Jordan and Callaghan - [2009] FMCAfam 1026

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JORDAN & CALLAGHAN

[2009] FMCAfam 1026

FAMILY LAW – Parenting – child almost six – where the child has always lived with the mother – where the child has been exposed to family violence in mother’s care – where there are concerns that the child will continue to be exposed to family violence if he remains with the mother – whether residence with the father should be considered – where there are concerns about the father’s use of alcohol and cannabis, the state of his mental health and the father’s own propensity to commit acts of violence – where child welfare authority has refused to intervene in the proceedings.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Mazorski & Albright (2007) 37 Fam LR 518

Applicant:

MS JORDAN

Respondent:

MR CALLAGHAN

File Number:

NCC 1760 of 2008

Judgment of:

Terry FM

Hearing dates:

9 & 10 June 2009

Date of Last Submission:

10 June 2009

Delivered at:

Parramatta

Delivered on:

9 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Denise Clark Solicitor & Advocate

Counsel for the Respondent:

Mr Bates

Solicitors for the Respondent:

Scholfield Muir Lawyers

Counsel for the Independent Children’s Lawyer:

Mr Davies

Solicitors for the Independent Children’s Lawyer:

Sharon Moore Lawyers

ORDERS

That all previous orders concerning [X] born in 2003 are discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother.
That the mother’s application to relocate the child’s place of residence to [F] is dismissed.
That the child spend time with the father:
(a)each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday;
(b)from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in 2009 and each alternate year thereafter and from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2010 and each alternate year thereafter;
(c)on the Father’s Day weekend each year and if the Father’s Day weekend is a weekend when the child would not normally be with the father the father shall forgo spending time with the child on the following weekend;
(d)at such additional or alternate times as may be agreed between the parties.
That the child shall spend the Mother’s Day weekend with the mother and if Mother’s Day falls on a weekend when the child would otherwise be with the father the child shall spend the following weekend with the father.
That changeover shall unless otherwise agreed between the parents take place at the McDonald’s Family Restaurant [address omitted], [B].
That the father is restrained and an injunction is granted restraining him from:
(a)using any illegal drugs while the child is in his care or for twelve (12) hours prior to the child coming into his care;
(b)consuming alcohol while the child is in his care or for twelve (12) hours prior to the child coming into his care.
That the mother is restrained from consuming alcohol to excess while the child is in her care.
That the mother is restrained and an injunction is granted restraining her from allowing Mr P to be at or in the vicinity of her home while the child is in the home or from allowing the child to remain at any place where Mr P is also present.
That each parent shall:
(i)keep the other informed of the names and addresses of any medical or other health practitioner who treats the child and authorise those practitioners to provide to each parent information required by each of them concerning the child;
(ii)promptly inform the other parent if the child while in their care is involved in a serious accident or is diagnosed as suffering from a serious medical condition and each parent shall be at liberty to visit the child in hospital;
(iii)keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight hours of the change.
That the Independent Children’s Lawyer is discharged.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC 1760 of 2008

MS JORDAN

Applicant

And

MR CALLAGHAN

Respondent

REASONS FOR JUDGMENT

Introduction

[X] is almost six years old. His parents had an on and off relationship and never lived together. [X] has always lived with his mother. His parents are in dispute about future parenting arrangements, and each sought an order that [X] live with them.
The mother also sought an order that she be permitted to relocate from Newcastle to [F].
The mother is almost 36. She is engaged in home duties and lives in rented accommodation in [B] with her sons [Z], 12, [X], 5 and [Y],

1 ½.
[Z]’s father lives in Sydney. [Z] spends time with his father regularly.
[X] is the son of the parties, and was born during their on off relationship which lasted from about 1998 until August 2006.
[Y] is the son of the mother and Mr P, with whom the mother commenced a relationship in early 2007.
Mr P uses drugs, drinks heavily and has an extensive criminal record. He has been violent to the mother on numerous occasions and he has damaged her property. [X] (and the other two children) have repeatedly been exposed to family violence in the mother’s care as a result of her relationship with Mr P.
The mother was inclined to be defensive about her situation with Mr P and claimed that in any event the father also drank to excess, used drugs and had been violent to her (and exposed [X] to family violence) during their relationship.
The issue of whether the mother could be trusted to protect her children in the future from exposure to family violence perpetrated by Mr P was not the only issue of concern in respect of the mother. Other issues of concern were whether the mother had difficulties of her own with aggression and alcohol consumption, whether she might choose another abusive partner in the future, whether she truly wished to relocate to [F] and whether a move to [F] would be any solution to the mother’s problems or would simply shift the problems to another place.
The father is 38 and he works as a [occupation omitted]. He sought an order that [X] live with him. He said that it was simply unacceptable to leave [X] in a situation where he was routinely exposed to family violence perpetrated by Mr P.
Just prior to the hearing the father had commenced living (again) with Ms C with whom he has been in a relationship since 2007. Ms C lives in [M] and has two young children who at the time of the hearing were about three and four years of age.
The father said that he was nothing like Mr P. He said that whereas

Mr P used amphetamines and ice as well as cannabis, he only used cannabis and that occasionally. He said that concerns about his cannabis use, drinking and alleged propensity for violence were overstated. He denied that he had mental health problems, an issue flagged as a concern by the Family Report writer.
When the competing applications of the parties were listed for final hearing a Family Report was ordered. Ms Lara Turley who prepared the report felt unable to recommend that [X] live with either parent and recommended that the Department of Community Services be invited to intervene.
The Department had previously been invited to intervene, in October 2008, and had declined. They were again invited to intervene in May 2009 and again declined.

The evidence

The mother relied on the following documents:
i)her amended initiating application filed on 23 September 2008;
ii)her affidavits filed on 17 July 2008, 23 September 2008 and 25 May 2009.
The father relied on the following documents:
i)his response filed on 8 October 2008;
ii)his affidavits filed on 8 October 2008 and 21 May 2009;
iii)the proof of evidence of Ms C dated 9 June 2009.
A Family Report was prepared by Ms Lara Turley.
The mother, father, Ms C and Ms Turley were cross-examined.
The mother was a poor witness. She professed during cross-examination not to recall whether a bottle was smashed on a bed-head and when asked if she had ever hit her most recent partner Mr P with a cricket bat she said that she was not sure.
The mother gave oral evidence which directly contradicted evidence in her affidavits. For example in her 25 May 2009 affidavit the mother referred to her wish to relocate to [F] and said as follows:
“The father of my eldest son [Z], who is 11 years old, lives in Sydney but is about to move to Melbourne with his partner. If I were to move to [F], [Z]’s time with his dad would continue on a regular basis and would not be impaired by our relocation. We have an amicable relationship and can work together to ensure that he and [Z] spend time together as often as possible.”
During cross-examination the mother said that she “might have some difficulty” with [Z]’s father Mr N over her proposal to move to [F], and further said that “I can’t talk to [Mr N]. He’ll hang up the phone on me or he’ll slam the car door.”
The mother was not a witness of credit and I treat all of her evidence with caution.
The father was also an unreliable witness. He admitted to having been charged with assault when he was 15 but denied having a criminal record as an adult.[1] In fact he has two convictions as an adult for mid-range PCA and one for refusing to submit to a breath test.
[1] Father’s affidavit filed 8 October 2008 paragraph 66
The father did not initially propose to call his current partner Ms C to give evidence in his case but after he informed the court that he had recently resumed living with Ms C he decided to call her. A brief proof of Ms C’s evidence was tendered and she gave oral evidence. Ms C kept the information she provided to a minimum and I formed the view that she was intent on being protective of the father.
Ms Lara Turley, the Family Report writer, has a Social Work degree. At the time she gave evidence she had been employed as a family consultant for ten months and had prepared a number of family reports. Prior to being employed as family consultant, Ms Turley worked for the Department of Community Services for about seven years and worked in the area of child protection for part of that time.
Ms Turley conducted thorough interviews with relevant parties and in the course of preparing her report she examined the documents produced in answer to subpoena by the police and the Department of Community Services.

