Mallett and Wharton

[2017] FCCA 1398

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLETT & WHARTON [2017] FCCA 1398

Catchwords:
FAMILY LAW – Parenting – two children of the relationship – with whom the children shall live – where the mother relocated without the children – where the mother’s partner has an extensive criminal record – where the father has not supported a relationship between the children and their mother – children live with the father – father have sole parental responsibility – children spend time with the mother.

Applicant: MS MALLETT

Respondent: MR WHARTON

File Number: MLC 9893 of 2015

Judgment of: Judge Hartnett

Hearing date:	15 February 2017
Further application:	Filed 8 April 2017, determined 19 June 2017
Further application:	Filed 27 April 2017, determined 19 June 2017
Delivered at:	Albury

Delivered on: 23 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Turner

Solicitors for the Applicant: Peninsula Law

The Respondent: In Person

Counsel for the Independent Children's Lawyer: Ms Hamilton

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged save those made 19 June 2017 which shall continue in full force and effect until the first day of the 2017 Victorian Term 3 school term being the day on which the subject children return to school.

2. The father have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’).

3. The children live with the father.

4. The children spend time with the mother as follows:-

   (a)For one, up to three day weekend, at the mother’s election during the third school term 2017, and once in each school term in each year thereafter with the mother to collect the children from school on Friday at 3.30pm at commencement and return the children to the father with hand-over to be inside the (omitted) Police Station at conclusion. The concluding time can be on the Sunday or Monday at 5.00pm, at the mother’s election. The mother is to notify the father at least seven days in advance and in writing by text or email of her elections, and the mother shall accommodate the children at such location as she desires. No phone communication between the father and children shall occur unless in an emergency or unless the children or either of them instigate such contact;

   (b)for the entirety of the September/October 2017 school term holidays, the mother to collect the children from school in (omitted) on the last day of school and the father to collect the children at conclusion at 2.00pm on the last Saturday before school commences for Term 4 of 2017. The father to collect the children from inside the (omitted) Police Station;

   (c)in the 2017/2018 Christmas school holidays and each alternate year thereafter for the first-part of such holidays with the mother to collect the children from school on the last day of the school year and the father to collect the children from inside the (omitted) Police Station at 2.00pm four weeks later;

   (d)in the 2018/2019 Christmas school holidays and each alternate year thereafter for the second part of such holidays commencing at the half way point of the holidays at 12 noon with the mother to collect the children from the (omitted) Police station until the last Saturday of the school holidays at 2.00pm when the father shall collect the children inside the (omitted) Police Station.

   (e)commencing in 2018, in the term one and three school term holidays for eight days with the mother to collect the children from school on the last day of school and the father to collect the children on the middle Saturday of the term holidays at 2.00pm from inside the (omitted) Police Station.

   (f)commencing in 2018, in the term two school holidays for the duration of the holidays with the mother to collect the children from school on the last day of school and return the children to the father on the last Saturday of the term holidays with changeover inside the (omitted) Police Station.

5. The mother shall be in attendance throughout all periods of time spent with between herself and the children and shall not leave the children alone with Mr D.

6. The mother is at liberty to telephone the children at all reasonable times. The father is at liberty to telephone the children on two occasions in each holiday period of time spent with their mother.

7. The parties advise each other as soon as practicable of any significant illness and/or injury suffered by the children or either of them whilst in their respective care along with the names and contact details of any treating medical, dental and/or allied health professionals so that each parent may liaise with same and receive a copy of any reports prepared in relation to the child or children.

8. Both parties shall be entitled to receive a copy of all school reports, notices, letters, photograph order forms and correspondence normally provided to parents and shall make their own arrangements with respect thereto.

9. The parties, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party in the presence and/or hearing of the said children, and from permitting any other person so to do.

AND THE COURT NOTES THAT:

A.The father has given an undertaking to the Court to comply with these orders and such undertaking remains operative.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9893 of 2015

MS MALLETT

Applicant

And

MR WHARTON

Respondent

REASONS FOR JUDGMENT

1. These proceedings were initiated by the mother in her filing of an application on 13 October 2015 in which she sought parenting orders in respect of the parties two children, X born (omitted) 2008 (‘X’), and Y born (omitted) 2009 (‘Y’) (collectively, ‘the children’). I note that in evidence neither parent has consistently stated the date of birth of X and nor was there a birth certificate before the Court. Her birthday, by majority expression, would appear to be on (omitted) 2008. The mother sought in her application that she have sole parental responsibility of the children of the relationship and that they live with her.  The mother sought for time spent with their father to be as determined by the Court.

2. On 4 December 2015, the father filed a response to the mother’s initiating application wherein he sought relevantly final parenting orders as follows:-

   “1.        That the Respondent Father shall have sole parental responsibility for the children, X (dob: (omitted) 2008) and Y (dob: (omitted) 2009).

   2.     That the children live with their father.

   3.     That the children spend time and communicate with the mother at such times and upon such terms and conditions as are agreed between the parents from time to time, and not otherwise.

   4. Pursuant to section 68B of the Family Law Act 1975, the mother be restrained from:

   4.1. Taking the children into her care;

   4.2. Taking or causing the children to be removed from the father’s care;

   4.3. Taking or causing the children to be removed from any other person, agency or institution into whose care the mother has enrolled or delivered the children;

   Save pursuant to Order 3 above (being for the purposes of spending time and communicating with the children between the parents.)”

History of orders made

1. The mother initiated her proceedings in the Melbourne registry of the Court.  The father sought by way of interim order in his response filed, that the proceedings be transferred to the Albury registry of the Court and he sought to involve, by way of interim order and for an initial period of time, the (omitted) Children's Contact Centre to supervise the mother’s time with the children.  The father sought such supervision on the basis that he also sought orders for the mother to provide a sample for urinalysis and for the mother to undergo hair follicle testing with respect to the presence in her body of cannabinoids, opiates, amphetamines, methamphetamines and benzoids.

2. On 7 December 2015, being the first Court date, the proceedings were adjourned to the Albury circuit sittings of the Court, and listed in the duty list on 7 March 2016.  An order was made for the appointment of an Independent Children's Lawyer for the children.  The Court ordered until further order the following:-

   “…

   4. X and Y live with the Father.

   5. X and Y spend time and communicate with the Mother as follows:

   a) each alternate weekend from 6:00pm Friday during school term and 6:00pm Friday during school holidays to 2:00pm Sunday commencing 11 December 2015 save for the Christmas weekend when the time shall be from 12:00 noon Boxing Day to 2:00pm on Monday 28 December 2015;

   b) by telephone every second day between 6:00pm and 6:30pm with the Mother to telephone the Father’s mobile;

   c) as otherwise agreed between the parties.

