Kingston and Roche and Roche

[2009] FMCAfam 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KINGSTON & ROCHE and ROCHE [2009] FMCAfam 597

FAMILY LAW – Parenting – assessment of risk to children in both parent’s household – separation of siblings – significant drug history and use by each parent – order made for children to live with mother which promotes stability despite risk of harm – further assessment in six months of children’s living arrangements.

Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4)

Applicant: MR KINGSTON

First Respondent: MS J ROCHE

Second Respondents: MS C ROCHE and MR D ROCHE

File Number: BRC 9941 of 2007

Judgment of: Henderson FM

Hearing dates: 27, 28, 29, 30 April & 1 May 2009

Date of Last Submission: 1 May 2009

Delivered at: Albury

Delivered on: 18 June 2009

REPRESENTATION

Counsel for the Applicant: Ms Boyle

Solicitors for the Applicant: Voitin Walker Davis

Counsel for the Respondent: Mr Harper

Solicitors for the Respondent: Robb & Associates Solicitors Pty Ltd

Second Respondents: Mr D Roche in person

Counsel for the Independent Children’s Lawyer: Mr Blank

Solicitors for the Independent Children’s Lawyer: Evans Yeend Family Lawyers

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The parents to have equal shared parental responsibility for the children, [X] born in 2004 and [Y] born in 2006.

2. The children live with their father as follows:

   (a)Until such time as [X] commences formal education:

   (i)From Sunday 10am to Tuesday 12noon for two weeks out of three on a three week cycle commencing the first weekend after the making of these orders.

   (ii)The father is to collect the children at the commencement of this time and is to return the children the home of the Second Respondents, Ms C Roche and Mr D Roche, at the cessation of his time.

   (iii)Upon the mother obtaining her drivers licence the mother is to collect the children from the father’s home at 10am each Tuesday.

   (b)Upon [X] commencing formal education:

   (i)From after school Friday to the commencement of school Monday morning for two weekends out of three on a three week cycle commencing the first weekend after [X] attend school.

   (ii)The mother is to deliver the children to the father as soon as possible after the cessation of school on Friday and the father to return the children to school on Monday morning.

   (iii)In the event the father is of the view he is unable to return the children to school at an appropriate time having regard to the distance between his home and the school, the fathers time is to conclude on Sunday at 6pm.

   (c)For no less than one half of each term school holiday period being:

   (i)The first half of the school holidays in even numbered years which time shall commence at 10am the day after school ceases until 12 noon on the middle Sunday of the school holidays; and

   (ii)The second half of the school holidays in odd numbered years commencing 12 noon the middle Sunday of the school holidays and conclude 12 noon on the last Sunday of the school holidays.

   (d)During the Christmas school holiday period:

   (i)In 2009 and each alternate year thereafter to commence the day after the cessation of school in the Christmas school holidays until 5pm Christmas Day and for one further week in January as agreed.

   (ii)In even numbered years from 5pm Christmas Day and for sixteen  days thereafter;

   (e)At other times as agreed between the parents.

   (f)The parents may, by agreement, vary dates, times and places for the children to spend time with the father and for collection and delivery.

3. The children to live with the mother up to and including 28 August 2009 for periods of three days and two nights each week as agreed between the mother and the maternal grandparents.

4. From 28 August 2009 the children to live with their mother and spend time with the maternal grandparents as agreed between the mother and maternal grandparents provided such time does not interfere with the children’s time with their father.

5. The mother is injuncted and restrained from physically disciplining the children or permitting any third person, including Mr B, to physically discipline the children.

6. The father is injuncted and restrained from physically disciplining the children or permitting any third person to physically discipline the children.

7. Both parties are injuncted and restrained from denigrating or speaking ill of the other parent or their partner in the presence of or hearing of the children and are to use their best endeavours to ensure that no other person denigrates either parent or their partner in the presence of or hearing of the children.

8. The mother is to attend and complete a positive parenting education program available at the Upper Hume Community Health Service at Wodonga or Centacare Albury.

9. The child [X] attend an appointment with a child psychologist with both parents and both parents to carry out all recommendations made by that psychologist. The child psychologist to be nominated by the Independent Children’s Lawyer with the assistance of Ms Meredith Deane, family consultant.

10. The Court requests that pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children, [X], [Y], [Z], [T], [U], [V] and [W] attend upon Ms Meredith Deane, family consultant, on a date and at time/s to be advised for the purposes of the preparation of a further family report, with such report to be released by no later than
    6 November 2009.

11. The Family Report to deal with the following matters:

    (a)how the children, [X] and [Y], are coping with the care arrangements;

    (b)any views expressed by any of the children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

    (c)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (d)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

12. The matter be adjourned to 30 November 2009 at 9.30am for mention in the Albury Registry following the release of the further family report.

13. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

THE COURT NOTES THAT:

1. Mr B has agreed to attend a positive parenting education program which may be carried out at the same time as the mother.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ALBURY

BRC 9941 of 2007

MR KINGSTON

Applicant

And

MS J ROCHE

First Respondent

MS C ROCHE AND MR D ROCHE

Second Respondents

REASONS FOR JUDGMENT

1. The matter of Kingston and Roche was a final hearing heard in Albury. The matter commenced on 27 April 2009 and was completed on 1 May 2009.

2. Ms Boyle of Counsel appeared on behalf of the Applicant Father,

   
   

   Mr Harper of Counsel appeared on behalf of the Respondent Mother, Mr and Mrs Roche, the Maternal Grandparents, appeared in person as the Second Respondents, and Mr Blank of Counsel appeared for the Independent Children’s Lawyer.

3. The Application before the Court concerned the parenting arrangements for the children, [X] born in 2004 and [Y] born in 2006.

4. [X] and [Y] are the children of Ms J Roche and Mr Kingston. Both

   
   

   Ms J Roche and Mr Kingston have other children and have each

   
   

   re-partnered.

5. Mr Kingston’s partner is Ms D. Mr Kingston and Ms D recently moved to [F] in early 2009.  They have twin girls [V] and [W] aged seven months.  Ms D has two older daughters, [T] born in 2000 and [U] born in 2004. [T] and [U]’s father lives in Ballarat.

6. Mr Kingston is aged 39, has two older daughters and is a grandfather.

7. Ms Roche the mother is aged 26 and has another child, [Z] in 2001.  [Z] was retained by her father, Mr L, at the commencement of these proceedings and that matter will be brought to the Court shortly.  Otherwise [Z] has effectively lived with her mother or maternal grandparents and not her father.

8. The mother has re-partnered with Mr B.  Mr B is aged 36 and has two daughters, [M] aged 17 and [B] aged 15.  They live with their mother and spend regular time with him.

9. There are eleven girls who are in some way or other related to one or other of the parties or their partners in this matter.

10. At present the girls, [X] and [Y], live with their maternal grandparents as a consequence of Orders made by my brother Federal Magistrate Jarrett on 12 September 2007 and confirmed by me in September 2008.

11. This matter initially came before the Court in Brisbane in September 2007.  The mother, father and children had been living in Brisbane since April 2007 until the mother unilaterally and without notice to the father removed the children from Queensland in or around August 2007, to Albury.

12. The father brought an application for a Recovery Order.  Federal Magistrate Jarrett made Orders that [X] and [Y] live with their mother in Albury provided that the mother continued to live at her parent’s residence.  Federal Magistrate Jarrett made further Orders for the children to spend time with the father in the event the father moved closer to Albury or if the father remained in Queensland.

13. Within two months of these Orders being made and in November 2007 the mother had contrary to the Court Orders removed the children from her parent’s residence to the home of Mr B, a man she had known for three weeks.

14. The children were returned to the care of the maternal grandparents on or around February 2008 as a consequence involvement of the Department of Community Services The Department had become involved due to a reporting of bruising at least on [Y] and disclosures made by [X] at day care that “Mr B smacks me and smacks my little sister and makes me cry”.

15. Had it not been for the intervention of the Department of Community Services the children would have continued to live with their mother at the home of Mr B in contravention of the Court Orders.

16. The maternal grandparents took no steps to inform the Independent Children’s Lawyer, the Court, the father or the Department that their daughter had moved the children from their home in defiance of the Court Orders.  The grandmother said in evidence to the Court she could not stop the mother taking the children with her in November 2007.

17. The real difficulty is that whether I order the children live with their father primarily and spend time with their mother, or live with their mother primarily and spend time with their father, there is a potential and real risk of the children being subjected to emotional, psychological and physical harm.

18. Due to the ill health of the maternal grandmother, the maternal grandparents can no longer continue to care for the children on a full time basis as they have done since February 2008. The grandparents have been the stalwart for these children in their young lives and are kind, generous and loving people.

19. All parties agree that [X] is a child who needs special and individual assistance to deal with her emotions. It is clear her attachments have been significantly damaged due to her parent’s itinerant lifestyles and long term drug use.

20. Both the mother and father admit to having used illegal substances in the past. The father only ceased using marijuana on a regular and daily basis in late January / early February 2009. The mother has had a significant addiction to the drug Speed for some years.  She says she has not used Speed since late December 2007.

21. The risk to these children as I see it are as follows:

22. In their father’s home they will become part of a family of six young children including seven month old twins.  The bulk of caring for these children will fall to Ms D who is recovering from the birth of twins which was traumatic and physically challenging for her.  She has recently broken her wrist.  Her specialists are concerned because her bones are not healing.

23. The father works as part time [occupation omitted] with the [F] Club who require him to attend coaching on Tuesdays and Thursdays and effectively he is not home on Saturdays. Thus Ms D will be doing the bulk of the physical parenting of these young children.

24. The father has only just ceased using marijuana and he has been a long time habitual user of that drug.

25. The father and Ms D have had some difficulties settling into their new environment which they described to Ms Deane, the Family Consultant, and set out in their respective affidavits.  Ms D’s daughter [T] is a child who is suffering from the breakdown of her parent’s relationship and her father’s lack of interest in her and requires some individual attention similar to that required by [X].  The father and

    
    

    Ms D are undergoing counselling to improve their relationship. Ms D has a positive approach to the benefit of counselling which [T] undergoes and which she believes is needed for [X].

26. Thus the children living with the father and Ms D is unknown and will place further stresses and strains on that couple and their relationship.  Additionally they will be separated from their older sister [Z] and their almost daily contact with their grandparents. 

27. The risk in the mother’s home. The mother has only had all three children living with her for a limited time since the September 2007 Orders were made. They lived with her and Mr B from November 2007 to February 2008. During that time the children’s care was brought to the attention of the Department of Community Services. The mother has had a significant and serious drug problem and having all three children living with her will place a stress and strain on her and her relationship with Mr B.

28. The mother continues to live with Mr B.  I have formed the view after seeing Mr B give evidence that he exhibits no skill whatsoever in age appropriate parenting or in understanding the needs of young children.  Mr B described in an almost jocular fashion an incident where, to use his words, “he kicked [X] up the bum”.  The child was then three years of age and had done a pooh in the backyard.  When I asked Mr B why he behaved in this manner towards a young child he said:

    Well I only kicked her with my moccasins. It wasn’t like I had my work boots on or anything.