Events during the relationship between the mother and the father

The mother and father met in about 1998. For most if not all of their relationship they lived in separate residences, with the mother living in rented accommodation with [Z] and later [X], and the father living nearby with his grandmother.
During the relationship there were many incidents which resulted in the police becoming involved. Some of the incidents were not especially serious. For example on 16 July 2004 the mother called the police claiming that the father refused to return [X] to her. The police went to the father’s grandmother’s home and spoke to him and he agreed to return [X].
One incident which concerned the mother only indirectly occurred on

3 August 2004. The father’s grandmother called the police because she feared that the father might be intending to harm himself. Police found the father in his room with a truck tie hanging over the rafters. The father said that he was depressed about the circumstances in which his son was living. The police spoke to the father and his grandmother and then left, satisfied that the father was not at risk of carrying out a suicide attempt.
There were other occasions where the police became involved because one of the parties claimed that the other was invading their home or had been violent or was threatening violence.
On 26 October 2004 the father called the police alleging that the mother was attempting to gain entry to his home. The father said that he ultimately let the mother in. The mother and father had a physical struggle in which each was injured. The police could not determine which of the parties was the aggressor or who was at most at fault.
On 8 November 2004 the mother drove to the police station and reported that the father had assaulted her by punching her in the face. The father was charged with assault, but ultimately this charge did not proceed.
On 8 April 2005 at 9.50pm the mother called the police complaining that the father was outside her home and was threatening to discharge a firearm. When the police arrived at the mother’s home the father was gone. The police found the father at his grandmother’s home. The Tactical Response Group surrounded the house and the father emerged with his hands up. He told police that he did not have a gun and had only been pretending to have one. No firearms were located during a search of the grandmother’s home.
On 29 November 2005 the mother called the police after the father came to her home. Police records state that the mother was slightly affected by alcohol.
On 21 December 2005 the police were called to the mother’s home. It was reported that the mother and father had been drinking at home and that the father had wielded a knife and threatened self-harm. The police removed the mother and [X] and [Z] to a refuge.
On 18 January 2006 the father rang the police complaining that the mother had threatened him, damaged his property and assaulted him. The father said that he did not want the mother charged with assault.
The parties both said that their relationship ended in August 2006.
It is highly likely that the police reports give only a glimpse of the dysfunction and aggression which occurred during the relationship between the mother and the father.
It was the mother’s case that during the nine years she was in a relationship with the father he was a “chronic cannabis user and heavy drinker.” The mother alleged that the father used both substances every day and was “violent and abusive when under the influence of these substances.”[2]
[2] Mother’s 23 September 2008 affidavit paragraph 5
In interviews with Ms Turley the mother talked of the father smashing a car window when [Z] was a baby causing glass to go all over [Z], “rag dolling me in front of [X]” and “punching me in the lip.”[3]
[3] Family Report paragraph 70
The father said that the mother was physically violent to him on occasions.
[Z] told Ms Turley that when the mother and father were in a relationship the father used to “drink a lot and cause a lot of fights.” He said that the fights were mostly yelling but he had seen the mother and father hitting each other. He told Ms Turley he remembered an incident where glass sprayed over him when the father smashed a car window during an argument with the mother.[4]
[4] Family Report paragraph 85, 86
I treat the mother’s evidence in general with caution but taking together the police records, the allegations by both the mother and the father and the comments by [Z] it clear enough that there was violence between the mother and father when they were in a relationship. It seems more likely than not that both parents were aggressive on occasions and that alcohol consumption by both parties was sometimes involved.
The police took out an Apprehended Violence Order against the father during the relationship for the protection of the mother. It was not an order which prevented the mother and father coming into contact with each other but it did prohibit the father assaulting the mother, damaging her property or behaving in a provocative and offensive manner toward her.

Events after the relationship ended in August 2006

After the relationship ended [X] continued to live with the mother and the father spent time with him on an ad hoc basis. [Z] sometimes accompanied [X] on visits to the father.
Conflict sometimes flared up between the parents and there was further police involvement.
Police records reveal that at 1.30am on 29 October 2006 the mother called the police claiming that the father was at her home. The mother told police that the father had punched the shed a number of times.
During cross-examination the father denied punching the shed. The mother was not a credible witness and I cannot exclude the possibility that she told the police something which was either false or inaccurate, but there was certainly a call out to the mother’s home.
In December 2006 the father made a notification to the Department of Community Services after observing that [X] had a lump on his head.
In early 2007 the mother formed a relationship with Mr P.
Mr P has criminal convictions for breaking and entering (1995 and 1996) possessing and discharging a firearm (1996), contravening an Apprehended Violence Order (AVO) (2002 and 2008), destroying and damaging property (2003 x two and 2005), negligent driving (2006), driving while disqualified (2008) and possessing a prohibited drug (2007).
Very soon after the mother commenced her relationship with Mr P she began to experience violence at his hands. On a number of occasions during 2007 both the mother and [X] rang the father and informed him that Mr P was committing or had committed violent acts at the mother’s home.
On 15 April 2007 the police were called to the mother’s home after an argument between the mother and Mr P.
On 23 May 2007 police were called to the mother’s home and noted that the front window was broken and that the mother and Mr P were arguing loudly. The police removed Mr P but the mother would not tell the police exactly what had happened and no further action was taken.
On 28 July 2007 police attended the mother’s home after she called them following a dispute with Mr P.
On 5 August 2007 the mother and Mr P were at the mother’s home drinking. Mr P started hitting the mother and punched her in the nose possibly breaking it. Police applied on the mother’s behalf for an urgent Apprehended Violence Order.[5]
[5] See also Father’s affidavit filed 7 October 2008, paragraphs 21,22,23 & 24
At about 4.00am on 6 October 2007 the mother rang the police complaining that Mr P was trying to gain access to her home. She rang again at 7.45am to say that he had smashed a window. Police attended but the mother later declined to cooperate with police by providing a statement.[6]
[6]See also Father’s affidavit filed 7 October 2008, paragraph 20
In the early hours of the morning on 17 October 2007 the mother called the police saying that she wanted Mr P spoken to. When the police attended at her home the mother declined to make a statement.
During this period the mother also had to contend with continuing difficulties with the father. On 27 September 2007 the mother rang the police asking them to remove the father from her home as he was intoxicated and causing trouble.
On 23 October 2007 the father went to the mother’s home and observed Mr P and a male friend drinking. A fight erupted between the three males and the father fell into the front lounge room window. His arm was severely cut and he required hospital treatment.
The police applied for an AVO against the father on the mother’s behalf. A final order was made on 22 November 2007 and is current until 22 November 2009. As with the earlier AVO the order does not prohibit the father contacting the mother but it does prohibit him from behaving in a violent offensive or provocative manner toward her.
After the AVO was taken out against the father there were no further incidents at the mother’s home involving the father but incidents involving Mr P continued to occur.
On 24 December 2007 when the mother was about seven months pregnant with [Y] Mr P rang police and said that the mother had consumed 10-12 bottles of vodka cruisers and had smashed a bottle on the bed head.
The police record the mother as telling them that it was Mr P who had smashed the bottle on the bed-head and that she and [X] were sprayed with glass.

When the mother was questioned about this incident during the hearing she appeared puzzled, almost as if no such incident had ever occurred and both she and Mr P had made false reports to the police.
Police attended the mother’s home on three occasions in the early hours of 10 January 2008. At 1.00am mother rang police and requested that they remove Mr P. The police attended and were told by Mr P that he was going to a friend’s place.
At 2.30am mother again contacted police for assistance.
At 4.55am the mother again contacted police for assistance. She told them that Mr P was trying to force entry to her home. When the police arrived Mr P had decamped but police found that the tyres of two bicycles and a motor vehicle had been damaged with a knife and that the wiper blades on the motor vehicle had been bent back. [X] was at home and was recorded by the police as having been upset.
On 22 February 2008 when the mother was about 36 weeks pregnant with [Y], police were called to the mother’s home at 10.15pm.
At 1.00am on 23 February 2008 the police were again called to dispute at the mother’s home. There was conflicting evidence about whether the mother or Mr P was the aggressor and a witness claimed that the mother had chased Mr P with a cricket bat. The mother said in oral evidence that she could not recall whether she had done that or not.
On 9 March 2008 both the mother and Mr P called the police after an argument.
On 10 March 2008 the mother attended at [B] Police Station and alleged that Mr P had damaged her van. She then declined to make a formal statement and the police were unable to take any further action.
On 8 April 2008 at 7.25am police were called to mother’s home because of a dispute involving Mr P.
At 2.05am on Saturday 19 April 2008 Mr P went to [B] Police Station to complain about the mother. Police went to the mother’s house. [Y] and [X] were awake and it was alleged that [X] had been awoken by Mr P smashing a window.
On 11 May 2008 at about 3.45am police attended at the mother’s home following a report and found the mother and Mr P both “possibly drug affected”. Mr P was intoxicated and was taken to the cells to sleep off the alcohol.
On 25 May 2008 the mother and Mr P had been drinking at the mother’s home. [Y], then nine weeks old, was present. The mother went out to the bottle shop to buy more alcohol and after she returned home began talking on her mobile. While she was doing this Mr P swung at her knocking off her sunglasses. The mother called the police and Mr P left carrying a bottle of bottle of Tooheys. He was later arrested and charged with assault. The charge was dismissed on 4 June 2008 because the mother and her witness withdrew their statements.
On 8 June 2008 the police were called to mother’s home because of a dispute she was having with Mr P. No action was taken.
On 28 June 2008 the police were called to the mother’s home in the early hours of the morning and found the mother in the street with [Z], [X] and [Y]. She said that she had rugged up the baby and woken the other children and left the house for her safety. Mr P claimed that the mother had assaulted him. The mother told police that Mr P had smashed a 2 litre bottle of bourbon on the roadway. No formal action was taken by the police.
The father was deeply concerned about [X]’s circumstances. In June 2008 he went to the police station and complained that the mother was dealing drugs from her home and that a person called [Mr T] was inappropriately touching [X]. The police recorded the father’s complaints and notified the Department of Community Services.
Around the same time the police found the father wandering drunk in the street in the early hours of the night and escorted him back to his grandmother’s home.
The father sought advice from Legal Aid about parenting matters. As a result a Legal Aid Conference was held on 2 July 2008, but the mother and father did not reach any agreement.
Two days later the father refused to return [X] to the mother after spending time with him. The mother attempted to persuade the police to retrieve [X] from the father by telling them that he was not [X]’s father, a claim the police treated with scepticism as a result of their previous involvement with the family. When the police would not help her the mother applied to the Federal Magistrates Court for a recovery order. A recovery order was made and [X] was returned to the mother.
Some time passed before the matter came back before the court for an interim hearing and in the meantime a further disturbance involving