   6. Changeover for the time X and Y spend with the Mother shall be at (omitted) Police Station.

   7. Each party undergo a supervised urine drug screen within 24 hours of a written request to do so received from the Independent Children’s Lawyer and provide the results of same to the Independent Children’s Lawyer and to the solicitor for the other party as soon as practicable thereafter.

   8. In the event the Mother:

   a) fails to attend to collect X and Y or is two hours late in returning X and Y pursuant these Orders without reasonable excuse for so doing (including producing a medical certificate if unable to attend due to ill health); or

   b) fails to undertake a supervised drug screen as requested pursuant to order (7) herein; or

   c) returns a drug screen which is positive for illicit substances;

   the time X and Y spend with the Mother pursuant to order (5)(a) herein shall be suspended.

   9. In the event the Father fails to undertake a supervised urine drug screen or returns a screen which is positive for illicit substances, the Mother shall have leave to bring an urgent application seeking orders that X and Y live with her.”

3. The matter came back to Court some ten days later. On 17 December 2015 in Melbourne, Judge Bender made the following orders:-

   “1. The Father be restrained from:

   a) abusing, insulting, belittling, rebuking or otherwise denigrating the Mother to or in the presence or hearing of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2009 (“Y”) or any of them, and from permitting any other person so to do;

   b) abusing, insulting, belittling, rebuking or otherwise denigrating the Mother in person; and

   c) sending abusive, insulting, belittling, vile or rude messages via SMS, Facebook or through any other form of electronic communication to the Mother.

   2. Changeover for the time X and Y spend with the Mother pursuant to Order (5) of Orders dated 7 December 2015 take place in the foyer of the (omitted) Police Station.”

4. On 7 March 2016 in Albury, Judge Harman made orders by consent as follows:–

   “1. Order 7 dated 7 December 2015 is varied to include the requirement that the drug screen results provide for the level of any illicit substance detected.

   2. The Independent Children’s Lawyer be permitted to issue up to 8 subpoenas.

   3. The Mother shall provide to the Independent Children’s Lawyer the names and contact details, including telephone numbers, of her General Medical Practitioner, her previous General medical practitioner, her psychologist and/or psychiatrist if she has one and/or any counsellor she attends or has attended in the last five years and any hospital she has attended in regards to her mental health and dates of same.”

   A further order was made that a family report be prepared pursuant to section 62G of the Family Law Act 1975 (Cth) (‘the Act’). The proceedings were adjourned for further mention and directions to 30 September 2016.

5. The mother filed an application for contravention on 26 April 2016.  That application was returnable on 15 June 2016.  On that day, orders were made as follows:-

   “1. Pursuant to section 13C of the Family Law Act 1975, the father shall continue to engage with the programs in which he is presently enrolled (or advises the Court that it is so) being programs with (omitted) Community Health and (omitted).

   2. Within 14 days the father shall provide to the Independent Children’s Lawyer and the solicitors for the mother, written confirmation of his enrolment in those programs.

   3. Pursuant to section 13C Family Law Act 1975, the mother shall within 14 days contact (omitted) Family Relationships Centre for the purpose of arranging and attending the first available and offered intake appointment for assessment of suitable family counselling services and upon an assessment being made as to suitable services the mother shall then do all things, sign all documents and pay all fees necessary to enrol in and complete such services as are offered.

   4. Dismiss the Application for Contravention filed 26 April 2016.

   5. Adjourn all extant applications to 16 August 2016 at 10:00am.

   6. IT IS NOTED that the Family Report ordered 7 March 2016 is in the process of completion and will be released to the parties prior to the next Court event.

   7. By consent and pending further Order and in addition to periods of time between the mother and the children, X born (omitted) 2008 and Y born (omitted) 2009, the mother shall spend time with X and Y for one half of each Victorian school holiday period and absent agreement as to the time of those periods to be:

   a) During short school term holidays from 2:00pm on the middle Sunday until 2:00pm on the last Sunday of the holiday period;

   b) During the Christmas/New Year school holiday 2016/2017 from 2:00pm 9 January 2016 until 2:00pm on the Sunday prior to the commencement of the first school term and in addition a period from 2:00pm Boxing Day until 2:00pm 28 December 2016.”

6. The mother filed a further application in a case on 8 June 2016. On 19 July 2016, the Court ordered as follows:-

   “1. Notwithstanding any other order to the contrary and until further order the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’) spend time with the mother as follows:-

   a) each alternate weekend commencing 29 July 2016 from 6:00pm Friday until 5:00pm Sunday; and

   b) changeover to occur at the (omitted) Police Station and inside the Police Station if it is manned.

   THE COURT ORDERS, BY CONSENT, THAT:

   2. Without any admission by the mother as to the necessity thereof and until further order the children shall not be brought into contact with Mr D at any time whilst in the care of their mother.

   3. Liberty to apply on short notice.”

7. On 16 August 2016, the Court ordered the matter be listed for final hearing on 28 November 2016 and there be interim parenting orders (made by consent) relevantly as follows:-

   “1. Paragraph 1(b) of orders made in relation to the children X ((omitted) 2008) and Y ((omitted) 2009) (‘the children’), dated 19 July 2016, be varied as follows:

   Changeover to occur at (omitted) Police Station with neither party to leave their vehicle during changeover, save for in the case of an emergency.

   Otherwise all other orders remain.

   2. The mother spend additional time with the children as follows:

   a) From after school (3.20 pm) until 7.30 pm on Tuesday 16 August 2016; and

   b) In the event the mother is in the (omitted)/(omitted) region, and provided she provides the father with at least 24 hours notice, for a minimum of 6 hours on a weekend or 3 hours on a week day. At times as agreed but failing agreement from afterschool until 6:30 pm on a week day and from 1 pm until 7 pm on a weekend day.

   3. For the purpose of changeover for paragraph 2 of these orders, when changeover does not occur at the children’s school, changeover to occur at (omitted) Police Station.

   4. The children continue to attend upon (omitted) Health in (omitted) for the purpose of non-reportable therapeutic counselling.

   5. The ICL be permitted to provide a copy of these orders to the children’s nominated psychologist (Ms R) and liaise directly with her regarding the children’s attendance.

   6. Each of the parents to follow all reasonable referrals and recommendations of the children’s counsellor and speak directly with their counsellor only as invited and/or directed by the counsellor.