29. Mr B showed no remorse or understanding that this was inappropriate behaviour, was violent and threatening to the child and wrong.

30. The subpoena material, which I have reviewed at length, indicates the Department of Community Services had real concerns about bruising to [Y] and [X] and from [X]’s disclosures of Mr B hitting the girls and making them cry.

31. One of the most troubling issues for the Court in determining the risk to the children in either parent’s care is that for reasons I will outline the mother is not a witness of truth.  Where there is a contest I have formed a view I cannot rely upon the mother to accurately tell the Court or any authority figure what has happened.

32. It also clear that although the grandparents have played a significant and important supportive role in caring for the children they are torn, on their own evidence and by their conduct, when it comes to an issue of giving their daughter what she wants and what is best for their grandchildren.

33. A significant theme in this matter is the view I have formed that the mother has been a somewhat pampered and spoilt only child who has been indulged and given into by her parents over her life.  That pattern of behaviour continues to this day.

34. On the other hand a significant positive factor for the children living with the mother is that the mother’s three children would all live together. It is clear that the three girls have a close and strong relationship.

35. Further it is apparent and agreed by all that the mother has made great strides in overcoming her serious long term drug addiction. It is apparent her health, general demeanour, the way she cares for her home and her attitude to herself have vastly improved over the last eighteen or so months.  The father agrees with this assessment as well.  Further the maternal grandparents will always be on hand to assist in the care of the children.

36. Much of the improvement with the mother’s health may be, as her parents assert, due to her relationship with Mr B.  The grandparents believe this to be the case.  I accept he would not indulge the mother.  I accept his somewhat authoritarian approach is in part a reason for the mother’s much improved lifestyle.  So too is the mother’s genuine desire to have her three girls in her full time care.

37. Up until March 2009 the father was also of the view that the three girls should all live with their mother.  However this was before he had read all the subpoenaed material and many of the mother’s untruths and manipulations were revealed. 

38. The positives for the children living with the father are that they will not be subjected to physical abuse or poor behaviour directed to them.  This is a risk in the mother’s household if the children live with her and Mr B.

Evidence

1. The evidence is as follows:

2. For the father I read:

   a)His Affidavits sworn on 2 April 2009 and 27 April 2009;

   b)Affidavit of Ms D sworn 1 April 2009.

3. The father tendered the following exhibits:

   a)

   Father’s Exhibit 1: Hair Analysis report of the father dated

   
   22 April 2009

   .  That report related to toxicology report issued on 26 August 2008 on the father’s hair follicle.  That report found that at 26 August 2008, tetrahydrocannabinol was detected. Approximately 2 centimetres of the father’s hair was collected and received on 25 July 2008.

   The analysis done on both the mother’s and father’s hair was based on the same criteria.  Hair growth is an average of one centimetre a month.  No segmenting hair testing was done.  The longer the hair being tested the greater the span of time over which drug consumption can be proven.

   The mother had 10 centimetres of hair analysed.  The father had two centimetres at best analysed.  This represented time frame from 9 May 2008 to 9 July 2008.  Significantly there was no trace of methamphetamine in the father’s hair but a clear trace of cannabis.  The father admitted he was smoking cannabis at that time and had not given up until late January / early February 2009.

   b)Father’s Exhibit 2:  Two urinalysis drug screen results of 23 April 2009 for Ms D and the father both show no illicit drug use at all.  A drug screen urine analysis for the father dated 14 April 2009 showing no detection of cannabis and a drug screen urine analysis for the father on 8 April 2009 showing cannabinoid detection.  These drug tests were consistent with his evidence to the Court and family consultant.

   c)Father’s Exhibit 3:  COPS entries of 26 April 2009 in relation to [Z]’s father not returning her to her mother.  What I take from that Exhibit is that [Z]’s father has retained the child from almost the commencement of these proceedings.  This behaviour is not condoned by the Court and is yet another matter the mother has to deal with.

   d)Father’s Exhibit 4:  Department of Community Services records to 1 April 2009.  This is a most significant document.  From this Exhibit the short history is this:

   The Department intervened with the children’s care arrangement in February 2008 due to a notification from the children’s day care centre. 

   The Department of Community Services was called to [X]’s day care centre where she disclosed to her carer that she had obtained an injury by “sunburn” and because she had fallen over.  She also disclosed that [Y] was smacked by Mr B when she was naughty. The children were interviewed at the maternal grandparents home where [X] said Mr B was “a meanie and he smacks me when I am painting. When he smacks me I cry”.

   At that time the mother told the Departmental Officer that she was living with her parents in [J] and she only visits Mr B for a couple of days a week and rarely takes the children with her.  It was noted by the Departmental Officer that this information conflicted with the information provided by the day care centre where the mother had given Mr B’s address as her own as recently as 21 January 2008.  Further Police records indicate that the mother was living with Mr B from recent incidents when Police had attended at his home in late January 2008. The grandparents also said the mother had moved out of their home prior to Christmas 2007 and taken the children with her.

   Due to this involvement the children came into the full time care of the grandparents in substantial compliance with the Court’s Orders of September 2007.  In about March 2008 the Department had recommended assistance for the maternal grandmother to care for the children due to her disability.  An Assessment Record was commenced on 26 February 2008 and completed on 29 May 2008.

   From this Exhibit it becomes clear that the only reason the children are living with their grandparents is because the Department of Community Services intervened in early 2008 due to concerns that the children were being maltreated at the Mr B’s home where the mother and Mr B were living with the children.  When the Department became aware the children were living with their mother in contravention of a Court Order they left no one in doubt that unless the children were returned to the grandparents they would be intervening.

   It also becomes clear from that Exhibit that the mother lied to the Department concerning her living arrangements at that time.  The mother was required to present the children to the Albury Base Hospital for examination of their injuries.  The examining doctor did not believe the injuries were of concern.

   At no stage did the mother or the grandparents tell the father of these events.

   The Departmental notes reveal a concern that there were discrepancies in [X]’s story from the disclosure at day care and the first interview at the grandparents home to the interview with the doctor at Albury base hospital.  The child’s story of how she received her injury changed overnight whilst in her mother’s care to a boy at day-care named [N] pushing her over.

   The DOCS Assessment concluded with concerns about the mother’s prior history of drug taking, Mr B’s drug history, his being known to Police and the children’s injuries and statements. When interviewed in isolation, [X] said the bruising was because of sunburn.  She made no mention of being pushed at day care. She stated straight away that Mr B hits her and [Y].  When the children presented to the hospital 24 hours later a new version of events was recited which had not been mentioned by [X] the day before.

   The mother bald-faced lied to the Department in 2008 when she said she lived at [J] with her parents. She did not. The mother said that Mr B was a placid individual. The Departmental notes say this:

   Police however have advised DoCS not to approach this individual without their assistance as he is dangerous. S248’s have been conducted that indicate a previous history that is concerning.

   The children had been injured at some point of time whilst in her care and the Department noted the mother’s reluctance to adequately protect the children.

   The Department records the mother ringing Ms S on 21 January 2009.  It is recorded that the mother told Ms S the matter had been finalised, the children were coming into her care over the next few weeks and the Family Court were to make Orders.  That too was a lie and a manipulation of the Department. The mother then asked when her parenting payments would commence.

   The maternal grandmother rang Ms S later on 21 January 2009 advising that [Y] and [X] would continue to reside with her until further notice.  Ms S said the Department would continue to pay the grandmother for the children as long as they remained in her care.  The grandmother said she would notify the Department if the situation changed.  Ms S said the Department had closed their file.

   I am positive that the Department told the grandmother the file was closed only because the mother had told them Orders were to be made in the Court and that the children were to come into her care.  The file was not closed because the Department had no ongoing concerns but because of the lie the mother told that the matter was resolved and the children were soon to be living with her.

   e)Father’s Exhibit 5:  NSW Police report of an incident between the mother, who was the victim, and Mr B, who was the person of interest, in relation to an incident on 10 January 2009.  The report says:

   the victim and poi have been at their residence.

   During the course of the day the poi has consumed an amount of alcohol. The victim was in her bedroom where the poi has entered and a verbal argument has happened over past events between the pair.

   The victim stated that the poi becomes argumentative when he drinks and claimed the poi told her to leave the residence.

   The victim left and went to the corner… where she contacted police.

   …Police did not observe any injuries to the victim. The victim was calm and not upset. The victim wished assistance to gain some clothes from the residence and wished to leave and stay with her parents.

   The matter was not taken any further by the mother.

   f)Father’s Exhibit 6: Letters dated 22 April 2009 to the mother’s solicitors asking for Mr B to undergo a urinalysis test. Ms D had undergone such test. Mr B refused to undergo the test.

   g)Father’s Exhibit 7: Letter dated 11 June 2008 to the mother’s solicitors requesting that the parties undergo hair follicle testing and random drug screen testing within 24 hours of receipt of written request. The mother’s urinalysis test was taken 28 days later in July 2008 and a hair follicle test was not taken until April 2009. Again the mother did not comply with Court Orders. The father complied with this request from the Independent Children’s Lawyer.

   h)Father’s Exhibit 8:  Letter dated 30 June 2008 to the mother from the father’s solicitors confirming that they had noted the change in her solicitors and to confirm to whom she had given her first hair follicle sample as none had been received by the laboratory.  It also asked that the mother advise them where she was living at that time.

   i)Father’s Exhibit 9:  The father’s Proposed Minute of Order.

   j)Father’s Exhibit 10:  COPS report dated 16 February 2008.  The incident of Mr B assaulting [B]’s mother outside his home.

   k)

   Father’s Exhibit 11:  The Criminal History of the mother and

   
   

   Mr B. Each Mr B and the mother drove whilst knowing their licenses were suspended. The mother’s license is due to be returned to her in 2011.  Mr B has had his licence returned to him.  The father has also driven whilst his licence was cancelled due to unpaid fines. The father was unaware his licence had been cancelled. Once he paid the fines the father had his licence returned.  He did not drive after he was made aware his licence had been cancelled unlike each the mother and Mr B.

   Mr B has a criminal history but it is from some time ago and I accept that his brother, who has a significant drug problem and criminal history, uses Mr B’s name quite often.

   l)

   Father’s Exhibit 12: Volume 1 of the Department of Community Services file in relation to the children. In a report dated

   
   6 February 2006

   from PANOC when the Department had been involved with the mother and her children.  A meeting was held to address the effect of neglect and emotional abuse on the children and provide a safe environment for them.  This was at a time when the mother was pregnant with [Y].

   In the Minutes of a Case Meeting of an interview on

   
   30 November 2005

   with the mother, the minutes note that the mother “said her priorities were to 1) get off speed 2) improve her self-esteem and 3) get some financial counselling.”

   m)Father’s Exhibit 13:  The Brighter Futures intake form contained within the Department of Community Services file.

1. For the mother I read:

   a)Affidavit sworn 31 July 2008;

   b)Affidavit of Mr B sworn 22 April 2009.

2. The mother tendered the following exhibits:

   a)Mother’s Exhibit 1:  Mother’s hair analysis report dated 23 April 2009.

   b)Mother’s Exhibit 2:  Drug screen results for herself.

   c)Mother’s Exhibit 3:  Drug fact sheet in relation to the use of marijuana and the effect on parenting.

