JRS & TLM
[2005] FMCAfam 483
•16 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JRS & TLM | [2005] FMCAfam 483 |
| FAMILY LAW – Parenting – competing residence applications – allegations of violence, sexual abuse, physical abuse, neglect – children and parents have intellectual disabilities – significant geographical distance between parents. |
| Family Law Act 1975 |
| H v W (1995) FLC 92-598 In the Marriage of Brown (1980) FLC 90-875 M v M (1988) 82 ALR 577 |
| Applicant: | JRS |
| Respondent: | TLM |
| File Number: | PAM 4910 of 2004 |
| Judgment of: | Sexton FM |
| Hearing dates: | 17 & 18 August 2005 |
| Date of Last Submission: | 8 September 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 16 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Wong |
| Solicitors for the Applicant: | Lawrence Moss Solicitors |
| Solicitors for the Respondent: | James Papas & Associates |
| Solicitors for the Child Representative: | McPhee Kelshaw |
ORDERS
That all previous parenting orders be discharged.
That the children, BLS, born 23 September 1994 and NJS, born 17 January 1997 [“the children”] live with the father.
That for the purpose of the change in the children’s residence the following shall occur:
(a)the father shall provide a copy of these orders to the children’s school principal and collect the children during their school lunchtime today;
(b)the father shall within an hour of collection from the school, deliver the children to the mother’s residence when the mother will hand over the children’s belongings to the father;
(c)the mother will then deliver the children to the father.
That the children have contact with the mother as follows:
(a)For one weekend during each school term commencing fourth term in 2005, being the fifth weekend after the start of the school term, unless an alternative weekend is agreed between the parties at least 7 days in advance of the weekend, when the mother will travel to the father’s residence, collect the children after school Friday and remain within the region of the father’s residence during the contact period when she will return the children to the father’s residence by 5 p.m. Sunday;
(b)For the first half of all school holiday periods at the end of Terms 1, 2 and 3, with the exception of the September/October 2005 holidays when contact will occur from 5 p.m. Friday 30 September 2005 until 2 p.m. Saturday 8th October 2005, when the father will deliver the children to the mother’s residence at the start of the contact period and the father will collect the children from the mother’s residence at the end of the contact period;
(c)For the first half of the Christmas school holidays in 2005 being from the first Saturday of the holidays until the 20th day of the holidays and for the second half of the Christmas school holidays in 2006, starting on the 20th day of the holidays until the last Saturday of the school holidays when the father will deliver the children to the mother’s residence at the start of the contact period and the father will collect the children from the mother’s residence at the end of the contact period;
(d)By telephone at any time before 7 p.m. in the evenings;
(e)At any other time by agreement between the parties.
That subject to Order 4 (b), school holiday contact at the end of Terms 1, 2 and 3 will commence on the first Sunday of each holiday period at 2 p.m. and end on the following Sunday at 2 p.m.
That the mother be restrained from hitting or physically disciplining either of the children.
That the mother do all things necessary to ensure that GW not hit or physically discipline the children whilst they are in her care.
That each party shall have responsibility for the day to day care, welfare and development of the children when they are in that party’s care.
That the father shall provide to the mother within 14 days of receipt, copies of the children’s school reports and notices concerning important events for the children to which parents are invited.
That each party shall advise the other immediately in the case of either child suffering any kind of medical emergency.
That each party shall notify the other of any change in their residential address within 48 hours of such change occurring.
That each party shall notify the other within 7 days of their landline telephone number and mobile telephone number and advise the other immediately of any change.
That the party without the children on Christmas Day have telephone contact with the children at 6.00.p.m on Christmas Day.
That the party not exercising contact or residence on the respective birthdays of the children may have telephone contact at 6.00p.m on such birthdays.
That neither party shall say negative things about the other party or anyone in that party’s household in the presence or hearing of the children.
That within 3 days of the children coming into his care, the father shall enrol the children in WWPS.
That the father shall serve a copy of these Orders on WWPS by delivering a copy of the Orders to the school Principal within 7 days.
That the father shall serve a copy of these Orders on the Manager of the office of the Department of Community Services nearest to his home, within 7 days.
That the father shall serve a copy of these Orders on the Manager of the Centrelink office nearest to his home, within 7 days.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
That the solicitor who issued any subpoena collect that subpoenaed material and return it to the owner within seven (7) days.
That all existing applications be otherwise dismissed and the matter be removed from the pending cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4910 of 2004
| JRS |
Applicant
And
| TLM |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for parenting orders in relation to the parties’ two children, BLS nearly 11 and NJS 8. Both parties want the children to live with them. The parties separated in August 2003 after living together about 10 years. Both children have a degree of intellectual impairment, BLS in the moderate range and NJS in the mild range. Both have been diagnosed with attention deficit hyperactivity disorder. The parties live approximately 800 kilometres or 8 hours drive from each other. The mother lives in Sydney and the father in PI.
The father started the proceedings by filing an application in the Local Court at Penrith on 23 June 2004 asking for alternate weekend contact with BLS and NJS. Shortly afterwards the father filed a further application asking that BLS and NJS live with him and have contact with the mother at the children’s request. The father wanted contact with the children to start immediately.
The father filed a Notice of Child Abuse or Risk of Child Abuse on
20 August 2004 alleging incidents of physical and sexual abuse involving BLS whilst in the mother’s care. He told Ms Vardanega, the family reporter, his decision to seek residence was prompted by his concern for the children’s safety in the mother’s care.
In response, the mother asked for BLS and NJS to reside with her and have contact with the father between 12 midday and 1p.m each Saturday.
Orders were made by consent in the Local Court at Penrith on
27 August 2004 providing for BLS and NJS to have contact with the father each weekend, restraining the mother from allowing her brother in law Mr PK to come into contact with the children, restraining the parties and any other person from using physical or corporal punishment on the children and restraining the parties and any other person from consuming illegal substances whilst caring for the children.
Despite the orders she sought, the mother told Ms Vardanega she would prefer the children to have no contact with the father who only wanted the children for financial reasons. She was also strongly opposed to the children having anything to do with the father’s partner, Ms LW. She told Ms Vardanega that her fiancé, Mr GW, the brother of Ms LW, was much more interested in the children’s welfare than the father.
Further interim orders were made by consent on 16 June 2005 providing for the father to have contact by agreement with the mother but to include at least one weekend as well as a week of the July school holidays and for Mr GW not to be involved in contact changeovers.
On 16 June 2005 the court requested the intervention of the Department of Community Services on the basis neither parent may be acceptable for long term parenting orders. The Department did not intervene.
At the request of the court, the father’s counsel and the mother’s solicitor submitted proposed Minutes of Order at the commencement of the hearing setting out the precise orders sought by each party in relation to contact with the other party. The father sought orders for the children to have contact with the mother on the second weekend of each four week cycle, for half the school holidays, for telephone contact, and for the parties to meet at Bathurst Railway station for contact changeover. The mother sought orders for the children to have contact with the father for the whole of the holidays at the end of Terms 1, 2 and 3, for the whole of January each year, for telephone contact and for contact changeover to take place at Parramatta Railway station. She sought more frequent contact between the children and the father if the father were to return to live in Sydney.
Background
The father is 33 and the mother 30.
The parties started living together in September 1993.
There are two children of the relationship, BLS, born 23 September 1994 and NJS, born 17 January 1997.
In or about 2001 the parties bought the house in PI in which the father now lives. There was some dispute as to the parties’ respective contributions to the purchase which was not necessary for this court to determine. It was common ground that the house will soon be sold.
Following an earlier separation in 2003, the parties separated in August 2003. The father denied the mother’s assertion that the parties made attempts at reconciliation between August 2003 and March 2004.
The father is now living in a relationship with LW and her daughter JLW, almost two. The mother lives in a relationship with Ms LW’s brother, GW and they plan to marry when these proceedings have been finalised. The father and Ms LW live in the PI house. The mother and Mr GW live in metropolitan Sydney.
Both the father and the mother are in receipt of a disability support pension. Both have difficulties with literacy.
The mother did not keep her appointment for the interviews arranged for the children, herself and Mr GW for the preparation of the family report, despite considerable efforts by the court’s mediation section to ensure she would. As a result further interviews had to be arranged and the hearing delayed.
The mother is living in rented accommodation in metropolitan Sydney but as the house is to be sold, expects to move again soon. If the children live with the mother, she plans to send them to MPS. The father will move from PI to WW when the PI home is sold. If the children live with the father, the father will enrol them at WWPS. If living with the father in PI, the children would catch the bus to and from school leaving at 7.10 a.m. and arriving home at 4 p.m. each day. Once living in WW, the children would live very close to the school.
The issue
The court was asked to decide where BLS and NJS should live and what contact they should have with the non-resident parent.
The relevant law – parenting
Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. Section 60B(1) provides:
The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2)(a) emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Section 65E provides that in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the children as the paramount consideration. Section 65D provides that the Court may make such order as it things proper.
In deciding the parenting arrangements that are in the children’s best interests, the court must have regard to the factors in section 68F(2) of the Act to the extent each subsection is relevant. So far as they are relevant, I have considered those factors.
Credit issues
The mother presented as immature and naïve with very limited understanding of the issues of concern to the court. Her evidence was unsatisfactory in a number of respects. The mother said she smoked marihuana on a couple of occasions when the parties first separated, but that is all. She told the court and the family reporter that neither she nor Mr GW had ever taken illicit drugs during their relationship. However, Mr GW said in cross-examination he smoked about four cones, twice a week. He kept a bong in the bedroom and also went out to smoke with friends. In cross-examination, the mother said Mr GW had given up drugs about 2-3 months before the hearing. Mr GS, the father’s father recalled seeing the mother smoking drugs “a couple of years ago” when she lived behind the school. Ms LW said when she stayed with them in June this year, the mother and Mr GW smoked “heaps all day” lying on mattresses on the floor. She said she accompanied the mother and Mr GW to a Sydney caravan park so they could “get on the pot”.
The mother told the court neither she nor Mr GW physically disciplined the children but told Ms Vardanega that she smacked the children on the arms and legs until the department told her not to. Mr GW said “we never hit them on the legs, always on the bum.” The mother denied in evidence signing an undertaking with DOCS not to use drugs or physically discipline the children. However, Mr GW recalled signing such an undertaking with the mother about 2 months before hearing. The mother on affidavit said the father had never been to her present home, but later contradicted herself in oral evidence. I found the mother’s evidence inconsistent, contradictory and unreliable and where in conflict with other evidence, I rejected it.
The father deposed to a minor criminal record but in cross-examination conceded he had seriously understated the nature of his criminal convictions. His criminal record [Exhibit 3] revealed he was convicted of aiding and abetting armed robbery and stealing when he was a minor which resulted in juvenile detention. As an adult he had motor traffic convictions for driving whilst unlicensed, exceeding the speed limit, driving while suspended and in April 2004 for maliciously damaging property. I am critical of the father for giving a false impression of his criminal history. I also found the father had a poor memory for dates and events, but I accepted his evidence as substantially truthful.
I accept Mr Jurd’s submission that Ms LW had a very poor memory, being unable to recall even her children’s ages. However, I did not conclude her evidence was inherently unreliable.
Short history
The parties gave totally different accounts of their involvement with the children during their relationship. The mother was not employed outside the home. The father worked as a cleaner for about 2 years but as a result of a car accident causing an injury to his back, has not been employed since. The father said he took the majority role in the care of the children, even when working. He also did the cooking and household cleaning. He said the mother’s capacity to care for the children was compromised by her regular marihuana use and habit of staying in bed until late every morning, “yelling at them to get ready for school.” She also frequently went out to play bingo and was often out when the children arrived home from school. The father said he would get up with the boys at 7 a.m. watch a cartoon with them, make their breakfast and lunch and get them ready for school. He bathed the boys in the evenings. The boys helped him repair lawn mowers and loved outdoor activities with him. The mother, on the other hand, said the father did not assist her in the children’s day to day care and did almost nothing domestically.
At the time of separation, the parties were living with the mother’s sister and her husband, PK. The father moved out and the children remained with the mother. The children saw very little of the father for the next 12 months, although according to the mother, the children spent some time with the father when the parties’ attempted reconciliation in PI on at least two occasions. The mother said the father otherwise made no attempt to contact her to arrange to see the children and did not contact them on their birthdays, on Christmas Day or at Easter. The father blamed the mother’s attitude for his limited contact. He said the mother actively obstructed his extensive efforts to spend time with the children, repeatedly threatening him with an apprehended violence order and saying “Fuck off. You’re not going to see the kids – ever.” He said the mother did not keep him informed of her address and at times he did not know where she and the children were living. From August 2004 when orders were made for the children to have contact with the father each weekend, the father exercised five consecutive weekends of contact. The father then moved to PI and ceased weekend contact. In cross-examination he said “I gave up, no-one would help; the police did nothing; DOCS did nothing.” After this court made further orders in June 2005, the children again had contact with the father on the weekend of 17 June and from 4th to 15th July 2005. I am satisfied the father demonstrated a poor commitment to the welfare of the children in the months following separation. He also breached the Court’s orders when changeover occurred at the end of the July contact period. I have concerns that the father does not fully appreciate the necessity to comply with court orders despite his assurance that he had not intentionally breached the order and would follow orders in the future.
The mother started living with GW in or about March 2004. Mr GW was a ward of state from the age of four. He has two children from a previous relationship aged 5 and 2 years, with whom he has no contact. Mr GW has an extensive criminal record between 1996 and December 2004. His record includes offences of dishonesty, serious driving offences leading to imprisonment, assault, contravention of a domestic violence order and possession of a prohibited drug. He is disqualified from driving until 2011.
The mother, Mr GW and the children have had four moves between March 2004 and August 2005. Since August 2003 the children have been enrolled in 11 different schools. They are currently at OGPS but the mother said she is in the process of moving them to MPS where they can be enrolled in programmes for their special needs. The Department of Community Services have been involved. Mr GW conceded that he and the mother refused DOCS entry to their home in June 2005when Ms LW was staying with them. Ms LW said she heard her brother say to the DOCS workers “You’re not fucking coming inside. We can go out the back yard and talk.” The mother and Mr GW signed an undertaking that day with DOCS not to use drugs or have them on the premises. Ms LW said the mother and Mr GW ignored the undertaking, smoking marihuana every day after the visit.
The father has been in a relationship with LW since soon after he separated from the mother. Ms LW has two children from a previous relationship with whom she currently has no contact and whose ages she could not recall. The evidence was not clear as to the periods of separation between the father and Ms LW, although it was common ground that there have been difficulties in the relationship. Ms LW lived with the mother and Mr GW for about a month in June 2005 and only returned to live with the father at PI in July 2005. Ms LW said she now intended to remain with the father permanently. The mother was critical of Ms LW’s capacity as a housekeeper and mother, claiming Ms LW expected NJS and BLS to look after JLW while Ms LW stayed in bed. The mother said Ms LW was a daily user of marihuana and consumed excessive quantities of alcohol. Ms LW denied these allegations and I preferred her evidence.
Both parties denied the other’s capacity to care for the children. In summary the father said the children are not safe in the mother’s care. The mother said the father was violent towards the children and generally disinterested in them.
The family reporter’s position
Ms Vardanega described this case as a ‘harm minimisation’ case. She expressed significant concerns about either party’s capacity to care for the children. In her view, both had difficulty with basic life management skills and had extreme limitations. On balance, she believed the father had slightly greater insight than the mother into the needs of the children and the effect on them of the abuse they had suffered. She also believed the father would facilitate contact with the mother in contrast to the mother’s view that the children gained no benefit from a relationship with the father. Ms Vardanega therefore recommended the children live with the father. The Child Representative supported her recommendation.
The Full Court in In the Marriage of Brown (1980) FLC 90-875 at 75,543 set out the court’s obligation in a harm minimisation case such as this one:
That in the exercise of the court’s discretion… if of the two decisions available to the court one would expose the child to risk or more risk than another decision, then that course should usually be adopted which is the least likely to expose such child to such risk.
Wishes of the children
Each child has an intellectual disability. In Ms Vardanega’s view, which I accept, the weight that is placed on the children’s wishes needs to be viewed in the light of their intellectual limitations and the pressure they were being subjected to on the day of the interview.
The Full Court in H v W (1995) FLC 92-598 said:
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”
NJS told Ms Vardanega he and BLS had been told by their mother and Mr GW to ‘say some things.’ NJS feared Mr GW’s reaction if he found out what he had said to Ms Vardanega. BLS had nothing positive to say to Ms Vardanega about his father or Ms LW of whom he said ‘when she doesn’t get drugs she is violent’. He said he liked living with the mother because ‘she feeds us properly’ they have a DVD and Karaoke machine, a television and video player each, bikes and skateboards. Also Mr GW takes them to see the Bulldogs.
NJS asked at interview if he could spend some time with his father, Ms LW and his ‘little sister’. NJS listed positive aspects of living with his mother as various activities and negative aspects as ‘they used to belt us on the bare bum. I am scared of GW. If we tell anyone the truth he used to flog us and get angry. He used to bash us around but not since we moved into the new house.’ He said he had fun when staying with his father during the July holidays and believed BLS also had fun. When his father was in the interview room NJS said ‘it’s fun with you Dad.’
The mother told Ms Vardanega that the children had reported after their recent holiday contact with the father that they did not want to see him again. The mother said they were scared of Ms LW, they had seen the father sell drugs to a friend and their grandfather had exposed them to loaded guns. These assertions were denied by the father and Mr GS and I am not persuaded these events occurred. The mother conceded in oral evidence the children may have had a good time with their father during the holidays.
I have given the children’s expressed wishes little weight in reaching my decision.
Nature of the relationship of the children with each parent and other persons
The father believed he had a close relationship with his sons. He said after not seeing them for about 9 months, they both greeted him with open arms when he saw them for the weekend in June this year.
The father deposed to the children having a close relationship with his father, their grandfather. The mother agreed the children enjoyed their grandfather’s infrequent visits. Mr GS said he intended to travel to PI as often as possible to spend time with his son and grandsons. He said he would also join them at Christmas time if the children were with their father. NJS told Ms Vardenaga he wanted to spend some time with Ms LW and JLW.
The mother said the children have a good relationship with her partner GW. Mr GW said he and the mother have taken the children to a range of activities including games in which Canterbury have played because they support Canterbury. I accept there are some positive aspects to their relationship. However, balancing these positive aspects against the negative impact of the children’s fear of Mr GW, I am not satisfied the children’s relationship with Mr GW is beneficial to them.
The mother deposed to having a close relationship with the children, taking them bike riding, to skating, cricket, soccer, football and golf. She described both boys as “active and athletic” and said she encouraged activities they enjoyed.
Ms Vardanega found the children “more settled and contained” in their interaction with their father than with their mother, with whom their behaviour tended to be “boisterous yet aimless and restless.” The reporter found it significant that the father seemed to have less need than the mother to intervene to manage the children’s behaviour, given the limited time the children have had with him in recent times. The children greeted the father with enthusiasm and warmth during the interview process. I am satisfied the children relate well to him as they do to their mother.
Given the children’s disabilities and both parties’ limited parenting capacity, I make no finding as to the respective strengths of the children’s relationship with each parent, nor do I find it necessary to do so to reach my decision.
Likely effect of changes in children’s circumstances including likely effect on the children of any separation from a parent or other person with whom the children have been living.
In Ms Vardanega’s view, a change in residence will have minimal impact on the children because they do not presently enjoy a secure base in either their mother’s or their father’s household. In Ms Vardanega’s view, the more limited children are intellectually, the more important it is to ensure they have their familiar things around them. The mother has not provided this stability. She said if the children were to be moved from their mother, it would not be a case of ripping these children away from where they are. Rather a case of them starting anew. As submitted by the child representative, Ms Vardanega observed that when the children have spent time with the father, they have had a positive experience.
Practical difficulty and expense of a child having contact with a parent
The parties live 8 hours apart if travelling by car, and longer if travelling by bus and train. Both parties depend on Centrelink payments for their support. The father has a Commodore sedan with five seat belts and he has an unrestricted licence. There is no registered vehicle in the mother’s household. Mr GW is disqualified from driving until 2011. The mother said she has no means of getting to PI or WW from Sydney. Despite seeking an order that he bring the children to Bathurst to meet the mother every two weeks, the father acknowledged in cross-examination by the child representative it would be better for the children to avoid so much travel and to avoid missing days of school. I am satisfied this is not a case where regular weekend contact is practical.
Capacity of each parent to provide for the needs of the children
I am not persuaded that either party has the capacity to provide for the needs of the children, given the limitations on their own cognitive and emotional functioning. The children may be exposed to risk in both households. I must decide in which household they will be exposed to the least risk.
In relation to the father and his household, I accept Mr Jurd’s submissions that he demonstrated limited capacity for parenting during the parties’ cohabitation and during the months following separation.
I noted the father’s response to questions about the difficulties for the children travelling 8 hours in a car from WW to Sydney, as “I just drove down; it took 9 hours; am I complaining ?” Ms Vardenega said in her May 2005 report “the father tended to minimise the extent of the children’s difficulties, the effects of any abuse to which they have been exposed and the management problems they might pose.” She also said of Ms LW “like Mr JRS she appears to have a poor perception of the needs of BLS and NJS in the light of the alleged abuse they might have been subjected to.”
However, when the parties lived in PI for a few years, the father said he used to take the boys pig chasing and fishing. The father said he was skilled at making things out of wood and he has been making the children beds. On the recent holidays, they played games and cooked together. The boys and the father slept on mattresses in the room with the open fire which the children enjoyed. I am satisfied the father has some positive skills and experiences to offer the children.
In relation to the mother and her household I agree with Ms Vardanega there is likely to be greater risk. The father said in June this year, they arrived in worn out shoes with no socks, their feet were red, sore and badly blistered. NJS was unable to climb the steps to his bunk. The father took the boys to hospital and the Department of Community Services was notified. The father bought the children new shoes and socks and kept the old ones. He told the court he intended to show the court, but had left them at home. The father visited the mother’s home after the June contact weekend in 2005 and observed several pairs of blood soaked underwear on the toilet floor. He then saw GW smoking marihuana in front of the boys. The mother also had a turn at smoking the bong. GW then showed him his unregistered car in the back garden. He said “I drove around the yard the other day with BLS and NJS sitting on the bonnet. I hit the brakes hard and BLS fell off.” The father said Mr GW then laughed about the incident. Ms LW confirmed seeing her brother drive the children around the garden on the bonnet of the car.
It was not contested that the mother was dependent on others to manage the response to the disclosure by BLS that he had been sexually assaulted by his uncle, PK. Mr GW, not the mother, reported the matter to the school principal. The mother went to the doctor for a “chill in my back” rather than taking BLS to school to discuss the matter with the Principal. Ms LW deposed to NJS having regular nightmares while she stayed with them in June 2005 and NJS coming to her bed to sleep. Ms LW deposed to observing the mother involve NJS in obtaining food from McDonalds that she had not paid for. She said the mother gave the boys no help in the mornings getting ready for school. The mother stayed in bed. I am not satisfied the mother has the skills to manage the day to day needs of the children.
Both parties have demonstrated an almost reckless disregard for the children’s educational needs. BLS was assessed in his first year of school as moderately intellectually disabled. In his second year of school he was assessed as Borderline Mild-Moderate Intellectually Deficient Range and was diagnosed with Attention Deficit Hyperactivity Disorder. Yet BLS has attended approximately 12 schools in the last 5 years and is awaiting another move. NJS has attended about 10 schools since he started school 3 years ago.
A number of schools reported the children’s poor attendance record
[Ex 4]. At times the Department did not know which school the children were attending and critical information about the children’s special educational needs was therefore not passed on [Ex 7 and 8]. The father recalled the children being assessed at WW but not again. He did not follow up on the assessments nor ensure their special needs were being addressed. The father conceded he had not been involved in the children’s education when he lived with the mother and they may have missed a lot of school.
In evidence, the father set out the strategies he would use to ensure the children attended school every day if in his care. These included setting an alarm, preparing the children’s breakfasts, assisting them to get dressed and preparing their school lunches the night before. He realised he would need to motivate them, but had spoken to the WWPS school Principal who he was confident would work closely with him. He said he would ensure the children were assessed by the paediatrician in NB and would follow the specialist’s instructions. Ms Vardanega believed it absolutely critical these “very disadvantaged” children had a settled period in one school location if they were to gain any life coping skills, something the mother has been unable to provide. Otherwise their prognosis for healthy progress was poor. In her view, which I accept, this was slightly more likely with the father than with the mother.
Neither parent has demonstrated an ability to be child-focussed. The mother has clearly demonstrated her incapacity to provide for the needs of the children since separation. The father has shown some insight into what he sees as the children’s needs in the future although after separation, he showed minimal commitment to the children’s welfare and he is untested as a residence parent. I was however, encouraged by the father’s efforts to listen to the evidence during the hearing and to acknowledge his need to change his position on proposed orders as a result. I found the mother was either unwilling or unable to do the same.
Children’s maturity sex and background and relevant characteristics of the children.
The children both have an intellectual disability and behavioural problems. The mother and Mr GW tried to use the children’s vulnerabilities to manipulate them into giving certain responses during the family report interviews. I agree with Ms Vardanega when she described the children as seriously underprivileged, disadvantaged and at risk and in need of a stable environment.
Ms Vardanega concluded “both parents and their partners presented as immature and limited in their capacity to distance themselves from their own issues and conflict and assume a child focus in the dispute. They have poor conflict management skills and there seems to be a pervading family culture particularly in the circles wherein Ms TLM and Mr GW circulate of resolving conflict by aggression.
Ms Vardanega observed the children to be vulnerable, fragile and lacking in self esteem. She found indications that the children had been pressured to favour the mother at interview and were afraid of reprisal from Mr GW if they did not accede to this pressure. She said such pressure was “damaging to their healthy emotional development that is already compromised by their intellectual and behavioural challenges.”
Need to protect children from physical or psychological harm
This is a significant issue in this case. I am satisfied the children have been subjected to and witnessed a serious level of physical and emotional abuse during their lives and the problem is ongoing. Ms Vardanega started her report dated 16 August 2005 by relating the events which occurred prior to the interviews. The parties and their partners were involved in an altercation outside the mediation section in front of the children requiring the intervention of the Australian Federal Police. During the assessment interviews the mother, Mr GW and Ms LW told Ms Vardanega they were planning to initiate assault proceedings against each other. Mr GW told Ms Vardanega “in quite an aggressive manner” that they could only be in attendance for about an hour as he had to attend to the installation of a security system at their home to keep “the likes of his sister Ms LW from having access to the house.” Mr GW believed he needed to take an active role on the day of the interviews to prevent the children coming into contact with the father who would ‘put things in their heads.’ Mr LW presented in the witness box as volatile.
The mother reported tension, fights and arguments in her relationship with the father.
Ms Vardanega reported that the mother denied the children have been exposed to any violence in her present household and asserted she had never hit the children. She denied Mr GW had been violent towards the children. She then conceded she had hit BLS on one occasion but excused her behaviour because she was suffering a nervous breakdown at the time. She also conceded she had smacked the children on the legs and arms but not since DOCS told her she was not allowed to hit them. Mr GW said he only became involved in discipline if ‘TLM can’t handle them.’ He acknowledged the direction they had received from DOCS not to physically discipline the children, and said they now use time out and depriving privileges as behaviour management techniques. Before the DOCS agreement, he admitted to hitting the children on the bottom, never the legs. He could proffer no explanation for why NJS was scared of him.
BLS reported to Ms Vardanega that his understanding of the reason he was being interviewed was ‘it’s because our real Dad has been hitting us.’ Ms Vardanega reported that BLS seemed to have been coached. Ms Vardanega heard the mother say to BLS just before interview ‘don’t forget to tell her’. BLS then said about the mother’s household ‘we used to get hit if we were naughty or we swore, but not anymore. Now we are put in the corner.’
In 2001, in the absence of the father, the mother seriously assaulted BLS, for which she was charged, convicted, fined and placed on a good behaviour bond. Both the police and the department of community services were involved. The father said BLS had bruise marks on his body, and there was a large bruise around his neck. The mother said she regretted the incident but had never hit either of her children since that date. She did not regard smacking as physical discipline. She said physical discipline is punching. NJS lied just like his father when he said Mr GW belted him on the bottom. “Anyway, we don’t hit them anymore since DOCS came out and we signed a document.” Mr GW said this happened 3 months ago, the mother said it was 12 months ago. “We realised this was wrong when welfare were on our backs.” DOCS taught us different techniques and now we put them in their room or take something away from them. She said Mr GW has never used a belt on the children, nor has she seen GW physically discipline the children. LW deposed to witnessing her brother GW in about mid-2003 grabbing BLS by the neck, swinging him around and throwing him across the road into the gutter. The mother called out “put him in his fucking room”. She then saw GW drag BLS by the ear to the house.
In or about June 2004 BLS reported to GW, having been sexually assaulted by the mother’s brother-in-law PK. The police obtained an apprehended violence order for the protection of BLS.
The father deposed to BLS saying to him during contact later in 2004:
GW’s been hitting me.
BLS showed his father two belt marks across his legs and a big bruise on his shoulder. He said:
GW grabbed me by the hair and pushed my head into a brick wall.
NJS also showed the father two marks on his legs. The father said he reported the matters to the police, verified by the report [Ex 2] who took photographs and referred the matter to DOCS.
Ms LW deposed to NJS telling her in about June/July 2005 “I saw RW [Mr GW’s brother] and GW belting into MKs brother. GW and RW made him suck them both off.” The mother was observed laughing when she heard this. In cross-examination Mr GW conceded the incident occurred but denied being involved and denied NJS being present. Mr GW described ‘MK’s brother’ as a mentally retarded young man in his early 20’s. Mr GW said there was nothing he could do to stop his brother although he knew his intentions in advance and heard him coercing the victim to perform the acts.
The father’s partner, LW deposed to her brother, the mother’s fiance, threatening her with a knife which led to an apprehended violence order against Mr LW for her protection. She had the order revoked when she lived in his household in June 2005. The father’s father Mr GS said he had a current apprehended violence order to protect him from Mr GW as a result of a threat “you’re dead, you’re gone.” During the June 2005 contact weekend, NJS said to the father “GW had a fight with RW with a knife in the lounge room and outside.” Ms LW saw her brother fighting with RW with a kitchen knife in his hand. Mr GW’s mother punched the mother in the face. The children were in the home during these incidents.
During her stay with the mother, Ms LW saw an incident on the train when her brother squeezed NJS’s face so hard a piece of his tooth broke off. NJS was in pain and Ms GW said he was frightened to go near Mr GW. Mr GW conceded he squeezed NJS’s face in the manner described but only to extract chewing gum NJS had picked up from the floor and put in his mouth.
Ms Vardanega said NJS has a real fear of Mr GW. Living with such fear will have significant long term consequences for a child, as it thwarts their cognitive development. Ms Vardanega had serious concerns about the mother’s capacity to protect the children from harm. I agree with Ms Vardanega that the mother and Mr GW live in a culture of violence and aggression.
Ms Vardanega observed:
She [the mother] also seems to have a limited insight into the effects of abuse on the children and has demonstrated a poor capacity to protect them. BLS has been a victim of physical and sexual abuse while in her care. She seems to deny that the children are in any way at risk with Mr GW in spite of NJSs disclosures that he is afraid of Mr GW’s reaction.
I am satisfied Mr GW has assaulted both children while in his and the mother’s care. I am satisfied the mother has also hit the children and has done nothing to protect the children from Mr GW.
In her affidavit sworn in August 2004 the mother alleged the father had hit the children to the face and head area, threw them across the room and yelled at them excessively. She does not say when or where this incident occurred. The mother reported to police on 12 September 2004 that the children had reported their father hitting them during contact. The police reported [Ex 2] the mother coaching BLS as to what to tell police. I accept Mr GS’s evidence that in the July school holidays the father did not ‘go crook on them.’ I am not persuaded on the evidence before me that the father has hit the children as alleged by the mother.
It was submitted by the father’s counsel that the court would be satisfied that Mr GW’s presence with the children poses an unacceptable risk of violence to the children within the meaning of M v M (1988) 82 ALR 577, and the mother should be restrained from causing the children to come into contact with him. I am not persuaded such a restraint would be in the children’s best interests. There was no evidence to suggest Mr GW had physically disciplined the children since he entered into an undertaking with the Department not to do so. Also, as properly submitted by the father’s counsel, there are considerable practical difficulties in implementing such an order in the particular circumstances of this case. The mother intends to marry Mr GW. I am persuaded that if the court were to make the order proposed, it could mean the children would have no contact with the mother. However, as I find there is a basis for concern that Mr GW will continue to discipline the children inappropriately I have ordered that the mother take steps to ensure Mr GW does not physically discipline the children and that she be restrained from doing so herself.
Attitude of each parent to the responsibilities of parenthood
I am not satisfied either party understands the responsibilities involved in being a parent and I agree with the child representative that neither party presents as an acceptable alternative as a full time carer for the children. This is of particular concern given the children’s special needs and the lack of attention to their needs to date.
The mother presented as immature as well as emotionally and intellectually limited. I observed her laughing inappropriately from time to time during the hearing when others were giving their evidence. I am satisfied she saw nothing positive for the children in having any kind of relationship with the father.
On the basis of the evidence already outlined in these reasons, I am satisfied the mother and Mr GW both use illicit drugs in the children’s presence.
I am satisfied the children’s paternal grandfather will have a role in the children’s lives if they live with the father. The grandfather spent part of the July school holiday contact period at PI with the children and intends to spend time at PI/WW with them if they were to live with the father. Although he had limited understanding of the children’s special needs, I am satisfied his presence in the children’s lives would be helpful. Ms Vardanega commented in her May 2005 report that Mr GS was a moderating presence when the father was upset about the mother’s failure to attend for the family report interviews.
The father is untested as a residence parent. However, I take into account that he has lots of plans for them including enrolling them in soccer, fishing, riding motor bikes, avoiding too much television and computer. He has been collecting spinners for them. He has articulated non-physical management strategies including taking the children to a counsellor he knows if his strategies do not work.
Whether it would be preferable to make the order that would least likely lead to the institution of further proceedings in relation to the children
I agree with the submission of the father’s counsel based on the evidence of Ms Vardanega that if the children remain with the mother there is more likely to be ongoing litigation about contact between the children and the father. I am satisfied the mother would prefer the children to have no contact with the father, despite her proposal for parenting arrangements, given her view that the father has nothing to offer the children. I find the father has a positive attitude to contact between the children and the mother.
Taking all the above factors into account in reaching my decision, I have given most weight to my findings in relation to the factors concerning the children’s protection from physical and emotional violence and those concerning each parent’s capacity to provide the children with stability in their home and schooling.
Conclusion
Ms Vardanega said children like BLS and NJS are susceptible to falling prey to exploitative adults and inappropriate adolescent peer influences unless resources are in place to monitor their development. In her view it is important that effort is made by the parent with whom they live to provide continuity of education in a programme tailored to their needs in a stable home environment, with non-violent behavioural management strategies. The stability of their education is critical to their future well being.
In Ms Vardanega’s view, there are a number of concerns about the care provided by the mother since separation. She has been unable to provide secure stability: the children have moved residence and schools many times, the last move in June 2005, and the mother now awaits Department of Housing accommodation and a new school for the children. The mother blames others for this situation and seems unable to take control. She has lacked the capacity to protect the children from abuse and abusive situations. She denied any problem with Mr GW and denied the children have been exposed to drug related behaviour or violence. She is not child focussed, but rather her interest is in attacking the father, Ms LW and Mr GS. In the family reporter’s view, there will be problems with contact and probably further litigation if the children remain with the mother, given the mother sees no positive role for the father in the children’s lives.
The father told Ms Vardanega he would not deny the children contact with the mother if the children were to live with him. He recognised the need for the children to have as much contact as practicable with the mother and at hearing, sought orders accordingly. Ms Vardanega said, and I accept, that the father has made at least some efforts to find supports through the school and the Department of community services. He has decided WWPS will offer better teaching facilities and opportunities for the children. He seems to have more insight than the mother into the children’s needs. In addition I am satisfied the father’s father will play a role in the children’s lives.
The children have lived in PI in the past and been to school at WW. A move to the father’s home and the lifestyle there will not be entirely unfamiliar to these children. NJS indicated both he and BLS enjoyed this environment and all the outdoor activities available to them. Ms Vardanega has some concerns about the impact on the father’s emotional resources of another breakdown in his relationship with Ms LW if that were to occur, and emphasised the importance of ensuring supports are put into place to help with the children.
The father said he would enrol the boys in WWPS, about 45 minutes from home, as its facilities are superior to those at the PPS. He said he would organise counselling of the children through DOCS. He told Ms Vardanega he had approached the school and the Department of Community Services who assured him of their support. He hoped to involve the boys in the many sporting activities offered in the area including soccer, rugby, tennis and golf. He does not expect to work because of his back injury. He said he would encourage contact between the boys and the mother in Sydney and the NB area, as well as telephone contact. He said he was prepared to relocate to Sydney if the court made such relocation a condition of the boys living with him.
I accept Ms Vardanega’s view that it is of critical importance to the children’s development that the residence parent provides stability of accommodation and school. I am satisfied that there is a greater chance of those being achieved if the children live with the father than with the mother.
I am satisfied the Orders I have made are in the best interests of the children.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date: 16 September 2005
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