   7a) within 7 days of the making of these orders each of the parents attend upon their GP to obtain a Mental Health Care Plan and referral to a psychologist for therapeutic counselling to assist them to address the issues identified in the Family Report of Family Consultant Ms M dated 8 August 2016. In particular, focusing on the issues that might be impacting on their parenting capacity and safety of the children.

   b) the parties to provide to the ICL the name, contact details and qualifications of the counsellor they engage with in accordance with order 7(a) above and file and serve a report from their counsellor 14 days prior to trial.

   THE COURT ORDERS THAT:

   8. The parties attend upon a psychiatrist nominated by the Independent Children’s Lawyer for psychiatric assessment and report. 

   a) As soon as the psychiatrist assessment has been arranged the independent children’s lawyer to advise the parties as to the date, time and venue of the assessment together with the name of the nominated psychiatrist.

   b) It is requested that Victoria Legal Aid pay the cost of the mother’s share of the psychiatric assessment and the father provide forthwith to the ICL copies of his bank statements, health care card and complete a Victoria Legal Aid application form. In the event the father is considered unable to pay the cost of his share of the psychiatric assessment, it is requested that Victoria Legal Aid pay the same as a disbursement to the ICL.

   c) The parties each provide to the psychiatrist a copy of all material filed on their behalf in these proceedings at least seven days prior to their appointment.

   THE COURT ORDERS, BY CONSENT, THAT:

   9. The Independent Children’s Lawyer to file and serve an Affidavit annexing the respective assessments and reports of the nominated psychiatrist as soon as practicable thereafter.

   10. The ICL have leave to provide a copy of the Family Report to the following:

   a) The children’s appointed counsellor in accordance with order 4 above.

   b) The parent’s appointed independent psychiatrist in accordance with order 8 above.

   c) Each of the parents appointed therapeutic counsellors in accordance with order 6 above

   11. The ICL have leave to photocopy all subpoena material produced in these proceedings and provide a copy of the same to the independent psychiatrist appointed in accordance with paragraph 8.

   12. The ICL have leave to provide a copy of the psychiatric report produced in accordance with paragraph 8 above to Family Consultant Ms M and seek an addendum Family Report if required prior to the next court date.

   13. a) Forthwith the mother enrol in and complete a parenting education program (such as Triple P) and provide the father and the ICL with her certificate of completion as soon as the same becomes available.

   b) The father to provide the mother’s solicitor and ICL with the certificate of completion of the Men’s Behaviour Change Program as soon as it becomes available.

   14. The parties, their servants and/or agents, be restrained and an injunction be granted restraining them from:

   a) Knowingly exposing the children to any person who is affected by illicit substance or who has consumed alcohol to excess.

   b) Knowingly exposing the children to drug paraphernalia.

   c) Exposing the children to family violence.

   15. Each of the parties be permitted to attend at the children’s schools for events usually attended by parents and obtain copies of all school reports, photograph order forms and newsletters usually received by parents at their individual expense.

   16. The ICL be permitted to provide a copy of these order to the school.

   17. The matter otherwise be listed for trial in the circuit sittings commencing 28 November 2016 with each party to file and serve any Affidavit material they wish to rely upon at least 14 days prior to trial.

…

NOTATION:

a) The father enrolled in Men’s Behaviour Change Program with (omitted) Health and commences the program on 20 October 2016.”

1. On 20 October 2016, orders were made in chambers that the hearing of 28 November 2016 be vacated.  This was sought by the parties.  The proceeding was adjourned to 13 February 2017 for final hearing with priority and the Court ordered, relevantly:-

   “3. That notwithstanding any other order to the contrary, the parties may attend upon either a psychologist or psychiatrist for the purposes of the preparation of a report as envisaged by earlier orders.”

2. On 15 February 2017, the Court made interim orders as follows:-

   “1. All previous parenting orders are discharged.

   2. Until further order, the children X born (omitted) 2008 and Y born (omitted) 2009 (‘the children’) live with the father.

   3. The children spend time and communicate with their mother as follows:-

   a) from 3pm on Friday 17 February 2017 until Sunday 19 February 2017 in the (omitted)/(omitted) region;

   b) from 3pm on Friday 10 March 2017 until 12 noon on Monday 13 March 2017.

   c) commencing at 3pm or at the conclusion of school on the last day of term one (being 1 April 2017) and for the duration of the school holidays until 12 noon on the Saturday immediately proceeding the commencement of the second school term; and

   d) by telephone at all reasonable times. The mother is to telephone the mobile phone of the child X and speak to both X and Y on that phone. The father is to ensure that X’s phone is in credit. Such phone communication is to be conducted in private between the children and their mother.

   4. For all time spent with the mother is to collect the children from school in (omitted). The father is to be absent. The father or his agent shall collect the children at conclusion of time spent with from inside the (omitted) police station.

   5. For all time spent with periods the mother is to be substantially in attendance.

   6. Neither party by themselves, their servants and/or agents denigrate the other in the presence and/or hearing of the children.

   AND THE COURT NOTES THAT:

   A. The father is to provide the children with appropriate clothing for the mother’s time with the children.”

3. The proceedings were otherwise concluded with judgment reserved.

4. Prior to the delivery of judgment the mother filed an application in a case dated 8 April 2017. She sought that all previous orders be discharged, that the two children reside with her and that their time with the father be reserved for a period of three months. She sought orders that thereafter the children spend supervised time with their father at a children’s contact centre as nominated by the Court.  In support of that application in a case, the mother relied upon an affidavit sworn by her on 8 April 2017.

5. The mother’s allegations were that immediately following the hearing, the father commenced threatening her that he was not going to provide the children to her for time spent with in accordance with the orders.

6. The father had made the children available to the mother for the weekend of 10 to 13 March 2017, and thereafter sent text messages to the mother stating he did not intend to provide the children for the following school holidays in accordance with the existing orders. On 31 March 2017, the mother travelled to (omitted) to collect the children for the school holidays.  The father did not make the children available to the mother. He absented them from school from where the mother was to collect them.

7. The mother, on 19 June 2017, withdrew her application in a case with such withdrawal being supported by the Independent Children’s Lawyer and the Court. It was an inappropriate application given that the substantial proceedings involved the parenting orders as sought in the application in a case. The mother also filed on 27 April 2017 a contravention application. The Court heard the contravention application and determined the father had breached orders of the Court. The Court ordered:-

   “1. There is leave to withdraw the application in a case filed 21 April 2017.

   2. There is leave to the Independent Children’s Lawyer to withdraw from the contravention proceedings filed by the mother 27 April 2017.

   3. The Court is satisfied on the balance of probabilities that the father has contravened an order of the Court being order 3(c) of the orders made 15 February 2017.