3. I read the Affidavits of each of the maternal grandparents sworn

   
   22 April 2009

   .

4. The Independent Children’s Lawyer tendered the following exhibits:

   a)Independent Children’s Lawyer Exhibit 1: Proposed Final Orders.

   b)Independent Children’s Lawyer Exhibit 2:  Serum drug screen of Mr Kingston dated 17 April 2009.

   c)Independent Children’s Lawyer Exhibit 3: Letter from Independent Children’s Lawyer to the maternal grandparents dated 28 January 2009.

   d)

   Independent Children’s Lawyer Exhibit 4: COPS report of

   
   

   Mr Kingston dated 20 February 2009.

5. The bulk of this hearing was taken up with the testing of evidence of each of the mother and father and honesty.  Veracity and truthfulness are key issues in this matter.

6. Ms Meredith Deane, Family Consultant at Albury, prepared two family reports:

   a)Court Exhibit 1:  Family Report dated 23 July 2008 which was prepared for the first hearing which did not take place due to the mother not having undergone hair follicle test in June 2008.

   b)Court Exhibit 2:  Updated Family Report dated 1 April 2009.

Proposals

1. Ms Deane’s report recommends as follows:

   It is recommended that the children be returned to live with the mother and that they spend regular time with the father.

   It is recommended the mother complete a positive parenting education program which is available in the area.

   [X], if she continues to present with emotional and insecure behaviours, she attends an appointment with a child psychologist.

2. All parties agree that whatever Order I make there must be a transition period for the children in moving from the grandparents care to either parents care as the children are used to living with their maternal grandparents.

3. It was apparent at the time of the report writing interviews in March 2009 that the parents had formed a cooperative approach and that they and the maternal grandparents reported similar views about the long term parenting of the children namely that the children live with the mother, be united with [Z] and spend alternate weekends and holiday periods with their father.

4. Ms Deane noted at Page 12, paragraph 42:

   If the Court were to be satisfied that the children were not at risk of the harm in the mother’s or father’s care due to their use of illicit substances the matter may be resolved between the parties.

5. It became clear that the parents had come to an agreement at that time and that the father had agreed that provided he was satisfied as to the mother’s drug use the children should live with the mother.

6. His position changed at the hearing and the mother sought to criticise him for this change of position.  To do so was grossly unfair for reasons I shall set out.

7. The Orders sought by the father at the hearing were that the children live with him and his partner and spend alternate weekends with the mother and grandparents, half school holidays and other times as arranged.

8. The mother’s application is that the children primarily live with her and spend alternate weekends with their father, half school holidays and other times as arranged.

9. Had these parents lived closer than the distance of one and a half hours each way this would have been a matter where some form of equal sharing of time with the children would have been appropriate. That however is not possible in the circumstances.

10. The maternal grandparents support their daughter’s application that the children live with her.

11. At the end of the day on the finest of fine balances the Independent Children’s Lawyer submitted, for reasons which I will refer to later, that the children live with the father and spend time with the mother.  That was a significant change from the Minute of Orders tendered at the commencement of the hearing where the Independent Children’s Lawyer proposed that the children live with the mother.

12. The reason for that change will become apparent as I review the substantial evidence in this matter which.  The most telling evidence was not in the parties’ affidavit but in their oral evidence as a result of answers to questions based on subpoena material.

Father’s Evidence

1. The father gave his evidence first.

2. The father is a part time [occupation omitted] with the [F] Club and earns about $18,000 per annum from that job.  He is seeking additional work to supplement his income.  He has four children and a partner to provide for and he wishes for [X] and [Y] to also live with him.

3. The father [works] on Tuesday and Thursday and spends most of Saturday [at work].

4. Much was made at the hearing that the father’s partner, Ms D, had a broken wrist.  It was clear that the maternal grandparents, the mother, and her partner Mr B believed that the father had pushed Ms D over and that was why her wrist was broken.  Both the father and Ms D gave completely consistent evidence which was that Ms D had fallen over a toy at their home whilst the father was taking the children back to the grandparents in February 2009.

5. When the grandmother was cross examined in this matter she said that [X] had commented “Daddy pushes Ms D”. The maternal grandmother then said she had asked [X] “but he would only be playing” to which [X] had replied “No, he pushes her really hard”. The maternal grandmother said she had put [X]’s comments together with the evidence of Ms D’s broken wrist and formed the view that the father pushed Ms D.

6. I do not accept the grandmother’s version.  I accept what the father and Ms D said, that she tripped over and broke her wrist.

7. The breaking of this wrist is of concern because Ms D said her bones are not healing as they should and she has to have bone density test and a MRI some time in May.  Her health may be comprised at this time due, in part, to the birth of her healthy twin daughters.

8. Ms Deane formed the view that the father presented with a very angry and distrustful attitude towards the mother.  As the evidence unfolded that angry and distrustful attitude towards the mother is based in reality. Certainly the father should be doing something about this attitude and I note he and Ms D are attending counselling at [F].  This does not change the fact that the father has reason to be distrustful of the mother.

9. Mr Kingston painted a picture that Mr B may be a drug dealer and is known to the Police. The Department of Community Services file, Father’s Exhibit 4, reports he is known to the Police and that the Departmental officers were advised not to approach him.  The father is justified in his concerns about Mr B.  

10. However, the real justification of the fathers concerns about Mr B became clear from Mr B’s evidence in the witness box.

11. The children lived with Mr B and their mother from about November 2007 to late January / February 2008.  During that short period of time the Department of Community Services became involved. The children have not lived with the mother and Mr B since that time and have not spent overnight time with them. [Z] has lived with her mother since about January 2009. She too lived with her grandparents from February 2008 despite there being no Order stopping her living with her mother at Mr B.

12. When the father, consistent with his commitment to his daughters, returned from Queensland to be nearer to them in late 2008, to the mother and grandparents credit they agreed that the children should spend alternate weekends with him.  That had not being provided for in the Court Orders.

13. That arrangement worked well and during that period of time the parents obviously came to an understanding with each other that the children should be living with their mother and all three sisters united.  The father was spending regular time the children.  The mother had clearly progressed significantly in her own personal habits and lifestyle since the father last saw her.  The grandparents were still involved and all parties had an amicable relationship.  The father was unaware of many of the concerns raised in the subpoenaed material.

14. However, when the father received the results of the mother’s hair follicle test which showed she could well have been using amphetamines at a point later in time than she disclosed in her affidavit, namely December 2007, this together with the subpoenaed material clearly caused him some disquiet.

15. The father had been completely unaware of the involvement of Department of Community Services with his children in January / February 2008.  Those issues had been minimised and glossed over by the mother, the grandparents and Mr B in their affidavits.  The father was unaware of the extent of Mr B’s assault on his former partner at his home when his fourteen year old daughter [B] was present.  The father was unaware of the two interventions of the Police at Mr B’s home while the mother lived with Mr B.

16. The father knew that [X] had done a poo in the backyard and his question to the mother and Mr B was “why would she do that? She is toilet trained”.  He was the only parent who showed some insight that this behaviour may have been an indication his daughter was emotionally suffering.  It is clear to me from the father’s evidence that he believed this had happened recently, not the previous year when the child was but three years of age.  He was unaware Mr B had booted her up the bum at that time.

17. After these matters came to his attention the father indicated to the mother and grandparents that he no longer agreed to the children remaining in the mother’s care.  He would take the matter to Court and have the evidence tested.

18. At paragraph 45 of the updating family report Ms Deane reports:

    In regards to Ms Roche’s illicit substance usage, she says she has abstained and is committed to making healthier life style choices and remaining drug free in the long term. 

19. I accept that, at worst for the mother, the evidence would show she may have last used methamphetamine in about March 2008.  I accept she is possibly and likely drug free.  The report writer goes on to say:

    Ms Roche is very motivated to have the children return to her parental care, and she has good insight about the adjustment period for both her and the children, if this were to occur.  Reports from all parties indicate that [X] particularly presents as confused, insecure and emotional and she needs good quality attentive parenting from Ms Roche and Mr Kingston.   Ms Roche said that she would be willing to link to support services including a positive parenting program, and if required specialist professional assistance for [X]

    The maternal grandparents hold the view that the mother over the past several months has presented as responsible, mature and very loving towards the children.  They report that they do not see any signs which would concern them about Ms Roche’s physical or emotional presentation.   The maternal grandparents have also observed [X] and [Y] with Mr B and they hold no concerns about Mr B’s personal nature or the quality of his parental care. 

20. I have formed an entirely contrary view of Mr B. I find him a significant concern in relation to the welfare of the children.

21. The father said in his evidence that the mother has said all sorts of things to him.  I can well believe that to be the case.

22. The father set out the sad and sorry history of the parent’s relationship in his affidavit of 2 April 2009, consistent with his somewhat honest approach in this matter.

23. The parties commenced a relationship in around 2002 and moved in together in a residence in Albury for a short time before the mother moved out.

24. They then moved in with the maternal grandparents in [J] in 2003. They lived together in late 2003 / early 2004 moving to a cottage where [X] was born.

25. Between 2004 and 2005 the mother and father lived with [X] in [L].

26. In May 2005 the parties separated and the father moved to Albury.  The mother, [X] and the mother’s older daughter [Z] also moved.

27. The father moved again in November 2005 to be closer to [X] and the mother.

28. In 2006 the mother and children moved in with the father and [Y] was born.

29. The mother admitted herself into a rehabilitation centre in Wagga Wagga in June 2006. The father cared for the children with, I accept, the assistance of the maternal family whilst the mother sought help for drug addiction. That arrangement was by agreement between the Department of Community Services, the mother, the father and the grandparents. The mother did not complete the course at the rehabilitation centre.

30. The children returned to the mother’s care in November 2006 on the condition that the mother live with her parents. That arrangement lasted about four months.

31. In April 2007 the mother and father agreed it would be good if they moved away from Albury and took their children with them to the Gold Coast in Queensland.  This event occurred.  The father initially moved with the children, by agreement with the mother, to the Gold Coast. Any attempt by the mother to say it was other than by agreement I simply do not accept.  These parents were trying to get out of the drug milieu and the lifestyle they were living in the Albury area.

32. I accept that the mother travelled to Queensland in May 2007.  On her evidence she said she was living there.  She enrolled [Z] in school.  The mother complained in her affidavit that the father would not let her spend overnight time with the children.  However, she was living with her cousin or a friend in a property that had no accommodation for the children.  That came out in the evidence.  The father was living with his sister with whom these children still have a strong bond.  The father was still smoking marijuana at this time.

33. In August 2007 the mother unilaterally, with subterfuge and advance planning, took the children and removed them by train back to the Albury area.  The father was devastated and began to heavily use marijuana.

34. The father brought a recovery application to the Court and Orders were made on 12 September 2007 that the children live with the mother on the condition she lived with her parents.

35. In October / November 2007 the mother moved with the children to

    
    

    Mr B’s residence.

36. The children were returned to the grandparents care in February 2008 after the Department of Community Services involvement.

37. On 4 August 2008 Orders were made by me that the children live with the maternal grandparents.

38. The children were living in their father’s sole care in Queensland with the assistance of his sister from late April 2007 to August 2007.

