M & L - [2003] FMCAfam 543

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & L

[2003] FMCAfam 543

FAMILY LAW – Children – residence – parenting capacity – family violence – child profoundly developmentally delayed – child to live with father upon condition that he lives with his parents – contact – practical difficulty and expense associated with contact – staged contact concurrent with child’s age and stage of development.

Family Law Act 1975

B & B Family Law Reform Act 1995 (1997) FLC 92-755

Applicant:

A J M

Respondent:

K L L

File No:

PAM2075 of 2003

Delivered on:

27 November 2003

Delivered at:

Parramatta

Hearing dates:

11 & 12 November 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr J. Levy

Solicitors for the Applicant:

John Spence & Associates

Counsel for the Respondent:

Mr P. Livingston

Solicitors for the Respondent:

Legal Aid Commission of NSW

ORDERS

That all prior parenting orders are discharged.
That “the child” L born in 1999 live with the applicant father.
Order 2 is conditional upon the father living with the child at the paternal grandparent’s home until the child has completed second class infant’s school.
The father and mother have joint responsibility for making decisions concerning the child’s long term care, welfare and development.
The father shall ensure that the child attends speech therapy, occupational therapy, commencing 2004 preschool five days a week as well as all other appointments, programs and therapeutic development interventions recommended for the L by the child’s paediatrician, Bankstown Community Health or any health or education professional attended by the child.
The child shall have contact with the mother as follows:
(a)By telephone at all reasonable times.
(b)If contact occurs on a day adjacent to a public holiday contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday. If the public holiday is a Monday the contact shall conclude at the usual time on the Monday.
(c)Until L starts preschool five days per week in 2004, from 11 am Saturday to 5.30 pm Tuesday each alternate weekend, commencing on the next occasion contact was due pursuant to Order 2 made 11 July 2003.
(d)In the event that contact pursuant to Order 2 made 11 July 2003 takes place on the weekend immediately preceding Christmas day 2003, weekend contact shall extend overnight until 6 pm Christmas Eve. In the event that the contact is due to commence on the Saturday after Christmas contact is extended so that it will commence at 11 am Boxing Day 2003.
(e)Commencing not earlier than term 1 2004 and upon L starting preschool five days per week contact shall take place as follows:
(i)Each alternate weekend from 6 pm Friday until 6 pm Sunday;
(ii)From 11 am Good Friday until 6 pm Easter Monday;
(iii)For the whole of each long weekend, starting at 11 am on the first day of the weekend and finishing at 6pm on the last day of the weekend;
(iv)From 11 am 18 December 2004 until 12 noon 26 December 2004;
(v)From 11 am 2 January 2005 until 6 pm 8 January 2005;
(vi)From 11 am 15 January 2005 until 6 pm 23 January 2005;
(f)After L starts school:
(i)Each alternate weekend from 6 pm Friday until 6 pm Sunday;
(ii)For one half of the shorter New South Wales school holidays, being the first half in years ending in an even number, which shall include years ending in a zero and the second half in years ending in an odd number, alternating annually thereafter;
(iii)For one half of each of the New South Wales Christmas School holidays, being the second half in 2005/2006 and the first half the following year, alternating annually thereafter.
Weekend contact is suspended during school holidays once the child starts school.
In the event that Mother’s Day falls on a weekend, which is not a contact weekend the child shall have contact with the mother for the same duration as, is ordered to occur at that time.
In the event that Father’s Day falls on a contact weekend and the mother lives more than one hour’s drive from the father’s home, contact is suspended that weekend.
In the event that that Father’s Day falls on a contact weekend and the mother lives within one hours drive of the father’s home, contact shall end at 5 pm on the evening before Father’s Day.
Provided that the mother lives within one hours drive of the child’s home if L’s birthday falls on a school day, she shall have contact:
(a)From after school/preschool the evening prior to his birthday until the start of school/preschool the following morning in years ending in an even number; and
(b)In years ending in an odd number from after school/preschool on his birthday until the start of school/preschool the next day.
In the event that the mother lives within one hour driving distance of the child’s school or preschool, contact to which she is entitled shall be extended as follows:
(a)Immediately from preschool on the Friday afternoon and continue until the start of preschool the following Monday each alternate weekend;
(b)Immediately from after school Friday afternoon and continue until the commencement of school Monday, each alternate weekend.
Unless otherwise provided in these orders school holiday contact:
(a)Shall commence at 11 am.
(b)Shall conclude at 6 pm.
(c)Will be calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the mother has exercised contact during the first half of the holidays and on the second weekend after school has resumed if the mother has exercised contact during the second week of the school holidays.
Both parties shall keep the other party informed of their residential address, mobile and landline telephone number.
Other than in the case of an emergency the father shall advise the mother of all specialist and therapeutic appointments that the child is to attend, no less than seven (7) days in advance of the attendance.
Other than in the case of an emergency the mother shall advise the father of all medical appointments that the child is to attend in advance of the attendance.
The father shall give written authority to any school, preschool, health or educational professional attended by the child to release information concerning L to the mother upon her request.
Nothing in these orders limits the mother’s entitlement to attend activities at the child’s school or preschool that a parent is usually invited to attend. The mother shall give the father written notice no less than seven (7) days in advance of her intention to attend preschool or school activities.
For so long as the mother continues to reside in the Orange region, the father shall deliver the child to the mother at Katoomba Railway Station at the start of contact and the mother shall deliver the child to the father at Strathfield Railway Station at the end of contact.
Unless these orders provide that changeover shall be at school or preschool in the event that the mother returns to live in the Sydney metropolitan region, contact changeover shall take place at a train station halfway between the parties’ homes.
Other than provided for in these orders the mother is restrained from approaching the father or coming within one kilometre of his place of employment or home. This is an order for the personal protection of the father.
Pursuant to Section 62(F)(2) the parties shall attend confidential counselling to facilitate improved communication between them. The counselling will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court four months after the date of these orders.
Pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM2075 of 2003

A J M

Applicant

And

K L L

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is an application for parenting orders concerning L (not his real name) born in 1999. Since the parties’ separation in January 2003 L has lived with his father. Both of the child's parents want him to live with them and agree that the child should have regular contact with the parent who does not have L's primary day to day care.