   4. The father shall enter into a good behaviour bond undertaking for a six month period to comply with the orders of the Court.

   5. The mother shall spend time with the children as follows:-

   a) after school this day until 9.00am or 20 June 2017 and the father is to deliver some overnight clothing for the children to the school office before 2.00pm this day. The father is not to be in the vicinity of the school grounds otherwise this day;

   b) on 30 June 2017 from 3.30pm the mother to collect the children from school in (omitted). The father is not to be present at the school in its surrounds. The children will remain with the mother until the Saturday before school resumes at 2.00pm. Changeover to be in the foyer of the (omitted) Police Station;

   c) notwithstanding any other orders to the contrary and until the first day of the third school term commences the mother shall not leave the children alone in the presence of Mr D;

   d) the father is at liberty to telephone the children each Wednesday and each Friday between 6.00pm and 7.00pm when the children are with their mother and the mother is to ensure the children are available to take the call to X’s phone.

   AND THE COURT NOTES THAT:

   A. Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), 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 the Annexure and these particulars are included in these Orders.”

8. It is a very serious matter that the father so readily breached an order of the Court. His actions add to his history of denying the children a meaningful relationship with their mother. It raises the issue of whether the children should reside with their mother.

History

1. The mother was born on (omitted) 1975 and is now aged 41 years.  The father was born on (omitted) 1969 and he is now aged 48 years. 

2. The Applicant and Respondent formed a relationship in 2006 and in (omitted) 2007 commenced their cohabitation. They separated on a final basis on 13 March 2015, after initially separating for a short period of time in 2010. The mother alleged such separation was due to domestic violence perpetrated by the father upon her and the children. The father had a prior history of violence. Very early in the relationship between the parties he was incarcerated for a three month period in relation to a family violence incident involving his former partner. 

3. Prior to the commencement of the parties relationship the mother had three children from previous relationships.  B born (omitted) 1997, C born (omitted) 1998 and D born (omitted) 2000. Those children were approximately 9, 8 and 6 years respectively at the time these parties commenced their relationship.

4. The mother’s evidence is that when she first commenced her relationship with the Respondent, her mother, and the fathers of her children, objected to the children living with she and the Respondent. The basis of the objection was, the mother claimed, the Respondent’s drug addiction and violent behaviours.  The maternal grandmother eventually made an application to the Court for parenting orders and the fathers of Mr D, C and D were joined to those proceedings as Respondents.  Final orders were made whereby the child Mr D went to live with his maternal uncle, and the children C and D commenced to live with their father. Those proceedings were in about 2010 and at a time when Mr D was approximately 13 years of age, C approximately 12 years of age, and D approximately 10 years of age.  The children had therefore lived with their mother and the Respondent for some years prior to the making of the orders.  The mother alleged that the Respondent was violent toward Mr D and D, and claimed that her three children all “hated” the Respondent.  The mother claimed that the Respondent’s treatment of the mother’s older children has resulted in estranged relationships with the mother and children, which the mother claimed to now regret. 

5. The mother reported to Ms M, family consultant, whose evidence is hereafter referred to, that in or about June 2015, and of her own accord, C came to live with her.  The mother said to Ms M that D continued to live with his father and had been unwilling to have any contact with her for several years.  Mr D also has no wish to have any contact with his mother, but he has an ongoing and good relationship with his father.

6. The Respondent father has three older children from prior relationships.  They are Mr B, who lives independently in Melbourne; Ms N, who lives independently in the (omitted) region; and A, who lives with his mother.  Although A at the time of preparation of the family report, was aged only 11 years, the Respondent had not had contact with A for several years. Since the Respondent’s separation from A’s mother, the Respondent had spent only supervised time with A at the (omitted) Children's Contact Centre. When that supervised time ceased, no further time was ordered by any Court and nor did it occur. Ms N lived with her father, X and Y for a period of time following the separation of the parties, before she and her father had a “difference of opinion” and Ms N moved out. The Respondent father and his daughter are no longer in contact.  The father and Mr B are on good terms, communicate by telephone and see each other regularly.

7. The father was convicted and jailed at (omitted) Prison for three months in 2006-2007, due to violence against his previous partner, Ms E.  Ms E has a lifetime intervention order against the father on behalf of herself and on behalf of their child A.  The father has committed other criminal offences and has a lengthy criminal history, which includes assault, recklessly causing injury, breaching intervention orders and wilful damage of property.

8. The mother has been diagnosed with bipolar disorder and takes a daily dosage of Seroquel as prescribed by her medical general practitioner.  The mother’s evidence is that she has been well for a long time and has never required hospitalisation.

9. Following the separation of the parties the mother moved out of the parties family home and the children remained living with their father.  Until early May 2015, the post-separation relationship of the parties was in fact, amicable.  They occasionally still slept together and used drugs together. 

10. The mother claimed in her affidavit evidence that on 13 March 2015, she fled the parties home in (omitted) out of fear.  The children were at school at the time.  The mother claimed further in her affidavit evidence, that the father grabbed her violently around her throat and threatened her, telling her to “get the fuck out of here” and that he would “find (her) and kill (her)” if she took the children.[1]  The mother claims she was so afraid of the consequences for herself and the children that she felt she had no choice but to leave without them. The evidence overall does not bear this out. The father denies the mother’s allegations. The mother gave inconsistent evidence, her evidence at trial being that Y was at home when she departed the former matrimonial home. She said goodbye to him. She did not contact the school.  She did not say goodbye to X. She said she had an amicable relationship with the father in relation to spending time with the children after separation which occurred at a friend’s home, and she was not worried about the children remaining with their father:-

    “…because I was close enough to be near to see them, because I was having them from Saturday till Sunday and then Wednesday nights, so I was close still to see them.”

    The Court prefers the evidence of the father. The mother departed the home at a time of her choosing and not as a consequence of threats made to her by the father at that time. The mother did not speak with the children about her impending relocation to (omitted), claiming she did not want to upset the children any more than they were already upset.

    [1] Affidavit of the mother filed on 23 January 2017 at [21].

11. Ultimately as to her behaviour around that time, the mother’s evidence was:-

    “Well, yes, the children would have been expecting to see me, but I was thinking of myself more than my children.”

12. Whilst there was some degree of cooperation in the parties post separation relationship for about eight weeks, that did not last. The father commenced to engage in serious levels of intimidation, harassment and stalking behaviours after forming the belief that post-separation the mother was sexually intimate with other people.