39. The mother has tried to rehabilitate herself twice in the past for her addiction to amphetamines.  It may be that she has now succeeded in her rehabilitation.

40. I was not impressed by the father trying to blame the mother for his use of amphetamines. He is fourteen years older than the mother. He would have known what he was doing. The father has only really given up using cannabis late January / early February 2009 and he is in the very early stages of his drug rehabilitation.

41. The father said the mother told him in early 2009 that [X] was having difficulty with Mr B showing her discipline. This concerned him and he wanted to talk to the mother and Mr B about it. The father’s concern arose when [X] told him in that she did not like Mr B in February 2009. As the father was contemplating agreeing to the children living with their mother he wanted to sort out why his daughter would say this.

42. The father said that he wanted to speak to Mr B because [X] had said to him that she did not like Mr B.  That is a consistent theme throughout this material.  [X] does not like Mr B.  All parties agree that [X] makes up stories.  Ms D, the father, the mother, and the grandparents all said so.

43. [X] said she did not like Mr B to her father and she told the Department of Community Services Officers and her day care centre teachers that Mr B smacks her and makes her cry.  Having seen Mr B in this witness box and observed his arrogant answers to questions and his lack of insight and understanding into the needs of a young child I can well understand why [X] does not like Mr B.

44. The father and Ms D use the time-out method and naughty chair or being sent to their room as a punishment for misbehaviour.  They do not use physical discipline on any of the children.  Physical discipline has only occurred in the mother’s household at the hands of Mr B.

45. The father said in his affidavit of 2 April 2009 that if the mother was abstaining from drug use and not posing a risk to the children:

    I do not oppose the children living with the mother.

46. I am not so concerned about the mother’s use of drugs at this time posing a risk to the children. I accept she has made significant progress in permanent rehabilitation from, if nothing else, my observations of her over five days and in the witness box.  

47. What concerns me is that I cannot accept a word she tells me.

48. In his affidavit sworn 27 April 2009, the father describes in some detail the behaviour he and the mother engaged in when they were using amphetamines and marijuana and showed some remorse and understanding of how poor this was for the well being of his children.  He describes in quite thorough detail his downward spiral into heavy marijuana use after the mother unilaterally moved the children from his care.

49. The father met Ms D on 13 July 2007 and it would appear she is a very positive influence on him.  

50. The father said the mother told him at Christmas 2008 “I want you to hear first hand, I no longer use needles. Me and Mr B use speed on an occasional basis. We go out every couple of weekends and have a couple of lines each”.  The father said he could not believe she was saying this.

51. The father said he discussed his cannabis use with the mother and Mr B and Mr B told him he smoked cannabis.  In his affidavit Mr B denied using drugs yet in cross examination he admitted he uses marijuana occasionally at parties and on camping trips.

52. The father asserted in his affidavit that mother offered to provide him with cannabis and that she and Mr B were dealing from the house as they needed the money. The mother denied this in cross examination. This evidence about selling drugs from her home, offering the father drugs and her no longer using needles but using lines on a weekend is extraordinary given that the father did not mention any of this to the family consultant. Thus I reject those statements by the father in his material.

53. The father said he last used amphetamines with the mother in November 2007. That would seem to be apparent from his hair follicle and drug test. It is clear that the parents have been serious drug addicts. The father even introduced Ms D to marijuana. However, she ceased smoking when pregnant and has not smoked since. She has been a positive influence on the father.

54. The father said in cross examination that he realised in January 2009 that if he did not stop smoking cannabis he would never get his girls back. Cannabis use, he said, had stopped his motivation, made it harder to look after the children, and rather than spending time doing activities with them he watches television on the couch and does not interact with the children. That was an accurate description of the effect of cannabis use. The father agreed that when he was withdrawing from cannabis use he was irritable, hard to live with and he was not a good parent.

55. The father agreed he owed the maternal grandparents a significant debt of gratitude for caring for his children when he was unable to.

56. The father said that when they all moved to [F], he and Ms D were struggling in their relationship and her children were struggling, particularly her eldest daughter [T].  Ms D was concerned that [T] in particular missed Ms D’s brother, [M]. Once the internet was established and she was able to see him daily by Skype her demeanour improved.

1. It was put to the father that it would simply be too much for Ms D to care for the children. The father said “no” and that he and Ms D were confident she would be able to do it.  However, there is no doubt that seven month old twins and four other children ranging in ages from eight to three would test anyone’s patience and stress levels.

2. Of real concern was the following evidence from the father.  He said:

   I was told by the maternal grandfather that if I did not settle out of Court I would not see the children up until the Court date.

3. True to these words he did not.  More importantly, the children did not see their father.  Since that time without any justification, the children have been withheld from the father, Ms D, and their sisters for no good reason other than that the father no longer agreed to what Ms J Roche wanted.  That conduct is most concerning when one has regard to the mother’s evidence and the view I have formed of the mother that she will do anything to achieve her ends.  Her end at the moment is to have her three children united in her care.

4. The maternal grandfather said he was concerned about the father not having much time with the children on Saturdays because of the father’s [work] commitments.  That is a matter for the father and Ms D to work out.  This is not of sufficient concern to deny the children time with their father and twin sisters. The children are at no risk of physical harm in their father’s care on a weekend.  This was poor conduct on the maternal family’s part.

5. The father denied the conversations the mother alleged he had with her when she said the father told her he was going to score some pot for himself.  I reject those statements for two reasons at least.  The mother did not say same to the family Consultant and secondly she let the children go with their father for the weekend with this asserted knowledge.

6. A very unsavoury incident occurred shortly after Australia Day in 2009.

7. I accept Ms D’s evidence that the mother rang them and said:

   Mum and dad have dropped the kids off with me, left them with me permanently because the Centrelink payments have stopped.

8. I accept that caused the father real concern because it was clearly in contravention of the Orders made by me in August 2008.  That is why Ms D and the father became so upset with the grandfather.

9. It was simply not true and I accept the mother was the cause of this misinformation and anger from the father and Ms D. The mother’s conversation with Ms D and the father are consistent with her conversation to Ms S in January that the matter had settled, the Family Court had agreed to Orders for the children to live with her and that all the children would be retuning to her care over the next few weeks.

10. I accept that the children did hear Ms D yelling at their grandparents as they later spoke to their Nan and Pop about this. Ms D and the father would not accept that the children may have overheard them.  However it is highly likely they did given how very upset the father and Ms D were in believing the maternal grandparents had dumped the girls on their mother in contravention of Court Orders merely because a flow of money had stopped.

11. The father agreed that he told the mother and Mr B that he and Ms D were fighting early in 2009 due to their move to [F].  The mother and her parents sought to make much of this.  However I will not make an adverse finding against the father and Ms D because they were honest.  Acceptance of a problem is the first step in dealing with a problem as the father and Ms D are doing.  The mother shows no such capacity.

12. The father agreed that he and Ms D fight and that [T]’s relationship with her father is very troubled.  He agreed he told [T] on one occasion that if she did not behave he would take her to the Police Station.  No such event occurred.

13. The father agreed that [T] needs some special attention and assistance as does [X].

14. The father said he will attempt to obtain additional work at [workplace omitted].  He would start early and cycle to work so that Ms D had the car.  In the alternative he may try for a job at a [omitted] as he has started a [omitted] course but is yet to finish it. The father receives Newstart Allowance at the moment and Ms D receives Family Allowance Part A and B.

15. The father agreed that the children moving away to live with either he or the mother would be a significant change to their living arrangement, and particularly so for [X]. The father realises she has a need for counselling at the moment and he and Ms D have discussed this issue. It became clear from Ms D’s evidence that they have discussed the changes for the girls in living with them and how to help them and specific counselling for [X].  Ms D is not shy in asking for assistance.

16. The father said “Me and Ms D think we can make it work.”

17. The father agreed that there would be a big impact on [Z] if [X] and [Y] came to live with him as she would not see them as frequently as she does and she would be separated from her sisters. However, he was keen for [Z] to spend as much time as possible with him and Ms D.

18. It became apparent that the father had involved the children in this matter in discussing with [Z] what would happen if her sisters came to live with him in [F].  That was an inappropriate thing to do and I told the father as much in the witness box.

19. The father said he believes that he has been able to kick his marijuana habit because the last three or four months have been extremely stressful and he last used marijuana in February 2009 and has not had a smoke since that time. That statement may have some force.  However, there was a final hearing listed in August 2008 which did not go ahead because the mother failed to provide her hair follicle test, and the father was still smoking at that time and continued until February 2009.

20. The father admitted that in 2006 his gambling got out of hand.  He was spending lots of money on the poker machines and he was smoking cannabis.  He had seen Doctor S, a psychiatrist, who told him parenting and drugs do not mix.  The father said he heard this and accepted it but continued in his ways particularly smoking dope.

21. It was put to the father that he hesitated in that answer.  The father said he did hesitate because the doctor told him to “fuck off Ms J Roche” and the father said he could not handle hearing that or doing so at that time.

22. It is clear neither of these parents could handle what they were being told at counselling and they continued using drugs and pursuing their selfish, immature, drug affected lifestyle at the expense of their children’s well being.

23. I accept the father was aggressive towards the mother during their relationship, he pulled a screen of the hinges, and he yelled at her and behaved very poorly at times.  The father accepts that he can be and has been aggressive in the past.

24. I am concerned that the father does not realise that the children do observe his aggressive behaviour and that they do observe he and Ms D fighting verbally and that they become distressed by this.  The children have reported these concerns to their grandparents and mother.  Similarly the children have reported Mr B’s behaviour to their father.

25. The father and Ms D are seeing a Counsellor through the Medicare system.  The father is trying to re-establish a relationship with his own father and his daughter [C] who has her own children, his grandchildren.  The father has another daughter [R] who lives in [G].  At the same time as re-establishing these relationships he is seeking for his two middle children to live with him.

26. The father pays no child support for any of his children or the minimum due to his lack of income.

27. The father agrees that Ms D does and has yelled at the children as a form of discipline.  The father has spoken to her about it and they are managing it.

28. It became clear that [T], like [X], is a somewhat damaged child.  She witnessed her father, on Ms D’s evidence, try to strangle her mother when they separated.  Yet Ms D says [T] can spend time with her father who apparently wants little to do with either child and has been violent to the mother in their presence.  I was concerned about Ms D’s attitude to this.  However she is of the view that children have a right to a relationship with their parents.

Evidence of Ms V

1. The forensic scientist who did the hair follicle testing, Ms V, was cross examined by all parties.  Although the evidence cannot tell me when the last drug was taken or the quantity taken it is clear the father’s tests are consistent with his evidence that he has not used cannabis since late January / February 2009.

2. The mother’s hair follicle sample is not consistent with her evidence in her affidavit that the last time she used methamphetamine was December 2007.  It is consistent with her reporting to her doctor in June 2008 that she last used speed about 10 weeks ago.  I am satisfied this would have been March 2008 and I am satisfied there was a very small amount of methamphetamine detected in the mother’s hair and no cannabis.