Mr P occurred in the mother’s home. At 2.00am on 20 September 2008 the police were called after a report of a disturbance. They found Mr P at the mother’s home and formed the view that he was intoxicated. He was arrested and charged with breaching the AVO by approaching the mother’s home within twelve hours of consuming intoxicating liquor.
On 8 October 2008 the father filed a Response to the mother’s court application. He sought an order that [X] live with him. He made allegations about violence and drug use in the mother’s home.
On 16 October 2008 interim orders were made. The mother signed a written undertaking promising that she would take steps to keep Mr P away from her home and Order 2 of the orders provided as follows:
“Upon the mother’s undertaking of 16 October 2008 to:
a) ensure that Mr P does not come into contact with the child [X] at any time;
b) not allow Mr P to attend her home at any time and, if he should do so against her wishes, she will notify the police immediately;
c) within seven (7) days of today’s date, attend upon the Chamber Magistrate of [B] Local Court to arrange at the earliest opportunity to have an Apprehended Violence Order put in place to protect her and the children ([X] and his siblings) from Mr P and to prevent him from coming to her home; and
d) ensure that [X] (and his siblings) are not exposed to, at any time, domestic violence by any person.
the child [X] shall live with the mother.”
It was ordered that [X] spend time with the father each alternate week from 5.00pm on Friday until 5.00pm on Sunday and that the parents each submit to random supervised drug screening.
The Department of Community Services were invited to intervene but they subsequently declined to do so.

The extent of dysfunction and violence in the mother’s relationship with Mr P

Ms Turley asked the mother about her relationship with Mr P. The mother initially informed Ms Turley that the children had only been exposed to verbal arguments between herself and Mr P. However she subsequently informed Ms Turley that Mr P:
·had punched her, hit her and put cigarettes on her;
·used “ice” and was violent when on drugs;
·was violent on weekends after both parties had been consuming alcohol.
The mother also told Ms Turley that there were one or two occasions when [X] was at home when violence occurred and that [Y] was sometimes there.
During cross-examination the mother admitted that Mr P was a recreational drug user, that he used amphetamines, “ice” marijuana and that he “had a problem with drink”.
[X] informed Ms Turley that he had seen Mr P kick his mother’s car, and that his mother and Mr P fought.
[Z] told Ms Turley that “he was worried about his mother and his siblings when he was spending time with his father, because ‘Mr P is very violent.”
[Z] reported that he had seen Mr P “hit a glass up into mum’s chin and make it bleed” and that on another occasion he witnessed the mother “knocked unconscious.” He also reported that when he inquired about his mother’s physical injuries she had told him that her nose had been broken and her lip split by Mr P.[7]
[7] Family Report paragraphs 78-79
It is highly likely that many more disturbances and violent incidents involving Mr P occurred at the mother’s home than are recorded by the police.

Events after the 16 October 2008 orders

Since the orders were made on 16 October 2008 [X] has largely spent time with his father as provided for in the orders.
The relationship between the mother and father however has continued to be poor.
The mother said that on several occasions when [X] was with the father, the father had seen her in the street and had yelled abuse at her and made ‘gun’ shapes with his hand and threatened her. Evidence given by Ms C during cross-examination suggests that this claim has substance.
In April/May 2009, the father went to a home where the mother was having coffee with a friend. [X] and [Y] were present. The mother said that the father was drunk and carrying a bag with alcohol in it. She said that father uttered threats and then called the police, telling them that the mother was affected by alcohol or drugs, in breach of court orders made on 3 December 2008.
The mother went home with the children. The police called at her home and spoke to her but took no further action.
There is no doubt that the police were called out on this occasion and that they did visit the mother’s home and there is no doubt that a dispute took place between the mother and the father. Whether the father was intoxicated and was carrying a bag of alcohol and uttered threats is something I cannot be satisfied about on the balance of probabilities. It is not an inherently improbable claim, given other evidence in the case about the father, but on the other hand the mother was not a witness of credit.
As to Mr P, the mother did apply for an Apprehended Violence Order against him as she had undertaken to do, but the order she obtained on 22 October 2008 was an interim order only and was valid for three months. The mother did not obtain a further order once this order expired and I am unconvinced that she made any real effort to obtain a further order.
During the family report interviews in April 2009 the mother initially told Ms Turley that Mr P had not been at her home since late 2008. During a later telephone conversation however she revealed that on the weekend prior to the family report interviews, Mr P came to her home and physically assaulted her by backhanding her in the face.
It emerged during the evidence that Mr P arrived at the mother’s home at 7.00pm and stayed, drinking Smirnoff Vodkas. Despite the written undertaking the mother had given to the court on 16 October 2008 she did not call the police when Mr P arrived. The police were called only after Mr P assaulted the mother. The assault occurred at 5.00am the following day after Mr P had been at the mother’s home for ten hours.
During cross-examination the mother was defensive about her action in allowing Mr P to remain at her home. She said that he had come to see [Y]. She said that the father and Mr P were both drug users and that she did not see why the father should get to see his son and Mr P should not.
The mother did not accept that she had breached her undertaking and appeared to consider that she should not be unduly criticised because she had not allowed Mr P inside her home but had stayed up talking to him all night outside her home.
The incident on 3 April 2009 did not end the mother’s involvement with Mr P. On 11 April 2009 she agreed to drive him around to do errands. While Mr P was a passenger in her motor vehicle she was stopped by police and her motor vehicle was searched for drugs.
On 1 May 2009 the mother called police alleging that Mr P had damaged her car. The mother said that she had run into Mr P at the [E] Hotel in [G] and later given him a ride in her car. The mother said that she pulled over in [B] after being abused and walked off. She returned later to find her car damaged. It was her belief that Mr P had stomped on her car. Police were unable to take any action because there were no eye witnesses to the event.
I struggle to accept that the mother’s meeting with Mr P at the [E] Hotel was accidental and even if it was, the mother did not leave once she found that Mr P was there and the evening ended in yet further damage to the mother’s property. The mother admitted at the hearing that she still had feelings for Mr P.

The current use of illegal drugs and alcohol by the mother

The mother and father each alleged that the other used illegal drugs and had a problem with alcohol.
The father’s claims about the mother’s drug use did not go beyond bare assertion and the mother denied that she was an illegal drug user. She did not test positive for illegal drugs in any of the tests she undertook following the 16 October 2008 orders. There was no evidence which would substantiate a finding that the mother had been in the past or was currently a user of illegal drugs.
Whether the mother’s alcohol consumption is a problem is another matter altogether.
The mother told Ms Turley that she drank a six pack of Smirnoff Red “if the kid’s [weren’t] there.” She also reported that she drank on two occasions each week, usually three cans of Bundy rum and cola or three bottles of pre-mixed Smirnoff Ice.
In her 25 May 2009 affidavit the mother said that she had a few drinks on Friday night. She said that in the past she had been intoxicated on a few isolated occasions but that she now made sure that she did not drink to excess if the children were with her.[8]
[8] Mother’s 28 May 2009 affidavit paragraph 12
The mother told Ms Turley that she drank when she felt stressed and in oral evidence said that she drank “to block it out”.
It is highly likely that the mother understated the extent of her alcohol consumption both when talking to Ms Turley and when giving evidence at the hearing.
Although the mother failed to acknowledge it there is a clear connection between the mother’s alcohol consumption and some of the damaging and destructive situations in which she has found herself.
There are a number of references in the police reports concerning incidents between the father and the mother to the mother being affected by alcohol or intoxicated.
There are many references in the police reports concerning incidents between the mother and Mr P to the mother being intoxicated or affected by alcohol.
One police report contains an allegation that the mother, then in late pregnancy with [Y], had drunk 10-12 bottles of vodka cruisers. The mother was asked in cross-examination about whether she drank heavily when pregnant with [Y]. She said no, she used to have a couple of drinks. When it was suggested that she had up to five alcoholic drinks a day the mother replied “I wouldn’t say a day, no”.
One assault on the mother by Mr P occurred after the mother had been drinking with Mr P, went out to purchase more alcohol and returned home with the alcohol.
The incident in May 2009 where the mother’s car was damaged occurred after the mother had been drinking and socialising with Mr P at the [E] Tavern in [G].