13. The father commenced to send hundreds of denigrating, insulting text messages to the mother. The father stalked her movements and tampered with her house by turning off the electricity supply.  The mother began to fear for her personal safety. She hastened her move to the (omitted) area where, for a period, she was offered support and accommodation by the maternal grandmother.  She did not spend time with the children for many months. The father’s interpretation of this was that the mother was not reliable, and that it had seemed to him that spending time with the children had become “a hassle” for her.  The father’s evidence was that the mother stopped seeing the children altogether for about three months at her own election, and not as a result of being fearful of him.

14. On 7 December 2015, orders were made by the Court providing for the mother to spend time with the children, the parties not being able to reach any agreement as to that.

15. On 17 December 2015, as a consequence of the text messages sent from the father to the mother, Judge Bender made the restraining orders referred to earlier in these reasons.  The mother claims such orders did not stop the father who, throughout the 2016 year, continued to send denigrating messages to her.  The mother gave, as an example in her affidavit evidence, annexure M4, a text message sent by the father to her on 28 March 2016.  Such text messages sent by the father were aggressive and insulting, including referring to the mother as a “bag whore”. The father agrees he has said some angry things to the mother. He claimed to have received a sexually transmitted disease from her which was the cause of their separation. He considers she abandoned the children and failed to see them on occasions when she had said she would.

16. The father also verbally abused the mother outside the (omitted) police station in the presence of the children and on occasion the mother has retaliated. Both are not conflict averse.

17. The mother’s evidence is that she was pressured into taking illicit drugs by the father during their relationship, and that since separation in March 2015, she has not been under the influence of any illicit drug.  She never drinks alcohol.  The mother’s evidence is that during these proceedings, all of her supervised drug screens have been clean.  Whilst that is the case, the mother has not complied with the relevant order as to drug testing, in that she has not obtained such drug screens within the 24 hour period of request by the Independent Children’s Lawyer as set out in order 7 of the orders made 7 December 2015.

18. The mother was first requested to undertake a drug screen on 11 January 2016.  She did so some nine days after the request, and on 20 January 2016.  The second request for the mother to undertake a drug screen was 15 February 2016.  Some eight days later, she undertook a test on 23 February 2016.  The third request was on 15 March 2016, and the mother undertook no test.  The fourth request was on 7 April 2016, and on that occasion the mother complied with the order and undertook the test on the following day.  On the fifth occasion the mother was requested to undertake a drug screen.  The request was made on 2 June 2016, with the mother undertaking the test some six days later, on 8 June 2016.  The sixth request was made by the Independent Children’s Lawyer on 15 November 2016. No results were made available in respect of that test although the mother claims that she undertook the test. The final test request was on 13 January 2017 and the mother undertook the test some four days later, on 17 January 2017. The mother proffered no reason to the Court for her delay in respect of undertaking the supervised urine analysis tests.

19. The mother’s undertaking of tests which produced clean drug screens is of little assistance to the Court, in circumstances where the mother has not undertaken such tests within the necessary 24 hours of the request.  The Court cannot be satisfied that the mother is, as she claims, drug-free. 

20. The mother’s evidence is that the father denied her a meaningful relationship with her children in his complete refusal to allow the children to see their mother in person, in addition to, on numerous occasions, refusing to allow them to speak to her by phone. Her evidence is, further, that throughout the proceedings she has been bullied by the father to travel to (omitted) rather than exchange the children at (omitted), as ordered by the Court. She claims to feel intimidated by the father. 

21. The mother alleges that the father continues to use drugs and that he has not provided to the Court any clean drug screens, as requested, and has not done so because they would be positive for illicit substances.  In fact, the Independent Children’s Lawyer made requests of both the mother and father.  The father was requested to provide a drug screen on 16 March 2016, and did so on the same day.  The urine drug screen test results were positive for cannabinoids.  On 16 February 2016, a request was made of the father to attend for a drug screen, and he did so within the 24 hours, attending on 17 February 2016.  Again, the test was positive for cannabinoids.

22. The children were denied time with their mother, by their father, between mid-March 2016 and 17 June 2016.  The father, at that time, was requiring the mother to travel to and from (omitted) to enable her to see the children. This was not in accordance with the Court orders.  The father claimed that his car needed repairs and that he was unable to transport the children. The father used this excuse that his car needed repairing, from December 2015 ongoing.

23. The father refused to make the children available to the mother in the March 2016 school holidays, and again in the June/July 2016 school holidays.  Prior to the June/July school holidays, the father commenced to make allegations that the mother’s new partner, Mr D, had hit the children during a visit with the mother.  That allegation was denied by the mother, who claimed the children have a very good relationship with Mr D.

24. On 3 July 2016, the mother travelled to (omitted) to collect the children.  The father did not arrive, and sent the mother a text. Thereafter the father constantly prevented the mother from seeing the children necessitating numerous returns to Court for orders to be made as described earlier in these reasons. There was a period between October and December 2016 when the mother's father fell ill and died, and she was unable to see her children.  The mother attempted to recommence time with the children on 2 December 2016.  The father refused again to exchange the children on Boxing Day 2016, claiming his car had broken down and he could not get it repaired because it was Christmas.

25. The father continues to live in a three-bedroom government house in (omitted). His accommodation is stable. He has part-time employment as a (occupation omitted) and he also receives a Centrelink payment.  His key informal supports include a couple who live next door.  A woman, who lives in the street, and cares for the children if necessary, those times being if the father is required to work outside school hours.  The father has little or no contact with his extended family members.

1. The mother lives with her de facto partner Mr D in a three-bedroom rental house in (omitted), in the (omitted). She moved to that location in about April 2016. Mr D moved into the home in November 2016. This precipitated the mother’s daughter C, who had been living with her mother, moving out. The mother swore in her affidavit of 23 January 2017 that C was living with her, and she also reported that to Dr C, whom she saw on 23 December 2016. However, at neither of those times, was C still living with her. Likewise, in her trial affidavit, when she described that her friendship with Mr D was developing, the mother was in fact already living with him. The last time before the trial that the mother had the children in her care, being 2 December 2016, Mr D was at the house, despite an injunction restraining him from being present whilst the children were in her care. The wife admitted in evidence to contravening the order on 2 December 2016. 

2. The mother's evidence at trial was that she could not move closer to the children in (omitted) because of her job.  She had finally obtained employment that paid well. Her split shifts are 5.00pm to 9.00pm and 6.00am till 9.30am. The mother's workplace is some 20 minutes or 35 minutes from her home. The mother claimed the children would be cared for in her absences before and after school by her stepmother.  Her stepmother is not available on Monday and Thursday in each week. The mother is significantly unavailable to the children with these hours of work and the Court has not the necessary evidence that these hours are flexible as claimed by the mother. 