Evidence of Ms D

1. Ms D’s evidence about breaking her wrist was consistent with the father’s evidence that on 8 February 2008 the father was not at home and that she fell over a toy in the yard.  She agreed the father took her to the hospital the next day.

2. [T] has been going to counselling to learn to deal with her difficulties with her father.  Ms D has organised this.

3. Ms D described the violence perpetrated on her by the father of her older children.  However, she says he is not the same man he was when they were together and he is in a healthy relationship. Although I was impressed with her hopefulness that her elder daughters’ father had changed his behaviour, to expose [T] to a man who attempted to strangle her mother may not be in her best interests at this time.  In any event this father seems disinterested in both his children.

4. Ms D agreed she was very unhappy when they first moved to [F].  She missed her mother, she could not speak to her or her brother, and [T] was acting up due to the move as well.

5. In relation to the Australia Day incident, Ms D said she did use the word “fucking” but not “dickhead”.  She did use the words “liar” and “breaking Court Orders” and she said she was very loud and she yelled.

6. Ms D was very sincere in her apology to the maternal grandparents for her poor behaviour on that occasion.

7. Ms D said she had asked [X] where she had been dropped off on Australia Day and [X] backed up part of the mother’s story and so

   
   

   Ms D believed that what the mother had told them was true.  But of course it was not.

8. Ms D gave evidence consistent with the father that recently, and particularly since they started counselling, they have not had as many fights and they are learning to deal with the difficulties and stresses in their lives.

9. Ms D agreed that with the father keeping up his coaching position and finding another job he would be working the equivalent of a full time job.  She understands she would be responsible for caring for all of the children.  She was asked if she had any practical difficulties.  She said:

   No. it is easier to have six than four because they all entertain and play together when they are all together.  They are quite happy.

10. Ms D said that she finds [T] is now much happier than she has ever been in her life particularly since skype has been connected and she can speak to her Uncle [M] daily.  [U] does not have the issues [T] has and she sees everybody as her friend.

11. Ms D anticipated that [X] would need counselling if she came to live with them because of what [X] had said to them: that Mr B hits her and is a bad man. This was not in her affidavit or in the family report. Ms D said she did not put those statements in her affidavit as she did not know them to be a fact but it was what [X] has told her.

12. It was only after reading the Department of Community Services report which occurred after her affidavit was filed that her and the father’s concerns were heightened.  Ms D’s concerns about Mr B are consistent with those of the Department of Community Services.

13. Ms D said she has issues getting [X] to leave; she has to drag her off the kitchen bench. Ms D says she and the girls have lots of fun together but of course they argue, fight for attention and do what children do.

14. Ms D said she did not observe much of a change in the father’s behaviour between when he was using cannabis and when he was not.  This was quite different to the father’s evidence.  He said there was a substantial difference.  Ms D said he was quieter and a little down but she would not really detect much of a change in him if he was to use again.  She doubts if he would use again as it was not a good thing to do.

15. Ms D was asked if having the children live with them was putting extra pressure on her.  She said:

    I’ve done a foster carers course and so I feel ready to cope with this. I get on well with Ms J Roche and can easily speak to her.

16. Ms D agreed that the father’s use of marijuana was one of the tensions in their relationship.  He has always been able to assist in the care of the children but she wanted him to stop because it was not good for him.

17. Ms D said she does not think there will be a repeat of their poor behaviour as occurred around Australia Day 2009 due to the counselling they are having, the positive steps they have been taken and that they are now settled in [F].  They are learning new ways to communicate. Furthermore this hearing would be over as the proceedings have also taken a toll on them each.

18. Ms D was extremely supportive of the father’s endeavour for the children to live with him.  Ms D said she likes the smaller place, she never really wanted to live on the Gold Coast, and the father and she have now settled well into [F] and she is pleased with the progress her children are making.  The twins are very healthy and are thriving.

19. She assigns the father $20 a week to gamble and that was consistent with his evidence.  Ms D said if the children lived with them they would need a people mover and they have two friends who will lend them a car until they are able to purchase one themselves.

20. Ms D admitted that she had yelled at the children and she was learning to stop that as a means of discipline. This was consistent with the father’s evidence that he had asked her not to do it. She never hits the children.

Mother’s Evidence

1. The mother admitted that the use of amphetamines had been a dominating factor in her life and that not even the birth of her three children had caused her to stop using that most dangerous drug.  The mother said that she stopped using while she was pregnant and got back onto it after the birth of the children.

2. The mother agreed that the Department of Community Services had been involved with her and the children.  She threatened suicide in July 2004 at a time when both [Z] and [X] were living with her.  The mother agreed her parents have always been there to assist her and to care for the children when she was unable to.  That is accepted by the Court.

3. The mother admitted that she spent all the family benefit money in one week in 23 October 2006 at a time when she and the father broke up.  The father behaved badly because all their money had been spent on the mother’s drugs.  She agreed that she tried to commit suicide at that time.

4. It is fairly clear that the mother had seen various counsellors but none had been able to assist her to give up the drug habit and her children have seen her taken away in an ambulance on at least one occasion.

5. The mother alleged in her affidavit material and to the family consultant that the father had been violent to her in the relationship and she suffered at his hands. This is inconsistent with the domestic violence form she filled out at the Department of Community Services and the hospital in 2006 where she stated that there was no domestic violence or fear experienced in the last year from the father’s behaviour.

6. The mother said that the reason she lied on this form at the time of her admission to hospital on her attempted suicide was that he was he person bringing the children to her and if she told the truth she would not have been able to see the children.

7. The mother was admitted two months later to [E] Rehabilitation Centre. The mother said exactly the same thing there: she had no fears of the father and there was no domestic violence. She failed to stay and complete the course. The mother remained at the hospital from

   
   

   10 August to the 28 August and she admitted she left without telling anyone. The mother said she hitched a ride from Springhurst back to Albury in August 2006.

8. This history is consistent with the mother having a significant drug history and personal problems.

9. It became clear that the mother lied in Paragraph 7 of her affidavit filed 24 October 2007 in the Canberra Family Court proceedings.  In that affidavit she said that she had given up amphetamines and drugs.

10. In her affidavit filed in these proceedings, the mother said that the last time she used amphetamines was December 2007 and previously in September 2007.  She admitted she lied in the Canberra proceedings because she wanted to present to the Court at that time she was drug free.  Further she did not tell the Court she left prior to her drug treatment being completed and she made out in that affidavit that her significant difficulties and long history of drug use were over.

11. Similarly she lied in these proceedings in her affidavit of 31 July 2008 when the matter was listed for a final hearing when she said she had not used amphetamines since September 2007.  That is inconsistent with her affidavit filed in these proceedings which asserts she last used amphetamines in December 2007.

12. The mother is not a witness of truth and will lie to a Court and those in authority to achieve her end. However, to her credit the mother admitted freely and openly that she had lied in 2007 and 2008 to the Court about her drug use.

13. The mother admitted that she and the father both believed moving to Queensland in 2007 would be beneficial for them and their children and she would not have let the father have care of the children and live with them on his own had she not been confident with him.  This is not consistent with her affidavit evidence.

14. The mother had to admit that she was grossly unfair in criticising the father in her affidavit for not permitting her to spend overnight time with the children in Queensland when she simply did not have the accommodation for such time with her daughters.

15. It became clear that the father had organised a birthday party for [X] whilst in Queensland and he contacted the mother saying “Would [Z] like to attend?”  The mother said that there was a misunderstanding as to why she did not turn up to collect [Z] at three o’clock as the father asserted.  The mother said she thought that collection was five o’clock at the park.  In any event the mother did not collect [Z] until 6.45pm that night.  The mother said the reason was she got lost.

16. I do not accept that the mother got lost or that there was a mistake.  The mother was on a frolic of her own at that time.

17. The mother said that her daughter [Z] did not miss any school while in Queensland.  Without any objective evidence from the child’s school in Queensland I would not accept what the mother said.

18. The mother admitted that she lied to the father when she removed the children from Queensland in August 2007 and spirited them away on a train to Albury.  She said that she would meet the father at a railway station.  The mother was already on her way to Albury at the time the father went to collect his daughters.  The mother showed little remorse or insight into the effects of such a poor decision upon the father and most importantly the children.

19. The mother wanted the children back, she felt she was ready to have them back and so the mother took them.  In fact, the mother did not notify the father until six thirty the following day of what she had done.

20. The mother agreed that she breached the Order made in the Federal Magistrates Court, Brisbane, on 12 September 2007 that she have the girls in her care provided she remain living with her parents. The mother admitted that she breached that Order again and again. She admitted that she did not think to tell the Court that she had breached Court Orders in November 2007 when she moved the girls to her and Mr B’s home.

1. It was put to the mother that if she could not live with her parents, particularly her mother, did she think of leaving the children with her parents such that in part the Court Order was complied with. The mother answered “Me and Mum don’t have a good relationship when we live together”. She was asked “You knew this before the Orders were made in September 2007?” and the mother said “Yes”. It was put to her “You only agreed to these Orders to get your children back”.  The mother agreed that was the case because she knew when the Orders were made in September 2007 that she could not live with her mother.

2. There is nothing in either the grandparents or the mother’s affidavit as to the reasons why the mother could not live at her parent’s home in accordance with the Court Order in November 2007.

3. The mother said again and again “Things are fine with Mr B and me”.  The mother said she was not suggesting that she and Mr B had no difficulties.  She said they have had normal family difficulties.

4. It was put to the mother that Police were called to her home in February 2008.  The mother said that this involved an incident between Mr B and his ex-partner.  The mother gave no detail in her affidavit of that appalling incident and Mr B’s thuggish behaviour towards the mother of his older children.  The mother admitted that the Court probably should have known about it.

5. She was asked if she remembered the Police coming over in January 2008. The mother said she only remembered a welfare check. The mother said does not remember anything regarding Mr B and his former partner as it really had nothing to do with her.

6. This incident had everything to do with her when the mother proposes that I make an Order that I allow her two younger children live with her and Mr B at his home.

7. The mother said she stayed inside while Mr B went out to speak to [B]’s mother.  The mother was asked if she heard Mr B say “Did you tell the fucking kids I was coming over to bash you?”  The mother said no, she did not, but when [B] heard the yelling she walked out the front door.  The mother denied hearing [B] saying “Dad, stop hitting mum”. None of this was put in the mother’s affidavit.  Fortunately, all her children, [Z], [Y] and [X], were at her parent’s home at this time.

8. The mother said that Mr B’s behaviour is not a problem for her and that it is between him and his ex-partner.

9. It was put to the mother that there was no Order that [Z] could not live with them. She was asked why was it that [Z] has lived at the maternal grandparents place with [X] and [Y].  The mother said that DOCS said it was a good idea.

10. I find the reason DOCS said it was a good idea is because of their concerns of the behaviour of Mr B towards these young children.  Those concerns are echoed in this case.

11. In regard to the intervention of the Department in late January 2008 everyone agreed that [X] had no bruises but [Y] did.  It was put to the mother that [Y] told the day care worker that she was smacked by

    
    

    Mr B when she was naughty and [X] told the DOCS officer Mr B was “a meanie, he smacked me when I’m painting and he makes me cry”.  The mother stated she had no idea what the girls had said but she admitted that she knew that the Department was concerned that Mr B had caused bruising to the girls.