The current use of illegal drugs and alcohol by the father

The mother said the father was a heavy user of cannabis during their relationship. The father admitted that he had smoked cannabis since he was 17 and he said that it had contributed to him being dismissed from the Army at the age of 20.
The father said that he had used cannabis on approximately three occasions in the last twelve months and said that he had smoked it “because of the stress associated with the current proceedings and that associated with the need to find appropriate accommodation for [X] and me.”[9]
[9] Father’s 21 May 2009 affidavit paragraph 22
This evidence is suspect both as regards the number of times the father has used cannabis recently and as regards his reason for using it.
Pursuant to the orders made on 16 October 2008 the father provided chain of custody drug screen test results on 30 October 2008,

27 November 2008, 19 December 2009, 5 February 2009, and 2 March 2009. He tested positive for cannabis use on every occasion.
When asked during cross-examination about his cannabis use the father said that “the last time he had smoked was some weeks ago ……at a party. A small group was smoking with me”. He was asked whether this was a good idea and responded “I had a few drinks and I was not in control of my actions at the time”.
Ms C admitted that she also had used cannabis and had used it with the father. She maintained that she last used cannabis three months ago.
I am satisfied that the father’s cannabis use is far more extensive than he admits. I do note however that there was no evidence in the case which would allow me to make findings about the effect of cannabis use on the father’s parenting capacity as an independent issue.
The father has continued to consume alcohol since his relationship with the mother ended and the mother claimed that she sometimes saw him in the street with a can of “Wild Turkey’ in his hand. It was the mother’s case that when the father was intoxicated he yelled and swore at people and looked for fights.
The father’s evidence about the extent of his own current alcohol consumption was contradictory. He informed Ms Turley in April 2009 that he drank two four packs of Wild Turkey each week and that each can was equivalent to two standard drinks.[10]
[10] Family Report paragraph 27
In his 21 May 2009 affidavit he said that he drank “about three or four packs of four cans of wild turkey and cola each week” except when he was not feeling stressed. If he was not feeling stressed he only drank one four pack each week.[11]
[11] Father’s 21 May 2009 affidavit paragraph 23
When Ms Turley asked the father about whether he had ever been prescribed anti-depressants he responded “No, I self-medicate with a 4-pack.”[12]
[12] Family Report paragraph 31
I am satisfied that the father understated the extent of his current alcohol consumption.
There is a clear connection between the father’s alcohol consumption and quite a number of his run-ins with the police.
The father has two convictions for mid range PCA, one in 1995 and the other in 2005. He was also convicted in 1999 for refusing to submit to a breath analysis.
There is reference to the father being affected by alcohol in some of the police reports of incidents between the father and the mother.
The father admitted that on 22 February 2007 at 2.10pm he approached the police in the street to see what they were doing. The father was carrying an open bottle of port. Police asked him to move on and he refused to do so. He was eventually arrested for failing to comply with a direction and taken to the police station and issued with a penalty notice.
The father was asked at the hearing about how he came to be in the street at 2.10pm with an open bottle of port. He said that he was not working and had $7.00 and so he went and bought a bottle of port.
On 3 June 2008, the police found the father walking along [address omitted] [B] during the early hours of the night. They formed the view that he was heavily intoxicated and took him to his grandmother’s home.
When asked about these incidents during cross-examination the father passed them off saying “I’m a person of interest to the police. Every time they see me they want to pick me up and see what I’m doing.” When asked: “Don’t you think there might be a reason for that?” he responded “Dunno they might like me or something.”
The father does not consider his alcohol consumption as a problem but I am satisfied that it is a problem.

The father’s mental health

In the Family Report Ms Turley expressed a concern, based on the father’s “presentation, expressed feeling of depression and past suicidal ideations” that the father might have an underlying mental health condition.[13]
[13] Family Report paragraph 127
The father complained that Ms Turley had made a mistake about when the suicide incident occurred, assuming it occurred only eighteen months ago when in fact it occurred nearly five years ago. I accept that Ms Turley did make that mistake, and I also note that Ms Turley is not a psychologist. However a number of pieces of evidence which do create a concern about the state of the father’s mental health.
The father admitted to Ms Turley that he had contemplated suicide about five years ago and said that this was due to stress arising out of his concern about the mother and [X]’s living conditions. There was mention in the police reports of the father using a knife to harm himself during one dispute with the mother. Some of the incidents concerning the father (such as the incident in the street in 2007 and the incident with the TRG in 2005) are somewhat bizarre.

Ms Turley was a most conscientious, thoughtful and insightful witness and I place weight on Ms Turley’s evidence that the father’s presentation and statements to her during her interview with him raised a concern in her mind about the state of his mental health.
It is not open to me to find that the father has a mental health problem, but it is open to me to find that it would be preferable for the father’s mental health to be properly assessed before consideration was given to placing [X] in his full time care.

The father’s accommodation

Until late 2008 the father lived with his grandmother in [B]. Her home was then sold however and after that the father struggled to find appropriate accommodation.
Prior to Christmas 2008 the father moved in with Ms C. In December 2008 Ms C told the father she was pregnant. The father and Ms C argued about this, because the father did not want the pregnancy to go ahead. The father moved out of Ms C’s home after Christmas 2008. The police were called to the residence on the day the father left. No details about this incident were available.
Ms C attended the Family Report interviews with the father in April 2009.
Ms Turley said that the father was ‘evasive and ambiguous about his relationship with Ms C.” He was also evasive when asked whether he was the father of Ms C’s unborn child saying “I don’t know”, “maybe” and “say so”.
In April 2009 the father told Ms Turley that he was living between the home of Ms C and his mother. He said that when [X] spent time with him he and [X] stayed at Ms C’s home. The father said that he was contemplating obtaining accommodation in a caravan park.
In his 21 May 2009 affidavit, the father said that he was living in shared accommodation in [B] and that when [X] visited him he slept in the father’s bedroom.
Not long before the hearing in June 2009 Ms C went into premature labour and lost her baby. At the hearing in June 2009 the father said that he had reconciled with Ms C about a week earlier and that he was now living at Ms C’s home in [M] again.
Given the father’s past history of relationships and the past events in his relationship with Ms C, it is impossible to be confident that the father will continue to live with Ms C. If he ceases to live with Ms C he may again struggle to find suitable accommodation.

The mother’s proposal to relocate to [F]

The mother grew up in Sydney with her father, but the maternal grandmother and other members of the mother’s extended family live either in [F] or the [F] area.
In the past the maternal grandmother has been supportive of the mother in caring for the children and she was at the mother’s home in April 2009 when the mother was assaulted by Mr P. [Z] lived in [F] with the maternal grandmother for a period of time during 2008. According to the mother he enjoyed living in [F] and was keen to return there. The mother said that [X] also was keen to move to [F].
The mother said that if she was allowed to relocate she would initially live with her mother, but she was confident that other reasonably priced accommodation would soon become available.
The mother said that a move to [F] would assist her to end her entanglement with Mr P. She was confident that Mr P would not follow her [F]. She said that he had two girls in Newcastle, did not have a licence and “was not the kind of person to jump on a train.”
The father opposed the relocation, principally on the ground that if [X] moved to [F], [X] would only be able to spend limited time with him during the school holidays.
The father questioned whether the mother’s proposal to live with her mother was really viable. He said that the mother and the maternal grandmother did not get on and the maternal grandmother was an alcoholic.
The father’s claims about the mother’s relationship with the maternal grandmother and about the maternal grandmother’s use of alcohol were corroborated in part during the proceedings. The mother told Ms Turley that her mother “liked a drink.” The maternal grandmother accompanied the mother to the report interviews and Ms Turley reported that during the day:
“there were a number of small but heated disagreements between the mother and the maternal grandmother. The mother was reluctant for the family consultant to interview the grandmother and asked the consultant to keep in mind that the grandmother was 70 years of age and losing it a bit.”[14]
[14] Family Report paragraph 55
Ms Turley expressed the opinion during cross-examination however that the mother’s somewhat touchy relationship with the maternal grandmother was not in itself a reason to be concerned about the relocation if the mother did not intend to reside indefinitely with the maternal grandmother. I agree with that opinion. Further, while the mother said that her mother liked a drink there was simply no evidence to suggest that the maternal grandmother had a problem with alcohol consumption which might impact adversely on [X] and the other children if the mother lived with the maternal grandmother in [F] for a short period.
The extent to which the mother truly wishes to relocate to [F] however is open to question.
Ms Turley questioned the mother about her relocation proposal and said as follows:
“The mother expressed her thoughts about relocating due to the harassment and violence she has been experiencing from Mr P and also because of her dissatisfaction with the neighbourhood in which the family currently reside.
The mother has no concrete plans for relocating, and stated that although the maternal grandmother was encouraging the mother to consider moving to [F] this was not the mother’s preference.”[15]
[15] Family Report paragraph 11-12
During the hearing the mother insisted that she genuinely wished to relocate to [F]. She said that the primary reason for this was that [Z] and [X] wanted to live in [F].
I was not at all convinced while listening to the mother give evidence that her heart was in the relocation proposal. My concerns were reinforced when Ms Turley checked her notes and revealed that the mother had said to her that:
“[I do] want to relocate but not specifically to [F]. My mother wants me to be with her but I just want to be on my own with my kids.”
Another difficulty with the relocation proposal is that the mother conceded that she had not had any discussions about it with [Z]’s father. She conceded that [Z]’s father might oppose the relocation insofar as it involved [Z].