3. Mr D is rebuilding motorbike motors and car motors and his place of work is the shed at the home he and the mother are renting.  Various customers come around to the house. 

Dr C

1. Dr C, psychiatrist, prepared a psychiatric report in respect of the father and of the mother. Dr C was not cross-examined in the proceedings and his evidence was unchallenged. His reports are in evidence in the proceedings. 

2. Dr C undertook a psychiatric assessment of the father on 31 January 2017. Dr C summarised the father’s history as follows:-

   “(The father) is a man who had a very troubled upbringing with violent parents who frequently fought and had frequent affairs which he was forced to keep secret about. His education was disrupted as the family moved around…  (The father) in his early twenties, had numerous charges for assault, usually due to having fights in pubs. He had a three month period in jail after breaching a suspended sentence, the circumstances being that…his uncle-in-law, was rude and offensive to his daughter.”

3. The father described the relationship with the mother, to Dr C, as having been “good for the first years”, but claimed that drug-taking and alleged infidelity on her part then ruined their relationship. The father noted to Dr C that he had the primary care of the children and that there had been infrequent access visits by the children’s mother, partly due to distance, her father being ill, and the mother starting a new job. 

4. The father described, on advice from the children, how the mother’s new partner, Mr D, was present at access visits despite the Court orders prohibiting this, and that he made threats to the children that he would harm the father if they tell him he has been present.  The father claimed Mr D behaves inappropriately in the presence of the mother and does not respect X’s right to privacy when bathing. He reported involving the Department of Health and Human Services in this regard. 

5. The father detailed, as part of his history, that he had not been a heavy drinker now for many years, but that he smoked marijuana up until about five months before seeing Dr C.  He claimed he had no stimulants, ice or speed, for many years.  He acknowledged being a drug dealer in his teens. 

6. The father gave a history to Dr C of having had episodes of depression when aged about 19 years, experiencing an impulse to kill himself whilst working in an (employer omitted). He acknowledged taking anti-depressant medication for some three months when living at (omitted) House, which he found helpful, and stated that he saw a psychologist on four to five occasions at that time, having difficulties with sleep.  He had no current thoughts of self-harm or suicide.  He reported receiving support from his counsellor, Ms McFarlane, on an ‘as needs’ basis, and, prior to that, had benefited from several programs whilst at (omitted) House. He acknowledged sending angry texts in response to angry messages from the mother, but he had not sent any such texts since being advised not to by his legal representatives.

7. Dr C concluded, from a psychiatric standpoint, that there was no impairment to parental capacity of the father, and he noted that the father had benefited from the support of interventions from Ms McFarlane at (omitted) Community Health and other courses he had done whilst at (omitted) House.  He noted that the father’s mental state, upon examination, was that there was no evidence of depression or anxiety, no signs of intoxication with any drugs or alcohol, and no evidence of any distortion of formal thought, or content of thought, or anything suggestive of a psychotic illness. 

8. Dr C’s psychiatric report of the mother resulted from his consultation with her on 23 December 2016.  He noted, as part of the psychiatric history given by the mother, that she was on ice and ecstasy for a couple of years.  She found it hard to stop using.  She claimed that after she left the father, she stopped taking ice.  She has never been a marijuana user.  She smokes cigarettes and does not drink alcohol at all.  He noted also, that part of the psychiatric history of the mother was that she had been diagnosed with bipolar disorder by a psychiatrist, Dr B, in (omitted) in 2010.  He prescribed Seroquel, which she continues to take at 300 milligrams a day. 

9. The mother described herself as now in a stable mood.  She got episodes of extreme irritability, sometimes experiencing suicidal thoughts. She claimed to think about suicide when she felt she could not take any more of the father and his abusive texts.  She did make an attempt on her life on two occasions when she was with the father.  She took about 12 Seroquel pills and was admitted to hospital.  No one was aware of the Seroquel overdose.  She did not tell the father and nor did she tell her psychiatrist, Dr B.  She had not had a psychiatric review since seeing Dr B, which would have been four to five years prior to her consultation with Dr C.

10. The mother’s mental state on examination was that:

    “Her mood was euthymic, which is normal.  Her affect was reactive and showed a great deal of distress when she was talking about separations from her children.  There was no evidence of intoxication with any drug or alcohol, no distorted form of thought or content of thought.  Her speech was well modulation (sic).”

11. In summary, Dr C found the mother to show a conscientious and genuine desire to have the care of her children and showed considerable distress at the impediments placed in the way of her having her children by the distance between (omitted) and (omitted), and what she described as the manipulation of the situation regarding access visits by the father of the children, who made various excuses about the roadworthiness of his car, and having no money to take the children to the (omitted) Police Station for access visits.

12. Dr C described how the mother was currently in a happy relationship with Mr D, whom, on the mother’s history as provided to Dr C, had a good relationship with the children when they visited.  Dr C noted, again on the mother’s instruction and provision of history, that Mr D was patient and caring toward her and the children.  In Dr C’s opinion, the mother suffered from mood instability, which was helped by Seroquel. As her mood instability arose in the setting of drug usage, his opinion was that it most likely was the cause of her instability and that she is not bipolar, and does not suffer from a bipolar disorder per se. 

13. Dr C noted that the mother impressed as a conscientious and caring mother, who described being overstressed by the actions of the father, and, otherwise, the rest of her life was going well.  Dr C supported the recommendations in the family counsellor’s report that changeovers should occur at a manned police station or at a family contact centre.  Dr C noted the Court would most probably be reassured for the continuation of random urine screens to substantiate the voracity of the mother’s claims that she was drug-free. 

14. Dr C concluded that some supportive counselling would be helpful to the mother if available where she lives via referral from her general practitioner.  He observed her to quite clearly suffer from anxiety, which she attributed to the actions of the children’s father, but noted that it was not at a level, in his opinion, that would impair her capacity as a mother and that her anxiety was well-controlled with 300 milligrams of Seroquel at night.

Evidence of Ms M

1. Ms M, family consultant, prepared a family report, dated 8 August 2016. That report was introduced into evidence in the proceedings.  In the course of preparation of her report, Ms M read the documents on the Court file and interviewed, in May 2016, the mother, father, their children and observed the children with each of their parents. Ms M was cross-examined by the parties in the course of the final hearing. Ms M’s evidence as contained in her family report was not meaningfully challenged in any way. Her evidence is accepted by the Court and was of great assistance to the Court as was the evidence of Dr C.

