition the paternal grandmother states that the following day she purchased B and N new clothes.
The mother has subsequently been charged with assaulting the father. There is an absence of evidence of the determination of those proceedings.
During cross-examination the mother conceded that in relation to leaving B and N with the father on about 3^rd August 2006 she did say to him “I don’t want to go to court, they’re yours.” The mother states that at that time she “could not get my head around things, said the wrong thing.” The mother’s further explanation was that she was still living with Mr L and did not want to leave the children with him. In addition her mother was seriously ill.
The paternal grandmother gave oral evidence. Whilst being cross-examined by counsel for the mother the paternal grandmother stated that on 3^rd August 2006 at the time when the mother left N at the premises occupied by herself and the father, the mother was swearing and “ranting”. The paternal great-grandmother telephoned the police.
Exhibit 1 reports that the two youngest children informed the family consultant that the mother had removed them from school then took them to the father’s home where she then left them implicitly on 3^rd August 2006. That information was given to the family consultant spontaneously and I accept her record of it.
I do not accept the evidence of the mother. As a whole it is inconsistent and makes no mention of the information given by the two youngest children as recorded in Exhibit 1. No suggestion was made to the family consultant that she had misunderstood the two youngest children nor did the mother give any evidence by way of explanation of what they apparently said to the family consultant. I accept the evidence of the father and paternal grandmother. Their evidence was not challenged. It has been consistent throughout in relation to this matter. I make findings accordingly.
I find that the father has the capacity to provide for the physical and emotional needs of the three children except that until the current interim parenting orders were made he could have shown more insight in relation to recognising and acting upon the needs of B and C in particular to have more frequent opportunities for telephone communication with the mother and arrangements for them to spend periods of time with her. In that regard he could have shown more flexibility notwithstanding the advice that he received from an employee of the Department of Community Service.
However, the father has shown a more positive approach to arrangements to be made for B and N to spend periods of time with the mother as demonstrated by Exhibits 3 and 4.
The role of the maternal grandparents has been limited to consideration of their capacity to provide for the emotional needs of the three children. To that extent I accept the evidence of the family consultant that they have demonstrated serious shortcomings due to criticisms of the father in the presence of hearing or one or more of the three children, of C in terms of seeking to blame a young girl for difficulties in the relationship between her and the mother, rather than providing guidance and support for her and recognising the limitations that unfortunately have been shown by the mother in her relationship with C.
The paternal grandmother and paternal great-grandmother have been supportive and encouraging of the three children in every way open to them as is demonstrated by their evidence which I accept. Indeed no submissions to the contrary were made. Accordingly I find that they have the capacity to provide for the physical, emotional and intellectual needs of the three children.
So far as the mother’s former partner Mr L is concerned I find that he lacks the capacity to provide for the physical, emotional or intellectual needs of the three children. The overwhelming evidence which I accept is that he has been violent and abusive to one or more of the three children as well as to the mother. He has also engaged in an unprovoked assault upon the father in circumstances where it was likely one or more of the three children witnessed or heard the altercation between them.

It is necessary to refer to the evidence and the finding that I have made in relation to Mr L as the mother has remained in communication with him no doubt because of their child H. That raises the potential for one or more of the three children to be brought by the mother into the company of Mr L notwithstanding her evidence that her relationship with him has terminated and she has not seen him for a considerable period of time.
The father’s partner Ms G also gave evidence. They do not live together. They have had an intimate and close relationship since early this year. Ms G has two children. Her evidence together with that of the family consultant, as well as of course the evidence of the father which I accept, is that she has a fond relationship with the three children, has the capacity to support the father in relation to the physical, emotional and intellectual needs of the three children.

The likely effect of any changes in the children’s circumstances including the likely effect on the children of separation from either of their parents or any other person with whom they have been living