[X]’s best interests

In deciding whether to make any particular order about [X] I must treat his best interests as the paramount consideration, although in respect of the relocation application [X]’s best interests are not the only consideration..
Sections 60CC(2) & (3) of the Family Law Act set out the matters to which I must have regard in order to determine [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
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.
As to the first primary consideration, in Mazorski & Albright (2007) 37 Fam LR 518 Brown J, after setting out the [dictionary] definition of “meaningful” and “meaning”, said at paragraph 26:[16]
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.”
[16] Mazorski & Albright (2007) 37 Fam LR 518 quoted with approval in McCall & Clark (2009) FamCAFC92
Insofar as spending time with his parents will create the opportunity for [X] to have a meaningful relationship with his parents, [X] will have that opportunity whether I make the orders sought by the mother or the orders sought by the father.
The extent to which [X] in fact develops and maintains a meaningful relationship with each of his parents depends in my view more on whether the parents are able to overcome their own personal difficulties and addictions than on any orders I make about where [X] lives.
A mere removal to [F] will not prevent [X] having a meaningful relationship with his father provided that the parents adhere to orders about [X] spending time with the father during the holidays. [X] is old enough to speak on the telephone and to hold a memory of his father during periods when he does not see him.
The second primary consideration is the need to protect [X] from physical or psychological harm from being exposed to abuse neglect or family violence.
[X] has been exposed to family violence in the mother’s care in the past, both during the mother and father’s relationship and during the mother’s relationship with Mr P.
There is no evidence that [X] has yet been physically harmed himself but he has been at risk of physical harm on occasions.
Incidents have occurred in or around the mother’s home in which a bottle was smashed on a bed-head, in which a bottle was smashed on the roadway when [X] and the mother [Z] and [Y] were outside at 1.00am on a winter morning, in which windows have been smashed both by the father and by Mr P, in which the father used a knife to harm himself and in which bicycle and car tyres were slashed with a knife after Mr P unsuccessfully attempted to gain entry to the mother’s home. The father also fell into a plate glass window and was injured during a brawl at the mother’s home, although it is uncertain whether [X] was present during the brawl.
There is a considerable risk that [X] might be physically harmed in the future if he is exposed to further family violence in the mother’s home.
[X] is at risk of psychological harm as a result of being exposed to family violence. Ms Turley’s unchallenged evidence was as follows:
“For children who are exposed to family violence the consequences can include displays of aggressive behaviour, experiences of anxiety, show symptoms of depression, have diminished self esteem, demonstrate poor academic performance and problem solving skills, have reduced social competence skills, including low levels of empathy and have physical complaints.”[17]
[17] Family Report paragraph 118
I agree with the observations by Ms Turley that if [X] remains living with the mother there was a significant risk that he will be exposed to further family violence perpetrated by Mr P. Ms Turley said as follows:
“It is further assessed that the likelihood of [X] continuing to be exposed to family violence is extremely high based on the history of Mr P’ perpetration of violence towards the mother, the mother’s minimisation of Mr P’ violence, the mother’s inaction in allowing the expiration of the interim protective order and the mother’s lack of co-operation in pursuing charges and complaints concerning Mr P in the past.”[18]
[18] Family Report paragraph 121
The mother is still emotionally enmeshed with Mr P and is tolerant of him coming to her home to see [Y]. When her relationship with him will truly end is uncertain
One way to protect [X] from exposure to violence by Mr P in the future would be to order that the mother keep Mr P away from her home when [X] is there. However the mother cannot be depended on to comply with such an order, and even if she does comply with it, if Mr P comes to her home at other times and violent incidents occur, the aftermath of family violence including injuries to his mother or broken glass will still be obvious to [X].
If the mother moves to [F] and extricates herself from involvement with Mr P the risk of [X] being exposed to family violence perpetrated by Mr P may be greatly reduced, but the mother’s past history means that it is possible that she could simply commence a new relationship with another impulsive aggressive drug taking male who drinks too much, and that [X] could once again be exposed to family violence in the mother’s household.
As to the father there was no real explanation given about why the police were called to Ms C’s home when Ms C and the father separated in about January 2009 but there was also no evidence that the father and Ms C have a violent relationship.
I am satisfied that the father is prone to utter threats and make offensive comments if he sees the mother in the street and that he has done this while [X] has been with him. Whether the mother is in fact frightened for her well being as a result of this behaviour by the father or whether she simply considers the father to be mouthing off is another matter entirely. I incline to believe that the latter is the case. There have been no incidents of actual violence at the mother’s home involving the father since the fight in September 2007.
The risk of [X] being exposed to family violence in the father’s care is less than in the mother’s care but the father has himself committed acts of violence in the past and the risk is not nonexistent.
In his affidavits the father alleged that he had seen the mother pick [X] up in anger and throw him across the room so that he landed on his head and shoulders and rolled on his side.[19] He said that he had reported incidents such as this to DOCS. This issue was not explored during the hearing and I can make no findings about it.
[19] Father’s 8 October 2008 affidavit paragraph 42.
There was also mention in the father’s first affidavit of [X] telling him that Mr P had twisted [X]’s arm behind his back.
There was nothing in the family report or in the evidence before me to corroborate claims that any adults had physically harmed [X]. References to [Z] hurting [X] or other children in the street hurting him were simply not explored sufficiently for me to make any findings about such matters.
I must consider any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In the Family Report Ms Turley said as follows:
“[X] expressed a view that he wanted to stay living at his mother’s house. When asked why he wished to stay living with his mother, [X] said “She loves me and cooks me dinner.” [X] was asked what mum does to show that she loves him. [X] said “she just does.”[20]
[20] Family Report paragraph 96
The father maintained that [X] had expressed this view only because he had been influenced by the mother. There was however no evidence that the mother had coached [X] prior to the family report interviews or had attempted to influence him as to what he should say to Ms Turley.
I accept that [X] expressed a genuinely held view to Ms Turley. He is however not yet six and no great weight can be placed on his views about where he should live.
The mother said that [X] (as well as [Z]) wanted to live in [F]. I can place no weight on this evidence.
I must consider the nature of the relationship of the child with:
i)each of the child’s parents; and
ii)other persons (including grandparents or other relatives of the child).
Ms Turley commented on the “ambivalence [X] displayed and expressed in relation to his relationships with family members.”
Ms Turley said as follows about [X]’s relationship with his mother:
“During the observations between [X] and his mother, there was minimal dialogue initiated by [X], and similarly to his interaction with the writer [X] answered questions in a closed manner. The mother’s interaction and engagement with [X] was appropriate”
The mother said that [X] was quite different when he was at her home. She said that he was “normally a loving and affectionate boy” and she maintained that she and [X] had a close relationship.
In respect of the father Ms Turley said as follows:
“In observation between the child and the father, [X] initially appeared reluctant to engage with the father, turning his back away from the father. [X] was also resistant to the father’s attempts to engage with him and was very assertive toward his father. For example, the father placed [X] on a chair to assist him reach the whiteboard, [X] jumped off the chair and in an angry tone said “I don’t need it.” When the father enquired how many Easter eggs he wanted [X] replied ‘none.’ [X] also declined the father’s suggestion to attend to his school to return a book he had left at the father’s home.
The father did make a number of attempts to engage [X] in age appropriate activities. [X] and the father spent the time drawing together and [X] made a criticism of the father’s drawing.”
The father maintained that contrary to what Ms Turley observed he and [X] had a good relationship. He said that [X] took a little while to warm up at the start of the fortnightly visits but that he then settled and that he and the father did many fun activities together. The father maintained that [X]’s behaviour on the day of the family report interviews was the result of the mother influencing [X].
Neither parent showed any great insight or sensitivity into [X]’s own needs or feelings. I do not accept that the judgment of either parent about the nature of [X]’s relationship with them can be trusted. I do not accept the evidence of the parents that despite what Ms Turley observed, in reality [X] has a good and close relationship with them.
Ms Turley said that she did not get a strong sense of a relationship between the three siblings. She stated that “[X] was observed to play mostly independently during the time he was observed with his brothers and maternal grandmother.”[21]
[21] Family Report paragraph 108
The mother claimed that [Z] and [X] had a close relationship, but for the reasons given earlier when assessing the mother’s claim that [X] has a good relationship with her, in my view no weight can be placed on the mother’s opinion about the strength of the sibling relationships.
The father said that [X] enjoyed playing with Ms C’s children. Ms C did not bring her children to the report interviews and I have no objective evidence about those relationships. As to Ms C herself,