12. The mother admitted she lied to the Department when she said that the she had been living with her parents in February 2008.  It is clear as a bell that she was living with Mr B and had been since November 2007.

13. It was put to the mother that the Department told her she should be living in her parent’s home with the children, and not Mr B, and that Mr B was not to have any contact with the children.  She agreed.

14. The Department said they believed that [X] had been coached to change her story and the only person that could have coached her was the mother.

15. It was put to the mother that the Department was concerned because the mother had lied to them about where she was living.  The mother admitted that this was correct.

16. The mother admitted that she did not tell the father about the Department involvement, their requirement that she take the children to Albury Base Hospital and their examination by the doctor.  The mother said she did not do so because there were no concerns raised by the doctor at the time.  The mother admitted that she should have told the father.

17. When one reads paragraphs 76 and 77 of the mother’s affidavit, it is clear she has whitewashed this entire event.  The Departmental files are quite different.  The Departmental file, Father’s Exhibit 4, tells quite a different story.

18. The mother says, Paragraph 76:

    In February 2008, I was at my parents after collecting the children from school. A caseworker from the Department attended. I was informed that someone had reported [Y] has bruises. After interviewing us and the children separately, the caseworker said “You have seen the court Orders and the children need to stay living at your parents”. I discussed this with my parents. We agreed that I could not live them again. The children remained with my parents. I was directed to take both [X] and [Y] to Albury Base Hospital. Within twenty four hours I did so.  I do not recall the name of the doctor, he said to me “I can’t see anything wrong with these children and I have checked thoroughly, I will send a report back, that it is clear”.

19. This is the Departmental Record of conversations with [Y] and [X] on 26 February 2008:

    [X] had disclosed her assistant she had obtained the injury by “Sunburn” and then because she had fallen over. She also disclosed that [Y] was smacked by Mr B when she was naughty.

    Attempted to interview both children but [Y] was two young to have a meaningful discussion with. [X] who is nearly four disclosed that Mr B was meanie and smacks me when I’m painting. When he smacks me I cry. When I tried to get more information she said “that’s enough answers”.

    Interviewed b/m in presence of grandparents. She said that the injury was there when she picked up the child up from day care and thought it must have occurred there. She stated that she never let the children out of her sight when with Mr B, and had never seen him hit either child.

20. That was a lie. Mr B on his own evidence said he had kicked [X] up the bum when she was aged three.

21. The Mother stated that she was living in [J] with her parents. That was a lie.  The Department notes:

    This info conflicts with info provided by Day Care Centre which indicates that she is putting Mr B’s address as her own.

22. The Departmental files note that the grandparents did not offer any of this information of the mother’s failure to comply with the Court Orders to the Department.

23. The Department opined:

    This would indicate that the children, although loved, are not being protected by the grandparents.

24. The mother was advised by the Department:

    The children should remain at the address where the Family law Court believed them to be until that process was complete and that Mr B should not be allowed access to the children until DoCS has concluded its assessment.

25. The father had no idea that any of this had happened.

26. The assessment record of the Department indicates that:

    Police …have advised DoCS not to approach this individual

    
    

    (Mr B) without their assistance as he is dangerous. 

27. This is the Departmental Record of the interview with Dr G at Albury Base Hospital:

    Dr G stated that as part of his examination he spoke to [X] and asked questions about her black eye. He advised that [X] told him that her black eye was the result of a child, [N] at day care striking her.

28. This change in story is why the Department believed that [X] had been coached.

29. On 21 January 2009 the mother called the Department and spoke to

    
    

    Ms S, who is a caseworker for this family and who assists the grandmother:

    Ms J Roche advised that her and her ex-partner (and father of her children) have resolved their issues through the family court and have come to an agreement that the children will be returning to her car. Ms J Roche said that the family law court proceedings are being finalised and said her two other children [X] and [Y] will be returning to her over the next week. Ms J Roche advised that [Z] returned to her care last Sunday 19.01.09. I advised Ms J Roche to phone the department the day the children return to her care so I can stop the payments to the children’s grandparents. Ms J Roche asked if she was required to do anything by DoCS when the children return to her care. I said not as it’s been resolved by FLC. Ms J Roche said that she’s worried that her parents won’t believe her that DoCS don’t require her to do anything. I said to Ms J Roche that if she wants to her parents can call me and I will explain to them on her behalf. Ms J Roche said she will do this. Ms J Roche advised that she was now going to centrelink to fill out the paperwork to reinstate her payments for the children. Ms J Roche said she has just moved into a house and us busy organising the children for school next week, Ms J Roche said she does not require any assistance/support from DoCS at this stage but will request assistance if needed in the future.

30. The maternal grandmother rang Ms S after the conversation the mother had with Ms S and advised:

    [Y] and [X] will continue to reside with her until further notice. I thanked Mrs C Roche for letting DoCS know and advised that DoCS will continue to pay her for the two children so long as they remain in her care. Mrs C Roche will advise DoCS of this situation changes.

31. The mother had rung the Department and told them that everything was well, that the matter had been resolved, and that she would be going to Centrelink for her payments. That was a lie, a mischief and wrong. This is consistent with the mothers continued behaviour throughout these proceedings.

32. The Departmental records bear no relation to the mother’s gloss over in paragraphs 76 and 77 of her affidavit.

33. The mother said:

    I didn’t think the Department involvement was such a big issue because the doctor said the girls were ok.

34. It was put to the mother that the Department said they had removed the children from her because she was unreliable, not a teller of truth and that she knew if she did not return the children to her parent’s home the Department would remove the children from her care.  The mother said “yes, I knew that”. 

35. The mother certainly did not tell the family report writer any of this and the father had no idea.

36. [Z]’s father has retained her and apparently said to the mother that he is not returning her because “Mr B hits her”.  [Z] has been in the mother’s care since about January 2009.  The mother believes that the father in these proceedings is the culprit here and that he is spreading rumours about what is happening to the child in the mother’s care.  The mother could not possibly conceive that [Z] herself may have told people that she is scared of Mr B.  [X] has expressed fear of Mr B to her father and others.

37. The mother said that she and Mr B have had no serious problems. The mother did not believe that her calling the Police to retrieve her items after having an argument with Mr B in January 2009 was serious.  The mother did not tell that to Ms Deane nor did she put that in her affidavit.  Father’s Exhibit 5 states:

    The victim left and went to the corner of [roads omitted] where she contacted Police…The victim wished assistance to gain some clothes from the residence…

38. This occurred only a few months ago:

    Police attended the residence where the poi was spoken to. He appeared slightly affected by alcohol.

39. Although the mother was not injured, she certainly did not feel able to take her clothes from Mr B’s home at that time.

40. The mother did not admit she had deliberately concealed this information but there can be no other explanation for her behaviour.  This incident happened in January 2009 and she knew it would go against her.

41. The mother’s words to the Police in their records that Mr B “becomes argumentative when he drinks” are a clear indication that he does drink and does become argumentative.  The mother lied to her parents about why she was coming back to their home as well.  They were not aware of the Police involvement either.

42. The mother could not escape that the stability and the nature of her relationship with Mr B and his relationship with her children was crucial to her case. I find that where there is even a hint that this relationship is not perfect and supportive, the mother will not tell the truth and has at times simply outright lied and hid the truth.

43. The mother said she understood that it was an issue whether Mr B took drugs. She said he did not take drugs. Mr B’s affidavit evidence was that he did not use any illegal drugs. This was not consistent with his cross examination when he said he used same at parties and on camping trips.

44. Mr B would not take a urinary analysis unlike Ms D who instantly did so when requested. I am entitled to make an adverse inference from

    
    

    Mr B’s failure to co-operate for the benefit of ascertaining the truth in this matter. That adverse finding is that the drug test would not have assisted the mother’s case.

45. The mother did not comply with the timetable in the Orders for giving her drug tests within 24 hours of a request being made by the Independent Children’s Lawyer. The father did.

46. The mother drove whilst her licence was suspended due to unpaid fines. When that was made known to her, she continued to drive and she was caught driving with a cancelled licence and did so with the children in the car. Her licence is suspended until 2011. The mother showed no remorse or regret for this conduct.

47. The mother has not complied with Court Orders that do not suit her in the past yet asks me to accept that she is the most appropriate parent for these children in the future.

48. Mr B did not attend the first family report interview despite the mother agreeing that it was very important he attend. The mother could not give me any satisfactory explanation and neither could Mr B as to why he did not attend.

49. Mr B said he had to go to work and that was why he failed to attend.  It is clear from Ms Deane’s family report that she had made an arrangement with him to attend and could not contact him on the day. Court Exhibit 1 says:

    The mother’s partner Mr B was unable to attend on the scheduled interview date due to work commitments. He did not attend a rescheduled interview.

50. Ms D was unable to attend because she was in the last stages of her pregnancy and was living in Queensland. She has valid reasons.

    
    

    Mr B did not and the mother did not convince me otherwise.

51. The mother said that since the father and Ms D had moved to [F] she, the father and Ms D had been able to sort things out well with the children, things were going well and they were communicating well.

52. The mother did not deny that the father asked to speak to her in February 2009 due to his concerns with [X] saying to him “I don’t like Mr B”. The mother said that she could not really remember but that the father may have raised this. I find that the father did raise his concern with the mother and Mr B. The father was concerned about this issue and [X]’s discipline by Mr B is a concern for him.

53. The mother could not escape that she told the Department in 2008 things were well with the children and Mr B, that there were no difficulties and they got on well. However, she had said to the father in January 2009:

    [X] has problems coping with the discipline Mr B shows her.

54. Mr B had booted [X] up the bum in 2008.  The mother did not report this to the Department at any time. The mother is not a reliable reporter of fact.

55. The mother agreed that the father was being responsible in 2009 in trying to deal with the issues of [X]’s behaviour in an upfront way and that the mother and Mr B did not respond to him appropriately.  It is clear from their affidavit, they did not.

56. The mother agreed that the discussion with the father, Mr B and herself shortly after Australia Day was about the children living with her primarily and that both the father and Mr B discussed the father’s cannabis use. The mother would not concede that Mr B discussed this. Mr B however said he did.

57. It was put to the mother she was very keen to settle these proceedings because she knew if the matter came to Court the subpoena material would reveal the lies she told to the Department and the difficulties that she and Mr B have had in their relationship as reported by the Police and the concerns that the Department of Community Services had expressed about Mr B, and their view of the mother and the maternal grandparents not acting in a way to protect the children.

58. The mother said:

    No, that’s not the reason.

59. I find that this would have been an extremely strong motivating force in the mother’s desire to resolve this parenting matter as she has been caught out lying to the Department, the father, the family consultant and the Court.

60. The mother would not admit that she told the father and Ms D that her parents had dropped the children at her place because the money had stopped.  I have formed the view that this precisely what she said to the father and Ms D to cause as much disharmony and dissatisfaction as she could.  This was part of her plan to ensure that the children returned to her care.  It is consistent with her lies to the Department in January 2009 that the children would be living with her over the next few weeks.

61. It was put to the mother that if the father said “I’m off to score some pot” she would not have let children go with him.  Yet they did, and the mother cannot escape the ludicrous nature of that evidence. If the mother had the children’s best interests at heart she would not have let them go with him, in those circumstances. It is clear that this conversation did not happen.

62. It was put to the mother that she told father he would have no time with the girls because he had not agreed to the children living with her.  She said no. I have formed the view that this is precisely what happened.  There is no other reason for these children to have been prevented from spending time with their father since March, other than that he no longer agreed to the girls living with their mother. The mother admitted that everyone was annoyed because “Mr Kingston had changed his mind”.

63. It was put to the mother “Then why would you stop the children spending time with the father” and she said “the urine test came back positive, that he had used cannabis”. The mothers test came back positive for methamphetamine so on that basis the children should not be with her either. I do not accept the mother’s evidence on this point.

64. The mother has not had all three girls living with her since early 2008.  She believes her children will be fine with her; they are familiar with her home environment where she lives with Mr B.  She agrees that she may need to take [X] to counselling.

65. Both the mother and Ms D agreed that [X] tells a lot of stories; she is very emotional and very confused. Her attachment has been severely disrupted by her parents drug use. The mother was honest about the poor effect her drug taking had on her parenting. That evidence convinced me that the mother realises if she has the care of these children she cannot use drugs.

66. The mother admitted she has a very good relationship with her local general practitioner and gives him honest answers. Her affidavit reports that the first occasion she took amphetamines after the Court proceedings was in September 2007 and the second was December 2007. 

67. Dr M is her local doctor. Independent Children’s Lawyers Exhibit 3 are Dr M’s notes of a meeting with the mother on 19 June 2008:

    Off amphetamine, last ten weeks.

    Involved custody hearing court.

68. That would have the mother at best having her last methamphetamine sometime in March 2008. This is inconsistent with her affidavit filed in these proceedings. However all her affidavits have been littered with lies on when she last took methamphetamines.

69. I find the mother told her doctor the truth at that time. There was no reason for her to lie at that particular time and it fits with the hair follicle testing.

1. On that basis the Independent Children’s Lawyer was of the view that on the finest of balances the father’s environment is preferred despite the obvious emotional risk to the children of such an Order.

Father’s Submissions

1. Ms Boyle submitted to me the grandparents may be a better back stop if the children are living with the father and Ms D for the following:

   a)They have compromised their grandchildren’s welfare when they let their mother take them to live with Mr B when she had only known him for three weeks and in contravention of Court Orders;

   b)They did not inform the father, the Independent Children’s Lawyer or the Department of Community Services of what their daughter had done and they knew it was against Court Orders;

   c)They did not tell the father of the involvement of the Department with his daughters in January  2008;

   d)Their daughter places them in a difficult situation, in making a choice between her and their grandchildren on many, many occasions.  Both grandparents agreed with that proposition in the witness box;

   e)The father would not put the grandparents in such a difficult position.  If the grandparents have any inclination of something untoward they will quickly come to the Court.  They are a far stronger litmus test for assessing a risk to the children if the children live with their father than if the children live with the mother, because they will not gloss over any difficulties in the father’s household as they have done for difficulties in the mother’s household.

2. As Ms Boyle said these matter combined with Mr B’s concerning behaviour and the mother’s inability to tell the truth would demonstrate on balance that the children are safer living with their father than their mother.

3. The risk of drug relapse is much the same for both the mother and the father.

4. If the children were in the father’s household they would be able to be referred to the Brighter Futures program.  They cannot be in the mother’s household.

5. Ms D is an experienced parent.  Ms Deane said that she was the most sensible and realistic parent.  Ms D’s children have always lived with her.  She is managing these four children very well.  The twins are thriving.  [T] has gone from a difficult situation to a much improved child.  Ms D is a competent and experienced parent.  I agree with

   
   

   Ms Boyle’s submission that of all the adult Ms D most impressed as the most stable, consistent and competent parent.

6. Much was made of [Z] being retained by her father and the mother having to go through the process fro her return.  That does not weigh heavily on my mind at this stage.

7. The children have not been in the mother’s full time care since February 2008.  [Z] could have been in her care.  There was no Order stopping her from so being however the Department of Community Services thought it would be better and that is why [Z] was with her grandparents.  DOCS had real concerns about Mr B.

8. When the children were in the mother’s care the Department became involved.

Mother’s submissions

1. Mr Harper submitted there were three major areas: credit; proper arrangements; and assessment of risk.

2. It was submitted that Mr B did not actively mislead the Court he just struggled to answer questions he was asked.  I disagree with that submission.

3. It was submitted the father made up the late breaking comments of speed and dope.  If that is so the same could be said of the mother.  We could call that a draw.

4. These children need better than average parenting and care, particularly [X] and Ms D’s daughter, [T], and if we place both those children with special needs with Ms D and the father we are setting up a significant risk of the father’s household breaking up.  There is some force in that argument.

5. Mr B did agree eventually that he would go to a parenting course.

6. Mr Harper submitted there was less potential of harm to the children with the mother because of the grandparents and to place them with their father means they will not be living with [Z].

Risk issues

1. There are risks in both households.  There are risks in relation to addiction issues, drugs and alcohol, the mother’s failing to take hair sample tests, Mr B not undergoing any urinalysis test.

2. There is a risk of domestic violence in both households.  The father does become angry.  That is agreed.  However, the father has been open and honest about his anger unlike Mr B and the mother.

3. The least disruptive arrangement for the children is to live with the mother with the backstop of the grandparents and spend time with the father.  If they go to the father’s household and his relationship with Ms D breaks down it will be a wrench for them to go back to their grandparent’s household.  That is the balance.

4. The concern the Court has is that Mr and Mrs Roche have in the past placed the needs of their daughter over the needs of the granddaughters. This is in no way to criticise them for their wonderful role in caring for their grandchildren over a lengthy period of time.  However to suggest, as Ms Deane did in her report and Mr Harper did in his submissions, that if the children were placed with the mother they have the support of the maternal grandparents may not be borne out on the facts.

5. The grandparents let the mother take the children in November 2007 to the home of a man they had only known for three weeks.

6. The grandparents present a rosy picture of the relationship between the mother and Mr B.  That is far from the truth.  However, I accept they did not know of the Police interventions either as their daughter did not tell them.  I accept that they are accurately reporting their observations of Mr B with their daughter and grandchildren.

7. It is the same for the grandparents, the father and the Court.  Namely we only know of matters of concern when they are matters of public record from the Department of Community Services or Police.  We do not know matters which have not been reported by the Police or DOCS.

8. Of real concern to me is that the grandparents agreed to, assisted or were a party to the poor behaviour in March 2009 in not permitting the children to spend time with the father because he had changed his mind regarding settling the matter.  Thus there is some evidence that the grandparents may put the needs and wants of their daughter above the needs of their grandchildren.

9. Couple those matters with the fact that I have formed an entirely contrary view of Mr B to that of the grandparent’s view of his character, nature and manner of dealing with young children and my concerns are further heightened regarding the grandparents torn loyalties.

10. One view which has some force is that if the children were placed in the care of their father is that that is when the grandparents would become more vigilant.  They will not place the interests of the father and his partner over the interests of their grandchildren.

11. On the other hand all is not well in the father’s household either. He and Ms D have been quite open about the difficulties they have had.  The big issue has been the move to [F].  Ms D had to leave her family to live in a place she has unhappy memories of, she has not been well following the birth of the twins and she is clearly suffering some physical ailment with her bones not knitting after her wrist injury.  She and the father agreed their relationship has been up and down, they have had difficulties, there have been yelling matches and perhaps the children may have heard this.

12. However, we know about these concerns in the father’s household because the father and Ms D told the Court and Ms Deane.  They were not revealed from Police records or Department of Community Service records. This was honest outpourings of parents under some understandable pressure. There has never been involvement of the Department of Community Services in Ms D’s household.

13. Thus the Court is left in the position of knowing from the father and Ms D their relationship difficulties, the difficulty with the father’s use of marijuana over a significant period of time, difficulty of six young children in the home, twins and health issues.

14. Yet we only know the mother’s side of the story from what is in the Department of Community Services file or the Police file because there is nothing portrayed other than “happy families” from the maternal family side.

15. It would be grossly unfair to be critical of the father’s household and its difficulties when he has revealed them to the Court and Ms Deanne and then take a more positive view of the mother’s household because she has not been forthcoming to the Court and Ms Deanne concerning her difficulties. 

The Law

1. There is no issue other than there ought to be equal shared parental responsibility for the children.  Neither the parents nor the Independent Children’s Lawyer contended for anything other than such an Order.  Indeed, if these parents had resided closer together this is a matter where some form of a shared care arrangement would have been appropriate.  However, that is not possible due to the distance.

2. Having so found that there ought to be equal shared parental responsibility I must consider whether there ought be equal time or significant or substantial.  Due to the distance between the parties’ homes it will be difficult to have even a significant and substantial time Order for the parent with whom the children do not primarily live with, not because it is not in the children’s best interests but because it is impractical to be carried out.

3. Going now to the factors under section 60CC of the Family Law Act.

Primary Considerations

1. The primary considerations I must have regard to are contained in ss.60CC(2)(a) and (b).

2. The benefit to the child of having a meaningful relationship with both of the child's parents.  Whichever Order I make, that is whether the children live with their mother or their father, they will benefit from a meaningful relationship with each of their parents.  I do not see any difficulty or any change that weighs on either parent’s claim under this factor.

3. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  There is a risk in both households because this is ultimately an assessment of risk case.

4. The risks in the mother’s household are many.  I am most concerned with Mr B’s rigid parenting style, his propensity to anger, his history of domestic violence and behaviour towards his former partner, his behaviour towards the child [X] in kicking her up the bum and putting her in her room for an hour at the age of three, and that the mother felt it necessary to call the Police on at least one occasion in January 2009 when she was locked out of the home.

5. I am also concerned that I cannot rely on the mother’s version of events at any turn and that she, Mr B and the grandparents minimised events that went against their case.  All that the Court knows are the events that have been recorded by the authorities such as the Department of Community Services and the Police.  The Court does not know of any events that are not recorded.

6. The mother is not even honest with her parents who have only ever supported her at every turn. 

7. The Department of Community Services was concerned about the children whilst they were in the care of the mother and Mr B in late 2007 / early 2008.  They were of the view that Mr B should spend no time with the children and would have intervened in the matter if the children had not been returned to the grandparents.

8. In the father’s home there is a risk of psychological harm to the children.  Both the father and Ms D agree their relationship has had difficulties with the move to [F] and the birth of the twins.  They yell and shout at each other, and have yelled and shouted at the maternal grandfather.

9. However, the father and Ms D are attending counselling and they have come to a realisation they need to work on this issue.

10. The father has been violent in the past and has unresolved anger towards the mother based upon what he believes is her pathological lying which has a basis in fact.  The stability of the father and Ms D’s relationship is yet to be tested and will be further tested with six children living with them.  Such a testing may expose the children to psychological and emotional harm if the father and Ms D’s relationship does not last or they act out their stress levels in an aggressive manner in the presence of the children.

11. Living with their father means the children would live far away from their maternal grandparents whom they have seen almost every day of their life for a long period of time and they would not have that same in and out relationship they have now as they would if they lived in their mother’s care.