The likely effects of changes in the circumstances of B and N unlike C the subject of the parties’ applications for parenting orders, are that both would benefit from the daily care and attention which the mother can provide.
This would be even more important for B given the close relationship that she has with the mother and the extent to which she has been missing her.
In addition B and N would be able to further their relationship with H who they love.
Other likely effects of changes whereby B and N live with the mother are that they will then be exposed to demonstrated inability of the mother from making negative comments about the father to them or in their hearing, similarly in relation to one or more of the members of the father’s extended family with whom they have been living. In addition, B and N will be inevitably brought into frequent contact with the maternal grandparents who have not only demonstrated lack of maturity and insight so far as negative comments about the father to the children are concerned, but their alignment with the mother has been such that in the words of the family consultant as set forth in Exhibit 1 “they blame [C], a 12 year old, for the damaged relationship between her and the mother. They appear unable to offer [C] any support in this regard and appear to have similar lack of insight into [N]’s situation.” In addition the family consultant also reported “it would also appear that the maternal grandparents have no insight into the difficulty for the children of them being critical or derogatory of the father and his family, to or in front of the children.”
There is no issue that the three children have a close relationship and in particular B with C.
I accept the oral evidence given by the family consultant that although electronic and other means of communication can be used by B and N with C which would enable their interrelationship to be maintained, however they would lose the physical side of their relationship to a substantial degree represented by activities and discussion together on a daily basis. The family consultant pointed out the dilemma that faces B in particular in that she loves the mother and C as well as the father. In the event that B lived with the mother, she would miss the father and his family. Conversely should B live with the father, then she will miss the mother and her family.
B and N have lived with the father and members of his extended family since 3^rd August 2006. During the ensuing period they have settled down in a stable, family environment free from the violence and abuse that were features of the mother’s household which had included Mr L. The situation in that regard has obviously improved as he and the mother have separated and he lives in a country town with apparently little direct contact with the mother. They have telephone communication. In the event of Mr L visiting the mother when both or either B or N are present, then it is more probable than not that there is high risk of him engaging in the same violent and/or abusive behaviour that he carried out whilst living with the mother based on his past history with them. I am not satisfied on the balance of probabilities that the relationship between the mother and Mr L has reached such a level that it is unlikely that he will return to see the mother and/or H at the mother’s premises once these proceedings have been concluded. In that regard I take into account the mother’s deliberate breach of the injunction granted on 12^th September 2006 which restrained her from bringing B and N into contact with Mr L. That breach was exacerbated by the complicity of the maternal grandfather.
In the event of Mr L being present with the mother in any place at which B and/or N are also present, the likely effect upon them would be very upsetting, if not traumatic, given his past unacceptable abusive behaviour.
However, should B and N remain living with the father then there is no appreciable risk of them being brought into the company of Mr L as the periods of time that they may then spend with the mother will be circumscribed, lessening the risk of them being in the company of Mr L.
During the period that B and N have been living with the father and members of his extended family they have progressed as well as may have been expected with school attendances, extra-curricular activities and their emotional development although N continues to show significant behavioural problems.
The three children have developed a good relationship with the father’s partner and her two children, notwithstanding the developmental issues that those two children have. The likely effect on B and N of ceasing to live with the father is that the potential benefits to them of being part of a stable blended family unit will be lost to a large degree in the event of them living with the mother, taking into account periods of time that they will spend with the father.

The maturity, sex, lifestyle and background of the children

B and N with C have the maturity commensurate with their ages subject to the special needs of N.
I have made previous findings in relation to the lifestyle that the children have with the father and members of his extended family. There are no other relevant matters.

The parental attitude of each of the parties

Each of the parties has an appropriate parental attitude to the three children subject to the findings that I have made in relation to the parties’ capacity to provide for the needs of the three children in relation to family violence.