Chronology of relevant events

L's parents were teenagers when he was born. His mother was 17 and his father was 18. When they met the parties were still attending school. The mother has had a difficult childhood marred by parental neglect and family violence. She grew up afraid that the Department of Community Services (“DOCS”) would remove her from her family. DOCS did not do so and she remained in her mother's care often without adequate food, routine and care. By the time she had reached her mid teens the mother was effectively without parental support and guidance. In about February 1998 when she was 16 years old the mother left home and moved in to live with the father’s family. At that the mother and the father were girlfriend and boyfriend. Not long after the mother moved in she and the father commenced a sexual relationship and thereafter shared a bedroom in the father’s family home. At this stage the father was in full-time employment and the mother was unemployed.
L was born in 1999. The mother and the father now realise that they had only vague notions of child rearing, a realisation that has come too late for the child. The mother believed that parenting ability would come naturally. Notwithstanding her belief she is grateful for the practical and emotional assistance given to her by the child’s paternal grandmother, K M. K M accompanied the mother to all hospital appointments prior to the child's birth and after he was born went with her to baby health clinic appointments. The paternal grandmother helped prepare bottles and food and did a lot of the daily housework for her son and his family.
When the child was about eight months old the mother was visited by a Department of Community Services child care worker. The paternal grandmother participated in the interview and recalls the DOCS childcare worker saying, "we have had a report from the clinic sister concerning the mother's mental health and stability. The clinic sister is concerned about the child." At the end of the DOCS interview the mother was advised, "Don't take the child away from the grandmother's supervision. I would recommend that you obtain some professional help." Not long afterwards the mother’s grandmother arranged counselling for her at Penrith. The mother attended twice and although further counselling was recommended she did not get the help she needed.
When L was about 20 months old the father’s parents decided that they could no longer permit the mother to live in their home. They felt that the mother was emotionally volatile and the K M in particular could no longer cope with her mood swings and behaviour in the home. The father chose to leave with the mother. When they left the father’s family home in about January 2001 the parties rented the home at B H. They were only living a short walk from the father’s family home.
After they moved out the father continued to work as a welder leaving home at about 6 am and returning at about 4 pm Monday to Friday. During the day the mother was responsible for the child. Doing the best that she could the mother attended to the child's needs. Because he left for work so early in the morning the father was only able to spend time with L after he returned home in the afternoons and on weekends.
The father has used marijuana for a long time, well prior to leaving his parent's home. About three months before they left the father’s family home he changed suppliers and thereafter bought marijuana from the mother’s stepfather. Her stepfather lived nearby at Bankstown. As the mother does not drive, the father would both drive her to Bankstown and wait in the car while she picked up the marijuana her stepfather or she would collect it when the father was at work. The mother says she did this because the father asked her to do it. I accept her evidence and reject the father’s denial that she did this of her own initiative. Only he was using marijuana and it seems illogical that the mother would provide marijuana without his request.
After their evening meal and at much the same time that the child was getting ready for sleep the father would kiss him goodnight and retreat to the back shed where he would smoke a joint. He did this between one and six nights a week. Most weeks the father retreated to the back shed to smoke marijuana at least a few nights. The mother has not used marijuana at least since L was born.
The paternal grandmother denied any knowledge that her son was using marijuana. Given that he was living in her home and using her back shed for some of the time I do not accept her denial.
In about June 2001 the father lost his job and was unemployed for about six months. During this period his marijuana use increased, as did his daily contact with the child. Though he claims that he was significantly responsible for the child's care during this period I do not accept his evidence.
Towards the end of 2001 the father obtained work with a welding company. Between February and October 2002 he attended the local TAFE from 5.30 and 8.30 pm one night a week. During all of this time the mother was exclusively responsible for L's daily care.
Both parties agree that for a long time theirs was a troubled relationship. The mother for example had numerous relationships with other men and the father had a relationship with another woman prior to separation. By late 2002 the mother had decided that they should separate. She discussed her plans with the father and settled on the notion that she would move to W where she has a cousin living. During December 2002 the mother went to W with the child for one week where she stayed with her cousin. While in W her resolve to live there permanently firmed.
The parties and L spent Christmas 2002 with L maternal grandmother in Queensland. Upon their return the mother started preparation for her departure. She aimed to be in W by no later than the end of January 2003. Her intention was to settle in before starting a TAFE course on 31 January 2003. The father repeatedly asked the mother not to leave. At no time did he consent to her removing L from the home.
On 15 January 2003 the father attended the Chamber Magistrate at Bankstown Local Court and filed an application seeking residence as well as a series of injunctions aimed at stopping the mother from taking the child away from their home. His application was listed on 17 January 2003. The father gave the mother a copy of his application in the evening on 15 January 2003.
On 16 January 2003 the father insisted that the child spend the day at the child’s paternal grandmother’s home. When the mother refused the father's sister's boyfriend arrived and took the child to his maternal grandmother.
At Burwood Local Court on 17 January 2003 the parties entered interim consent orders. Ms Court represented the father and the mother had the assistance of a duty solicitor, Ms Karagiannis. These orders are:
1.The father shall forthwith return the child to the home in B H.
2.The child resides at the home in B H.
3.The father and the mother are hereby restrained from removing the said child from the joint care of the parties at the home at B H.
4.The mother be and is hereby restrained from removing the said child from the Sydney metropolitan area.
5.These proceedings be adjourned to 7 February 2003.
6.The parties shall forthwith attend for counselling in relation to the child’s issues.
In essence the orders provided that both parties would remain in the home with the child. The father intended to continue full time work and it was planned that the mother would care for L. Tensions in the home were high and after about a week the mother decided that she would proceed with her plans to live with her cousin, in W. Because the interim orders required that the child live in their home when she left for W, L stayed behind with the father.
After she went to W the mother did not attempt to have contact with the child before she returned to Sydney on 7 February 2003 for court. During the interregnum the mother met her current partner, S M. Their relationship commenced about four to six weeks after they met. The mother was asked to leave her cousin’s flat in W. Rather than return to Sydney the mother moved in with her boyfriend at Narrandera.
In early February 2003 the father enrolled L in childcare two days a week. K M cared for the child during the rest of his working week.
On 7 February 2003 the parties attended Bankstown Local Court and agreed that the proceedings would be adjourned for three months so that the mother could obtain legal representation. Once again the mother had the duty solicitor’s assistance. The orders made 17 January 2003 were continued together with the following orders:
1.The father shall forthwith return the child to the home at B H.
2.The father and the mother be and hereby restrained from removing the said child from joint care of the parties at the home at B H.
3.The mother be and is hereby restrained from removing the said child from the Sydney metropolitan area.
From that point the mother tried to maintain telephone contact with the child. She was not always successful. On occasions the father unreasonably refused to allow her to speak to the child and on other occasions the child was not available because he was asleep.
On 10 March 2003 the mother and her boyfriend moved to Orange. Initially they stayed with his mother and later moved into premises that they had rented in their own right.
Without prior notice to the father, the mother and her boyfriend, S M arrived at his home at 10 pm on 14 March 2003. The incident is outlined at paragraph 65 of the mother's affidavit. The father allowed the mother to come inside and she woke L to say hello. I prefer the father’s account that he asked the mother if she wanted to stay at the home, but declined her request that S M stay as well. The mother agrees that she became upset, but denies hitting and punching the father. Curiously she asked S M to call the police, which he did.
The father called his parent's home and shortly before the police arrived, the father's sister and her boyfriend arrived. The boyfriend tried to take L from the mother. She resisted and handed L to the father’s sister. It was a most distressing incident from L's perspective. The mother and S M then left.
The mother and S M drove to Sydney on 22 March 2003 so that the mother could see L. The father unreasonably refused to allow the mother and S M permission to take L for a drive. As they were leaving the father told S M that if he returned there would be trouble, his words were prophetic.
S M dropped the mother back at 6 pm and she spent the evening with L. The mother put L to bed at about 8.30 pm. Unfortunately her mobile phone went off waking him up. The father yelled at the mother and she went outside to wait for S M. Once outside she saw that the father had stacked up her belongings on the verandah. The father told the mother to take her belongings with her in response to which she told him she would collect her things later. She had already been absent from the home for a couple of months.