Ms Turley commented that:
“When Ms C entered the room [X] showed her what he had been drawing with his father. [X]’s verbal interaction with both the father and Ms C was minimal.”[22]
[22] Family Report paragraphs 105-107
There was no indication that [X] was hostile toward or fearful of Ms C but other than that I can make no findings about the state of that relationship.
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
The parties made their own arrangements for [X] to spend time with the father after the mother and father ended their relationship in August 2006. The father spent time with [X] regularly.
The primary motivation for the father in seeking legal advice about parenting matters in 2008 seems to have been concern about Mr P rather than dissatisfaction about his time with [X].
On 16 October 2008 interim orders were made regulating the father’s time with [X]. The mother has by and large complied with the orders.
However while the mother has by and large complied with the orders and has not prevented the father spending time with [X] since the relationship ended, she does not hold the father in high regard.
The father in turn has shouted at and threatened the mother in public. Neither parent has taken any steps to shield [X] from exposure to their quarrels.
I am not convinced that either parent has much willingness and ability to facilitate and encourage a close relationship between [X] and the other parent.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a)either of his parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child has been living.

[X] has always lived with his mother and siblings, and if an order is made that [X] live with the father [X] will experience a very significant change in his circumstances.
If this change reduced or eliminated the risk of [X] being exposed to family violence directed at his mother then the change would have its positive aspects. Such a change would also protect [X] from exposure to the dramas in the mother’s household which occur from time to time and which are contributed to by the mother’s own alcohol consumption.
[X] would however then be exposed to the many unsatisfactory aspects of the father’s behaviour.
The father uses cannabis, and I am satisfied that he uses it much more frequently than he admitted. The father’s use of an illegal drug is a concern, but at the same time it must be acknowledged that there was no evidence which would allow me to make findings about the effects of the father’s cannabis use on his ability to care for [X] on a day to day basis.
The father also consumes alcohol frequently. He minimised the extent of his drinking and there is clear evidence that the father’s drinking has been associated on many occasions with his getting into trouble.
The father lost his licence on two occasions for drink driving and he has also been convicted of refusing to provide a breath sample. In 2007 he was wandering the street with an open bottle of port early one afternoon and his confrontational behaviour with the police led to him being taken to the police station. In 2008, less than a month before he refused to return [X] to the mother after a visit, he was found in the street heavily intoxicated in the early hours of the night and was taken home by the police.
Some of the police records suggest that the intoxication of one or other of the parties was a factor in the domestic incidents involving the mother and father.
It is of particular concern that the father reported that he self-medicated with alcohol, that he gave evidence that he used cannabis at a party after these proceedings commenced because his judgement was impaired after using alcohol and that he said that he drank more when he was stressed.
The likelihood of the father being stressed from time to time by lifestyle events while caring for [X] is high.
One of the things that the father informed Ms Turley was causing him stress was the issue of finding accommodation. The father has struggled to find accommodation since his grandmother’s home was sold in 2008, and past history does not inspire confidence that his live in relationship with Ms C will last.
Based on the father’s past history and his own reports of his current alcohol consumption, there is a high risk that the father might be intoxicated on occasions when he is meant to be caring for [X]. The father has a propensity to get into trouble when he is intoxicated or has been drinking.
Although the risk of [X] being exposed to family violence in the father’s home at present may not be high the father is himself prone to violence on occasions.
In April 2005 the Tactical Response Group surrounded his grandmother’s home after the father returned there after making threats outside the mother’s home to discharge a firearm. In December 2005 the police charged the father with assaulting the mother and removed the mother and [X] to a refuge. On another occasion in about 2006 the father’s uncle called the police after becoming concerned when the father requested money to buy food from the grandmother and when she refused to give him any called her a bad grandmother.
In September 2007 the father became involved in a brawl at the mother’s home and fell into a plate glass window and needed treatment at hospital. I am satisfied that the father has on occasions yelled threats and abuse at the mother while [X] has been with him.
I am also satisfied that there is reason to be concerned about the father’s mental health. I cannot resolve those concerns on the basis of the evidence available to me.
A further concern about the father is that he is untried as a full time carer for [X] and has had minimal if any involvement with [X]’s education.
In some cases it can almost be assumed that a competent adult can learn easily enough to carry out basic day to day parenting tasks. The father however does not cope well with stress, has been known to be impulsively threatening and abusive and may be hung over on school mornings. It is impossible to know until the experiment is tried whether the father could provide uneventful and satisfactory day to day care for [X].
A change of residence for [X] might well mean that he is removed from one bad situation and placed in a different but equally bad situation.
If [X] continues to live with the mother and the mother relocates to [F], this would represent a considerable change for [X]. He has lived in Newcastle all his life and although his relationship with his father may not be too good, he is used to seeing his father fortnightly.
Relocation could be beneficial for [X] if it resulted in the mother extricating herself from her relationship with Mr P. Ms Turley observed that [X]’s primary developmental need at present was for safety and security in his home environment.
Ms Turley pointed out however that the mother could protect herself from Mr P in Newcastle if she had the will to do so, by taking out a full apprehended violence order and ensuring that it was enforced. A move to [F] is not essential to give the mother protection from Mr P.
In any event while a relocation to [F] might take Mr P out of the picture, but it would not remove the problems the mother has with alcohol consumption or a propensity to choose violent abusive partners who drink too much and use drugs.
An advantage of [X] continuing to live in Newcastle is that the father seeing [X] regularly provides some limited protection for [X], as the father can at least alert authorities to [X]’s plight. If the father saw [X] only four times a year, there is a risk that [X]’s difficulties might become hidden from view or at least go undiscovered for a lengthy period.
Ms Turley said that despite the perceived difficulties in [X]’s relationship with his father, [X]’s need to maintain an ongoing relationship with his father was important and this need came a close second to [X]’s need for a safe and secure environment.
If the mother relocates to [F], the father would very likely only see [X] during school holidays.
[X] is at an age where he has an image of his father which would be maintained if he did not see his father for the length of a school term. He is also at an age where he can communicate meaningfully by telephone. Visits between [X] and the father on four occasions each year would go some way to ensuring that [X] maintained a bond with his father.
Ms Turley was concerned however about what might happen if some holiday visits were missed. She said that in her opinion there were already difficulties in [X]’s relationship with his father, and that if long periods elapsed between visits the relationship might be in real difficulties.
A further problem is that if Ms Turley’s recommendation that [X] spend time with the father during the day only until the father did something about his use of alcohol and cannabis is accepted, it would be impossible to order that [X] spend block periods of time with the father in Newcastle during school holidays.
The father does not perceive his alcohol and cannabis use as a problem, and there is little likelihood of the father changing his behaviour or engaging in therapy or counselling.
Therefore while a move to [F] might result in a positive outcome for [X], there is no guarantee that this would be so and a move to [F] could create other risks for [X], such as the possible loss of a relationship with his father and the risk that the one person who is strongly motivated to come to [X]’s rescue and notify authorities about [X]’s situation is unaware because of distance about any difficulties in that situation.
I must consider the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with a parent on a regular basis.
There will be no practical difficulty and expense in [X] spending time with each of his parents while he lives in Newcastle.
If [X] lived in [F] and the father remained in Newcastle, [X] would have to travel for some hours to spend time with his father.
Neither parent is in a strong financial position, but there is no reason why they could not between them afford the cost of [X] travelling to Newcastle up to four times a year to spend time with his father.
I must consider the capacity of each of the parents to provide for the needs of the child, including his emotional and intellectual needs.
I am satisfied that the mother has the capacity to meet [X]’s day to day needs in terms of feeding him, clothing him and ensuring that he attends school. The mother has arranged for [X] to play football this year.
The father complained that [X] had too many colds, was too thin and that the mother did not properly attend to his hygiene.[23] The observations of Ms Turley and [X]’s teacher however do not support a finding that the mother is failing to take care of [X]’s basic physical needs.
[23] Father’s 21 May 2009 affidavit paragraph 17-19
On the day of the report interviews all three children were well presented and to Ms Turley appeared to be reaching normal developmental milestones. Ms Turley also spoke to [Z]’s 2008 class teacher who made positive remarks about [Z]’s presentation and attendance at school.
The mother is unable to meet [X]’s need to be cared for in a safe and secure environment, and there is absolutely no guarantee that her ability in this regard will improve. She has no insight into the effect on [X] of being exposed to family violence and is unable to meet his emotional needs.
The father has at best only spent time with [X] on alternate weekends and he is untried as a parent required to routinely feed [X], get him to school and organise his extra-curricular activities. Whether the father could successfully learn to undertake this role is an unknown. The father appears to become easily stressed and he self medicates with alcohol when stressed.
For reasons set out in detail in the preceding paragraphs of this judgment I am unconvinced that the father can necessarily provide [X] with what the mother cannot, that is a stable home free from exposure to excessive drinking and illegal drug use, and while there is no evidence that in the father’s home [X] will be exposed to the same level of regular overt episodes of violence as have been occurring in the mother’s home, the potential exists that he could still be exposed to some family violence and he would certainly be exposed to situations where the father denigrates and threatens the mother.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant.
Matters relevant to this consideration have been taken into account in this judgment.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
Each parent can be criticised in the strongest terms for the attitude they have displayed to the duties and responsibilities of parenthood.
I concur with the following opinion expressed by Ms Turley:
“To date both parents have acted as very poor role models in providing examples for how [X] should respond to conflict and disagreements. The developmental consequences of this for [X] are likely to present as difficulties in his peer relationships and relationships in adult life.”[24]
[24] Family Report paragraph 123
The mother was critical of the father for failing to pay child support, but for reasons best known to her the mother has not applied for a child support assessment. In any event in the context of this case failure by the father to pay child support even if established would be the least of the court’s concerns.
I must consider any family violence involving the child or a member of the children’s family.
The mother and father both claimed that they had been victims of violence at the hands of the other during their relationship.
The mother described some serious incidents of violence she said were perpetrated against herself and [Z]. The father was charged with assaulting the mother on one occasion. The father has no convictions for assault as an adult and it seems likely that the mother did not provide the evidence necessary for the charge to proceed. This is what happened in 2008 when Mr P was charged with assaulting the mother.
The father in turn claimed that the mother had assaulted him.
I am satisfied that there were incidents of family violence between the mother and father. I am satisfied that it is more likely than not that each was physically aggressive to the other on occasions.
There have been a number of incidents of serious family violence involving the mother and Mr P. The mother has been physically injured including having her nose broken, and her property has been damaged. The police records suggest that on several occasions [X] has been present when family violence has occurred between the mother and father and the mother and Mr P respectively.
There was also a violent incident at the mother’s home when the father became involved in a brawl with Mr P and a friend. The father was injured during the brawl.
[X] has been repeatedly subjected to psychological harm as a result of being exposed to family violence. In recent times this exposure has occurred in the mother’s household. The father is however also prone to aggressive outbursts. There is no guarantee that a simple change of residence will completely solve the problem of [X] being exposed to family violence although it may limit the frequency of the occasions.
In November 2007 a family violence order was made against the father for the protection of the mother. It is in force until November 2009. It does not prevent the father contacting or approaching the mother, but it does prevent him from assaulting intimidating or stalking her. The order is a final order. I accept the father’s evidence that he did not attend court and that the order was made in his absence.
I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
No order open to me fits into the category of an order least likely to lead to further proceedings.
I must consider any other relevant matter and here I take into account that the relationship between the mother and father is poor. The father told Ms Turley that he wanted nothing to do with the mother, and the mother told Ms Turley that the father would not listen to her.
The parties have no capacity to discuss and resolve disputes. In the event of a disagreement they resort to yelling, physical violence, threats, calling the police or making a report to the child welfare authority.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that his parents have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
There are reasonable grounds to believe that both of the parents have engaged in family violence and therefore the presumption does not apply.
The Independent Children’s Lawyer proposed nevertheless that an order be made for equal shared parental responsibility. At the hearing the mother supported such an order and the father did not speak against it.
The parents have a poor relationship and they have no ability to communicate effectively. However major decisions about [X] will not need to be made frequently and as a last resort the court is available to make a decision about a specific issue.
There is reason to be concerned about the capacity of both parents to exercise good judgment and make good decisions for [X]. They will each remain involved in his life no matter what orders I make, and as they effectively each sought an order for equal shared parental responsibility and as this was supported by the Independent Children’s Lawyer I consider that it is in [X]’s best interests that I make that order.