12. They would also be separated from their sister [Z] with whom they have effectively always lived.

Additional Considerations

1. Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

    This is not a relevant consideration in this matter save that [X]’s expression to her father that she “doesn’t like” Mr B is consistent with her words to the Department of Community Services Officers and day care workers that Mr B is a “meanie” who smacks her and [Y] and makes them cry.

   
   

   I accept that [X] has real difficulties with Mr B and Mr B has no idea how to deal with her and Mr B’s behaviour towards her at the age of three is reprehensible. [X] is reported by all adults as a child who makes up stories; she is reported to be needy, emotional, easily upset.  This wish has some weight.

2. The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child). I accept that the children have a good relationship with their mother.  They love their mother.  They have an excellent relationship with their grandparents and [X] and [Y] have a close relationship with their sister [Z].

3. If they live in their father’s household their relationship with [Z] and their grandparents may diminish as they will not see them daily as they have been used to for almost all their lives.

4. The children have a relationship with Mr B but I cannot say that it is a close, loving or supportive relationship.

5. The children have a strong and easy relationship with their father.  It was reported in the family report that the children had an easy relationship with their father, they were comfortable with him and reacted well.  It was reported that they had a good relationship with

   
   

   Ms D.  They are beginning their relationship with their twin sisters, [W] and [V], and they have a good relationship with Ms D’s children [T] and [U].

6. [Z] has a good relationship with the father and Ms Deanne noted that her closeness and easiness was unusual given she had not spent much time with the father or Ms D.

7. Unfortunately [Z] was not seen with the mother or Mr B and that was a real concern as [Z] has also been reported to have said that she does not like Mr B.  I am unable to assess the strength of that relationship and I am unable to rely on what the mother tells me as she is not a witness of truth.

8. There is no doubt that the children love and adore their grandparents.

9. The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.  Ms Deane was most concerned that the father’s anger towards the mother would inhibit this capacity.  I did not form that view.  In fact I found to the contrary.  I formed the view that the father knows how important the mother is to the children, he knows, accepts and is appreciative of the important relationship they have with the grandparents and he and Ms D have a very firm view that children have a right to a relationship with their other parent and grandparents.  These children will be encouraged at every stage to spend time with their mother and grandparents.  That was one of the least concerns I had about the Kingston/D household.

10. In relation to the mother and her parents I am most concerned regarding their behaviour in March this year when they ceased the children spending time with their father because he did not agree to resolve this matter on the mother’s terms.  That indicates to me that, consistent with the view I have formed of the mother, her manipulation and her desire to do anything to get her own way includes using the children as a weapon.  Clearly that is what she did.

11. The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.  The children living with their father would ultimately be a significant change.  The only time they have done so was for some four or five months in Queensland when the parents agreed they would get out of Albury and the drug milieu.  The children lived with the father and his sister, with whom they still have a good relationship until their mother unilaterally, removed them to Albury.

12. The mother has only had all the children together from November 2007 to late January / early February 2009 which was quite frankly a disaster.  The Department of Community Services intervened and the children went back to the grandparents.  Thus there has been very little testing of these children living with their mother and Mr B.  When they did for a short time the Department of Community Services intervened.

13. There has been no testing of the children living with father and Ms D.  However, they have spent time with them.

14. The greatest effect upon these children will be the removal of them from the consistency of their grandparents in their life.  If they live with their mother their grandparents will pop around two or three times a week as happens now.  If they live with the father, due to the distances involved, that will simply not be able to occur.

15. Secondly, if the children live with the father [Z] will not be living with them full time as she would be if they lived with their mother.

16. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.  There is a practical difficulty and expense due to the distance and neither parent has much money and some of the parties cannot drive due to having lost their licences.

17. The capacity of each of the child's parents; and  any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs.  Ms D impressed as the parent with the most capacity.  She had a practical, common sense approach.  She knew the differences between the children quite well even though she has not known them for a lengthy period of time.  She described the children playing well with each other when all together and that they keep each other entertained.

18. Ms D has her home organised well.  [U] is at day care for part of the week, [T] is at school.  [X] would go to the same school as [T] next year and her daughter [U] and [Y] would go to the same day care and she would be at home with the twins.  They have friends in the area who will assist with a larger car until they can buy one.  Ms D and the father have discussed discipline with the children and they use a time out chair.  They have discussed Ms D yelling at the children and she realises she should not do that and they are attending relationships counselling.

19. The mother showed little insight into the impact of her past behaviour on the children.  The mother impressed me as someone who was now quite well and I accept is off amphetamines and has been for about fourteen months.  She impressed me as someone who says to the Court “well I am now ready to take over the care of my children. I am ready now so they should come to me”.  There was no insight into what that would mean for these children.  The only thing I have to go on is that when she did have them in her full time care from November 2007 to February 2008 the Department of Community Services intervened because of the behaviour of Mr B.

1. Mr B has very limited capacity to parent or be a positive influence on young children. It may be different with older children as the grandparents report he has a strong relationship with his older daughters.  He has no understanding of their needs and sees everything from his perspective.  He can be violent, he can drink to excess, and he locks people out of the house. I formed a very dim view of Mr B which is contradictory to the view formed by the mother and the maternal grandparents.

2. The maternal grandparents have a high capacity to parent children but the maternal grandmother’s health simply does not enable her to do so.  However, they have on three occasions in this matter placed the children at risk because they have preferred what their daughter wants to what is best for their grandchildren.

3. Letting her move to Mr B’s home in November 2007 when she had only known him for three weeks, failing to tell the Department of Community Services that she was not living with them and failing to tell the father that the Department of Community Services had been involved with his children and denying the children spending time with their father because he did not come to an agreement with the mother are all indications of the putting their daughter’s needs before their granddaughters’ needs.  I make no criticism.  It is just a consequence.  As I asked the maternal grandfather:

   Has is been difficult to resist what Ms J Roche wants during her life?

4. The grandfather said:

   Yes. I am a generous man.

5. The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.  

6. The father is thirty nine years of age.  He has six children.  He does not really financially support any of them.  He has been a significant user of methamphetamine and a serial user of cannabis for many years.

7. The mother has been a serial user of methamphetamine but I accept she now longer uses.  She has not used it for some time.

8. These parents have led a self-involved, indulged life.  Their children have suffered as a consequence.

9. Mr B has treated his ex-partner poorly.  He has behaved poorly towards other partners and at times to the mother.  He has behaved poorly towards [X].

10. Ms D caused me some concerns due to her desire for her daughters to have a relationship with their father.  She has perhaps put them at risk by leaving them in his care for too long a period when they had not seen him for some time and when he is a man who the eldest child had seen try and strangle Ms D.  This shows that she does not perhaps understand the impact on a child of witnessing such behaviour.  I also accept her evidence that he is in a different place now and has a different partner who Ms D gets on with well.  Ms D also said she and the mother get on well and can speak which is very much to their credit.

11. What is impressive about Ms D and the father is their openness and their honesty with Ms Deane and the Court which is so contrasted with the mother and Mr B.

12. The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.  Neither of these parents has demonstrated a proper attitude in the past.

13. The father has come to some realisation of his responsibility in his attitude to the children and he realises that marijuana use is inconsistent with a proper attitude.

14. The mother shows little insight but I accept she is drug free.  She now wants her children returned, therefore in her mind they should be returned to her.  That is the highest I can put the mother’s responsibility and attitude towards the children.  However, I accept she cares for the children to a high degree, she feeds them well, dresses them well and her home is neat and clean.  I accept also that Ms D is also perfectly capable of caring for these children as well.

15. Any family violence involving the child or a member of the child's family. There has been family violence in both households. Ms D has been subjected to same by her former husband; she may have been subjected to same by the father. However, I accept the risk is very slim.  There has certainly been yelling and shouting in that household.

16. The mother has been subjected to domestic violence by the father in the past and I accept she has been subjected to same by Mr B in the past and perhaps might continue to in the future. The children have been subjected to poor behaviour from Mr B.

17. Section 60CC(4).  These parents have in the past failed to participate in their children’s lives to the best of their ability when they were on drugs and using marijuana. The mother’s conduct in unilaterally removing the children from the father’s care showed no insight by her on the impact on these children.  Her agreeing to abide by the Orders of the Federal Magistrates Court of Australia in September 2007 to live with her parents and her evidence that she knew that would not happen show that the mother’s focus is, as it has always been, herself and not her children.

Conclusion

1. On balance, and this is a fine balance, I must assess the risk.

2. The matters weighing on my mind are this:

   a)The impact upon the children of being separated from [Z] and their maternal grandparents;

   b)

   The risks involved in living in the home of their mother with

   
   

   Mr B.

3. Without the relationship between the children and their grandparents and [Z] I would have made an Order that the children live with their father.

4. I find the father’s household presents the least risk to these children from physical, emotional and psychological harm directly perpetrated on them.

5. I find that Ms D is by far the most competent, realistic and sensible parent and is an experienced parent whose children are doing well in difficult circumstances.  She has insight into how to deal with these children.  She has already put in place plans for caring for six children.

6. My concern is what impact that living arrangement, which certainly fulfils the physical requirements, will have upon the children’s emotional risk of being separated from their maternal grandparents and their sister [Z].

7. On balance I find to separate the children from their daily contact with their grandparents and sister [Z] will be a far greater risk of harm to them than the possibility of harm from Mr B‘s behaviour.

8. The father had formed a view early this year that provided the mother was drug free the children should live with her.  He did this for the best of reasons as he wanted the three sisters to live together with their mother and remain in close contact with their grandparents because he believed this was best for them.  He was correct in his assessment at that time.

9. I accept his concerns about the mother’s manipulative and lying behaviour, Mr B’s thuggish behaviour and the involvement of the Department in the children’s lives, none of which he was aware of in early January 2009. Thus his change of mind is absolutely justified.

10. However I am satisfied the mother is drug free and well.

11. I am concerned of the newness of the father and Ms D’s relationship, Ms D’s ill health and of the stress and strain six young children living in one home effectively cared for by one, albeit experienced and capable mother, on her own every day without family and grandparents dropping in.

12. Maintaining stability for the children has been key in this hearing.  It was an important focus for Ms Deanne.  The least disruptive Order is that the children to live with their mother on a gradual basis, spend time with their father and have that arrangement reviewed in six months by Ms Deanne.  If there is the slightest hint of poor behaviour by Mr B or the mother I will act swiftly as the father and Ms D are appropriate alternate parents for these children.

13. I have come to the decision that the children live with their mother on the slimmest of margins and the weight of evidence for and against this Order is finely balanced.  The balance has been to maintain stability for the children at this time and their attachments to their grandparents and sister [Z] which is best achieved by them living with their mother.

14. However this balance can be overturned and the hearing re-opened if I am satisfied the children are again placed at risk of physical harm in their mother’s care from Mr B’s behaviour and or her inaction.

15. Therefore, I make the Orders as set out at the commencement of this decision.

I certify that the preceding five hundred and fifty-seven (557) paragraphs are a true copy of the reasons for judgment of Henderson FM

Associate:  A. Morris

Date:  18 June 2009