2. Ms M’s recommendations as contained in her family report were as follows:

   79. Due to the serious nature of the concerns and allegations in relation to each parent in this matter, the family consultant is not in a position to make definitive recommendations about parental responsibility and the children’s final living arrangements.  However, the following recommendations are respectfully made for the court’s consideration:

   80. that changeover arrangements need to prioritise the parents not having any face-to-face contact;

   81. that X and Y be referred to counselling which should be available to them at (omitted) Health in (omitted);

   82. that each parent attend individual therapeutic counselling to help them to address issues which may be impacting on their functioning and capacity to provide an ongoing safe and secure home environment for the children;

   83. that Ms Mallett complete a parenting education program, perhaps Triple P.”

3. In her observation of each of the parents with their children, Ms M noted that each presented as having a deep affection for their children and that the children appeared to love their parents very much.  During the observations:-

   “52. … X and Y presented as being comfortable and familiar with each parent and made transition smoothly and happily between their parents.  In their interviews, neither child presented as having a stronger emotional attachment to either parent.”

4. Ms M noted that there were a number of dynamics in the family that are problematic and concerning.  The central issue was the parenting capacities of both the mother and the father.  Ms M said:

   “53. …This assessment suggests that there are serious concerns about each parent in relation to their capacity to provide the children with safety, security, stability and nurturing in their home environments over the longer term.  Particular concerns exist about the capacity of Mr Wharton and Ms Mallett to protect the children from their potential personality difficulties, emotional and mental health issues, illicit drug use and from ongoing exposure to high parental conflict and family violence.”

5. In her report, Ms M highlighted some of the issues associated with the potential risk factors in relation to family violence, illicit substance use and mental ill health in regards to each parent. 

6. As to family violence, Ms M’s evidence was as follows:

   “56.  If Ms Mallett is correct, the allegations of family violence made against Mr Wharton may imply that he is an impulsive and aggressive man who loses control and is emotionally and physically harmful to others.  It is feasible that Mr Wharton has minimised his past and present difficulties in relation to verbal, emotional and, potentially, physical aggression.  If the family violence is proven, Mr Wharton’s inability to accept and take responsibility for perpetrating family violence suggests the likelihood that he would continue to present with dysfunctional behaviour in relation to perpetrating family violence in his future relationships or towards the children when they are older and less inclined to comply with his directions.  Mr Wharton may need to consider engaging in therapeutic counselling to address personal or underlying issues that are impacting on his capacity to appropriately manager difficult and stressful life situations.

   57.  If Ms Mallett is correct, she has been and currently is the victim of serious and concerning levels of verbal and emotional abuse by Mr Wharton at the children’s changeovers, to which the children are exposed.  It also appears highly likely that the children were exposed to family violence incidents involving the parents during the parents’ relationship.  This assessment suggests that future changeover arrangements need to ensure that the parents have no direct face-to-face contact to fully protect the mother and to ensure that the children are not exposed to family violence incidents.  It is suggested that consideration be given to the children’s changeovers occurring at a children’s contact service, potentially located somewhere between the parents’ locations.

   58.  If Mr Wharton is correct, he has been the victim of angry and physically abusive and aggressive behaviours by Ms Mallett.  Mr Wharton has also expressed concern that Ms Mallett has a tendency to re-partner frequently and that she involves herself with men who may use illicit substances.  It may be reasonable to be concerned about the children potentially coming into contact with the mother’s future partners if they have any tendency toward perpetrating family violence as it does not appear that Ms Mallett has previously demonstrated that she is a protective parent.”

7. Both parents made allegations against the other in relation to illicit substance use.  The father conveyed to Ms M that his cannabis use had reduced considerably since he was in a relationship with the mother and, therefore, this is not a current issue of concern.  The father claimed that the mother was heavily invested in using methamphetamines and that she continued to use the substance which, he claimed, was evidenced by her not providing timely drug screens.  The mother, however, reported to Ms M that she had ceased using illicit substances.

8. The mother reported to Ms M her mental health was fine and that she took a prescribed medication and attends upon a general practitioner.  The father reported that he suffers from depression but that he generally manages his symptoms quite well.

9. Ms M noted that the mother had not displayed stability in her living situation and that she had experienced a number of changes of residence, accommodation and geographical location since the parents separation. 

10. Ms M pointed to the need for the children to have a consistent parenting approach to assist them to feel secure and that such approach may not be provided by their mother.  On their mother’s own account, she was struggling to provide sufficient boundaries and limitations, and the children were not responding well to her attempts to manage poor behaviour. 

11. Ms M noted that the mother indicated to Ms M a willingness to facilitate the children’s time and relationship with their father. She recognised that the children needed the genuine effort of both parents to help maintain their relationships with the other parent.  By contrast, Ms M noted that serious concerns exist that if the children lived with their father, their capacity to maintain meaningful relationships with their mother may be at risk. She said:

    “71. … It appears highly questionable whether Mr Wharton would continue to facilitate the children spending time with Ms Mallett once the Court matter is finalised, particularly if he is required to transport the children to a halfway point between the parents’ locations.  Mr Wharton has already demonstrated that he has been unable or unwilling to facilitate time arrangements during the interim period.”

12. The father presented to Ms M as being quite a competent parental figure. He provided to the children a good level of stability and security in relation to their housing location and schooling.  It appeared he had respectful and communicative relationships with the children’s school authorities. Whilst the father appeared to provide sound structure and rules and had a reasonable expectation of behaviour and boundary setting, which was of benefit to the children, there was no evidence that he had a rigid or harsh parenting style.

13. The father had sustained a link to a number of support services, including a parenting education program and a mental health program.  The letters provided to Ms M by the service providers all made positive comments about the father’s good engagement with their service and indicated that he was viewed as a valued member of their groups.

14. Ms M noted the children would clearly benefit from being able to enjoy meaningful relationships with each of their parents.  She noted the children had experienced considerable loss and grief associated with the disruption to their time and relationships with their mother.  Each parent was fully aware of this and expressed sadness and concern to Ms M about the children’s experience.

15. Finally, Ms M noted that the children’s changeover arrangements were highly complicated, partly due to the travel distance between the parents’ locations and the parents’ limited incomes.  

Mr D

1. Mr D made application for a summons for an intervention order by application of 23 January 2017, such application being against the father.  The application related to allegations made by him that the father, on 22 January 2017, at a service station, put his car into reverse and tried to run Mr D down.  The further allegations made by Mr D were that the father has threatened to hurt him, with such threats being made to the mother.