The Family Report Writer’s recommendations

Ms Turley prepared a thorough and insightful report. She expressed the following opinion:
“This writer has serious concerns about the parenting capacity of both parents and considers the child [X] and his two siblings to be at significant risk of harm. Based on the strength of the subpoenaed material, the reports of the children and the interviews with the parents it cannot be recommended at this time that the child [X] live with either parent.
It is recommended that the Department of Community Services intervene in these proceedings and that a copy of this report be provided to the Department of Community Services.
It is recommended that [X] be placed in alternative care by the Department of Community Services.”[25]
[25] Family Report paragraph 136-138
Ms Turley was asked in oral evidence her opinion as to whether, if the only choice available was between the mother and the father, there was any reason to alter the status quo. Ms Turley was firm in answering no.
Ms Turley did not support the mother’s relocation proposal however.
Ms Turley was asked about what she considered would appropriate time for the father to spend with [X] if [X] remained living with the mother. She expressed concern about the father’s drinking, drug use and mental health. It was her view that until these issues had been satisfactorily addressed, [X]’s safety required that he spend time with his father during the day only. Ms Turley recommended that the father spend time with [X] each alternate weekend on Saturday and on Sunday, returning to the mother on Saturday night.
Ms Turley recommended in her report that the father work with his GP to obtain a referral to deal with his drug, alcohol and mental health issues, and that the mother work with her GP to obtain a referral to a psychiatrist or psychologist to assist her with issues relating to her long term exposure to family violence and her current alcohol misuse issues.
These last recommendations are a counsel for perfection. Neither the mother nor the father accepts that they need help and it is unlikely that forced attendance on drug and alcohol counsellors or psychiatrists and psychologists will do any good or that the parties will stay the course of counselling programs or therapy. The mother indeed commenced some counselling with [E] Family Centre in the not too distant past and then discontinued it.

The Independent Children’s Lawyer’s Submissions

The Independent Children’s Lawyer submitted that the court should make orders as follows:
i)that [X] should live with his mother;
ii)that orders be crafted to ensure as far as possible that Mr P was not able to attend at the mother’s home when [X] was present;
iii)that the father spend time with [X] during the day only each Saturday and each Sunday on alternate weekends;
iv)that if the father provided twelve consecutive drug screens showing that he had tested negative for the presence of illegal drugs, then the father’s time on alternate weekends be from after school Friday until the commencement of school on Monday and that consideration be given to holiday time;
v)that the mother should not be permitted to relocate. It was seriously open to question whether the mother in fact wanted to live in [F]. Given the deficiencies in the mothers’ parenting capacity, it was preferable (despite the deficiencies in the father’s parenting capacity) that he have a greater role in [X]’s life than relocation to [F] would permit.

The Independent Children’s Lawyer submitted that there was little point referring the parties to courses or to their GP’s as neither were motivated to attend.
The Independent Children’s Lawyer proposed that he be discharged and that the parties manage drug testing through their solicitors.

Conclusion

The Department of Community Services has made a conscious decision not to intervene in these proceedings. When it made that decision for the second time it had the police records and it had the Family Report. Little if any new information emerged during the hearing which was not already known to the Department. There is no point in my requesting yet again that the Department intervene.
The only parenting options I have to choose from are the options offered by the parents, and [X] will continue to be at risk no matter which option I choose.
It is tempting in those circumstances to refuse to make any orders at all, in case making an order that [X] live with one of his parents is perceived as giving a stamp of approval to an unsatisfactory parent.
It would not however be in [X]’s best interests for me to refuse to make any orders. If I do not make orders there is a high likelihood that [X] will be caught in further conflict because one parent retains him or refuses to let him visit the other, citing the absence of orders as justification for their actions.
The mother proposed that [X] continue to live with her and on the positive side for the mother she sends [X] to school “beautifully presented” and he attends regularly. The mother has enrolled him in football, and he is well fed and developing normally.
[X] expressed a wish to continue living with the mother, and in the mother’s household he at least has the opportunity to develop a relationship with his two siblings.
On the negative side the mother has shown herself incapable of providing [X] with a safe and secure environment in which to live, and she is oblivious to the serious harm being done to [X] as a result of his exposure to family violence.
During the mother’s association with Mr P the mother has been assaulted several times, the police have been called out repeatedly to her home, [X] has seen the police attend at the home and has been taken to the police station and he has seen the mother with injuries. [X] may or may not have been involved in an incident where a bottle was smashed on the head of a bed in which he was sleeping. He has certainly been out in the street at 1.00am with his mother and his siblings following an incident involving Mr P.
The mother appears to be either unwilling or unable to end her involvement with Mr P. She did not follow through with obtaining a final Apprehended Violence Order to keep him away. He assaulted her at her home two months prior to the hearing and two days later she was driving him to an appointment and her car was stopped and searched for drugs. I cannot accept that the mother’s meeting with Mr P at the [E] Hotel at [G] in May 2009 was accidental. The end of that night saw the mother’s car being damaged.
Given the mother’s view that Mr P is entitled to see [Y] it is difficult to see the mother’s entanglement with Mr P ending completely. In addition, while Mr P may have a serious criminal record whereas the father has only convictions for driving offences, and whereas Mr P may use hard drugs and alcohol while the father uses cannabis and alcohol, and whereas Mr P’ assaults on the mother may be more frequent and more serious than those perpetrated by the father, there is a definite similarity between the father and Mr P, and there is a definite risk that if the mother ends her relationship with Mr P she may form yet another unsatisfactory relationship.
There is also reason to be concerned that the mother herself drinks excessively on occasions and that she will be unable during those times to properly supervise [X].
The father maintained that [X] living with him would be an improvement for [X]. I am not convinced that this is so.
[X] does not want to live with the father and the observation of

