KAD and SJG and KH - [2007] FMCAfam 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KAD & SJG & KH

[2007] FMCAfam 443

FAMILY LAW – Parenting – competing applications by mother and father’s de facto partner for the children to live with them – father incarcerated for 12 months – whether in children’s best interests to remain in father’s household in father’s absence – allegations of violence and drug use – alleged mother’s household not stable – consideration of whether to make orders on interim or final basis.

Family Law Act 1975

H v W (1995) FLC 92-598
R and R; Children’s Wishes (2000) FLC 93-000

Applicant:

KAD

First Respondent:

SJG

Second Respondent:

File Number:

SYM 5799 of 2006

Judgment of:

Sexton FM

Hearing dates:

7, 8, 14 and 18 June 2007

Date of Last Submission:

18 June 2007

Delivered at:

Sydney

Delivered on:

4 July 2007

REPRESENTATION

Solicitors for the Applicant:

Jennifer Weate & Associates

Solicitors for the First Respondent:

Winder Lawyers

Counsel for the First Respondent:

Mr M Graham

Second Respondent:

In person

Counsel for the Independent Children’s Lawyer

Ms M Clifford

Solicitor for the Independent Children’s Lawyer

Slade Manwaring

ORDERS:

All previous parenting orders be discharged.
The paternal grandmother, Ms Lauren Green (not her real name), be joined as a party to these proceedings for the purpose of Orders (4), (6), (7), (8), (10), (11), (14), (17) and (25).
Except as otherwise provided in these Orders, Alex Green (not his real name) born 23 July 1997 and Anna Green (not her real name) born 17 January 2003 [“the children”] live with the mother and the mother have responsibility for the children’s day to day care while they are living with her.
Until the father’s release from prison:
(a)The children spend time with the father’s partner, Karen (not her real name) on the second weekend of every 4 week cycle in school terms, and on every Father’s Day weekend from 4.30p.m. Friday until 4.30 p.m. Sunday or 4.30 p.m. Monday if a Public Holiday, commencing on the second weekend of each school term except that the children will remain with the mother for the weekend of Mother’s Day;
(b)The children spend time with the paternal grandmother on the third weekend of every 4 week cycle in school terms, from 4.30 p.m. Friday until 4.30 p.m. Sunday, commencing on the third weekend of each school term except that the children will remain with the mother for the weekend of Mother’s Day;
(c)In the July 2007 school holiday period, the children spend time with Karen from 4.30 p.m. Saturday 7 July until 4.30 p.m. Wednesday 11 July 2007 and with the paternal grandmother from 4.30 p.m. 11 July 2007 until 4.30 p.m. on Saturday 14 July 2007;
(d)The children spend time with Karen in the first week of each subsequent short school holiday period commencing at 4.30 p.m. on the first Saturday until 4.30 p.m. on the following Wednesday and with the paternal grandmother in the first week of the school holiday period from 4.30 p.m. Wednesday until 4.30 p.m. Saturday;
(e)
The children spend time with the paternal grandmother from

12 noon on 6 January 2008 until 12 noon on 13 January 2008 and with Karen from 12 noon on 13 January 2008 until 12 noon on 20 January 2008;
(f)Karen have responsibility for the children’s day to day care during periods they are spending with her and the paternal grandmother have responsibility for the children’s day to day care during periods they are spending with her;
(g)Karen and the paternal grandmother ensure the children spend time visiting the father on one day of each weekend the children spend with each of them, unless the father is not being held at the Central Coast Gaol;
(h)The parties have telephone communication with the children twice a week when the children are not in their care and on each of the children’s birthday’s and each party’s birthday; and
(i)Each party ensure the children can telephone the other party at any time the child wishes, by assisting them to do so if necessary.
The father or his nominee notify the mother in writing within 48 hours of his release from prison including his residential address and telephone contact details.
The father or his nominee notify the mother and the paternal grandmother in writing within 7 days in the event he and Karen terminate their relationship.
Upon the father’s written notification of his release from prison in accordance with Order (5) herein:
(a)The children spend time with the father when they would otherwise have spent time with Karen in accordance with Order (4)(a);
(b)The children spend time with the father in the first week of each short school holiday period commencing at 4.30 p.m. on the first Saturday until 4.30p.m. on the following Saturday;
(c)The children spend time with the father in the Christmas school holiday period in 2008/09 and each alternate year thereafter from 4.30 p.m. on the first Saturday of the school holiday period until 12 noon on the 3^rd Monday of the school holiday period;
(d)
The children spend time with the father in the Christmas school holiday period in 2009/10 and each alternate year thereafter from 4.30 p.m. on the first Saturday in January until 12 noon on the

3 Monday in January;
(e)
The children spend time with the paternal grandmother during each short school holiday period from 12 noon on one day until

4 p.m. the following day by arrangement with the mother, provided that the time is spent in Sydney when the paternal grandmother will collect and deliver the children from and to the mother’s residence;
(f)The children spend time with the paternal grandmother in each Christmas school holiday period for a period of 5 days immediately following the time the children spend with the father ending at 12 noon on Saturday;
(g)The father have responsibility for the children’s day to day care during periods they are spending with him and the paternal grandmother have responsibility for the children’s day to day care during periods they are spending with her;
(h)The parties have telephone communication with the children twice a week when the children are not in their care and on each of the children’s birthday’s and each party’s birthday; and
(i)Each party ensure either child can telephone the other party at any time the child wishes, by assisting that child to do so if necessary.
Unless otherwise provided in these Orders, for the purpose of changeover for each period the children spend time with Karen, the paternal grandmother or the father, the mother deliver the children to the relevant adult at Parramatta Railway station at the beginning of each period, and the mother collect the children from the relevant adult at Wyong Railway station at the end of each period.
Each party keep the other parties informed of their residential address and telephone numbers.
Each party forthwith install “netnanny” or such child protection software on computers used by the children and confirm with the Independent Children’s Lawyer in writing within 21 days of Order that this has been done and each party ensure neither child has access to their computer until this order has been complied with.
The mother ensure the father and the paternal grandmother are listed as contact persons at the children’s school and pre-school.
The mother ensure Alex attends school each day on time (and Anna when she starts school) and in the event either child is unable to attend school because of illness, or is required to attend an appointment during school hours in accordance with these orders, the mother provide the school with a medical certificate or a note advising the school the reason for the child’s absence no later than 24 hours after the absence.
The mother do all things necessary to ensure the school is authorised to provide the father or Karen with copies of school reports, photographs, newsletters and notices upon any request from the father or Karen.
In relation to Alex:
(a)The mother arrange an appointment for Alex to see a paediatrician in relation to his bowel problem within 14 days of the commencement of Term 3, 2007 with the assistance of the Independent Children’s Lawyer if necessary;
(b)The mother advise Karen and the paternal grandmother and the Independent Children’s Lawyer of the name of the paediatrician and appointment time;
(c)The paternal grandmother be at liberty to attend the appointment with the mother and Alex if she wishes;
(d)The mother provide the paediatrician with a copy of Exhibit 7;
(e)The mother notify Karen and the paternal grandmother of the paediatrician’s recommendations as to management and/or treatment;
(f)Each party comply with the treatment/management recommendations of the paediatrician and Karen, the father and the paternal grandmother to keep the mother fully informed of Alex’s symptoms when in their care;
(g)Neither Karen, the father nor the paternal grandmother to consult a medical practitioner in relation to Alex’s bowel problem unless an emergency or with the approval of Alex’s paediatrician referred to in this Order.
The mother arrange counselling for Alex within 21 days of the commencement of Term 3, 2007, by referral from the paediatrician or the school principal or, if necessary, with the assistance of the Independent Children’s Lawyer, and Alex to attend counselling in accordance with the counsellor’s recommendations.
The mother and father do all things necessary to amend Alex’s birth certificate to record his name as Alex Ben Green.
In the event either child requires urgent medical treatment, the party caring for the child notify the other parties immediately, or as soon as practicable.
Each party ensure they do not make negative comments in front of the children about any other party.
The mother and Mr Smith (not his real name), be restrained from approaching the residence of the father and Karen and the father and Karen be restrained from approaching the residence of the mother and

Mr Smith.
The mother complete a parenting course at Centacare, Relationships Australia or Unifam, approved by the Independent Children’s Lawyer, and to provide evidence of its completion to the Independent Children’s Lawyer within 3 months and the father complete a parenting course with one of the same agencies within 3 months of his release from prison.
The mother forthwith arrange a further counselling appointment with Centacare and continue in counselling for a period of at least 6 months.
The appointment of the Independent Children’s Lawyer continue for a period of 6 months.
The Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to Alex’s counsellor, to Alex’s paediatrician, to the mother’s counsellor and a copy of the Orders only to Alex’s new school principal.
The Independent Children’s Lawyer forthwith provide a copy of these Orders to the paternal grandmother.
Each party be restrained from filing any application in relation to a variation of these orders without leave of the court.
There be no order as to costs in relation to the appointment of the Independent Children’s Lawyer.
Pursuant to s.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.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 5799 of 2006

KAD

Applicant

And

SJG

First Respondent

Second Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns parenting arrangements for Alex (not his real name) aged 9 and Anna (not her real name) aged 4 years. The mother, the father and the father’s de facto partner Karen (not her real name) are the parties to the proceedings. For reasons later explained, the paternal grandmother has been joined as a party for the purpose of a number of the orders I have made. The mother lives in the western suburbs of Sydney, at least a 2 hour drive from the father’s residence on the Central Coast. This case is complicated by the fact that the children have lived with the father since early 2005, but the father was imprisoned on 11 May 2007 and will not be released until 10 May 2008. The children are presently living with Karen, their half sister of 18 months, Rachel (not her real name), and Karen’s other two children. The father wants the children to remain living with Karen until his release from prison. He will then join them on his release. The mother wants the children to live with her.
The mother and father were represented at hearing. Karen was unrepresented. The Independent Children’s Lawyer was represented by counsel. The Court expert was Dr Christopher Rikard-Bell, adult and child psychiatrist.
The mother and father separated in January 2005 after a relationship of 16 years, started when the mother was 11 and the father 14 years of age. By the time the mother was 12, she and the father were living together as a couple. The mother tells Dr Rikard-Bell that the father had a lot of control over her. She says they used drugs together and frequently argued. She says “Sam had a lot of anger”[1] and “would have a go at you and call you names.” The father spent periods of time in prison. On one occasion the mother attempted suicide.
[1] Exhibit 1, page 4.
At the time of separation, it is common ground that the mother and the father were drug users. The father had been convicted of drug supply and was completing a one week drug rehabilitation programme. On

18 January 2005, he rang to tell the mother he had been “kicked out of rehab” and was on his way home. The mother says she had wanted to extricate herself from the relationship for a long time and when the father’s rehabilitation had failed could not face the prospect of the relationship continuing. As she had nowhere to go, she says she left the children with a neighbour and left the home before the father returned. Anna was 2 years of age, Alex 7. Although the evidence is not clear as to precisely how the children were cared for after separation, there is no doubt they experienced considerable instability and saw almost nothing of the mother for 9 months. The mother moved between a car, a motel, her mother in Sydney and her father in Queensland. The father spent time in prison in February and again from June until early September 2005. The children spent time with the father, a friend of the father’s, the paternal grandmother and Karen. In September 2005, upon his release from prison, the father took the children to see the mother in Queensland for a few days where she was then living.

Karen says the mother had no money and depended on the father for food and entertainment expenses for the children. In October 2005 the father arranged and paid for the children to spend time with the mother again for 2 days in a caravan park on the Central Coast. The mother returned to live in Sydney in November 2005.
During the first half of 2006 the children spent irregular time with the mother. In the July 2006 school holidays Alex went to the mother at the father’s request. The mother started these proceedings for the children to live with her and kept Alex with her until the court ordered his return to the father on 28 July 2006. The children then spent regular weekend time with the mother. That arrangement was disrupted in February 2007 when the father decided the children were not safe with the mother’s partner. The children did not see the mother from 18 February until 11 May 2007 when the father was imprisoned. Since May 2007 the children have lived at times with the mother and at times with Karen in accordance with Court Orders.
The mother has been living with Mr Smith (not his real name) since the end of 2005. Mr Smith has 4 children from earlier relationships but does not spend time with any of them. As already noted, the father has been living with Karen since May 2005 and they have a child Rachel, aged 18 months. Karen also has two children from a previous relationship, John (not his real name) 11 and Jane (not her real name) 8 who live with the father and Karen.
The mother is 30 and the father 32. The parties married in May 1998 and were divorced in June 2006.
Mr Smith has worked full time as a warehouse manager and quality control officer for a company in North Sydney for 2 years. The mother is applying for funding to undertake a Certificate course in business by correspondence[2] with the hope of obtaining secretarial work. The mother and Mr Smith have just moved to a rented 3 bedroom home in Sydney’s western suburbs.
[2] Exhibit 3.
The father was unemployed before his current term of imprisonment and on a disability support pension. Karen is at home full time with the 5 children. They live in rental accommodation on the Central Coast of N.S.W.
Alex is in Year 4 at a Central Coast public school (the Central Coast public school). Anna attends day care 2-3 days a week. Karen’s children also attend the Central Coast public school.
At hearing the mother asks that the children spend one weekend in 4 with the paternal grandmother, one weekend in 4 with Karen, when they can visit the father in prison. When he is released from prison, the mother seeks an order that the father be substituted in the orders for

Karen. She proposes half school holidays with Karen and the paternal grandmother until the father leaves prison and then half school holidays with the father and paternal grandmother. Mr Smith supports the mother’s application for the children to live with her.
Karen and the father seek orders that the children remain living with Karen until the father leaves prison, and that the children then live with Karen and the father. Karen and the father both seek orders that the children spend alternate weekends with the mother and half school holidays.

The proceedings

There were no parenting orders until the mother commenced these proceedings in July 2006. On 28 July 2006, interim orders were made providing for the children to live with the father and spend time with the mother every weekend from Friday until Sunday afternoon, and for half school holidays. In October 2006, the time with the mother was reduced to three out of four weekends and half school holidays. In February 2007, the father stopped the children’s time with the mother until the Mother’s Day weekend in May 2007. As the mother was then advised the father was in prison, the mother kept the children with her. On 23 May 2007, the matter was re-listed by the Independent Children’s Lawyer when I made orders for the children to remain with the mother for the purpose of further interviews with Dr Rikard-Bell and thereafter to return to Karen so Alex could attend his usual school until final determination, with daily telephone communication with the mother. At the same time, I joined Karen as a party to the proceedings. A question arose on that day as to whether the hearing on 7 and 8 June would proceed by way of further interim hearing or by way of final hearing.
The mother filed an Application for Contravention on 27 April 2007 in relation to the father failing to make the children available for time with her between February and May 2007 in accordance with the October 2006 orders. The mother withdrew that application at the end of this hearing.
The paternal grandmother met with Dr Rikard-Bell and gave oral evidence in the proceedings. She tells the court she has applied for legal aid and intends making an application for the children to live with her until the father is released from prison. The paternal grandmother did not apply to be joined as a party during the course of these proceedings. Nevertheless, I gave consideration as to whether the proceedings should be adjourned to enable the paternal grandmother to be joined as a party. However, given all parties wished the matter to proceed, the paternal grandmother gave evidence and was interviewed by the court expert, and the Independent Children’s Lawyer’s counsel submitted the children would suffer if the matter did not proceed, I decided it was not in the children’s best interests to adjourn the proceedings.

Dr Rikard-Bell prepared two reports. In the first report, prepared before the father was imprisoned, and when the mother and Mr Smith had no stable accommodation, he recommends the children remain living with the father. He says at the time of his first report, he had not been made aware Alex had been suspended from school for 20 days in first term 2007. In the second report, prepared after the father’s imprisonment, Dr Rikard-Bell recommends the children live with the mother. In oral evidence, he states unequivocally that the children should be moved to the mother and that orders should be made on a final basis, not on an interim basis as suggested in his second report. Dr Rikard-Bell explains his change of recommendation on the basis of the father’s imprisonment for 12 months, the father’s decision to prevent the children spending time with their mother from February to May 2007 and on the basis of the anxiety symptoms being exhibited by Alex. He says Alex felt a great sense of loss being cut off from his mother and Alex, in particular, needs a stable environment which the mother can better offer.

Legal principles

The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the children’s best interests are paramount. To determine the child’s best interests I must consider the primary considerations set out in s.60CC(2) and the 13 additional considerations set out in s.60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. They are consistent with the first two objects of the Act set out in s.60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

The primary considerations

The benefit to the children of having a meaningful relationship with both the children’s parents.

The mother and the father each tell the court the children love the other parent and need to spend time with both parents. Each seeks orders that the children spend regular time with the other parent, within the practical constraints of the distance between their two homes and the practical difficulties arising as a result of the father’s imprisonment.

Dr Rikard-Bell observes the children to have a close and loving relationship with each parent. I am satisfied the children will have a meaningful relationship with both parents whether they live primarily with the father or with the mother.

The need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.

The children have a long child protection history with the Department of Community Services from the time Alex was 3 years old and the parties were still living together. The children have been the subject of 18 reports to the Department between 5 July 2000 and 19 February 2007. The reports include allegations of physical abuse, parental drug and alcohol abuse and inadequate supervision[3].
[3] Exhibit 13.
From the records of the Department of Community Services and the Police Commissioner it is evident that the children were exposed to verbal and physical violence when their parents lived together and have continued to be exposed to verbal and physical abuse between the father and Karen in the father’s household since the mother and father separated. Since separation, the police have been called to intervene in the father’s household on a number of occasions. Police records state that on 1 December 2006[4] Karen sought police assistance twice for the father’s verbal abuse while under the influence of alcohol when the father was throwing rocks at the premises. In November 2006[5] police attended the father and Karen’s premises 3 times as a result of Karen’s alleged fear of the father, once when Karen alleged the father pushed her into a wall with Rachel in her arms and another when the father refused to let her into the house. On 14 November 2006 the police received a report of the father wielding a metal pole in the front yard of a neighbour, knocking off the letter box and banging the pole against the neighbour’s verandah railings. On 21 September 2006
Karen called police alleging the father was refusing to let her leave the premises. On 19 September 2006 the police report being called when the father and Karen had been drinking and arguing because the father believed Karen was favouring her children over his. Both
[4] Exhibit 11.
[5] Exhibit 13.
Karen and the father’s brother have apprehended violence orders currently in force against the father, Karen as a result of the father’s altercation with her in November 2006, and the brother as a result of the father punching and threatening him in April this year.
Although the father acknowledges being “verbally violent to Karen” and to a history of fighting with his brother, I find he underestimates the frequency and gravity of his violent behaviour in the past and demonstrates almost no insight into the impact of his behaviour on the children. Karen also downplays the seriousness of the father’s past conduct, denying any recollection of most of the reported incidents of only 6 months ago, including locking herself in her bedroom for protection or being pushed against a wall with Rachel in her arms. Karen denies ever being frightened of the father and in relation to the apprehended violence order taken out on her behalf, says “but I didn’t ask for one”. Karen agrees she and the father have “pushed each other” but “never in a violent way”. Karen agrees she took John (not his real name), Jane (not her real name) and Rachel to a hotel in November 2006 because “I felt I needed a break”. I found Karen’s answers evasive.
The mother reports Alex telling her about violence between the father and Karen. She deposes to Alex calling her on 8 March 2006 to say:
Karen just threw a Bourbon can at dad and hit him on the face. His face is all cut open. There is blood running down his face.
and later the same day:
Karen has just gone out with John, Jane and Rachel. Dad is in his room. He has been drinking and crying. I cooked dinner for me and Anna. I am scared Mum. I do not want to be here anymore.
The paternal grandmother expressed her concern to Dr Rikard-Bell about the level of conflict between Karen and the father. As a result, she has, at times, taken the children to her home to stay.
The mother alleges the father was “threatening and intimidating” during their 14 years together, regularly abusing her verbally and at times physically. She says she remains afraid of the father. Although in cross-examination, the mother had difficulty recalling more than a few specific incidents of the father’s violent behaviour during their relationship, she impressed me as a witness of truth and I accept her evidence.
There is no specific evidence as to the impact of this exposure on Anna, but there is evidence of its impact on Alex. His school records[6] describe a troubled child who has demonstrated significant behavioural problems since he commenced school. A letter to the mother and father in September 2003 says “in class Alex often displays frustration, tantrums and refuses to do ‘anything’ which in turn disrupts the rest of the class.” The staff express frustration at their inability to involve the mother and father in addressing his problems in 2003, his first year of school. In the second half of 2005 when Alex was in Year 2, a Northern Sydney Public School (the Northern Sydney public school) reports incidents of aggressive behaviour: “fighting”; “kicking”; “punching-repeatedly; punched another student because John Jackson [his step-brother] told him to do it”; “aggression, hitting- Alex put a boy in a headlock at recess and hit another student in the head;” “punching kicking- Alex punched and kicked another student in the groin”; “fighting”.
[6] Exhibit 9.
A report on Alex in September 2006 reports “below grade” in most areas of his development. The report says:
Alex has a long history of school/home/personal problems which have impacted significantly on his education. A family split and subsequent events have meant that Alex suffers from anxiety depression and behavioural problems as diagnosed by a clinical psychologist.
Alex is displaying violence when on the playground…Alex’s father said that his behaviour at home was becoming difficult to manage. Alex is soiling his pants at home...
In November 2006 the Central Coast public school reports Alex being aggressive towards his peers in the playground and receiving suspension warnings. They describe him as:
a highly anxious boy with a history of anxiety, depression and encopresis over the past year. He has very few behavioural interaction skills with peers, becomes highly anxious and then reacts aggressively. He needs a lot of support in the playground during transitions and also to start tasks. He has low self-esteem which impairs his ability to complete tasks.
On 16 February 2007, Alex was suspended from school for 20 days for seeking out another student and punching him several times. The school’s Risk Management Plan dated March 2007 reports Alex’s propensity to kick and hit other students “anywhere anytime”. I agree with Ms Clifford, counsel for the Independent Children’s Lawyer that Alex’s behaviour in February 2007 is particularly worrying. Having assaulted other students impulsively in the past, he is now acting with premeditated intent by tracking a child down to assault him.
The father and Karen suggest Alex’s behaviour is no different from other children of this age. The father could not recall precisely why Alex was suspended “he might have punched someone.” Neither
Karen nor the father were sufficiently concerned about his suspension to initiate contact with the school. I find the father and Karen show an alarming lack of insight into the seriousness of Alex’s behavioural history at school. I also find it alarming that the father thinks it appropriate for Alex to study martial arts.
In addition to the children’s exposure to the arguments between the father and Karen, there is some evidence to suggest the father has disciplined Alex inappropriately. In December 2006 Alex tells the school marks on his legs result from his father throwing things at him and ‘flogging me”[7]. The father denies physically assaulting Alex and was “surprised” at Alex’s report to DOCS that the father had hit him or his report to his teacher that the father had thrown a cup at him or that he and John had been made to sleep outside. I am not satisfied I can make a finding on this issue. On the basis of the father and
[7] Exhibit 13.
Karen’s admission, I do find however, that Alex and John were left unsupervised at night on at least one occasion in the last few months when the father, Karen and the girls went out for dinner without them.
There are reports of the children’s difficulties in their relationships with John and Jane in the father’s household. Alex and John, in particular, fight a lot. Karen says “the kids all fight” but it is “not really a problem”. The school does regard the relationship between Alex and John a problem. The school finds John’s presence triggers Alex’s aggressive behaviour and has implemented a policy of keeping them apart in the playground. Alex reports to the mother that John hurts him. Karen says John suffers from attention deficit hyperactivity disorder, oppositional defiance disorder and conduct disorder and at times is difficult to manage.
There are reports of inappropriate sexual activity between the children in the father’s household. In November 2005, the Department of Community Services records a complaint by Jane that John and Alex physically and sexually assaulted her. At around the same time, the Department reports Alex and John being discovered looking at pornographic material. At Christmas 2006 the mother reports Anna complaining about Jane using a toothbrush on Anna’s vaginal area, an incident which prompted the paternal grandmother taking Anna for medical treatment for sore and red labia.
Karen alleges the paternal grandmother makes regular and unjustified complaints about her children. The paternal grandmother believes
Karen will not protect Alex and Anna from her own children because “she can’t see her kids doing wrong.” I have concluded that there are significant difficulties in the relationships between Alex and Anna on the one hand, and John and Jane on the other which are having an adverse impact on the subject children.
There is no evidence that the children have been subject to conflict, neglect or violence in the mother’s household since the time of the parties’ separation. The father however, alleges Mr Smith exposed Alex to homosexual pornographic images on the internet when in the mother’s care in February 2007. The paternal grandmother reported to the father that Alex had accessed homosexual pornographic sites on her computer. The father questioned Alex who at first gave no explanation for his behaviour. The father then threatened to contact his solicitor about what Alex had done. The following morning, Alex told the father that Mr Smith had shown him pornographic photos and that the mother had argued with Mr Smith about it. Alex also reported to Dr Rikard-Bell about Mr Smith “He’s okay, but he showed me bad things on the computer. There was nude stuff. Otherwise he’s OK.” There is no other evidence to link Mr Smith to Alex’s behaviour. Mr Smith strongly denies the allegation and says he has never accessed such sites on the internet. The mother denies any such incident occurring and denies arguing with Mr Smith as reported. She says she notified the Department of Community Services and the police about the allegation. She checked the computer and found no pornography. She says Alex has said to her “Daddy told me to say it”. At page 11 of his first report, Dr Rikard-Bell says “it seems highly improbable that Mr Smith or anyone else would be intentionally trying to expose Alex to pornographic sites on the computer.” On the evidence available, I am not persuaded that Alex has been exposed to pornographic material in the mother’s household by Mr Smith.
Dr Rikard-Bell outlines the likely adverse consequences for children if they witness violence as including poor school performance, emotional instability, poor social skills and vulnerability to drug use. I have no doubt that Alex is already dealing with these consequences.
Dr Rikard-Bell describes Alex as a “quiet anxious child” who is displaying symptoms of anxiety and distress. He has been trying to “please others” “wanting to solve problems” “taking stress on board”.
The mother’s solicitor submits the children will not be exposed to conflict if living with the mother whereas it is likely they will continue to do so if living in the father’s household.
I agree with the mother’s solicitor and counsel for the Independent Children’s Lawyer that it is less likely the children will be exposed to violence and abuse in the mother’s household than in the father’s. I give this factor considerable weight in reaching my decision.

The additional considerations

The children’s expressed views and the weight those views should be given.

The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on 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.”
The mother says Alex has told her for “a long time” that he wants to live with her and was adamant he did not want to return to Karen after spending the Mother’s Day weekend with her 6 weeks ago.
Dr Rikard-Bell records the children’s expressed views in his two reports, one written after interviews in April 2007, just before the father was imprisoned, and the other in July 2007, after the father was imprisoned. He reports Anna as being happy with her present arrangements in the first report, and in the second wondering where her father has gone. Given Anna is only 4 years of age, I give little weight to this evidence.
In interview for the first report, Alex tells Dr Rikard-Bell he is happy living with his father and would like to see his mother on weekends. However when in interview with the mother he says “I want to live with you. Sometimes John hurts me.” Dr Rikard-Bell says Alex felt pressured by the situation and told both parents what they wanted to hear. In interview for the second report, Alex says he has enjoyed staying with the mother and “I think I’ll try my mum a bit.” “I want to live at mum’s and see dad on the weekends” …“if I don’t go to mum’s I’ll worry that I won’t be happy.” Although Alex “likes to please”, Dr Rikard-Bell finds it significant that Alex felt able to express his views in front of Karen. He believes Alex’s wish to live with his mother is genuine, certainly in part because of his father’s imprisonment. I accept the father’s counsel’s submission that it is not entirely clear whether Alex means he wants to live with his mother forever, or just until his father is released.
Given these circumstances, I do not give substantial weight to this factor in reaching my decision.

The nature of the relationships between the children and each parent and the children and other persons.

Each party accepts Dr Rikard-Bell’s view that the children have a close and loving relationship with them both. This is perhaps surprising given the limited time they have spent with the mother since the parties’ separation in early 2005. The mother accepts that Alex is missing the father while he is in prison, and that both children should visit the father during his period of imprisonment.
Dr Rikard-Bell observes the children to have a close relationship with Karen and to relate reasonably well to Mr Smith. Karen says she loves Alex and Anna like her own children. She denies any suggestion she has treated them differently.
The mother and father agree the children love their paternal grandmother and her partner, having spent substantial periods of time with them, particularly since the mother and father separated.

Dr Rikard-Bell says the paternal grandmother has had a close involvement in the children’s lives and they enjoy loving relationships with her. It is unfortunate that the paternal grandmother and Karen have not been on speaking terms since March 2007 when the paternal grandmother alleged John knocked her to the ground, and was not believed by Karen or the father.

There is no doubt that Alex and Anna love their baby half-sister Rachel, and have meaningful relationships with John and Jane, despite the problems in those relationships.

The capacity of each parent and any other person to provide for the needs of the children including physical, emotional and intellectual needs.

I am not satisfied the children’s physical, emotional or intellectual needs have always been met to a satisfactory standard by any of the parties.
At a physical level, the school reports Alex arriving at school with no food on numbers of occasions while in the care of the father and Karen. The mother also reports the children being handed over in cold weather without adequate clothing. There is no evidence of the mother failing to provide adequate physical care since the children have been spending regular time with her, although the father and Karen both complain the mother was unable to provide physically for the children when they first re-established contact with her after the parties’ separation.
Alex suffers from a bowel disorder which has been diagnosed as chronic constipation. The mother says it started when he was two years of age. The problem continues. The mother, the father, Karen and the paternal grandmother all report Alex soiling his pants, suffering stomach pain and having difficulty using his bowels in a normal way. Given the severity and frequency of the symptoms reported by the parties, it is perplexing that neither Alex’s school teacher nor counsellor have observed any toileting problems since he has been at the Central Coast Public School.
The parties and the paternal grandmother have been unable or unwilling to consult as to a consistent treatment and management plan to relieve Alex’s symptoms. When staying with her in July 2006, the mother noticed Alex soiling his pants and frequently going to the bathroom. The mother took Alex to Westmead Children’s Hospital where he was diagnosed with ‘constipation’[8]. The mother was advised to give him parachoc, ensure he has regular toileting time, plenty of water and a high fibre diet.
[8] Exhibit 12.
The father adduces no evidence as to any steps he has taken to assist Alex with his condition. Karen says she watches Alex’s diet which she believes provides him with some relief. The paternal grandmother has taken Alex for medical help a number of times, including only 2 weeks before hearing. She says Alex can “dirty himself” 10-12 times a day and cannot go to school because of the embarrassment. She has arranged for Alex to start on a special programme recommended by a continence advisor for the Department of Health at Wyong. A letter and information sheet from the Northern Sydney Central Coast Health dated 5 June 2007[9] sets out Ms Kelly’s recommendations for management of Alex’s condition. However, the paternal grandmother has not passed on this information to either Karen or the mother.
[9] Exhibit 7.
Dr Rikard-Bell believes Alex’s bowel problems have a significant stress component and will settle when he is less anxious. He does however recommend Alex is managed by a paediatrician.
At an intellectual and emotional level, I take into account that both parents left school at Year 8, the father is a poor reader and neither parent has participated in the paid work force for more than a total of a few months. Nevertheless, I find the evidence about Alex’s school performance of particular concern both during the period the mother and father were still together and since separation.
Alex has been to 3 different schools, with 4 changes of schooling. He started at a public school near Newcastle, was moved to the Central Coast public school then to the Northern Sydney public school, then back to the Central Coast public school where he has been since November 2006. All the school records in evidence about Alex reveal a poor history of school attendance and poor performance academically and significant behavioural problems.
The parties were still married when Alex was first at school. It is apparent from his records from that first year that Alex was struggling, both emotionally and academically from the beginning. Yet the school was unable to engage either parent in recommended programmes to assist him. The mother declined the school’s invitation to repeat him in Kindergarten, despite the school’s clear advice that he would not cope with Year 1.
Alex’s position at school has not improved since the parties separated. A report from February 2005 says he has “significant learning problems as well as behavioural issues.” The school believed at that time that he was in urgent need of speech therapy but “speech assessment not agreed to by parents…An appointment at child psychiatry was not kept.”
The results of his Year 3 Basic Skills test in 2006 put him in the lowest band of performance for all areas but reading where he is rated at well below average. Alex has missed 36 days of school since he re-started at the Central Coast Public School in November 2006.
The father and Karen reveal a very poor understanding of Alex’s school life. The father does not know whether his teacher is male or female, let alone her name. Neither he nor Karen have met his current teacher. The father struggles to name any of Alex’s friends. The father believed Alex had achieved an average result in his basic skills test in year 3 until shown his report indicating a very poor result. Neither he nor Karen have initiated any contact with the school in 2007. He knows nothing about the programmes Alex is involved in or details of assistance given him by the teacher’s aide. Neither the father nor Karen did anything to ensure Alex kept up with his school work when he was suspended for 20 days in February. Neither the father nor Karen ensure Alex does his homework.
Karen’s children have also attended 3 different schools. John has been suspended for poor behaviour and Karen says she has difficulty encouraging him to do any homework but has been told not to “make too much of it” given his other problems. She says he can be impulsive and throws a tantrum if he doesn’t get his own way, sometimes “taking off”. I find Karen’s decision not to ensure Alex attended school each day in May when the court ordered that Alex live with her to ensure his continued attendance at the Central Coast Public School, of particular concern. I am not persuaded Karen can justify Alex’s absence from school by blaming the paternal grandmother.
On the basis of these findings, I am not satisfied that anything is likely to change in relation to Alex’s schooling if he remains living in the father’s household. As a consequence, I find it unlikely the father or Karen will approach Anna’s schooling any differently.
The mother’s capacity to manage Alex’s behavioural and educational performance is untested. The mother has not cared for the children during school time since she and the father separated. She has made preliminary inquiries in relation to Alex’s schooling and Anna’s day-care if the children live with her, and tells the court they both have places. However, the mother has not yet discussed Alex’s special needs with the school. The mother says she will follow the school’s recommendations in relation to management of Alex’s problems and would like to volunteer at the school to help Alex’s confidence. I have some concerns that the mother could not say with certainty which year Alex was in at school, and that Mr Smith gave the wrong year when asked Alex’s year of school. However, Mr Smith did progress to Year 11 at school and says he will continue to help Alex with his schoolwork, sport and social interactions if the children are living with him and the mother.
In Dr Rikard-Bell’s view, the mother is capable of caring for the children although appears emotionally fragile and intimidated by the father. This may go some way to explaining why the mother chose not to spend time with the children on Christmas Day last year when the father offered her time and to explaining her passivity when the father kept the children away from her for 3 months in February this year.

It remains difficult to understand why the mother did not accept the father’s offer to spend time with the children in the absence of Mr Smith. A question mark remains as to the mother’s capacity to put the children’s needs ahead of her own. In cross-examination the mother was questioned as to a conversation she had with Alex as to where he wanted to live. She says she did not want Alex to do something he did not want to do and was anxious that he not feel pressured. While I find the mother’s approach naïve, I am nevertheless satisfied her motives were genuine.
A question arises too in relation to Mr Smith’s capacity to meet the children’s emotional needs. He has 4 children by different mothers with whom he spends no time. While he says he has tried to spend time with his 8 year old and intends to keep trying, I find his explanations in relation to spending no time with his children, unconvincing.
Given the foregoing, I find that the mother and Mr Smith are more likely to better provide for the children’s needs. I give this factor considerable weight in reaching my decision.

The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the children and the other parent; the attitude to the children and to the responsibilities of parenthood demonstrated by each parent.

The parties have been unable or unwilling to communicate since they separated. I accept the mother’s evidence that as a result of their past history, she remains fearful of the father. I agree with counsel for the Independent Children’s Lawyer that the communication between the parties is unlikely to improve, at least in the foreseeable future.
Yet each parent acknowledges the importance of the children having regular time with the other parent. Although Karen is critical of the mother for keeping the children in breach of court orders in July 2006 and in May 2007, for the most part I am satisfied each party has ensured the children have spent time with the other parent.
The major exception is the period between 18 February and 11 May 2007 when the father unilaterally stopped the children spending time with the mother in breach of court orders. The father made no application to the court to suspend the orders and the mother made no application for contravention of the orders until April. Both reported the incident to the police, the Department of Community Services and their solicitors but these reports did not change the situation for the children.
I have earlier referred to the incident which the father alleges justified his decision to withhold the children from spending time with the mother. The father and Karen say the mother had been secretive about Mr Smith. They did not know what kind of person he was, and they were genuinely concerned he may have exposed Alex to pornography. The father says he has a fear of Alex being sexually assaulted as the father’s brother was as a child. The father says he offered the mother time with the children on condition Mr Smith was not present. The mother did not take up that offer. Neither the father nor Karen were able to adequately explain why they allowed the children to spend the Mother’s Day weekend with the mother in
Mr Smith’s presence.
The father says he does not believe the children missed the mother during the 3 months of not seeing the mother because they did not ask after her. Dr Rikard-Bell believes Alex’s silence shows he is uncomfortable to talk about his mother with the father. The mother’s unchallenged evidence is that the father made telephone communication very difficult and was abusive to her when she called. Dr Rikard-Bell says the father over-reacted in preventing the children spending time with the mother and should have handled the matter in a different way.
There are other examples of the father’s and Karen’s failure to give the mother critical information affecting the children. Neither informed the mother of the father’s imprisonment in June 2005 or in May 2007, in fact the paternal grandmother lied to the mother about the children’s whereabouts in 2005, when the mother discovered the father was in prison.
Dr Rikard-Bell believes it more likely the mother and Mr Smith will promote the children’s relationship with the father than the father and Karen will promote the children’s relationship with the mother. He is concerned about the father’s tendency to overact and form a fixed view as he did in relation to the pornography issue. In his first report,

Dr Rikard-Bell says[10] that “should the father find he is unable to stop undermining the mother and making spurious allegations against her…it may be best to change the residence of the children to the mother.”
[10] Exhibit 1, page 3.
In his second report, Dr Rikard-Bell says “I believe that Sam’s interpretation of the children’s statements previously had been unsophisticated and was actually a measure that was undermining the relationship between the children and the mother. I therefore do support a change of residence to the mother.”
Although I accept that the mother kept Alex in July 2006, before orders were in force, she collected Alex at the request of the father. Again in May 2007, I accept that the mother kept both children, but only when she was told the father had been imprisoned. On both occasions, the mother promptly complied with court orders when told to deliver the children back to the father or to Karen. I find the mother understands the children’s need to spend time with the father and has demonstrated that she will comply with court orders. I accept Dr Rikard-Bell’s view that I should have less confidence that the father and Karen will promote the children’s relationship with the mother.
I give this factor moderate weight in reaching my decision.

The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the children, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the children.

There are a number of examples of each parent failing to act responsibly as a parent. On the mother’s side, the most significant is her decision to leave the children with a neighbour to be cared for by the father in January 2005 and to have almost no communication with them for 9 months. The mother was well aware the father was involved in criminal activity involving illicit drugs and that he had a propensity to violence. She says “I had nowhere to go” and “I didn’t think the kids were at risk in his care.” She says she had been trying to “make things work” “I wanted to be a family” but had decided the father would not change. In cross-examination, she concedes she was not thinking clearly at the time, and was focussed on getting away from the father, who used to “hunt me down”, rather than on the children. The mother describes a daily cycle of abusing and supplying drugs with the father in the 3-4 years before separation. She says the father used marihuana extensively every day. Both were convicted for drug-related offences, the father being sentenced to a 4 month term of imprisonment in 2005. The mother alleges the father still smokes and supplies drugs on the basis of reports from Alex. The mother says, apart from a short period after Anna was born, she was taking “speed” 2-3 times a day from when Alex was 3 until she left the father in January 2005. She claims not to have used since and there is no evidence that she has done so.
On the father’s side, the most significant failures to act responsibly are his decisions to break the law leading to his imprisonment and time away from the children since the parties’ separation. The father spent 4 months in prison in 2005 before the children had re-established a relationship with the mother, and is presently serving a 12 month term for driving under the influence of alcohol in a manner dangerous whilst disqualified from holding a driver’s licence at the end of 2006. The police documents record the father driving on the wrong side of Pacific Highway at over 120 kph while approaching a blind crest “after he had a fight with his girlfriend and was on the way to her house.”
The mother has not served time in prison, and has no criminal record since the parties’ separation. The mother shows signs of a new approach to her parental responsibilities. She has endeavoured to assist Alex with his bowel disorder by following the recommendations of the doctor she consulted at Westmead Children’s Hospital, keeping a food diary and following a careful diet. She has travelled back and forth to Wyong railway station to ensure her regular time with the children in accordance with court orders.
There are other examples of the father and Karen failing to fulfil their responsibilities as parents. The police report Alex and John being left unattended when the father and Karen took the younger children out to dinner on 12 February 2007. The police report concerns about the negligent attitude of the father and Karen of leaving children of young age to their own devices until 9 p.m. in the evening. The father says he “guessed” the boys were “with friends down the road” but had no idea of their precise whereabouts or how there were to be cared for in his absence. The father denied locking the children out of the house, and was unperturbed about the boys being left alone and eventually brought home by police later that evening. In July 2006 the father demanded the mother collect Alex who was misbehaving. Alex said to the mother at the time:
Dad will only let me take what I am wearing and I am not allowed to come back ever again.
The mother says she collected Alex from Wyong train station and he was seriously underdressed for the cold conditions. The next day the mother says the father demanded the mother return Alex.
Karen did not care for the children when they were returned to her by court order in May 2007, nor did she ensure Alex attended school. Instead she left the children with the paternal grandmother who Karen says refused to return Alex to her. As a result, Alex missed several days of school.
I find a balancing of these factors weighs in favour of the mother’s case.

The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either parent or any other child or other person with whom the children have been living.

The children have been living with the father and Karen for 2 years, although the father has been in prison for approximately 5 months of that period. The children have been living with their half-sister Rachel as well as Jane and John. Anna was 2 years old when the mother left the marriage and is unlikely to clearly remember living with her mother. Alex has had a number of changes in school, the most recent change only 8 months ago. I agree with Dr Rikard-Bell when he says in his first report:
“I believe that the children have some stability where they are and it would be very disruptive for Alex to change school once again.”
Ms French (not her real name), Alex’s teacher, says Alex is showing some signs of settling at his present school, enjoying friendships with his peers and being more relaxed in the classroom. Although I accept the mother’s solicitor’s submission that Alex has only been at his present school for a few months and has missed a lot of school in that period, I am persuaded another change of school for Alex and a change in residence for both children will require considerable adjustment. I give considerable weight to this factor.

The practical difficulty and expense of the children spending time with and communicating with a parent.

The children will not be able to communicate with the father by telephone while the father remains in prison and will only be able to see him when taken by Karen or the paternal grandmother while he remains in the Central Coast prison. Given the distance between the parent’s homes, it is impractical for the children to spend time with the non-resident parent more than two weekends in every four.

I give consideration to each party’s proposal for changeover later in these reasons.

Any family violence involving the children or a member of the children’s family and any family violence order that applies to the children or a member of the children’s family if the order is a final order or the making of the order was contested.

As already noted, Karen has an apprehended violence order against the father for her protection which expires in November 2007. The father’s brother has a current apprehended violence order against the father. I have earlier outlined my findings in relation to the effect of family violence on the children.

The orders which would minimise the risk of there being further court proceedings about the children and whether those orders would be preferable.

There is one matter to which I have given consideration under this factor.
The paternal grandmother tells the court she has applied for legal aid to enable her to bring proceedings for the children to live with her while the father remains in prison. She says she was unaware of these proceedings until a few weeks before the hearing. Although the paternal grandmother did not ask for the proceedings to be adjourned, I have earlier given my reasons for proceeding with the hearing, in the knowledge the paternal grandmother may make a further application. I have considered the oral evidence of the paternal grandmother and have taken into account her views as expressed to Dr Rikard-Bell. To minimise the risk of there being further proceedings about these children, I have accepted the submission of counsel for the Independent Children’s Lawyer and required any party to seek leave before making any further application about the children.

Any other relevant fact or circumstance

A question arose as to whether I should make orders on an interim rather than a final basis while the father serves the remainder of his present prison term. Neither party nor the Independent Children’s Lawyer supported the court making interim orders. Dr Rikard-Bell was emphatic the proceedings should be final for the sake of the children’s stability. As already noted, I have formed the view that it is not in the children’s best interests for this litigation to continue, and I have therefore made orders on a final, not an interim basis.

Parental responsibility

Section 61C(1) provides that each parent has parental responsibility for the child but by s.61C(3) joint parental responsibility is subject to any order the court may make. Parental responsibility relates to decision making and not to the amount of time a child will spend with each parent. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption applies only to parents and has no application to orders for parental responsibility made in relation to other people. Section 65DAC provides that when there is an order for parents to have shared parental responsibility the parents must make a genuine effort to come to a joint decision about major long term decisions concerning the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may also be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In the present case, given my findings about the father’s conduct, I am satisfied the presumption does not apply. The question then arises as to whether or not it is in the best interests of Alex and Anna for their parents to share parental responsibility for major decisions about their welfare. The father seeks such an order. The Independent Children’s Lawyer and the mother oppose such an order, asking the court to leave the position as it is under s.61C, that is, the parents retain joint responsibility for the major decisions about the children. Counsel for the Independent Children’s Lawyer submits it would create insurmountable difficulties if the court requires the parties to make major decisions in consultation with each other, given the difficulties in their communication. Counsel cites the manner in which the parties have failed to jointly address Alex’s bowel disorder as an example of the parents’ incapacity for joint decision making and the unfortunate consequences for Alex which have resulted.
I accept Ms Clifford’s submission that each party should retain joint responsibility for major decisions about the children’s care absent any requirement for consultation between them. I am not therefore required to consider whether orders that the child should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children and whether it is reasonably practicable for such arrangements to be put in place. In any event, given the parties live at least 2 hours apart by car, and neither the father, Karen, the mother nor Mr Smith are in a position to travel by car to each other’s premises for the purpose of changeover, I am not satisfied it is practicable in the long term for the children to spend more than alternate weekends with the parent with whom they are not living. The children must travel at least 4 hours on the weekend they spend time with that parent. In my view, to expect them to travel for this time more than twice in every four week cycle is not in their best interests.

Conclusion

I am not satisfied either parent has provided the children with a stable environment since their separation, and I agree with Dr Rikard-Bell that each party’s proposal poses a risk of further instability. However, on a weighing of the factors I have considered, I have decided the mother’s proposal is more likely to promote the children’s best interests.
I find that both the mother and the father have struggled to cope with the demands and responsibilities of parenting. In my view, each has made fundamental errors of judgment in relation to parenting decisions, and failed to put the needs of the children ahead of their own on many occasions. I am left in no doubt that both children have suffered as a result although Alex’s problems are more obvious. I have formed the view that there is some risk the children may suffer further abuse or neglect whether they live with the mother or with the father. Both parents hint at difficulties in their own childhoods which may provide some reason for the problems they have faced. I have decided that both the mother and the father would benefit from a parenting course and have accordingly made such an order.
The children have been living with the father and Karen for two years. I find both children have been exposed to significant conflict during that period. I find as a result of this exposure, Alex’s behavioural and academic progress has been poor. He has been identified as a child at risk in his school. The risk management programme which has been implemented to help him, requires the school to ensure he is kept apart from his step-brother John, in the playground. This arrangement cannot be implemented in the father’s household. I find neither the father nor Karen appreciate the potentially serious long term ramifications of their conduct on the children, outlined by Dr Rikard-Bell. The school, the police and the Department of Community Services all question the father and Karen’s capacity to supervise and care appropriately for the children. Ms Clifford, counsel for the Independent Children’s Lawyer, urges the court to move the children from their present environment to live with the mother.
Dr Rikard-Bell says the mother is the more likely to promote the children’s relationship with the other parent and is likely to provide the children with greater stability, including regular attendance at school. He is highly critical of the father’s actions in keeping the children away from the mother earlier this year. He says Alex urgently needs to be relieved of the stress he is suffering in the father’s household. He recommends the children live with the mother and spend regular time with the paternal grandmother, Karen, their siblings and see their father while in prison. He recommends the mother have counselling to help with her confidence and that the father have counselling to deal with anger issues. He recommends the mother consults a paediatrician to manage Alex’s bowel disorder and that Alex have counselling.
Ms Clifford submits the evidence suggests the mother’s commitment to her parental responsibilities has markedly changed since she has removed herself from the controlling influence of the father. Counsel asks the court to note the mother has not committed further criminal offences, has remained drug free and has formed a stable non-violent relationship since separating from the father. Ms Clifford contends the children should be given the opportunity to enjoy the peace and stability of the environment created by the mother and Mr Smith while still spending regular time with Karen, their siblings, the paternal grandmother and the father. Specifically, counsel proposes that the children spend time with Karen for one weekend in four, and with the paternal grandmother for one weekend in four. She proposes the children spend half their holidays with the mother and the other half between Karen and the paternal grandmother, Karen to be replaced by the father upon his release from prison. She recommends some telephone communication. She seeks an order that Karen and the paternal grandmother visit the father in prison on the weekends the children spend with them until the father is released. Both Karen and the paternal grandmother say they will arrange these visits.
I do have concerns about the effect on Alex of changing schools once more when his teacher reports some improvement in the last few weeks. However, I have regard to the fact that Alex has missed a lot of school, has spent only two full terms at the school since starting there in November last year, has already been suspended for aggression, has difficulties with social interaction, and shows ongoing physical symptoms of anxiety and distress.
The parties do not agree on changeover arrangements. The children have mostly travelled by train to spend time with the mother from the father’s residence. The mother says the children do not like the long train trip from Wyong station. In accordance with the current interim orders, changeover occurs at Wyong Railway station at the beginning of the children’s time with the mother and Hornsby Railway station at the end of those periods. The mother wants changeover to take place at Parramatta Railway station at the commencement of the children’s time with Karen the father and the paternal grandmother and at Hornsby Railway station at the conclusion of those periods. On the other hand, the father wants the mother to continue to collect the children from Wyong Railway station and return them to Hornsby station.
There are a number of practical constraints on the question of changeover. The mother does not have access to a car. Mr Smith has never held a driver’s licence and does not own a car. Karen has a car but cannot transport 5 children at one time. The father does not hold a driver’s licence. The paternal grandmother has a car and a driver’s licence and says she is willing to assist with the children’s transport for changeover.
I find a combination of the mother’s and the Independent Children’s Lawyer’s proposal the most manageable for the children. The children will finish school on a Friday, have time to get changed and have afternoon tea before meeting Karen, the grandmother or the father at Parramatta station. The mother will then travel to Wyong on the Sunday afternoon to collect them in time to have them home for dinner, bath and bed. The same arrangements will occur during school holidays. Ideally, the paternal grandmother will transport the children for changeover, to ensure the children are not exposed to further conflict.
There are some issues on which the parties agree which include amending Alex’s birth certificate to record his family name as ‘Green’, his need for referral to a paediatrician, keeping each other informed of significant issues and installing net-nanny on their computers. I have made those orders.
Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of Alex and Anna.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 4 July 2007