As the mother started to drive away she realised that the father was throwing her possessions on to the ground and that they were breaking. The mother lost her temper and returned to the house screaming at the father. He retreated into the house trying to get away from her. The mother chased him through the house and cornered him in their bedroom. They struggled on the bed with the father still trying to escape her. He eventually broke free and locked himself in the laundry. During the melee the mother armed herself with a knife and scratched the father's throat. The mother seemed to think that there was a relevant distinction that she only armed herself with scissors. In my opinion the important matter is that the mother armed herself with a sharp implement that she used as a weapon to attack the father. She subsequently pleaded guilty to a charge that she used a knife during the assault. There is no reason on the evidence before me to go behind the facts upon which the mother was convicted. In this regard I prefer the father’s evidence.
When S M joined the scene the father was holed up in the laundry. He said that the mother was in the kitchen looking for an implement. I infer that the mother was doing so in order to continue her attack on the father. While the father was locked in the laundry the mother took L and left. When she did so she left in contravention of two sets of orders, which required the child to remain in the home. Although the father alleged that a recovery order was needed to secure L's return, the truth is that L was returned the following day without any such order being obtained. The father's evidence in this respect was deliberately misleading.
As I have already indicated the mother was charged with assaulting the father, on 5 June 2003. She entered a guilty plea. She attempted to claim that she appeared on her own behalf and did not have legal advice when she entered her plea. Yet it is quite clear that a duty solicitor appeared on her behalf when her plea was entered. As a consequence of her attack, the father obtained an apprehended violence order from Bankstown Local Court.
The next incident took place after contact on the weekend of 5 April 2003. The mother gives a detailed account at paragraph 62 of her affidavit in which she says that once the father realised that she had S M with her to collect the child for contact changeover the father lost his temper and attempted to run her down. She makes a general complaint that when he was angry the father would get into his car and drive very fast up and down their street. The father denied the allegation and said the mother had banged his car window with her mobile phone. If she did I am satisfied that the mother did so in order to get away the father. As between the two accounts of the events that occurred on that day I prefer the mother's. What becomes apparent from this is that the violence and erratic behaviour in this family is not completely a one way street.
Further interim orders were made on 16 April 2003. These are set out below:
1.The orders made 17 January 2003 be discharged.
2.The child L born in 1999 reside with the father.
3.The mother have contact to the child as follows:
(a) Each alternate weekend from 9 am Saturday until 4.30 pm on the following Sunday commencing Saturday 3 May 2003.
(b)Telephone contact on Monday, Wednesday and Friday between 4.30 pm and 5.30 pm.
4.The child is to be collected at the commencement of contact and returned at the conclusion of contact to B H Police Station.
5.In respect of order 3(a) the mother will reside at the Arncliffe home.
6.The matter be transferred to Family Court (Federal Magistrates Service) Parramatta.
7.Notation: The parties agree that until such time that the father has a landline telephone connected to his home, the mother will exercise telephone contact to the child via the landline phone number of the paternal grandmother between 4.30 pm and 5 pm.
The significance of these orders as far as contact is concerned is that contact could now take place overnight. It was intended that the mother and L would stay at her grandmother's place at Arncliffe. The mother's grandmother has Parkinson's Disease and it was quickly apparent that having the child in her home was more than the grandmother could cope with. Thus the parties agreed that the contact venue would change and that the mother and L would stay with the mother's brother and sister at C V. This required the mother to make a five hour train trip to B H and she stayed overnight at Penrith on the way. That contact proceeded regularly and by all accounts it went well. Because of the distances involved contact changeover changed, sometimes at Bankstown Railway Station sometimes at Liverpool and also at Strathfield Railway Station.
In July 2003 L's day care increased to three days per week.
On 11 July 2003 I made orders in this matter pending further order:
1.That all prior contact orders made in favour of the mother are discharged.
2.That the mother have contact with “the child” L, born in 1999, from 11:00am Saturday to 5:30pm Tuesday each alternate week commencing 26 July 2003.
3.That for the purpose of contact the father shall deliver the child to the mother at Katoomba Railway Station at 11:00am Saturday and the mother shall return the child to the father at Strathfield Railway Station at 5:30pm Tuesday.
4.That other than as provided for in these orders the mother is restrained from approaching the father or coming within 1km of any place that he may be. This is an order for the personal protection of the father.
5.That both parties are given liberty to apply to the court on twelve (12) hours notice.
6.That the mother’s contact is conditional upon the following:
(a)   That within seven (7) days she make an appointment with a Community Health Centre at Orange for the purposes of:
(i)participating in a perpetrators of domestic violence program; and
(ii)general assistance in relation to parenting skills.
(b)   That the mother is not to leave the child unattended during contact and is to be present herself throughout contact.
(c)    That the mother have telephone contact with the child each Monday, Wednesday and Friday between 4:30pm and 5:00pm.
The mother's contact to L extended so that it started at 11 o'clock on Saturday and continued until 5.30 on Tuesday each alternate weekend. Contact changeover at the beginning took place at Katoomba and at the end at Strathfield. Order (6) provided that the mother was required to attend at a perpetrator's of domestic violence program, and also to seek assistance from the local community health centre in relation to parenting programs. I made an injunction for the father's protection from the mother.