Ms Turley suggests that they do not have a strong relationship. If [X] lived with the father he would be separated from his two siblings for the majority of the time. The father is completely untried as a day to day carer for [X].
The father has struggled to arrange appropriate accommodation after his grandmother’s home was sold in 2008 and his past history suggests that there can be no guarantee he will continue to live with Ms C. If [X] lived with the father he could face a situation where he is required to move from place to place regularly.
I do not accept the father’s evidence that he is only an occasional user of cannabis. The father’s drinking has caused him problems in the past and he has been involved in street incidents with the police in which he has been intoxicated or has been holding a bottle of alcohol.
Police were called to the mother’s home as a result of the father’s actions on a number of occasions while that relationship persisted. Police were called to the mother’s home after the relationship ended because of events involving the father. Police have been called to the father’s grandmothers’ home on several occasions as a result of the father’s behaviour. Police were called to Ms C’s home on the day the father ended his relationship with her in January 2009.
I accept Ms Turley’s opinion that there is reason to be concerned about whether the father has mental health problems. Until the father’s mental health is assessed it is not possible to consider him a better alternative than the mother to be [X]’s primary carer.
Serious damage is being inflicted on [X] because his mother cannot or will not protect him from exposure to family violence and all that goes with it, but moving [X] to live with his father, where he does not want to be, with whom he does not have a good relationship, who also offers him exposure to excessive alcohol consumption, substance abuse and police call outs, and who is untried as a full time carer is not an option I am prepared to consider.
A placement with the father might be an option the welfare authority would consider, if they removed the children from the mother and did not elect to find a solution which kept all three boys together. However if [X] was placed with his father by the welfare authority, support and assistance would be offered to the father and [X] and the situation would be monitored. This would not occur if [X] was placed with the father as the result of orders made by me.
I have made an order for equal shared parental responsibility and I am therefore required by s.65DAA of the Family Law Act to consider whether equal time or substantial and significant time with each of his parents would be in [X]’s best interests or reasonably practicable.
The attraction of an order for equal time is that it would remove [X] at least for half of the time from exposure to family violence in the mother’s home. However the concerns about the father remain whether [X] lives with him week on week off or most of the time. The parent’s relationship is extremely poor, and their idea of a solution if they have a dispute is to call to the police or make a complaint to the welfare services, rather than to productively discuss the issue with each other. The father shaving [X]’s head resulted in a visit by all concerned to the police station. An equal time arrangement would simply increase the likelihood of [X] being exposed to conflict between his parents, and conflict between his parents in the past has itself sometimes ended in family violence.
As a choice must be made, I intend to order that [X] continue to live with the mother. This is [X]’s preference, and I can be confident that in his mother’s care he will be properly fed and clothed and will attend school regularly. He will also remain with his siblings.
I do not intend to make the order sought by the mother that she be permitted to relocate to [F] with [X].
The advantage of a move to [F] would be that a distance would be placed between the mother and Mr P and if the mother were free from an entanglement with Mr P this would benefit not only [X] but also the mother and [Z] and [Y]. However I am unconvinced that the mother really wishes to live in [F]. She may not remain there even if permitted to go or may move on somewhere else. If she moves about [X] may become lost to view by the relevant welfare authority which would not be in his best interests.
There would be difficulty putting suitable orders into place for [X]’s time with the father if the mother moved to [F]. Weekend time would not be practicable, and [X] spending overnight time with the father, let alone block holiday time, was not something Ms Turley currently recommended.
Ms Turley was of the view that it was important to [X] that he maintain a relationship with his father, however troubled that relationship may seem to be at present, and if [X] moved to [F] and it was not possible to consider block holiday time that relationship could be jeopardised.
Finally, the fact that the father is able to see [X] reasonably frequently allows the father to be aware of difficulties as they occur in [X]’s life in the mother’s household and to make notifications to the welfare authority. If the mother moved to [F] the father might be unaware for a lengthy period of any new difficulties which were occurring in the mother’s household.
If the mother and [X] remain in Newcastle, the issue then is the amount of time the father should spend with [X].
The father has been spending time with [X] each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday since interim orders were made on 16 October 2008.
Ms Turley was of the view that it was important for [X] to see his father regularly even though their relationship did not seem strong.

Ms Turley said that she had experience of children placed in out of home care and that they sometimes fantasised about an absent parent. She said that if a child had regular time with both parents they often had a better sense of why they were living with one and not the other. She also pointed out that the father had been a significant part of [X]’s life to date and it would have an adverse effect on [X] if the relationship failed.
Ms Turley recommended that the father’s time with [X] should be during the day only, because of her concerns about his alcohol consumption and cannabis use. She recommended that the father engage in drug and alcohol counselling and that he only commence spending overnight time with [X] once he had engaged in this process.
The Independent Children’s Lawyer submitted that the father’s time should be during the day only, until the father had submitted a series of tests which indicated that no illegal drugs were detected in his system.
Given the father’s age and his past history, and the fact that he does not consider that he has a problem with cannabis and alcohol, it is unlikely in the extreme that the father will either engage in drug and alcohol counselling or completely cease using cannabis. If I make an order that [X] spend time with the father during the day only then that is how it is likely to remain, unless the parties independently agree to do something different.
It is not without irony that if I refuse to make an order that [X] spend any nights with his father because he is perceived to be particularly at risk in his father’s care at night, [X] will then spend those nights with his mother, and will be at risk in her care on those nights, and whereas the risk to [X] in the father’s care at night is speculative, there are many concrete examples of [X] actually being exposed to family violence in the mother’s care at night.
I am not necessarily persuaded in any event that [X] will only be at risk in his father’s care at night. The father was wandering the streets in the early afternoon in 2007 with an open bottle of port in his hand and he was heavily intoxicated when found by the police in the street at about 8.00pm in June 2008. If the father has mental health issues difficulties could as easily manifest during the day as at night.
[X] informed Ms Turley that he was sometimes bored at his father’s, and his relationship with his father was cool and distant during the report interviews. However there is no report of [X] having been exposed to any adverse event while in the father’s care on alternate weekends during the last twelve months.
In all the circumstances of this case, I am not persuaded that it would be in [X]’s best interests to change arrangements which have been in place for twelve months namely that [X] spend time with his father each alternate weekend from 5.00pm on Friday until 5.00pm on Sunday.
The father’s counsel asked that if the court did not order that [X] live with the father the father’s time be extended to commence on a Thursday and end on a Monday in alternate weeks. I am not prepared to make that extension, which would increase the number of nights on which the father would have to be watchful of his cannabis use and alcohol consumption.
I intend to make an order similar to the existing interim order, restraining the father from using illegal drugs while [X] is in his care and for twelve hours prior to [X] coming into his care.
The issue of appropriate orders about alcohol consumption is fraught with difficulty. Both the mother and the father drink too much on occasions. Once they start drinking there is a risk of their judgment being impaired and of them not being able to cease drinking and of the child or children in their care being exposed to family violence and lack of proper supervision.
It would be reasonable to make an order that the father not consume alcohol while [X] is in his care or for twelve hours prior to [X] coming into his care. This should be achievable for the father.
Logic suggests that a similar order should be made in relation to the mother. However[X] will be in the mother’s care for twelve out of each fourteen days. While it may seem inconsistent to refuse to make a mirror order in relation to the mother, I am concerned that making such an order will simply set the mother up to fail. I intend to order that the mother not consume alcohol to excess while [X] is in her care.
The orders I intend to make will give the father no holiday time, and only limited weekend time.
It is always preferable to make orders which will not require the parties to return to court, but the difficulties in this case are such that all that I can do is to make orders which deal with the parties and their circumstances as they are at the present time. I can see no point in making orders about the father’s time increasing if he produces twelve consecutive clean drug screening tests, as his problems with alcohol and his possible mental health issues may still remain, and the likelihood of him giving up cannabis use and dealing with his other issues seems remote at present.
If in the future the father does face up to his problems and deal with them effectively, it may become necessary for him to make a fresh application to the court concerning his time with [X].
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding three hundred and thirty four (334) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate: Barbara Cameron

Date: 9 October 2009