2. Mr D is also known as Mr D and Mr D.  Mr D has a series of dishonesty offences, driving offences, theft, burglary, criminal damage, breach of a suspended order, recklessly cause injury, contravention of family violence intervention orders, possess cannabis, failure to comply with an ICO (intensive correction order), handling/received and disposal of stolen goods, driving whilst disqualified, unlawful assault and threats to kill his ex-partner.  Mr D served three months imprisonment for assault against his ex-partner and a breach of an intervention order. Mr D’s former partner alleged Mr D violently assaulted their child who was four at the time. No changes were laid however following the mother of the child’s report to Police about this episode.

3. The mother met Mr D in about (omitted) 2015.  Mr D, by affidavit sworn by him on 22 July 2016, denied that he had ever hit the children or harmed them in any way, such as raising his voice at them. He further swore that he does not drink alcohol to excess and that he does not take drugs.  His evidence was that the children have a good relationship with him.  He was not made available by the mother to give further evidence in the proceedings and to be cross-examined. The mother did not rely on his affidavit despite Mr D being a person the mother proposes will live in the household of herself and the children.

4. When Mr D was imprisoned on 12 April 2004 under the heading Custody Management Issues, matters of concern were:

   “…schizophrenia, depression and epilepsy.  Recommend all reasonable assessment and supervision to ensure safe custody.”

Consideration

1. The children continue their enrolment at (omitted) Primary School, where they have settled well and have strong friendship groups.  Both children are in good health and their school attendance records are satisfactory.  X is in year three, and although she struggles academically, her behaviour and effort is good. Y is in grade one, and although he also struggles academically, his effort is good.  He has, however, behavioural issues.  He misses his mother, as does his sister.  The children have not spent regular time with their mother as ordered by the Court.

2. The children have continued their residence in the (omitted) region where they lived with the parties prior to the parties separation and where they have continued to live with their father.  The mother has moved to reside in a location which is some five hours drive from the children’s current residence. 

3. Any change in the primary care of the children now would require a significant adjustment for the children as they would no longer see their father each day and would need to move schools, establish a new friendship group, and develop new social interactions generally.  It would be a significant transition for these two young children. 

4. Both of the parents have said in the past they have insufficient financial means to promote the mother’s time spent with the children, and the father has used his excuse about a vehicle being broken down to thwart time spent with.

5. Neither party has consistently provided for the children’s emotional needs. The father has, since the children have resided with him, provided for their physical needs. 

6. The mother obtained an intervention order against the father on 15 August 2016 at the Latrobe Valley Magistrates’ Court.  The order was made in the absence of the father and operates until 14 August 2017.

7. At the commencement of the trial, the Independent Children’s Lawyer was not able to form a preliminary view of the matter.  The Independent Children’s Lawyer noted there was significant acrimony between the parents and the allegations by each parent against the other require the evidence be tested. 

8. The ICL submitted that parental responsibility ought remain shared. The presumption of equal shared parental responsibility however on the facts of this case, and in the circumstances of this case, is rebutted.  The mother makes allegations of family violence perpetrated upon her by the father. The parties both have had, and may still have, drug taking issues which impact upon their functioning. The relationship between the parties is abusive and non-communicative in any way that would benefit the children, and the parents have not demonstrated any capacity at all to negotiate even day-to-day matters with each other. The party with whom the children reside needs to be able to make necessary decisions usually made within the parental responsibility umbrella. Otherwise there continues horrible and unmanageable conflict for the children.

9. The father has been the primary carer of the children since early 2015.  Whilst the children would clearly benefit from being able to enjoy meaningful relationships with each of their parents, the dynamic between the parents themselves is such that it is unlikely into the future that such a meaningful relationship will be afforded to the children.  The parties also live a considerable geographical distance apart, making it impossible for any meaningful time spent with arrangement to be implemented.  The mother is very clear in her evidence that she will not relocate back to the (omitted) area to be near her children.

10. The difficulty for the Court is that the Court has no confidence the father will make the children available to spend time with their mother to promote their best interests into the future.  The mother argues that such a finding requires that the children live with her.  The difficulties and risks for the children in living with their mother are her relationship with Mr D and possible drug use. The mother resides with Mr D and, despite earlier Court orders that the children not be brought into his presence, she breached such orders. 

11. There is a danger to the children that they will suffer psychological harm as a result of their parents’ behaviours.  The mother has had a lack of stability in her accommodation, and an historic lack of engagement with therapeutic counselling to address issues affecting her personal functioning and capacity to remain drug-free. The father also has failed to address his capacity to remain drug-free in his use of the drug marijuana. 

12. In the subpoenaed material in evidence from (omitted) Health were notes from a psychologist, Ms R, who has seen the children in counselling sessions. In those sessions, X told the psychologist that she did not enjoy her last visit with her mother, because Mr D had smacked her for no reason and had threatened her father with knives.  Both children reported to the counsellor that they would like to see their mother if Mr D was not there. The mother’s evidence is she knew nothing of this.

13. X was reported as saying on 14  July 2016, that she was still feeling angry with her mother, because she was:

    “…keeping Mr D around and he's not a nice person.”

    The mother had no knowledge of this. 

14. The father's proposal to the Court was that the mother could have supervised access with the children whilst she was in a relationship with Mr D and that time spent with occur in school holidays rather than fortnightly visits.  He contemplated a midterm long break.  He agreed with the Court's suggestion that the mother could collect the children at the commencement of time spent at (omitted) and he could collect at conclusion in (omitted) if the Court ordered unsupervised time between the children and their mother.

15. The ICL did not support a change of residence for the children to the mother’s home. The ICL also supported a reduction in the frequency of the time spent between the children and their mother.  The ICL noted the mother had moved to live some five hours away from the children and that the children were settled in (omitted) and happy there.  They have been in their father’s care for some time now, and at times with the mother’s consent.  The ICL had no confidence the father would not continue to fail to make the children available to their mother; no confidence the mother would leave her current partner; no confidence the mother would comply with orders about the absence of her current partner. Whilst the father might not be promoting a meaningful relationship between the children and their mother, the exposure to risk potentially, through the presence of Mr D led the ICL to conclude the children’s best interests are served by them continuing to reside with their father.

16. The children’s best interests are served by their continued residence with their father. They however need, in particular for their emotional well-being, a meaningful relationship with their mother which is supported by their father. Should the father not be able to support that into the future and should the mother commence to reside independently, or provide evidence as to Mr D’s suitability to reside with the children, the children may come to reside in the household of the mother. Otherwise, the father provides the children with their physical needs well. He is responsible toward them and clearly loves them, as does the mother. The children are secure in the environment he is providing. It is to be hoped the parties can put their children’s needs squarely to the forefront and react to each other mindful of the children’s needs and development.  

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 June 2017