The relevant law

Residence and contact orders are parenting orders, the applicable law is well settled. Proceedings of this type are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the object of Part VII and the principles which underline those objects, they are subject to s 65E in that in determining the outcome the best interests of the child is the paramount consideration, that is the overriding principle. Section 60B is important as it provides the contact within which the relevant s 68F(2) factors are to be examined and ultimately weighed.
The importance of s 60B factors varies from case to case. Where there are no countervailing factors the s 60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides in effect that children have a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. In deciding the residence and contact arrangements that will promote the best interests of the particular child the court must consider the various matters set out in s 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account any other fact or circumstance that the court thinks is relevant, this ensures that the infinite variety of individual children's circumstances can be addressed. I refer in particular to B & B Family Law Reform Act 1995 (1997) FLC 92 - 755.

The father’s circumstances

The father was born in 1980 and is thus 23 years old. He works full-time as a welder in a job he has held for about eighteen months. Three weeks prior to the start of the hearing the father's tenancy at the home at B H was terminated because he was behind in his rent. The father and L returned to live with the father's parents at their home at B H. This is where he and the mother lived before they moved into the their home at B H.
The father and L each have their own room. The home's other occupants are the father's parents, his brother who is 12, and sister. The house is a large five-bedroom dwelling and provides more than adequate accommodation for L. The father contributes to food costs but is not required to pay rent. K M says that the father and L can remain in the home indefinitely. The father agrees that he will do so, recognising that he needs his mother's daily help in order to care for L adequately. K M takes L to pre-school Wednesday, Thursday and Friday each week. More often than not the father collects L in the afternoon and if he is unavailable K M does so.
I accept K M’s evidence that when she started caring for L in January 2003 he was not toilet trained and could not feed himself. He was unable to dress himself and had only rudimentary language skills. The child was unable to say his own name. His skill deficits were obvious and any adult with even only a basic understanding of child development would have realised that L was developmentally delayed to a very significant degree.
Belatedly the father acknowledges that he must bear significant responsibility for this outcome and that the entire blame cannot be put on to the mother. I have no doubt that K M is the driving force behind the father's decision to enrol L in pre-school and to have him assessed by Dr MacDessie. Dr MacDessie is a paediatrician. Dr MacDessie's notes[1] reveal that K M took L for assessment on 28 August 2003. Dr MacDessie concluded that:
L does not have medical problems, his problems are secondary to emotional deprivation and lack of stimulation.
[1] Exhibit C
L was referred for further assessment to Bankstown Community Health Service and was seen by Anita Leung on 4 November 2003 who designed a child development client service plan[2]. This involves:
·occupational therapy;
·formal speech pathology and therapy;
·hearing test;
·follow up by Dr MacDessie.
[2] Exhibit A
Reliant on the public health system there could be a six to twelve months wait for speech therapy to commence. Pre-school is arranged to start five days per week term 1, 2004. The pre-school has a specific program aimed to assist children with L’s deficit. Although he had hoped to attend the November assessment, a change in the appointment time meant that K M took L to the appointment while the father went to work. The mother had also planned to attend but could not make arrangements that enabled her to be there. I make no criticism of either party for not attending this assessment. Circumstances conspired against their participation.
This was the first time since separation that the mother was included in any of L’s appointments. To a considerable degree the father and his mother have attempted to exclude the mother from these types of attendances because both of them blame her for L's difficulties. The father has arranged that L will attend B H Public School Pre-School next year and intends that he will attend B H Public Infants School when he starts school.
L was due to start school in 2004, however he will not start because he does not have the skills needed to start school. He needs an intense year next year in order to address his developmental delay and to give him the opportunity to start school with skill levels at least roughly equivalent to those of the other children in his class.
The father is in full-time employment and is likely to remain so. He relies very considerably on his mother for L's daily care.

The mother's circumstances

The mother was born in 1981 and is 21 years old. The mother had a difficult childhood and has a complicated and unreliable relationship with her parents. The mother has one sister and also a brother. When contact started the mother exercised overnight contact at her sister’s house at Colo Vale. The mother’s sister is willing to assist her in any way that she can. Now that the mother’s sister lives in Jambaroo and has full-time responsibility as a single mother of two children her assistance to the mother is necessarily limited. Other family members offer the mother advice but do not appear willing or able to give her any practical help.
A few weeks prior to this hearing the mother obtained part-time work as a cook. This is the first time she has held paid employment. Apparently a rebellious teenager the mother found high school unsatisfactory and left before she had acquired reasonable literacy skills. She realises that she needs to improve her literacy skills if she is to be able to help L through his schooling. The mother has enrolled in Orange TAFE to start her School Certificate next year. She has done some preparatory work with them in relation to literacy as well as also with a local employment agency. TAFE will require her attendance each Monday and Wednesday between 9 am and 3 pm. Acquiring her School Certificate is a long-term project.
In July 2003 I ordered the mother to attend community health services intending that she would link into local agencies so that she could address her propensity for domestic violence and her limited parenting skills. The fact that the mother had not taken any of these initiatives before being ordered to do so demonstrates that she lacked insight into her own needs and her limited parenting capacity. The mother has complied with my orders to the letter and she is genuinely motivated to enhance her parenting capacity and learn to control her anger. The mother has reason to feel angry as she was seriously let down in her own childhood and too early in life has had to make her own way. The hurdles that this young woman has had to meet have been substantial. Life has not been easy for the mother.
Because Orange does not have a perpetrator of domestic violence program, Orange Community Health referred the mother to a local community based mental health service. Therese Latjar, a clinical nurse specialist, initiated a program of individual counselling with the mother. Starting with a self reporting exercise the mother has attended Ms Latjar fortnightly, she has learned to recognise triggers that provoke her angry outbursts and developed a management plan she can use in situations where she finds herself frustrated or angry. Ms Latjar says that the mother has been a rewarding client because she is keen to learn and responds positively to suggestions for life enhancing skills. Because they have established a sound therapeutic relationship Ms Latjar believes that she can assure the court that any therapeutic intervention L may need will be obtained. She works as part of an inter-disciplinary team and will refer the mother and L to appropriate agencies in Orange. Her understanding is that it would take about three to four weeks to obtain an appointment with a paediatrician, speech therapy is less certain but probably has about three months wait while occupational therapy would take about a month.
The mother intends that L would attend a school nearby to her home in Orange.
The mother lives with her partner S M. He is a pleasant young man who is keen to do the right thing by the mother and L. He works hard in his job as a welder and has long-term plans to establish a specialist welding business working mainly with stainless steel. He starts work at 7.30 am and finishes at 4 pm. He does regular overtime at weekends and occasionally also at the end of the day. His standard weekly pay is about $450, but with good overtime he can bring home as much as $1000.
While he has seen the mother become upset she does not get angry with him and S M feels that their relationship is stable. He hopes to marry the mother next year. S M has a good understanding of his role in L’s life. He compliments the mother's care and in no way seeks to supplant the father. He sees himself as L's special friend. Although criticised for smacking L on the bottom on one occasion, I thought the criticism was unfair. The action seemed spontaneous and was nothing more than a light tap. Nonetheless, chastened by the criticism, S M says that in the future he will leave it to the mother to take primary responsibility for L's discipline.
S M and the mother plan to continue to live at a house in Orange. It is a two-bedroom home that provides stable and secure accommodation adequate to meet the child's accommodation needs.

Section 68F(2) – determining the child’s best interests

I turn now to analyse the relevant s 68F(2) factors.
Firstly, L's wishes. The court counsellor reports:
In the limited conversation, which was possible L, nominated my mum as the person he wished to live with. When asked who was his favourite person replied, 'oh, my mum.' When asked whether his mother and father were good friends or bad friends he replied, 'bad friends.' However when asked who lives with mummy he replied, 'my dad.' When asked where his father was, he was outside in the waiting area, he replied, 'at work.'
When asked who was in his family he replied, 'my mum.' When I asked him several times who else he seemed preoccupied and did not answer. He then attempted to scribble drawing on a large sheet of paper he explained, 'S M got me when dad and S M were fighting.' I then asked, 'Did you want to stay with your dad?' to which he replied, 'No, my mum.'
When it was time to introduce a parent into the playroom I asked L, 'Who will I bring in, your mum or your dad?' L replied, 'my mum'. I then asked, 'Why will I bring in mum?' to which he replied, 'I need her.'
The father agreed that L asked after his mother and it seems common ground that L wants to live with the mother. L is only four and a half years old. At four and a half even if he was achieving in accordance with his chronological age I do not accept that he would have the capacity to understand the nuances of his parents competing proposals. With his difficulties he has an even more reduced capacity than other four and a half year olds to understand what his parents competing proposals mean for him. In the circumstances, although I am satisfied that L wishes to live with his mother, I am not satisfied that he has the maturity that would mean those wishes should carry any real weight.
The next issue concerns the nature of the child’s relationships.

I incorporate into these reasons paragraphs 28 through to 34 of the Family Report. The court counsellor reports:
28. L asked me to fetch his mother because he did not want to stop playing. I insisted that he come, and he ran to get her. Once in the room the mother suggested that they draw a Tyrannosaurus Rex on the whiteboard. L seemed familiar with this activity and participated enthusiastically. The mother drew a dialogue box, which had the dinosaur saying, “I’m going to eat you”. They enacted the story together. The mother encouraged L to try his hand at drawing, although he is still at the scribbling stage. The mother prompted and encouraged him, taking opportunities to name colours. When L lost interest he insisted that he wanted to leave the room and fetch more toys. His mother set limits and distracted him. She interested him in sand play, making up a story with the sand toys and inventing dialogue. L easily became involved in this, mimicking the mother in using funny voices. With the mother’s facilitation, L was able to sustain his concentration far beyond what he had done with me. For a second time L tried to leave the room to fetch more toys. The mother physically restrained him and successfully distracted him.
29.
S M entered the room quietly and joined the pair at the sandpit. The mother explained the story they were enacting in the sand. S M became involved with a quiet, relaxed style.

L accepted him, but did not appear affected in any way by his presence.
30. When it became apparent that the mother had to leave, L said, “I want to stay with you”. When her departure seemed non-negotiable, L said, “Bye Mummy” without affect. Then he added, “S M’s going to say here with me?” He accepted an answer in the negative without affect and the adults departed.
31. When the father entered the room L was playing at the sand pit. The father squatted beside him and softly asked him what he was doing. Then he asked him what he was going to do at Grandma’s. When L went on playing in the sand the father picked up a toy animal and asked, “What’s this?” L replied, “A tiger”. The father said, “No, it’s a lion”. Thus ensued a game of naming the jungle animals in the sand. When the child lost interest the father noticed the dinosaur drawing on the whiteboard. L then asked his father to draw a Raptor. Initially his father refused, saying that it was too hard, but he relented and tried to do so. L was happy with the result. He asked his father to draw sharp teeth. Then the father sat the child on his knee and drew a car. L protested that he wanted his father to draw dinosaurs, but the father preferred to draw a car. L watched his father with concentration. When his father asked him to draw a picture, L refused and went to the sandpit.
32. After a few minutes break I observed the father sitting passively at the sandpit. When L asked his father to shovel sand into the toy dinosaur’s mouth, the father complied. Then L decided he wished to erase the dinosaur from the whiteboard. Initially the father sat back and watched, but when it was apparent that L could not reach the high parts, the father lifted him up in his arms, while L erased. It was at this point that the father noticed L’s tee shirt was missing under his sloppy Joe. To his inquiry about what happened to the shirt, L explained that it got wet. The father replied that this might be the case, but that L should still have his shirt on.
33. K M entered the room breezily with the greeting, “Hi Snooks! What have you got? A dinosaur!” Her energy level far exceeding that of the father. When she knelt on the floor to be on L’s level she asked L whether he would like to remove his sloppy Joe. The father told her that she could not and then said to L, “Mummy pinched your tee shirt”. Then K M said to L, “Mummy took your tee shirt off you did she?” Then she began discussing activities with him in an animated fashion. She helped him put all the tools in a toy tool belt and fastened it around his waist. She prompted L to solve some of the problems associated with this, thus stretching his cognitive abilities. Then she suggested he pretend to construct/repair various things.
34. During this part of the observation the father was extremely reserved and somewhat passive and let K M take the lead. Most of the remainder of the interaction and conversation had only two players, L and K M.

Following her observation sessions the court counsellor reported:
L is securely attached to the significant people in his life, his parents and his grandmother. Despite his verbal communication being hampered it was very clear that L has a preference for his mother or did so on this occasion.
I am comfortably satisfied that L is primarily attached to his mother. This reflects her greater role in his care until separation. The court counsellor emphasised the joyful interaction she observed between them and concluded that it was very evident L has a close bond with his mother, I agree with her. Because their attachment is so strong the court counsellor was cautious about the father's capacity to meet L's emotional needs. The father’s shy and diffident manner with her accords with my own observations of him during the hearing. The father was much less involved with L than either the mother or K M were during the observation session. While this may be a personality style, it has ramifications for L because he is more attached emotionally to his mother and he is developmentally delayed. That is because L needs positive and skilled parenting and emotional support in order to develop. If the father were to live alone with L I agree with the court counsellor that there are very real concerns about his capacity to meet L's physical, emotional and intellectual needs.
I also agree with the court counsellor that L has an immediate and critical need for special attention to redress his developmental delay. Unless his difficulties are addressed now, L's long term adjustment will almost certainly be seriously harmed. This has ramifications for him educationally, socially, personally, effectively in every aspect of his life. L needs stability, therapeutic assistance and pre-school with a specialist program in order to get him ready for school. His skill deficits are so significant that any risk that they will not be appropriately addressed is unacceptable. This is a very weighty consideration.
The court counsellor said that some of L's problems should have been apparent from when he was a baby. Late toilet training, poor fine and gross motor skills, an inability to say his name, an inability to dress himself, even to a rudimentary level, an inability to feed himself, all have an environmental nexus. By this I mean that helping a baby acquire these skills is a key parental responsibility. While I cannot find with absolute certainty that L's developmental delay is entirely caused by parental inattention to his physical and language needs, there is compelling evidence that his needs were neglected to a very considerable degree. He was left in a room on his own; he was carried and not allowed to crawl and walk when he was ready to do so. There has obviously been inadequate one on one attention to communication. I doubt that either the mother or the father read to L, whether people sat down and talked to him or whether he was simply put in front of a television and left to amuse himself.
While he was with the mother for most of the time it seems that L was an adjunct, not the focus of her attention. It is quite clear that when L came into his grandmother's care at four year's old his skills deficits were obvious and profound. It is inconceivable to me that the mother and the father did not realise that by four L should have been toilet trained and been taught to use at least a spoon if not be more skilful with his eating implements. I cannot understand how at four they had allowed him to get to a situation where he could not even say his own name. This boy has been seriously neglected.
It cannot be said that the father and the mother did not have advice that something needed to be done for L. No doubt because she was so young when she had L, the mother were identified as needing some help as a new mother. She refused to accept help. Later the baby health centre sister was concerned about the mother's capacity to meet L's needs and I have no doubt she told her so. The Department of Community Services told the mother she needed help. The counsellor she attended at Penrith told her the same thing. K M also tried to give her help and recommended that she take expert assistance if she would not accept it from her. Every one of these people was rebuffed. Over the years the mother refused to accept any help from any agency or friend with L. The mother did not have the knowledge needed to understand the effect of her neglect on L. L has paid a very high price for her stubborn resistance to the obvious need he had for her to get help.
The father must also accept considerable responsibility for L's deficits. The parties organised their affairs so that the father went to work and the mother took care of L. This did not entitle him to abrogate his parental responsibility. The father passively stood by and allowed a situation of manifest emotional neglect of his son to continue. He could have done something about it, but he didn't bother. To the extent that the father and his mother point the finger at the mother and say that she alone is responsible for L's difficulties their accusations are appalling. The father and the mother are equally responsible for the situation that L is in.
The mother claims insight into her parenting deficits. The father does the same. Both aspire to address L's difficulties. However, there is a real difference between aspirational compared to demonstrated parenting capacity. Demonstrated parenting capacity indicates that neither parent has had the capacity to provide adequate for L's physical, intellectual or emotional needs at any point. This inability has materially contributed to L's current developmental delay. The delay is serious and its ramifications long term. This suggests that the degree of neglect of L's physical, intellectual and emotional needs by both of his parents has been profound.
The key to this child's future is in his carer's capacity to address his physical and emotional needs to a sophisticated degree. It is essential that the court consider the supports available to the mother and the father. The mother's supports are her boyfriend, S M and Ms Latjar, both of whom are well meaning. S M is young and while he is a reliable and kind young man he does not have a history of demonstrated skilled parenting. He is not a parent. Whilst S M would attempt to assist the mother I cannot be satisfied that he has the skills at the necessary level to help L catch up. The mother has attended a parenting program and is learning important information that could assist her to better meet L's needs. With Ms Latjar's support I am satisfied that the mother has the insight into L needing much more from her than he has had in the past. The mother's insight, aspiration and knowledge is recently acquired. It has not been tested for longer than four days during contact. She takes care of L adequately during contact, but she has not been tested taking care of L day in, day out. She has not been tested performing the types of therapeutic intervention he needs. Against a demonstrated incapacity to meet L's needs on a day by day basis for four years, the risk that the mother's commitment may falter, is too high.
I have already indicated that I regard any risk that L's care would not be provided at a sophisticated level is unacceptable. The mother is not yet at a point where she can demonstrate she is able to consistently, emotionally, physically and intellectually nurture L to the extent that he needs. I give this matter weighty consideration.
I am also satisfied that the father does not have the capacity to provide for L on his own. However unlike the mother, the father has very significant family support. K M is motivated to address L's needs. She is a demonstrably capable person who has reared five children. K M is the driving force behind L getting specialist assistance. In fact, she is the only one who has ever made any real efforts to have L receive the therapeutic interventions and assessments that he needs.
Provided L lives with his paternal grandmother and the father he will receive the assistance recommended in the child care plan from his paediatrician and at preschool. All of the planned interventions scheduled for L will require intense support and work at home. K M impressed me in both her capacity and her desire to ensure that everything that needs to be done for L will be done. Of all the adults in this case she is the only one who satisfied me that I could be very confident that everything that needed to be done for L would be done.
I accept the father's evidence that he will live with his mother indefinitely. As a consequence I am satisfied that that is the arrangement that best suits this child's short and long term physical and intellectual needs. His emotional needs will be compromised to some extent because he is emotionally more attached to the mother. He will miss the mother as part of his daily life, something that he and she will find upsetting. However, L is also securely attached to his father and his paternal grandmother. The court counsellor agreed that they between them could adequately meet L's emotional needs.
I turn briefly to address issues of family violence that loomed large in these proceedings. There is no doubt that the mother has been violent to the father and that the father has been verbally abusive to the mother. He conceded that on occasions he has struggled with her and he has pinned her to the bed. He did so when the mother had attacked him and he held her down rather than response using the type of violence that she was using on him. I accept that the mother has hit and punched the father, and been verbally abusive to him. The mother found living in the father’s family home very difficult. It seems likely that she never settled in to the father’s family. A situation that probably exacerbated the tensions between she and the father. One hears time and again evidence from psychologists and psychiatrists about the cycle of family violence. The mother grew up in a violent home and it may be that she learned that the way to deal with frustration and anger is to react violently.
The mother has however learned a lot with Ms Latjar and in the months since she has been seeing Ms Latjar shown real insight into how to deal with frustration. This year has been an awful year for this young woman. She is deeply attached to her son yet she has not had him living with her. She has had to travel backwards and forwards from Orange in order to have contact. The father has provoked the mother time and again. His behaviour is childish and he is provocative and rude. When he decided to smash her belongings he did so in order to provoke a reaction. It does not excuse the mother's behaviour towards him but it does make it more understandable. His protestations that he is frightened of the mother in my opinion are hollow. He seeks to opportunistically rely on circumstances that he himself has contributed to in order to promote his application for residence. This strategy has not worked.
I am not satisfied that the mother's violence to the father was a completely one way street. This was a volatile relationship between two immature parents. Circumstances conspired against them and to a considerable degree contributed to the angry outbursts that both engaged in. The mother's outbursts were more serious and when she decided to pick up the knife she took the violence to another level. He took the violence to another level when he attempted to run the mother down.
What then is the relevance of this behaviour to the current applications for residence? Away from the mother there is no suggestion that the father behaves in the erratic and provocative way that she gave evidence about. He has been prepared to behave towards her aggressively while L has been present. The mother has done the same thing. Away from the father there is no suggestion that she behaves in the way that he complains about. Much was made of an incident at Strathfield Railway Station on 25 October 2003. On that occasion the father was collecting L at the end of contact. The mother had opened a bank account for L and wanted the father to have a look at L's bank passbook. The father had a sour look on his face and when the mother joshed him about being grumbly, he responded in a surly fashion and the mother lost her temper. The father rushed off and the mother pursued him yelling. The father said he was afraid that the mother was going to be violent, I do not believe him. This was a public place, he had his mother in the car and there was nothing about anything the mother said or did that would suggest she was about to attack the father. She was irritated by the father's churlish and childish behaviour. In the future the mother needs to ignore his boorish behaviour towards her.
The incident reveals that the mother can still fly off the handle with the father. It also shows that the father is incapable of behaving in a mature way when the mother is present. It does not suggest that the mother presents a continuing risk of physical violence towards the father. It does however necessitate that to the extent possible the mother and the father should be kept apart. I do intend to order an injunction that will keep them apart other than for the purposes of contact changeover. This is for both parties’ protection and also to ensure that as far as possible L does not get caught up in his parents’ dispute. Just as the mother has benefited from counselling I strongly recommend to the father that he do the same. Just as the mother has benefited, the father in all probability would too.
The other matter I wish to address briefly is the difficulty associated with contact. The mother has decided to live in Orange. She does not drive and contact between Orange and Sydney needs either a long trip by train or S M making time available to assist the mother to have contact with L. Both parties agree that contact should happen regularly. Both finds the travelling associated with contact gruelling. I previously made orders whereby contact changeover would start at Katoomba and end at Strathfield. By and large that reflects a reasonably equitable sharing of the effort associated with contact and I am satisfied that those arrangements should continue.
Because the mother lives such a long way away some of the opportunities for more frequent contact must be lost. It would be untenable for example for L to have overnight contact to the mother mid-week if she is living in Orange. Opportunities for contact associated with birthdays and Christmases being shared are lost because of distance. That is a situation that the mother has created, I am not satisfied that I should put the burden on L of spending special days basically in public transport so that he can spend a little bit of time with each parent. Rather the approach that I will take is to try and share the special occasions between the parents during block contact.
Next year L starts preschool, which must be a real focus of his time and energy. At present the mother's contact finishes on Tuesday afternoons on the alternate week, which will interfere with pre-school. Once L starts pre-school contact will start on Friday evening and continue until Sunday evening. Because I expect that L will attend preschool full-time and there may not be school holidays, I have ordered that the mother will have contact for the whole of the Easter break and each long weekend during 2004. Block periods of contact will start in December 2004 and are then interspersed throughout those Christmas holidays. Thereafter once L starts school regular alternating halves of the holidays in the usual way will take place. I have made provision in the orders for Father’s Day and for Mother’s Day. I include in the orders provisions for alternate changeover venues if the mother moves to live closer to where L is living. If she does so then the contact can extend so that it can start on Friday afternoons and continues through to Monday mornings. The opportunities for birthday contact are included, it is all predicated upon availability.
The orders importantly include specific issues orders, which will require that the mother has notice of important appointments for L with health and educational professionals. She must have the opportunity to attend should she wish to do so. Nothing in the orders limits the mother's opportunity to attend L's school or pre-school so that she can participate in activities that parents are invited to attend. Because of the difficulties between the parents the mother must let the father know seven days in advance if she is intending to be there. He can then decide whether he will attend or stay away.
To the extent possible, with the difficulties inherent in the parties’ relationship and as a consequence of geography, I have attempted to ensure that the mother continues to be a meaningful part of L's life. That she has regular contact to him and is included in the interventions that are so critical to her son's development. Parenting orders are never final in the sense that the court always retains jurisdiction in relation to a child. To the extent possible I expect these orders to be implemented for at least a number of years. The orders emphasise, as do these reasons, the importance to L of stability. Once he starts school he needs the opportunity to settle with a group of friends, to establish relationships with teachers and to benefit from the interventions that school programs might make available to him.
The orders require L and his father live with his family until L has completed second class at infant school. By that time my hope and expectation is that the father will have acquired improved parenting skills and that the critical issues that require L to live with his paternal grandmother will have resolved. Ordering the father and L to live with the father's parents until L is 18 years of age seemed untenable in the circumstances.
I am satisfied that these orders are on balance in the best interests of the child.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: P Sessions

Date: 7 June 2004