Family violence and family violence orders

Family violence orders have been made to which I have earlier referred.
Each of the parties makes allegations that the other has been violent or abusive to the other.
The allegations made by the mother are as follows. The mother contends that in late 1993 the father assaulted her.
The mother contends that early in 1998 the father assaulted her in the lounge room pushing her head into a wall, that her “head went right through the gyprock.” On another occasion the father threw a chair at her which missed her but smashed a hole in the door between the lounge room and the kitchen.
A further incident of alleged violence by the father against the mother took place on 12^th February 2000. The mother’s evidence is that upon returning home in the early hours of the morning, having been out with neighbours, the father abused and assaulted her. He was interrupted by a neighbour and following a resumption of the abuse, was interrupted again by police officers who attended the parties’ home. They left after the mother convinced them that there was no need for them to remain.
The mother further alleges that in the period between February and May 2000 the father assaulted her several times.
During the course of cross-examination the mother repeated her evidence of violence by the father to which I have referred. In relation to the allegation that the father had caused her head to hit a wall breaking gyprock, the mother stated that she did not receive any injuries nor did she have medical attention. The mother did not report that assault to the police.
In his oral evidence, the father denied the mother’s allegations of violence against her.
In relation to the alleged assault in February 2000, the father’s evidence was that he did recollect that the mother returned home intoxicated in the early hours of the morning having socialised with the neighbours. He denies assaulting her following her return to the parties’ home and implicitly also denied the allegations of abuse.
The father’s further evidence in relation to the February 2000 alleged incident was that he recollected that “someone” knocked at the window but he did not hear a voice. He recollects the mother answering the front door and opening it. He could not hear voices. He also recollected hearing a further knock at the door and that upon him opening it, police officers were there and informed him of a report of ‘yelling”.
The father was unable to give evidence of a rational explanation for the police attending the parties’ home in the early hours of the alleged assault in February 2000 in circumstances in which he claimed he had not either abused or assaulted the mother. The father in effect sought to persuade me that the police just happened to consider it necessary to attend the parties’ home in the early hours of the morning for no rational reason. In those circumstances, I prefer the evidence of the mother to that of the father, as it was detailed and plausible, whereas the father’s evidence and denials combined with the circumstances of the police attending the parties’ home to which I have referred, are unpersuasive.
I accept the evidence of the mother in relation to the earlier alleged assaults by the father upon her and I found her evidence in relation to the subject of violence between the parties more reliable than that of the father, with the exception that I do not accept the degree of the violence alleged to have occurred in 1998. It seems unlikely that the mother would have been left without any injuries to her head if an assault had taken place as she described it in her affidavit.
Accordingly I find that the father has been violent and abusive towards the mother on a number of occasions during the period of their relationship and cohabitation.
The father has alleged that the mother assaulted him on 3^rd August 2006 when she brought B and N to his home. That was the occasion when those two children commenced living with the father and members of his extended family.
The father’s evidence is that he received an abusive SMS message from the mother earlier that day. Subsequently during the afternoon, upon the mother first taking N to the father at the door to his home, she hit him in the face with the children’s bags. Upon B entering his home the mother made a threat to him.
The father claims that the mother has been abusive towards him on other occasions and threatened him with violence especially during the period that she was living with Mr L.
During the course of the mother being cross-examined, she admitted that she had been violent to the father on two occasions including spitting at him.
The father further alleges that during 2004 the mother pushed him down the stairs and made death threats to him. He states that subsequently the mother made a complaint to the police and applied for an apprehended violence order against him. However, upon attending Court the mother withdrew her allegations and subsequently the mother offered him lunch and the parties reconciled. I accept the father’s evidence which was not challenged in that regard.
I find that the mother has been violent and abusive to the father as alleged by him.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the children

I have concluded that an order that the three children live with the father is an order least likely to lead to the institution of further proceedings in relation to them. In that regard I have given significant weight to the positive likely effect upon the three children should they continue to live with him as opposed to the negative influences which may be brought to bear by the mother and the maternal grandparents the subject of my earlier findings.

Any other relevant fact or circumstance

The evidence of the father and his partner Ms G is that in the foreseeable future they are likely to live together with her two children and the three children in the one household in the same general area in which the father and the three children currently reside is evidence that I accept.
My finding in the last paragraph is a relevant factor to take into account.

Conclusion

Section 61DA (a) provides that “when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
As previously referred to, counsel for the mother and father submitted that an order should be made in terms that reflect that presumption. Counsel for the independent children’s lawyer submitted that there was no need to make an order as the presumption applied in any event unless rebutted.
It is clear that the parties have had a volatile relationship prior to and during the period of their cohabitation and since. Constructive communication between them has been poor.
However, it is to their credit that they made their own direct arrangements in respect of periods of time that the two youngest children may spend with the mother on an interim basis as reflected in Exhibit 3. The evidence is that generally speaking the youngest children have become settled in the routine that was created. Those circumstances provide some cautious optimism for the parties being able to communicate in a constructive and civil way so far as child related issues that are bound to arise from time to time.
Consequently I have concluded that it is in the best interests of the three children that an order be made as sought by the mother and father. That will also ensure that both the mother and C realise that the mother continues to take an active parental responsibility for issues that will be relevant to her and also will prevent the mother from otherwise being marginalised in that respect.
The mother proposes that the two youngest children live with her and that there be regular periods of time that they spend with the father and implicitly C similar to the periods that the two youngest children currently spend with the mother.
The father for his part proposes that final orders be made whereby the three children are not separated and remain living with him in effect a continuation of the current arrangements for periods of time that those children spend with the mother.
There was no opposition to the submission made by both counsel for the independent children’s lawyer and counsel for the father that the interim injunction, being part of the current interim orders restraining the mother from bringing any of the children into the presence of Mr L, should be made the subject of a final order. The findings of fact that I have made relevant to Mr L, the need to protect the three children or any of them from family violence or abuse make it clear that it is in the best interests of the three children that such an injunction be granted. The appropriate order will be made.
Section 65DAA (1) and (2) makes it mandatory for me to consider whether it is in the best interest of a child to make orders that the child or children spend equal time with each of the parties or, otherwise substantial and significant time with them should it be in their best interests to do so. These considerations arise as a result of the order that I will make for the parties to have equal shared parental responsibility.
Due to the distance and travel time between the residences of each of the parties as well as the ages of the three children, counsel for the parties submitted that it was not in the best interests of the two youngest children for there to be orders which provided for them to spend periods of time on that basis with the party with whom the children will not be living. In those circumstances that submission was to be expected and I agree with it.
I have determined that the three children will live with the father and that orders will be made for the mother to be able to communicate and spend periods of time with the two youngest children. As previously emphasised, the mother no longer sought a parenting order in relation to C. The following are my reasons for that determination.
One of the recent amendments to the Act provides for me to consider the “primary considerations” for the purpose of making a parenting order in the best interests of a child. I have referred to that matter earlier in this judgment as well as the need to consider relevant “additional considerations”.
I am satisfied that each of the primary considerations favour it being in the best interests of the two youngest children that they live with the father. I have given considerable weight in that regard to my previous findings in respect of his capacity to provide for the needs of the two youngest children, compared to the much more limited capacity that the mother has. A meaningful relationship with both parties is more likely to be developed in the household of the father in contrast to that of the mother due to the absence in the father’s household of derogatory and undermining statements and comments in relation to the mother. I have made findings in relation to the mother’s propensity for making such comments exacerbated by similar conduct by the maternal grandparents who although they do not live with the mother, the mother has a close relationship with them and is likely to have one or more of the children with her when she is in the company of both or either of the maternal grandparents. The fact that they could not restrain themselves in that regard is referred to in Exhibit 1 and is a worrying sign of irresponsibility and lack of insight into the potential effect upon the two youngest children who have had to cope with the pressures of the conflict between their parents.
In addition I am satisfied that the father’s partner will be a positive force in the two youngest children continuing to have a meaningful relationship with the mother. Similarly, other members of the father’s extended family acted in a sensible and sensitive way.
I have made findings in relation to family violence and abuse perpetrated by the parties to one another. The circumstances, the subject of those findings, are inexcusable. Fortunately for the sake of the parties and their children there has not been a repeat of the violence by either of the parties since the two youngest children were handed over by the mother into the care of the father.
However, the mother’s apparent inability to restrain herself from being abusive with the use of foul language directed to or in the presence of one of more of the three children, apart from her similar means of expressing herself about the father and members of his extended family whenever she felt under pressure, does not leave me with any confidence that she will no longer act that way in the future. She has shown a serious inability to appreciate the upsetting effect upon the three children of the language that she has used. I have previously found the mother’s abusive language, not to mention her other actions the subject of findings, have substantially contributed to the breakdown of her relationship with C.
In addition, the mother showed an inability to protect the three children from the violent and abusive behaviour of her former partner Mr L. Whilst I accept her evidence that she no longer lives with him and has only seen him occasionally at the home of one of his relatives, she has continued to communicate with him and has breached the injunction to which I have earlier referred within a short time of the order having been made. The maternal grandfather was also irresponsible in that regard.

A troubling issue in these proceedings has been the proposal by the mother for orders that would result in the separation of the three children whereby the youngest two children would live with her. In some cases it may be in the best interests of an individual child that such a parenting order be made. However, this is not one of those cases. I have attached much weight to my findings regarding the likely effect upon the two youngest children of no longer living with the father, C and members of the father’s extended family. Whilst there are positive benefits to the two youngest children living with the mother, on balance I have concluded that it is in their best interests to continue to have the benefits of a settled and stabled household with adults who love and care for them. They will also benefit from the continued support that they have derived from their close relationship with C especially B. In that regard I have accepted the evidence of the family consultant of the benefits to the three children of not being separated.
Given the distance and travelling time between the premises of the parties as well as the ages of the children, I consider it to be in their best interest for orders to be made that the two youngest children communicate and spend periods of time with the mother during school term which essentially reflects the current interim arrangements between the parties which they themselves formulated as well as the sharing between the parties of school holiday periods. The hours which will be stipulated reflect matters raised in Exhibits 3 and 4. The parties will need to be able to make different arrangements on occasions to take into account changes to train timetables or perhaps to travel by car.
There was no dispute that an order should be made for the three children to continue to have counselling so far as C and B were concerned and ongoing therapy for N. Those orders will be made.
It was also accepted that there is still a need for the parties to improve communication between them so that they can confer and made decisions in a constructive way for the benefit of the three children. I will make an order that they engage in such a course or programme. It may be that that will have to be done individually given the distance between their respective premises. I will make orders pursuant to Section 65L and Section 65LA(1). It may assist a therapist, counsellor or medical practitioner who may be consulted by any of the three children, as well as either of the parties, to be given copies of this Judgment and the Orders that will be made this day. Accordingly, a publication order will be made.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 18 December 2007

[2007] FamCA 1469

18 December 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies