Kelly and Anor & Kelly and Anor

FAMILY COURT OF AUSTRALIA

KELLY AND ANOR & KELLY AND ANOR

[2007] FamCA 165

FAMILY LAW - CHILDREN - With whom a child lives - With whom a child spends time with

Family Law Act 1975 (Cth)

APPLICANTS:

Ms H Kelly and Mr P Kelly

RESPONDENTS:

Mr S Kelly and Ms Brown

INDEPENDENT CHILDREN'S LAWYER :

Mr Gonzalez

FILE NUMBER:

SYF

2526

2004

DATE DELIVERED:

8 March 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

5-8.12.2005

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Roberts

SOLICITOR FOR THE APPLICANTS:

Mr Barber & Associates

COUNSEL FOR THE 1^ST RESPONDENT

The father in person

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Juhasz

SOLICITOR FOR THE RESPONDENT:

n/a

COUNSEL FOR THE CHILD:

Mr Berry

SOLICITOR FOR THE CHILD:

Levy Partners

Orders

IT IS ORDERED:

That all previous parenting orders in relation to the child born in January 1999 (“[the child]”) be discharged.
That the paternal aunt and the paternal uncle consult with the mother in relation to any significant change in the child’s schooling or medical treatment and seek to reach some agreement as to what that should be but failing agreement the paternal aunt and the paternal uncle will have sole responsibility for making decisions about the child’s long term care, welfare and development about issues relating to his schooling and his health (including any continued management by Dr M) but otherwise the paternal aunt and paternal uncle and the mother have joint long term responsibility for the care, welfare and development of the child.
That when the child is residing with the paternal aunt and paternal uncle then they shall have the day to day responsibility for his care, welfare and development and when the child is residing with the mother then she shall have the day to day responsibility for his care, welfare and development.
That the child reside with the mother:
4.1.During each gazetted school term, for the first three weekends in each four week period from the conclusion of school on Friday, (or from the conclusion of school on Thursday should Friday be a public holiday), to 5pm (eastern standard time) or 6pm (eastern summer time) on Sunday, 5pm (eastern standard time) or 6pm (eastern summer time) on Monday when such Monday is a public holiday;
4.2.During each gazetted school holiday period:-
4.2.1.At the conclusion of terms 1, 2 and 3 to commence and conclude at times as agreed between the paternal aunt and the paternal uncle and the mother, and in default of agreement from 9am on the Saturday immediately following the conclusion of terms 1, 2 and 3 until 5pm (eastern standard time) 6pm (eastern summer time) on the Sunday immediately prior to the commencement of the next school term.
4.2.2.During each gazetted Christmas school holiday period as agreed between the paternal aunt and the paternal uncle and the mother, and in default of agreement:
4.2.2.1.From 6pm on 24 December 2006 to 6pm on 14 January 2007;
4.2.2.2.From 6pm on 25 December 2007 to 6pm on 13 January 2008;
4.2.2.3.From 6pm on 24 December 2008 until 6pm on the second last Sunday immediately prior to the commencement of term 1 in the following year, (and thereafter in each even numbered year); and
4.2.2.4.From 6pm on 25 December 2009 until 6pm on the second last Sunday immediately prior to the commencement of term 1 in the following year, (and thereafter in each odd numbered year).
4.2.3.From 5pm on the Thursday prior to Easter until 5pm on Easter Saturday when Eater does not fall during the school holiday period following term 1 in any year.
4.3.From 9am to 5pm each Mother’s day when such day does not fall during a period when the child is not already residing with the mother;
4.4.From 3pm to 6pm on each of the child’s birthdays when such day does not fall during a period when the child is not already residing with the mother;
4.5.Such other periods as the paternal aunt and the paternal uncle may agree.
That the child reside with the paternal aunt and the paternal uncle at all other times.
That the father have contact with the child:
6.1.during such periods that the child is residing with the mother; and
6.2.from 9am to 5pm on Father’s Day; and
6.3.that contact under this order be in the presence of the mother.
That the mother and the father have telephone contact with the child each Tuesday and Thursday between 6.30pm and 7.30pm when he is residing with the paternal aunt and the paternal uncle.
That the paternal aunt and the paternal uncle have telephone contact with the child when he is residing with the mother each Tuesday and Thursday between 6.30pm and 7.30pm.
That each of the parties, whilst the child is residing with that party, facilitate the child telephoning the other party if he requests.
That the paternal aunt and uncle and the mother:
10.1.sign all documents and do all things necessary to authorise the school at which the child may from time to time attend:
10.1.1.to furnish the paternal aunt and uncle, the mother and the father with copies of all school reports, notices and advices concerning:
10.1.1.1.the child; and
10.1.1.2.any activity involving the child;
and
10.1.2.to make available to each of the parties copies of any school photographs of the child at that party’s expense.
10.2.notify the party with whom the child is not at the time residing and the father immediately of:
10.2.1.any major illness suffered by the child;
10.2.2.any hospitalisation of the child;
and
10.3.make available to the party with whom the child is not at the time residing and the father copies of any medical report or reports in connection with such illness or hospitalisation that may be sent to the party with whom the child is residing;
and
10.4.authorise:
10.4.1.any hospital in which the child may be admitted; and
10.4.2.any medical practitioner under whose care the child may be;
to give such information to that party as he or she may request.
That:
11.1.for the purpose of implementation of order 4.1, the mother shall collect the child from school at the commencement of the period the child is to reside with her and the paternal aunt or paternal uncle shall collect the child from the mother at her residence at the commencement of the period that the child is to reside with them;
11.2.for the purposes of implementation of all other changes of residence, such change of residence shall take place at a place agreed upon between the paternal aunt and the paternal uncle and the mother and in default of agreement, the paternal aunt or the paternal uncle shall deliver the child to and pick the child up from the mother at her residence; and
11.3.the father be restrained from being within 500 metres of any of the Kelly family at any change of residence and when the change of residence is at the mother’s residence he be restrained from being at that residence.
That both the mother and the father be restrained:
12.1.from taking the child into the L Clinic or any other place where each of the parties is receiving or collecting methadone;
12.2.from consuming or using any illicit drug or non prescription drug 24 hours prior to and during any period the child is residing with the mother and/or having contact with the father.
That all parties be restrained from making derogatory remarks to or about any of the other parties to or in the presence of the child or cause or permit any other person to so denigrate any of the parties to or in the presence of the child.
That all parties shall do all things necessary to ensure that the child continues as a pupil at N College and it is noted that the paternal uncle and the paternal aunt shall make all payments in connection with the child attending the said school including but not limited to all tuition fees, school books, sporting fees and school uniforms.
That in the event that any of the child’s birthday falls during any period he is residing with the mother then he shall return to the paternal aunt and paternal uncle from 3pm to 6pm on that day.
That the mother continue to attend L Centre and undertake such therapy for her cannabis use, heroin use and depression as the person in charge of L Centre from time to time or that person’s nominee may recommend including any therapy by outside therapists.
That the Director of Court Mediation or her nominee:-
17.1.Read a copy of the reports by:-
17.1.1.Mr N
17.1.2.Dr M
17.1.3.Ms C
17.2.That the Director of Court Mediation refer the paternal aunt and paternal uncle and the mother to a provider of ongoing therapeutic counselling for high conflict families (“the provider”) for assessment by that provider as to whether that provider can assist the parties to reduce the level of conflict that exists between them.
17.3.That the parties attend any appointments made by the provider and participate in any programs nominated by the provider.
17.4.That the paternal aunt and paternal uncle pay the cost of the provider.
17.5.That the Director of Court Mediation give to the provider copies of the documents referred to in 17.1 above.
17.6.That the Director of Court mediation or her nominee refer the father to an anger management course which the Director of Court mediation or her nominee considers appropriate and that the father attend all appointments to complete that course.
It is noted that the contact ordered in orders 6 and 7 above is inconsistent with the family violence order made on 20 May 2004 by the B Local Court (see annexure “C” to the affidavit of the paternal aunt sworn 17 March 2005) and pursuant to Section 68S of the Family Law Act (“FLA”), orders 6 and 7 shall prevail over the family violence order.
In accordance with Section 68R(4) FLA the contact is to take place as detailed in orders 6 and 7.
Pursuant to Section 68R(3) FLA it is noted that the purposes of orders 6 and 7 are to re-establish and/or maintain contact between the child and his father. The orders create obligations and consequences set out in annexure A. The Court’s reason for making an order that is inconsistent with the family violence order is that in the Court’s view the level of risk to the child from his father has diminished significantly since the apprehended domestic violence order was made on 20 May 2004 and the Court believes it is important for the child to have an opportunity to have a relationship with his father. The face to face contact will only take place between the child and his father in the presence of the child’s mother. The paternal uncle, aunt or somebody on behalf of the child can apply for an order to revoke or vary orders 6 and 7 in circumstances where they apprehend that the father will in the future assault, molest, harass, threaten or otherwise interfere with the child and/or the paternal uncle and/or paternal aunt.
Pursuant to Section 68R(2) FLA the Child Representative explain orders 6 and 7 to the child.
That pursuant to Rule 1.12 Family Law Rules 2004 (“FLR”) the time for starting an appeal from these orders under Rule 22.03 FLR not commence until the publication of the reasons for making these orders.
That pursuant to s.65DA(2) FLA, 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.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2526 of 2004

H Kelly and P Kelly

1^st and 2^nd Applicants

And

S Kelly and Ms Brown

1^st and 2^nd Respondents

REASONS FOR JUDGMENT

On 28 June 2006 I made final orders as noted above. I have taken the opportunity of correcting two typographical errors in the orders. The words “and the paternal aunt” should appear after the words “the paternal uncle” in order 14 (rather than where they did appear in order 14). The word “family” should be inserted before the word “violence order” where it appears in the last line of order 18.
I now provide the following written reasons for doing so.

INTRODUCTION

This case is about when and with whom the child born in January 1999 will live.
It was agreed at the commencement of the hearing that a number of issues continue to be in dispute. These were identified in paragraph 11 (page 12) of the report of Mr N dated 29 November 2005. They are:-
4.1.The cause and responsibility for the current situation (the main issue being what the paternal aunt and uncle may have done which has interfered with the child’s relationship with his parents).
4.2.The substance use of the parents and its impact on the parents’ functioning.
4.3.Whether or not the father has been violent recently or in the past towards the child and his brother, sister and mother.
4.4.The extent to which there is violence between the child’s parents (father and mother).
Mr N (in paragraph 9 on page 12 of his report of 29 November 2005) concludes:
“If [the child’s] parents were stable in respect of their own individual self care, their relationship, their substance use and their management of conflict with each other and with [the child’s] aunt and uncle, this author would recommend that [the child] reside with them”.
The fundamental issue for the Court in this case is whether or not it is in the child’s best interests for him to be returned to the primary care of his mother and father.

THE APPLICATIONS

The applicants are the child’s paternal aunt born in May 1944 (aged 62) and the paternal uncle born in December 1957 (at the date of orders aged 48).
Their application (as contained in the amended outline of case document of the applicants) is in the following terms:
1.That the child of the first and second respondents, [J] born [in] January 1999 reside with the first and second applicants.
2.That the first and second applicants have the sole care and responsibility for the day to day care of the said child.
3.That the first and second applicants have the sole responsibility for the said child’s long term care, health, welfare and development.
4.That the first and second respondents have access to the said child as follows:-
For three consecutive weekends each month from 6pm Friday to 4pm Sunday.
5.That the first and second respondents have reasonable telephone access prior to 7.30pm on a weeknight.
6.That the said child reside with the first and second respondents for one half of all New South Wales gazetted holidays.
7.Any other such order as this Honourable Court deems fit.
The second respondent Ms Brown is the child’s mother. She was born in November 1964 and is 38 years of age.
Her application is contained in a response filed on 5 December 2005 and is in the following terms:
1.That the child [J] born [in January 1999] live with his mother.
2.That the child have defined contact with the applicants as follows:-
·        Each alternate weekend from 6pm on Friday to 5pm on Sunday.
·        In the event that any contact weekend falls on a long weekend including a Monday then contact to the Applicant shall be extended to 6pm on Monday; if it falls on a long weekend including Friday, then contact shall commence on 6pm Thursday.
·        For one half of all gazetted public holidays in each year where such holidays do not fall on school holidays or attach to weekends.
·        Half of all school holidays with each alternate Christmas holiday to include Christmas Day.
·        Such further times as the parties may mutually agree.
On the first morning of the hearing (5 December 2005) the father appeared representing himself. He had not filed any documents. He is named as the first respondent. He indicated orally that he wished to make an application supporting the application of the mother. They, the child’s parents, currently reside together. The father was born in December 1964 and is 37 years of age.
The child representative in final submissions sought orders in the following terms:
1.That all previous parenting orders in relation to the child of the mother and the father, [J] born [in] January 1999, be discharged.
2.That the paternal aunt and paternal uncle and the mother have the long term responsibility for the care, welfare and development of the said child.
3.That when the child is residing with the paternal aunt and paternal uncle or the mother, then that party shall have the day to day responsibility for his care, welfare and development.
4.That the said child reside with the mother:
a.       During each gazetted school term:
i.For the first three weekends in each month from the conclusion of school on Friday, from the conclusion of school on Thursday should Friday be a public holiday, to 5.00pm (eastern standard time) or 6.00pm (eastern summer time) on Sunday, 5pm (eastern standard time) or 6.00pm (eastern summer time) on Monday when such Monday is a public holiday, commencing Friday 3 February 2006;
b.       During each gazetted school holiday period:
i.For the whole of each school holiday period as agreed between the paternal aunt and the paternal uncle and the mother, and in default of agreement from 9.00am on the Saturday immediately following the conclusion of terms 1, 2 and 3 until 5.00pm (eastern standard time) 6.00pm (eastern summer time) on the Sunday immediately prior to the commencement of the next school term, commencing on Saturday 15 April 2006.
ii.For the whole of each Christmas school holiday period as agreed between the paternal aunt and the paternal uncle and the mother, and in default of agreement:
(1)From 6.00pm on 24 December until 6.00pm on the Sunday immediately prior to the commencement of term 1 in the following year, commencing in the 2005 and thereafter in each odd numbered year; and
(2)From 6.00pm on 25 December until 6.00pm on the Sunday immediately prior to the commencement of term 1 in the following year, commencing in the 2006 and thereafter in each even numbered year.
iii.From 5.00pm on the Thursday prior to Easter until 5.00pm on Easter Saturday when Easter does not fall during the school holiday period following term 1 in any year.
c.       From 9.00am to 5.00pm each Mother’s Day when such day does not fall during a period when the said child is not already residing with the mother;
d.       From 3.00pm to 6.00pm on each of the child’s birthday when such day does not fall during a period when the said child is not already residing with the mother;
e.       Such other periods as the paternal aunt and the paternal uncle and the mother may agree.
5.That the said child reside with the paternal aunt and the paternal uncle at all other times.
6.That the father have contact with the said child:
a.       During such periods that the child is residing with the mother; and
b.       From 9.00am to 5.00pm o Father’s Day;
such contact to be in the presence of the mother.
7.That the mother and the father have telephone contact with the child each Tuesday and Thursday between 6.30pm and 7.30pm when he is residing with the paternal aunt and the paternal uncle.
8.That the paternal aunt and the paternal uncle have telephone contact with the child when he is residing with the mother each Tuesday and Thursday between 6.30pm and 7.30pm.
9.That each of the parties, whilst the child is residing with that party, facilitate the child telephoning the other party if he requests.
10.That the paternal aunt and uncle and the mother:
a.       Sign all documents and do all things necessary to authorise the school at which the child may from time to time attend:
i.To furnish the paternal aunt and uncle, the mother and the father with copies of all school reports, notices and advices concerning:
(1)the said child; and
(2)any activity involving the said child; and
ii.to make available to each of the parties copies of any school photographs of the said child at that party’s expense.
b.       Notify the party with whom the child is not at the time residing and the father immediately of:
i.Any major illness suffered by the said child;
ii.Any hospitalisation of the said child; and
c.       Make available to the party with whom the said child is not at the time residing and the father copies of any medical report or reports in connection with such illness or hospitalisation that may be sent to the party with whom the child is residing; and
d.       Authorise:
i.Any hospital in which the said child may be admitted; and
ii.Any medical practitioner under whose care the said child may be
to give such information to that party as he or she may request.
11.That:
a.       For the purpose of implementation of order 4.a., the mother shall collect the child from school at the commencement of the period the child is to reside with her and the paternal aunt or paternal uncle shall collect the child from the mother at her residence at the commencement of the period that the child is to reside with them;
b.       For the purposes of implementation of all other changes of residence, such change of residence shall take place at a place agreed upon between the paternal aunt and the paternal uncle and the mother and in default of agreement, the paternal aunt or the paternal uncle shall collect the said child from and return the said child to the mother at her residence; and
c.       The father be restrained from being present at any change of residence and when the change of residence is at the mother’s residence he be restrained from being at that residence.
12.That both the mother and the father be restrained:
a.       From taking the child to the [L] Clinic or any other place where each of the parties is receiving or collecting their methadone;
b.       From consuming or using any illicit drug or non prescription drug 24 hours prior to and during any period the said child is residing with the mother and/or having contact with the father.
13.That all parties be restrained from making derogatory remarks to or about any of the other parties to or in the presence of the child or cause or permit any other person to so denigrate any of the parties to or in the presence of the child.
14.That all parties shall do all things necessary to ensure that the child continues as a pupil at [N] College and the paternal aunt and the paternal uncle shall make all payments in connection with the child attending the said school including but not limited to all tuition fees, school books, sporting fees and school uniforms.
15.That in the event that any of the child’s birthday falls during any period he is residing with the mother then he shall return to the paternal aunt and paternal uncle from 3.00pm to 6.00pm on that day.
16.That the mother continue to attend the [L] Centre and undertake such therapy for her cannabis use, heroin use and depression as the said [L] Centre may recommend including any therapy by outside therapists.

PREVIOUS INTERIM ORDERS

The previous interim orders were made on 19 May 2004 and varied on 4 June 2004.
Under those orders the child was to reside with the paternal aunt and the paternal grandmother. He was to have contact with his mother each alternate weekend from 6pm Friday to 4pm Sunday; reasonable telephone contact prior to 7.30pm and other times to be agreed. The child was to have contact with his father each Saturday and Sunday from 9.30am to 2.30pm whilst the child was with his mother. Reasonable telephone contact with the father was allowed before 7.30pm.
These orders were conditional upon the parents continuing on their methadone program in accordance with any directions by their medical practitioners; the mother be made aware of notifications to DoCS and acknowledge those notifications; that the mother cause the father’s contact with the child to cease in the event that the father attempts to strike the child or threatens him in any way. The mother was to be present at all times during the father’s contact periods.
The orders of 25 July 2005 provided the mother with additional contact to the child for the first half of the September/October school holidays 2005.

BACKGROUND/CHRONOLOGY

The paternal grandmother was born in July 1927.
The paternal aunt was born in May 1944.
The paternal uncle was born in December 1957.
The mother was born in November 1964.
The father was born in December 1964.
The mother gave birth to A in November 1986 and to B in December 1990.
The mother and father commenced their relationship in 1996.
The child was born in January 1999.
In this case there are two very different histories given as to the care given of the child.
In 2000 the paternal aunt and uncle took the child on a two month holiday to Lebanon.
In July 2001 the mother commenced a methadone program.
In 2002 the child was enrolled at playgroup and during this year he went to Newcastle with his paternal uncle for a period of at least three weeks.
In 2003 the child commenced at P Pre-School.
In January 2004 the child commenced kindergarten at N College.
On 29 February 2004 there was a domestic violence incident involving the father at the home of the paternal aunt, uncle and grandmother.
On 5 March 2004 an AV telephone interim order was made by B Local Court against the father in favour of the paternal aunt, uncle, grandmother and child.
On 20 May 2004 the AVO was made a final order for a period of three years.
On 18 May 2005 the father seriously assaulted the paternal aunt in her home.

CREDIT

The paternal aunt

I found the paternal aunt to be a credible witness. She answered questions directly and without hesitation. Her version of some important events was corroborated by other objective evidence. I accepted her evidence that if the mother was able to free herself of drug dependence and stabilise her relationship with the father then she would be happy to allow the child to live with his parents. She had however no great confidence in that happening. I accepted her as truthful when saying that there was no grand plan in any of this. She found it difficult to look after the child and would gladly be freed from that burden if the child’s mother and father provided an alternative which in her mind was viable and in the child’s best interests.
There was no particular piece of evidence that Counsel for the mother or the child representative pointed to that would indicate I should have any doubt about the paternal aunt’s credit.

The paternal uncle

The paternal uncle is obviously an intelligent man. His evidence was not shaken.
The only time when there was some slight hesitation in his evidence was when the uncl, who had given his address at R, was asked what address he had on his driver’s licence. The uncle conceded that the address on his driver’s licence was the property that he owns on the central coast. He explained that he used the R address for other things like tax returns. I accept the evidence given by the paternal uncle as to where he lived from time to time from 1999 to the date of the hearing.
Because the father was representing himself I had the opportunity of observing him cross examine his brother. Whilst the father controlled himself most of the time during that process there were occasions were the father’s questioning became aggressive. The uncle’s answers were calm and measured without being patronising.
Counsel for the mother put to the uncle that he was smarter than the father. The paternal uncle responded by saying that although intellectually that might be correct, the father was streetwise and was a survivor.
It was put to the uncle that he had set up the incident that happened in February 2004. That incident had lead to the conviction of the father for assaulting both the paternal aunt and uncle. The uncle denied this proposition. I accept that he was being truthful when giving that evidence.

The mother

The mother freely admitted that she had been taking drugs since she was 13 years of age. She gave her evidence in a fairly straight forward manner but there were clear inconsistencies.
For example, her evidence was that she was the primary carer of the child during 1999. However three months after the child was born she started taking heroin. The frequency of her heroin use increased throughout 1999 and at the end she was taking heroin on a daily basis. On occasions when she couldn’t get heroin she would smoke cannabis. I do not accept her assertion that she was the child’s primary caregiver during 1999.
I am also sceptical about the current status of the mother and father’s relationship as described by the mother.
I have also found the mother had interfered with her drug testing by cutting it with water.
I do not accept what the mother told me about her knowledge of drug paraphernalia in her motor vehicle in 2004.
The mother did not tell the police the truth when they came looking for the father after his assault on the aunt in May 2005.

The father

The father did not give evidence in a convincing manner. He is a man with a criminal record and an involvement with hard drugs. I do not accept him as a witness of truth. I do not accept his version of the assault incident on 29 February 2004.

CONCLUSION IN RELATION TO CREDIT

Where the evidence of the paternal aunt and uncle on the one hand and the father and the mother on the other hand conflict I prefer the evidence given by the paternal aunt and uncle.

DR M’S EVIDENCE

Dr M is the child’s treating child psychiatrist. The child was referred to her whilst he was in the care of the applicants. The applicants have had a good deal to do with Dr M in arranging for the child’s treatment by Dr M.
She describes the child as a bright active little boy who is boisterous at times. He has been in trouble at school.
In her report dated 12 July 2005 (page 2) she says:-
“With regard to diagnosis, I believe the clinical picture is complex and not easily categorised to one specific disorder. On the one hand his behaviour could be formulated to meeting ASM criteria for attention deficit disorder and he also has a motor tick disorder.”
Dr M however goes on to talk about a range of other behaviours.
There is no doubt that the child has sustained some psychological damage as a result of the history of his care giving to date. Dr M said that he was not a normal boy for his age. Apart from having ADD he has a range of behaviours that would be consistent with emotional and psychological disturbance which most boys of the child’s age do not have. Many of these behaviours are behaviours that would be found in somebody with post traumatic stress disorder (although Dr M baulked at diagnosing the child as actually having post traumatic stress disorder).
Dr M said that the aetiological causes of the child’s condition are:-
55.1.disruption in his early childhood attachments
55.2.ongoing stress as a result of the conflict between the two families
55.3.individual traumatic events.
Dr M concluded that what the child needed most was the provision of a stable, secure and conflict free environment. She said that that would be crucial for the child’s future development.
She made a strong recommendation that his schooling not be changed at the current time.
Dr M’s conclusions that the mother and father contributed more to the child’s current condition than the aunt and uncle needs to be treated with some caution (and to be fair to the doctor she also acknowledged that). Notwithstanding Dr M is the child’s treating psychiatrist, she has not met with the child’s parents nor has she observed the child interact with his parents.
Dr M’s information about the child’s parents has come to her from the paternal aunt and uncle, discussions with school teachers and from information provided by the child himself.
For example, the doctor records in her report that when she asked him why he had been sent home from school (after wild aggressive play) the child reported to her words to the effect: “Daddy told me to be naughty so [the paternal aunt and uncle] would get sick of me and send me back”.
Dr M had formed the view that the child’s parents had a limited understanding that it was a detrimental thing for him to be openly exposed to conflict between the adults. The child representative correctly highlighted that that conclusion was based on hearsay.
However, I had the opportunity of seeing and hearing from both parents over an extended period during the four day hearing. Many of the things that they said lead me to form the conclusion that the hypothesis that Dr M was working on was correct. Namely, both the parents have limited understanding as to the effect that the nature of the conflict between the applicants and them has had on the child.
Whilst Dr M could not readily bring to mind anything positive that the paternal uncle and aunt had said about the child’s parents, she said that meetings with the aunty and uncle had mainly focused on the child’s problems. She said the uncle did not go out of his way to put the parents in a bad light.
Dr M treatment of the child for attention deficit disorder did not involve immediate medication. She liaised with the child’s teacher in term 1 of 2005 and there was a decision taken to allow a period of observation. However by term 2 when there were further problems at school the child’s teacher felt it was increasingly clear that the child had a significant problem of inattention and lack of focus in class. He also had been involved in further incidents of overly aggressive play and non compliance. As a result Dr M unsuccessfully trialled Clonidine. Ritalin treatment commenced in June 2005.
There was improvement in the child’s ability to concentrate in class. This confirmed for Dr M that her diagnosis of attention deficit disorder was accurate.
At the moment the child is only taking Ritalin during the week. Dr M does not believe it is necessary during the periods of the child’s life (leisure time) where the ability for him to concentrate is not such an issue. She did say that if it became an issue during non school time then the regime of medication could be reviewed.
The parents view Dr M with considerable suspicion. The father clearly believes that Dr M has been involved in the case to enhance the applicants’ chances of success. Both parents believe that the child did not need the involvement of a child psychiatrist. The father in his cross examination of Dr M and in submissions made it clear that it was his view that the child did not need medication. He suggested to Dr M that herbal medicines could be used. I gained the impression that the parents’ attitude is that if the child comes back to them then any damage that has been done to him will be cured and any behavioural issues that the child has will be resolved.
The child has had problems with facial ticks. Dr M gave evidence that facial ticks were quite common childhood occurrences and come about spontaneously and require no specific treatment. She expected them to gradually fade out. Ritalin aggravated the tick problem but the chld had adapted to that. All parties report that the ticks have reduced in frequency.

SOME ISSUES AND EVENTS

How the child came into the care of the paternal aunt and uncle

The applicants allege that the child was presented on a pillow to them by his father in February 2000 when he was about 1 month old and that he was substantially in the care of the paternal aunt and uncle at the R property from that time onwards.
The history given by the parents is quite different. They say that after a difficult caesarean birth the mother stayed at her M home (provided then and still provided now by the Housing Commission) for three months.
Originally the mother asserted that she hadn’t ventured out of the home in the first three months with the child. When confronted with photographs showing all the parties at the R property with the child when he was about 1 month old (exhibit E) the mother said that that was a one off visit. The father agreed with this. The parents say that they would often go (and for some periods on a daily basis) to the R property with the child. On occasions up to three times a week he would stay overnight at the R property and in some periods on about one of those three occasions the child would stay overnight without his parents.
There is an issue between the parties as to where the child slept when he was at the R property. The father’s version is that he slept downstairs in the granny flat with him most of the time. The applicant’s version is that he had his own cot and then his own bed upstairs where their beds were.
I accept version given by the paternal aunt and uncle in relation to the early care of the child.
The fact is that the mother and father were significantly impaired because of their drug taking in 1999 and onwards and it is for that reason in the main that I accept that a significant level of care was provided by the principle occupants of the R property, namely the paternal aunt, the paternal grandmother and the paternal uncle.

The paternal uncle’s presence at R

The occupants of the R property were the child’s paternal grandmother who is known as T, his paternal aunt, his paternal uncle. The father also asserted that R was his home.
The father asserts that the uncle for some periods only came home every three weeks to give his mother his washing. Whilst the uncle owned a home in Newcastle during the time he was at University and now owns a home on the central coast when he is at that campus of the University, I accept the uncle’s evidence about the time he lived at R.

How much do the mother and father live in the one house?

The mother and father throughout the relevant period have been on single pensions. The respondents assert that they weren’t actually cohabitating as man and wife for substantial periods since 2000. When I asked the father whether or not they were currently living as man and wife he said that they were living as boyfriend and girlfriend. The father made it clear to me that his future intention was to reside at R. This was inconsistent with evidence given by the mother that she believed his future intention was to apply for his own separate property from the Housing Commission.
I find that it is the intention of the mother and father to substantially live together in the future.

Problems at M

The father gave evidence that over a three year period they had significant difficulties in the M property with a neighbour who was involved in drug dealing and in publicly exposing herself from her property to groups of young men in the street. Her behaviours attracted unsavoury visitors to their duplex property. Whilst this problem has now abated, the father’s awareness of the neighbour’s drug dealing is consistent with other findings I have made about the parent’s past involvement in the use of drugs.

The child’s attendance at N

All parties agree that at an early age the child was put on a waiting list to go to N School at S. All parties agree that all parties signed enrolment forms for the child to go to N at S. All parties agree that at the beginning of he 2004 school year it was agreed that the child would ordinarily reside at the R property during Monday to Friday for the purposes of facilitating his attendance in kindergarten at N.

History of Drug taking

The mother

The mother has been smoking marijuana since she was 13 years of age. She still smokes three cones of marijuana a day. She said she was quite happy with that. If she was stressed pot kept her mind occupied and away from thinking about heroin. She says that if the child is with her she would do that when he was at school so it wouldn’t interfere with any parenting she had to do and he wouldn’t be aware of it. Mr N (a psychologist and an experienced drug and alcohol counsellor) gave evidence that three cones a day is not an amount of marijuana that would be expected to significantly impair functioning. His caveat however was that a lot of the product available today is grown hydroponically. Namely, it is far stronger than it might have been in former times. He strongly suggested that the mother seek advice as to alternate and newer medications which may enable her to reduce anxiety without the harmful side effects both medically, economically and socially that the habitual use of an illegal substance brings.
It is clear however that the mother has chose to self medicate for a long time now. She gave evidence to the effect that she knows what her body needs for her to maintain equilibrium.
Counsel for the applicant asked the mother whether or not she would give it up. Her response was “if need be I will”.

The mother’s use of heroin

The mother said that she had first started to use heroin in 1999. She said she had not used heroin during her pregnancy. By the end of 1999 she was a frequent user of heroin. Evidence would indicate that she was using heroin three times a week. This level of use continued through 2000 and 2001.
There is not a lot of evidence as to the level of the mother’s use of heroin in 2003 to 2005 apart from the mother’s evidence that her period of heavy use of heroin by her was second half of 1999 through to the end of 2001.
At the date of the hearing the mother was on a methadone program. She had recently got down to 2.5 mg a day but at date of hearing it was 7.5 mg of methadone per day. Mr N described this dosage as “end stage”.
Mr N said that the use by the mother of two to three cones of cannabis a day is not a large amount compared to what other cannabis users report. He also indicated that the level of methadone the mother takes is now a negligible dose.
He did counsel her however to seek appropriate advice to an alternative anti-depressant medication. He expressed some concern of the mother’s continuing use of cannabis when she was depressed, particularly if she was using cannabis that had been grown as hydroponic produce.
The mother has been on a methadone program for four years. That means she started the methadone program towards the end of 2001. The evidence is that she has used heroin during the time she has been on the methadone program.
In April 2004 a motor vehicle being driven by the mother was stopped.
The police record discloses that there was drug paraphernalia in the ashtray and there were seven used caps of heroin and a paper bag with syringes in it in the motor vehicle ordinarily driven by the mother.
I do not accept that the mother didn’t know anything about it. On balance I find it likely that she was using heroin in 2004.
That would explain why she didn’t participate in urinalysis for six months in 2004 and also provide a more likely explanation as to why she didn’t see the child for Christmas in 2004 (that is, she was impaired both psychologically and financially by her drug habit).
The mother said that she had last used heroin in July 2005. She used it in circumstances where she had become highly stressed because the legal representation that she had in this case had ceased. Her evidence was to the effect that at that time she felt that she had lost the case and had consequently lost the child. It was submitted to me and I accept that this produced in the mother a high state of anxiety.

The mother denied that she had used heroin after July 2005. A copy of her drug testing results are annexed to both affidavits of the paternal aunt and uncle. Mr N interpreted them in the witness box. Only one of them discloses a positive finding for opiates. The positive finding is in a test of 18 May 2005. Mr N indicated however that a proper reading of that test would indicate that the cause of that positive finding was the taking of codeine by the mother. (The mother herself had given as an explanation that the taking of anti-depressants is a reason for the positive finding of opiates; Mr N indicated that this was not a feasible explanation).
However a disturbing part of the drug testing reports is that two of them had indicated that the samples used had been tampered with. Mr N indicated that a proper reading of the test results would show that the urine samples had been cut with water. Counsel for the mother was unable to offer any explanation as to how this had occurred. He submitted that I could not find that the mother was the cause of that contamination. On balance I do.
Mr N did express some concern about the mother’s use of heroin in July 2005. His concerns were the risk of overdose; the potential impact on her functioning (which related to the frequency of use) and the financial impact that it would have on her circumstance. He also commented upon the persons involved in the drug scene with whom a user of heroin needs to associate in order to maintain a habit. Mr N agreed that the depression from which the mother suffers increased the risk for her of relapsing to the use of opiates when she is under stress. The mother admits she self medicates. She mainly uses cannabis to control her depression. She however at times when significantly depressed has turned to opiates which are (according to Mr N) powerful at relieving depression.
One major problem that I struggle with in this case is the question of what happens next time the mother faces an actual or perceived major crisis in her life. Will she turn back to heroin at that time? What would happen to the child if he was in her care at that time?

The father’s drug use

The father told me that he started using heroin in his early 30s (that is, in the mid 1990s). He went to prison for a period of time and was released from prison in 1996. He told me whilst he was in prison he did not use heroin. He started using it again about two years later (that is in 1998). He confirmed that he was using heroin during the period that the mother was pregnant with the child. He said that it had been about eight months since he had last used heroin. His evidence was that this was recreational use; that a friend had come over with the heroin and had put it in front of him and he had participated. He said that it had been over a year since he had used heroin for the purposes of relieving anxiety or stress. He had been on a methadone program for 4 ½ years and had been off the methadone program at date of trial for ten days.
He was not a regular user of marijuana.
The father’s written evidence says:-
“21. At this time (namely the end of 1999) both [the mother] and I were using heroin occasionally. By this I mean two to three times a week. We have never taken any drugs in front of the kids. They have never seen anything to do with drugs at the [M] house. I have never let my use of drugs effect my raising [the child].”
The father’s evidence was that a cap of heroin cost $50 each in 1999. The father did not dispute the fact that he and the mother needed to find approximately $300 per week in 1999 to fund their drug habit.

VIOLENCE

The incidents of 28 and 29 February 2004

In the cross examination of the uncle, Counsel for the mother put to him that the father had become angry at the uncle when he had taken the child to the park. The father denied that. It was put to him that he waited at the door for him. Again this was denied. It was put to him that he yelled at him to get out of his house, that he chased him around the house, that he cornered him near the TV, that he pushed him and told him to get out of his face. The uncle denied all of these allegations. It was put to him that he had started the fight with the father so he could enhance his chance of being successful in a residence application. That was denied. It was pointed out that no residence application had actually been commenced at that point in time.
The father’s version of what happened is set out in the main report of Mr N at pages 11 and 12. The father says that on 28 February 2004 the uncle was “going out of his way to get [the child’s] attention….that I couldn’t get 5 minutes with him”. The father says he was “emotionally and physically tired” from being in Canberra and that the uncle was overbearing in his manner towards him all day. He says that by the end of the day “it was getting too much” and he told the uncle that he was “too overbearing”. According to the father his brother went into a “tirade”. The father says he then took the child to the park. While there he received two or three phone calls from his mother saying that “what I done is wrong” and by the third call “they all wanted me to get out of the house”. He says he took the child with him to stay at the mother’s overnight at M.
The father returned to R the next day and according to him, the uncle chased him from room to room until he was eventually cornered against the TV”. The father says he pushed the uncle’s face and said “get out of my face”. He says he noticed his mother and sister moving the child into another room. He says he felt “very frustrated” and made as if to kick the uncle, but didn’t. He says that the uncle “screamed” at the child not to go with him. According to the father it was at this point that the police were notified.
The paternal aunt’s account of this incident is set out at paragraph 30 of her affidavit sworn 17 March 2005 and is in the following terms:
“Sunday afternoon, February 29 2004, my mother, [the uncle] and I were at the [R] home where [the father] returned with [the child] after spending the night at [the mother’s] house. I heard [the father] say to [the uncle]words to the effect:
[The father]: “I’m going to kill you you bastard. You’ve ruined my life, you’re turning them against me”.
I then saw [the father] take a big step towards [the uncle]. I saw [the father] hit [the uncle] on the right side of [the uncle’s] face and neck area. I saw [the uncle] fall backwards and [W] (the paternal grandmother) and I ran to step in between [the father] and [uncle]. I then saw [the father] grab hold of [the paternal grandmother’s] arm and push her forcefully on the lounge. I then saw [the uncle] run out of the house with [the father] running after him. I also ran outside the house and saw [the father] approach [the uncle] and kick him. The police arrived at the house shortly after and [the father] was arrested.”
The uncle’s account of the incident is presented in an affidavit sworn on 19 May 2004. His version is as follows at paragraph 27(d) and (f):-
“The next day, [the father] returned to the [R] home with [the father] and as [the grandmother] opened the door I heard the following conversation:
[The grandmother]: Why did you behave yourself as you did yesterday?
[The father] in a loud screaming voice: Get fucked
And then to me:
[The father]: Are you still here you fucking bastard?
Me:Please calm down
[The father]: You’re teaching mum and [the aunt] to hate me, you fucking bastard, I’m going to get you.
Meanwhile [the child] was present in the lounge room and [the father] ran towards me. I stepped sideways but [the father] slapped me on the face and on the neck.
[The aunt and grandmother]: Please stop.
[The father] then pushed [the grandmother] and she fell onto the lounge. [The father] then kicked me, hitting my left hip. [The father] then punched me in the shoulder and I ran from the house to my adjoining neighbours and spoke with them. [The father] too came out. [The child] was shaking and crying. [The father] also came out and said:
[The father]: You sluts.
[The aunt]:Please calm down
[The father] then came towards me, punching me on the back of the head and kicking me again in the left hip. [The aunt] and [grandmother] then stood in front of me.”
The paternal aunt was not cross examined by Counsel for the mother about this incident. Counsel for the aunt put the substance of the father’s version of this incident to the uncle during cross examination. The uncle denied that he told the father to get out of the house; that he chased the father from room to room; or that he cornered the father against the TV. The uncle denied that all the father did was push him in the face and say “get out of my face”.
The police charged the father with two counts of assault. The father’s criminal record tendered in evidence and as CR1 shows that on 20 May 2004 the father was convicted of two counts of common assault. He was fined and put on a bond for two years.
I infer from the above that the assaults with which the father was convicted was an assault on the paternal uncle and an assault on his mother the grandmother.
On the same day the Local Court also made an apprehended violence order against the father (see annexure C of the affidavit sworn by the aunt on 17 March 2005). The protected persons were the uncle, aunt, child and grandmother. The order was in fairly standard terms including that the father wasn’t to go within 500 metres of R. The order is for a duration of three years from 20 May 2004.
I am comfortably satisfied on the evidence that the versions of events as to what happened on 29 February 2004 given by the paternal uncle and aunt are to be preferred over the version given by the father.
The paternal aunt gave evidence that in May 2005 she was assaulted by the father who had come to her house. The father in his written affidavit did not in any way give his version of what happened on 18 May 2005 nor was the aunt cross examined about this incident by counsel for the second respondent or by the father. I unreservedly accept her version of what happened on that day.
The details of this are set out in paragraphs 19 to 24 of the affidavit sworn by the aunt on 24 May 2005. Annexure A are coloured photographs said to be taken by her solicitor on 24 May 2005 which graphically shows the bruising which the aunt says the father inflicted upon her.
I consider this to be a serious incident. The aunt’s evidence is that she returned home after collecting the child from school to find the father seated in the lounge.
There was in place at the time an AVO which prohibited the father from being at the house and restrained the father, amongst other things, from assaulting the aunt. The father assaulted her in front of the child. The child screamed at his father repeating “Please stop hitting my Aunty, please Aunty honey don’t die, please don’t die Aunty honey”.
Annexed to the aunt’s affidavit of 24 May 2005 are photographs of the bruising caused by the assault.
The assault was reported to the police.
The police attended on two occasions following the assault at the M property. The mother told the police that the father didn’t live with her and didn’t have some idea of where he was. I find that to be untrue.
The father seemed to acknowledge that he understood the seriousness of what he had done. He denied, however, the suggestion that he had deliberately left his normal place of residence so the police couldn’t find him.
The father was given a certificate under Section 128 of the Evidence Act in relation to the admission by him that he had caused the bruising that is depicted in annexure A to the affidavit of the paternal aunt sworn on 24 May 2005.
The crime that the father committed in front of the child is punishable under the Crimes Act by a mandatory term of imprisonment for three months unless special circumstances are shown as to why that penalty should not be imposed
The paternal aunt did not follow through with charges against the father for breaching the AVO (it being a breach for him to be at her house in the first place and obviously a more serious breach for him to have assaulted in her the way that the photographs depict). One possible explanation is that there is a mandatory imprisonment for such an event unless there are special circumstances. I speculate that the aunt did not want to take the matter that far. This was a cowardly physical attack by the father on his 60 year old sister in front of the child.

The child’s physical discipline by the respondents

The mother indicated that she was the person who was primarily responsible for the disciplining of the child whilst he was in the care of the respondents. She said she had only hit him on the bottom on one occasion whilst he was mucking around after he had got out of the shower.
It is clear however that the father has physically disciplined the child. He demonstrated in the witness box a force with which he had disciplined the child. His hands coming together made a loud sound. Given my other findings in relation to the father’s inability to control his anger I believe that the child has probably been physically disciplined by his father with some force on occasions. There is however on an overall basis no evidence of the child being systemically beaten or the subject of excess corporal punishment. There has been no report to any of the experts by the child of this occurring. Nor has there been the report (and there most certainly would have been a report) from the applicants of them seeing any evidence on the child’s body of inappropriate corporal punishment.

PARAMOUNT CONSIDERATION

Section 65E Family Law Act requires that, in deciding whether to make a particular parenting order, my paramount consideration be the best interests of the child. I am further required by Section 68F(1) Family Law Act, when determining what is in the best interests of the child, to consider the matters set out in Section 68F(2) of the Family Law Act.

EXPRESSED WISHES OF THE CHILD

The child has been reluctant to express any wish as to where he wants to live.
Mr N was of the view that the child appeared to him to be “somewhat troubled and emotionally in flight from the distress of the conflict raging around him”.
When Mr N asked the child if he had a preference about where he would like to live, the child “indicated that he liked living in each place and that he had no preference”.
The mother gives some evidence about the child expressing a wish to live with her. The weight that I can place on that evidence is lessened firstly by my findings of credit in respect of the mother and secondly, even if the child had said it, by the fact that it is something the child might have said because it was what he thought his mother wished to hear.
The weight that I would place on the wishes expressed by the child are moderated by the fact that he is only 7 years of age.
The even handed nature of the wishes he expresses however does evidence a level of bonding with both the applicants and the respondents. For other reasons that I believe are more weighty, I have decided that it is not in the child’s interest for him to live “in each place”. A sharing of parental time in a significant way is not possible in the circumstances of this case.

RELATIONSHIP OF THE CHILD WITH EACH OF THE SIGNIFICANT ADULTS

Mother

The evidence including the reports from experts indicates that there is a close and loving relationship between the child and his mother.
Mr N gave evidence that he was very moved by his observation in the mother’s home of the child’s affection and attachment to her. He said that the child appeared very relaxed in her presence.
It is of some concern that the mother has on occasions failed to attend contact visits with the child. This has caused him significant disappointment on those occasions. He was particularly disappointed by not seeing his mother in Christmas 2004 “because they did not have enough presents to give [the child]”.

Father

There appears to be a close relationship between the father and child. The child is conscious of the high level of conflict between the father on the one hand and the paternal aunt and uncle on the other hand. One of the father’s significant failings is lack of insight as to the effect of the level of violence he has previously perpetrated, (some of it in the child’s presence), and the level of conflict that currently exists, has upon the child.

Paternal aunt and uncle

Mr N said that the child “enjoys a close, stable and secure relationship with his aunt and uncle”. Looking at the evidence overall I accept that that is so.

The child’s half siblings

The child’s half siblings, A and B are members of the mother’s household. Whilst there is little evidence about the child’s relationship with his half siblings I infer that there is nothing negative in that relationship which would mitigate the mother being successful, all other things being equal (which they are not).

EFFECT ON SEPARATION FROM:

Mother and father

As previously indicated, Mr N was of the opinion that the child currently enjoys a close, stable and secure relationship with his aunt and uncle in his current living situation. Mr N is of the impression that if the resident arrangements are unchanged, the child will continue to benefit greatly from regular, safe and loving contact with his parents.
On the other hand, Mr N is of the opinion that “if [the child’s] parents were stable in respect of their own individual self care, their relationship, their substance use and their management of conflict with each other and with [the child’s] aunty and uncle” then Mr N would recommend a change so that that the child reside with his mother and father.
I have to be mindful in this case of the effect of changing the child’s living arrangements from a stable situation to one which has in the past been volatile and unstable. In other parts of these reasons for judgment I analyse issues of violence, continuing conflict, the living arrangements between the mother and the father, the drug use of both the mother and the father.
Mr N’s view is that if I was able to find that the child’s parents are now stable, then I might consider a change in the child’s residence given the effect of that change would not have any significant impact upon the child.
Given other findings in these reasons for judgment I am unable to find that moving the child from his present stable environment would have little impact upon him. I believe it would have a significant impact upon his wellbeing.
It would mean that he would no longer continue at N College. It would be likely given the level of conflict, that his relationship with the paternal aunt and uncle would diminish greatly.

PRACTICAL DIFFICULTY AND EXPENSE IN CONTACT

There hasn’t been any great problems with contact happening between the child and his parents whilst the child has been living with uncle and aunt. The orders that I have made require the mother to pick the child up from school at the end of the school week on three out of four weekends during school term. This will have the advantage of allowing the mother to have some contact with the school and to lower the number of interactions that take place between the mother and the paternal aunt and uncle.
Given the relative financial positions of the parties and paternal uncle and aunt’s agreement, there was an order made that at the conclusion of contact the uncle and aunt collect the child from the mother’s home during school term and deliver and pick up the child to and from the mother’s home (absent any other agreement) during school holidays.

PARENTING CAPACITY

Mother and father

As indicated elsewhere there are significant concerns about the parenting capacity of both the mother and the father. Both have had a significant involvement in drugs in the past. I take into account Mr N’s evidence in relation to the present level of drug use by both the mother and the father. There is however in my view significant risk of recurrence of drug use in the future which I need to bear in mind when assessing future parenting capacity. The father has been involved in conflict with the aunt and uncle which has been significant ongoing and at times in the presence of the child. The mother and father will continue an association with one another and it is likely, moving forward, they will be living in the same household.

The parent’s attitude to the diagnosis of the child by Dr M shows a fundamental lack of insight into the damage that has been done to the child to date.
There has been significant violence between the father and aunt and uncle in the presence of the child.
Having said that, the mother has been able to attend to the physical and emotional needs of her older two children. The mother currently can attend to the child’s physical and emotional needs during the time that the child is with her.

Paternal aunt and uncle

The mother and father did not successfully point to any serious complaint about the ability of the paternal aunt and uncle to attend to the child’s physical and emotional needs.
There is nothing in the evidence upon which I can find that the aunt and uncle have seriously attempted to interfere with the child’s relationship with his mother and father.

MATURITY, SEX & BACKGROUND

The child’s medical difficulties have been discussed when referring to Dr M’s evidence.

LIKELIHOOD OF FURTHER PROCEEDINGS

There is nothing to suggest that the making of either of the orders sought by each of the parties is more likely than the other to lead to further proceedings.

VIOLENCE

There has been a history of a high level of conflict and violence between the father and paternal uncle and aunt. This is an important matter to consider in this case.
The animosity primarily flows from the father towards his sister and brother. The father will be a significant person in the mother’s household. Given the history of violence, it is difficult for me to consider moving the child from the stable home of the victims of the violence to the home where the perpetrator of the violence is likely to live on a regular basis.

CONCLUSION

I conclude that it is in the child’s best interests for him to continue to primarily live with the paternal uncle and paternal aunt.
Little weight can be currently placed on the child’s wishes which are that he likes living in each place and that he had no preference.
Whilst the child has a close relationship with his parents, he also has a close stable and secure relationship with his aunt and uncle.
I find that the stability of the child’s current living situation, particularly his schooling, could be jeopardised if I change the current arrangements so that the child primarily lived with his parents.
Given the disabilities that the child suffers from as described by Dr M, there would be a risk that the child further regressed.
I am also of the view that future contact between the child and his aunt and uncle would be significant jeopardised if the child was to live with his parents most of the time.
The mother and father’s parenting capacity has been compromised in the past by their involvement in the use of drugs and by the significant level of violence, particularly perpetrated by the father towards members of the aunt and uncle’s household.
I propose to make an order that the parties be directed to some post separation parenting courses so that the issue as to whether or not the relationship between those who are going to be responsible in the future for looking after the child can be improved.
It is extremely important in my view that the child continue at N and continue his treatment with Dr M. I intend to make an order that the long term responsibility for the care, welfare and development of the child so far as it relates to the child’s schooling and medical treatment primarily rest with the paternal aunt and paternal uncle. I will order that they consult the mother in relation to any significant change in the child’s schooling and medical treatment. If agreement can’t be reached as to what future course to take, the decision making will be in the hands of the paternal aunt and the paternal uncle.
I recognise the bond that exists between the child and his parents. It is important for the child to have significant time, particularly with his mother. The order for contact is aimed at maximising that time. I have already made other comments in relation to the motivation as to how the orders for contact are framed under the heading ‘Practical difficulty and expense in contact’.
I intend also to make an order that the child be able to have time with his father but only on the basis that the mother is present at all times.
An order will be made for telephone contact both ways so that the child can continue to have contact with the significant adults with whom he is not at that time living.
I recognise that the orders in relation to the father spending contact with his son is inconsistent with the family violence order made on 20 May 2004. I set out in order 20 the reasons for making an order that is inconsistent with the family violence order.
I also intend to make an order (given evidence as to previous events) that will injunct the mother and father from taking the child to places where they are receiving or collecting methadone.

I certify that the preceding One hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts J

Associate:

Date: 8 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Kelly & Kelly & Ors

[2007] FamCA 165

8 March 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies