Martin & Arnold

FAMILY COURT OF AUSTRALIA

MARTIN & ARNOLD

[2008] FamCA 387

FAMILY LAW – CHILDREN – with whom a child lives - both parents seeking that children live with them - mother lives in NSW and father in SA – both parents responsible for abuse and neglect of the children - allegations of violence against the children by both the mother and father – whether either party is capable of caring for the children - substantial history of involvement with Department of Community Services and Families SA – all children have spent periods in foster care – father’s drug taking of serious concern – numerous reports indicate chronic neglect and abuse of the children by both parents – whether views of the children should be taken into account – neither equal shared parental responsibility nor sole parental responsibility in the best interests of the children - no order as to parental responsibility, s61C to govern the situation – children to live with the mother and spend time with and communicate with the father.

FAMILY LAW – EVIDENCE – whether father’s failure to call his partner as a witness means that his partner would not support his case that he is adequately caring for the children – Jones v Dunkel inference drawn.

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA

Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Ms Martin

RESPONDENT:

Mr Arnold

FILE NUMBER:

ADF

2897

2002

DATE DELIVERED:

16 May 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24-26 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Haughton

SOLICITOR FOR THE APPLICANT:

Eleanor Murphy & Company

COUNSEL FOR THE RESPONDENT:

Mr Pickhaver

SOLICITOR FOR THE RESPONDENT:

RJ Cole & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SRG Lawyers

ORDERS

That the children, a son D born … May 1991, and daughters P born … May 1994, V born … October 1995, and S born … June 1999 live with the mother.
That the child D spend time with the father at such times and in such places as are in accordance with the wishes of D.
That the children P, V and S spend time with the father as follows:
(a)    during the first half of each New South Wales school holiday period in each odd-numbered year, and during the second half of each New South Wales school holiday period in each even-numbered year;
(b)    for up to a maximum of two [2] separate weekends in each New South Wales school term;
(c)    at such other times as may be agreed between the parties.
That at 6:00pm (SA time) on each Tuesday and Thursday when the said children are living with the mother, the father is at liberty to telephone the said children and the mother do ensure that the said children are available at those times to receive the telephone call from the father.
That when the children are spending time with the father the mother is at liberty to telephone the said children on two [2] separate occasions during that time on dates and at times to be nominated by the mother seven [7] days before the commencement of the period of time, and the father do ensure that the children are available at those times to receive the telephone call from the mother.
That for the purposes of paragraph 3(a) hereof:
(a)the father do pay all of the travel costs of the children in relation to the first occasion when the children spend time with the father in South Australia and on each such alternate occasion thereafter;
(b)the mother do pay all of the travel costs of the children in relation to each intervening occasion when the children spend time with the father in South Australia.
That for the purposes of paragraph 3(b) hereof the father do pay all of the travel costs of the children on each occasion.
That each party ensure that the children are able to telephone the other party at any reasonable time in accordance with the wishes of the children.
That forthwith the mother advise the father in writing of her residential address and her telephone number, and as soon as practicable, the name, address and telephone number of each of the schools attended by the children, and thereafter advise the father in writing forthwith of any changes to the same.
That once the father is advised by the mother of her residential address, the father advise the mother in writing of his residential address and telephone number, and thereafter advise the mother in writing forthwith of any changes to the same.
That the parties do all things and sign all documents required to obtain passports for each of the said children.
That the said children be at liberty to travel to Norfolk Island and/or to New Zealand with the mother for up to four [4] weeks upon the following conditions:
(a)    that the four [4] week period does not coincide with a period of time that the children are to spend with the father;
(b)    that the mother give to the father at least twenty-eight [28] days prior written notice of the proposed travel;
(c)    that at least twenty-eight [28] days before the date of departure from New South Wales the mother provide to the father an itinerary and a telephone contact number for the father to telephone the children during the period of travel in accordance with paragraph (4) hereof.
That the mother as soon as practicable arrange for all school reports, newsletters and other like notices to be forwarded to the father by the schools attended by the said children.
That the father is at liberty to attend all functions, events and activities ordinarily attended by parents at the school or schools attended by the said children from time to time.
That in the event that one or other of the said children is hospitalised or suffers a serious illness or injury, the party with whom that child is living at the time as soon as possible notify the other party and provide details of the hospitalisation, the treating doctor or the like professional, and if the child is hospitalised then the other party is at liberty to visit that child daily during such period of hospitalisation.
That all applications be dismissed and removed from the active pending cases list.
That pursuant to Section 62B and 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 the attached Fact Sheet.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 2897 of 2002

MS MARTIN

Applicant

And

MR ARNOLD

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me for determination competing applications for parenting orders in relation to the children D born in May 1991, P born in May 1994, V born in October 1995 and S born in June 1999. The primary issue with all but D is where they should live, but in relation to D it is agreed that he will remain living with his mother and the dispute is about the basis on which he will spend time with his father.
The relevant applications are the mother’s Further Amended Application for Final Orders filed 4 October 2007, and the father’s Amended Response to an Application for Final Orders, filed 27 September 2007.
At the time of the trial, the mother sought the following orders:
3.1That the children P, V and S (“the children”), live with the mother.
3.2That the mother be solely responsible for the long term care, welfare and development of the children.
3.3That the parent with whom the children are living be responsible for the day to day care, welfare and development of the children whilst they live with that parent.
3.4That the father have reasonable telephone contact with the children.
3.5That the father spend time with the children for half of every period of gazetted school holidays every day from 10:00am to 5:00pm being the first half in even numbered years and the second half in odd numbered years.
3.6That for the purpose of spending time with the children during school holidays the father take the children no further than a distance of 200 kilometres from Central Railway Station in Sydney.
3.7That the parties do all things and sign all documents required to obtain passports for the children and for D.
3.8That in the event that either parent fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then pursuant to section 106A of the Family Law Act 1975, a Registrar or Deputy Registrar of the Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the mother and do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
3.9That the children be at liberty to travel to Norfolk Island or to New Zealand for up to four weeks upon the mother giving the father 28 days notice.
In relation to D the mother proposed that he spend time with the father in accordance with his wishes but that she be able to veto any arrangement where necessary.
Further, the mother sought that the father bear the cost of all travel for the purpose of the children spending time with him.
With telephone communication, the mother proposed that the father telephone the children at set times on specific days, and that he use D’s mobile phone number. The mother was not prepared to reveal her address or her telephone number.
At the time of the trial, the father sought the following orders:
4.1That the mother’s Further Amended Application for Final Orders be dismissed.
4.2That the children P, V and S do live with the father.
4.3That the said children spend time with the mother for one half of each school holiday period with such period to include Christmas Day in each alternate year with the mother to have Christmas Day 2008.
4.4That the child D spend time with the father in accordance with the child’s wishes.
4.5That the father be responsible for the costs of transporting the children each alternate holiday period and the mother shall be responsible for the costs of transporting the children each intervening holiday period.

Factual Background

The father was born in July 1969 and is currently aged 38 years.
The mother was born in August 1970 and is currently aged 37 years.
The mother and the father met in 1989 while living at the Wesley Mission Hostel in …. They began cohabitation in April 1991.
There were numerous separations throughout the period of the relationship. Both parties state that the other was violent throughout the relationship. The mother also alleges that the father engaged in substantial drug use and states that this was the cause of the numerous separations. The father denies this.
There has been a lengthy history of involvement between the parties and the Department of Community Services (NSW) (“DOCS”) and Family and Youth Services and Families SA in relation to both parents’ care of the children, domestic violence and financial issues.
The child D was born in May 1991 and is currently aged 17 years.
Following the birth of the child D, a notification to DOCS was made of severe verbal abuse of the child by the mother.
The mother states that in 1992, 1993 and in 1994, apprehended violence orders were made against the father following arguments between them about the father’s drug taking.
The child P was born in May 1994 and is currently aged 14 years.
On 10 October 1995, a further notification was made to DOCS about the mother’s treatment of the child D. It is alleged that the mother held the child over a three story balcony, hit the child and struck the child with the nozzle of a vacuum cleaner over the head and shoulders. The child D was admitted to hospital for a period of 4 days. As a result of this notification, the children D and P were removed from the care of the parents and were placed in foster care for approximately 2 months.
The child V was born in October 1995 and is currently aged 12 years. One week later in October 1995 she was also placed in foster care.
In November 1995, the children P and V were returned to the care of the mother but subject to a three year supervision order. At this point the parties were separated.
In December 1995 the child D was returned to the care of the father subject to conditions as to supervision, contact with the mother, and counselling.
In January 1996 the child P was placed in care for 17 days and the child V for 14 days after the mother sought respite care.
In February 1996 the parties reconciled.
In July 1996 the parties together with the children moved to C in New South Wales.
Throughout 1996 and 1997 the family received significant support services including counselling but DOCS still recorded significant concerns about the capacity of each parent to care for the children.
On or about 19 May 1997, a notification to DOCS was made concerning the mother’s treatment of the child P. It was alleged that the mother hit P across the face with a wooden spoon. The three children were removed from the care of the parents and placed in foster care, and an order placing all three children under the care and protection of the Minister was made for 18 months. The children remained in foster care until about March 1999. Over this period, the mother and the father had supervised visits with the children.
The mother states that in 1998 and 1999 a further two apprehended violence orders were made against the father following arguments between them about the father’s drug taking.
The child S was born in June 1999 and is currently aged 8 years.
In or about August 1999, the parties again separated. The father moved to South Australia while the mother remained in C. The mother applied to the Local Court for orders that the children reside with her and that there be contact with the father. Interim orders were made to this effect on 9 September 1999, but the mother withdrew her application before final orders were made.
In or about January 2000, the parties reconciled. At this time, the mother was charged and convicted in relation to the assault on the child P. The mother was ordered to perform community service as part of her sentence, but failed to complete the required number of hours. As a result, the mother was then sentenced to weekend detention for 6 months.
In or about June 2001, the parties and the children moved from the Department of Housing accommodation in C, New South Wales, to a caravan at a Caravan Park in D in South Australia. The mother retained the lease on the C property.
The parties separated finally on or about 25 July 2001 when the mother returned to the C property while the father remained with the children in South Australia.
In or about December 2001 the mother returned to South Australia and stayed with the father and the children until March 2002.
The father and the children moved to a Housing Trust home in V in February 2002.
In March 2002 it was agreed that the child D would return to New South Wales with the mother for a holiday. The mother returned to South Australia in early May 2002 without the child D, leaving him in the care of her brother in coastal New South Wales. The mother then unilaterally removed the child P from the care of the father and took up accommodation in South Australia.
On 14 June 2002, the mother filed her application in the Family Court at Adelaide for the children to reside with her and for the father have contact with the children. On 24 June 2002 the mother and the father reached agreement as to the interim arrangements for the care of the children. The orders were in the terms that the child D was to be returned to reside with the mother in South Australia by the end of the July school holidays and that the children D and P reside with the mother in South Australia. The children V and S were to reside with the father. Neither party was to remove the children from South Australia without the consent of the other party.
Contrary to the orders of 24 June 2002, the child D was not returned to South Australia by the end of the July school holidays. On 5 August 2002 there was no appearance by the mother and the proceedings were adjourned to 13 September 2002. At that time recovery orders were made for the children D and P to be returned to the father and orders were also made that all children reside with the father during the period of the adjournment. The recovery order was duly executed.
The interim proceedings were finalised on 4 October 2002 with orders that the four children reside with the father, that the father have sole responsibility for the children’s day to day care, welfare and development and that the mother do have contact with the children as agreed between the parties. Registrar Kelly also ordered that the parties attend a family assessment.
The mother visited the children in South Australia in December 2002, staying with the father and the children in the father’s home. The mother alleges that the father assaulted her and locked her out of the house. The mother states that she reported the matter to police and then obtained crisis accommodation until she returned to New South Wales on 24 January 2003.
The father experienced difficulties in the parenting of the children and approached various government agencies including Family and Youth Services (FAYS), Child Adolescent Mental Health Service (CAMHS) and the Department of Education for assistance. The father was assigned a family support worker.
Pursuant to the order of Deputy Registrar Heuzenroeder on 23 May 2003, a Family Report was prepared, dated 31 July 2003. In the report, Dr S said this in the Summary and Recommendations:
“52. Both parents are able to articulate an awareness of appropriate parenting standards but have been unwilling or unable to put these standards into practice for any consistent length of time.
53. While the children communicated wanting to live with their mother, it was considered that this wish may stem more from a desire to escape the chronic abuse and neglect that is a feature of their current lives rather than a real desire to live with [the mother]…
54.Given [the mother’s] history in relation to the care of the children it is likely that the abuse and neglect would continue in her care…
55.Given the chronic abuse and neglect that has been perpetrated on the children by both parents, it is therefore recommended that the children reside with neither parent. Family and Youth Services should become party to proceedings and intervene in this matter…”
In December 2003, care and protection proceedings were commenced in the Youth Court of South Australia on the application of the Minister. A care and protection order placing the children under the Guardianship of the Minister for a period of 12 months was made on 28 April 2004.
The children were not removed from the care of the father, but it was noted on the Order, inter alia, that the children remaining in the father’s care was contingent on the father’s continued co-operation with the Department and other agencies.
On the basis of these orders being in place, I ordered on 29 June 2004 that all applications before the Family Court of Australia be dismissed.
From this time until January 2006, the children resided with the father, save and except when the girls were put into respite care and for the period from September 2004 until January 2005 when the child D lived elsewhere while allegations about his sexually inappropriate behaviour towards his sisters was investigated. The allegations were not confirmed. During the period of the order and subsequently, the mother had some telephone contact with the children and had a period of day contact with the children for four days in 2005.

During 2005, two child protection notifications were raised, one in relation to D, and one in relation to the girls. They both related to issues of neglect and the father’s failure to supervise.
In January 2006, the children D and P travelled with the father’s stepfather to New South Wales in his truck. The father arranged with the mother to spend a short period of time with these children while his stepfather was in Sydney.
The father states that the mother removed the children from his step father on 25 January 2006 and retained them. The mother states that the children told her that they did not want to return to the care of the father.
The mother filed an Application on 2 February 2006 in the St James Local Court in Sydney, seeking the residence of all four children and orders that the children D and P remain in her care. On 27 July 2006, the order that the children D and P reside with the father was suspended and proceedings were transferred to the Family Court of Australia in Adelaide.
During 2006 two further child protection notifications were raised, one in relation to V and S, and one in relation to V. Again they involved allegations of neglect.
On 16 January 2007 the Family Court in Adelaide appointed an Independent Children’s Lawyer and Families SA was invited to intervene in the proceedings and prepare a report. The matter was adjourned to 26 February 2007.
In January 2007 the father and V and S moved to alternative accommodation in D.
A further Family Report was ordered by the Honourable Justice Burr on 4 April 2007.
The parties and the children were interviewed for the Family Report on 6 July 2007. The mother came to South Australia for the purpose of the interviews and the children spent time with her at the house of the friend with whom she was staying in V.
The father attended this address at approximately 1:00am and collected the children V and S. The mother alleges that the father forcibly removed the children and was verbally abusive, which the father denies. The mother reported this incident to Child Protection on 9 July 2007 and on 13 July 2007 made a notification of abuse regarding the child S to Families SA.
The further Family Report was undertaken by Ms N, and it was completed on 23 July 2007. Ms N recommended as follows:
“27.All four children live with their mother in NSW.
28.If there remains any concerns that the younger two girls may be at any risk of sexual abuse or sexually inappropriate behaviour from [D], that the mother ensure [D] is provided with the opportunity to attend with an appropriate mental health service which specialises in assessment and treatment of adolescent sexual offenders to address his past history and any present risks.
29.That orders are made that [V] and [S] spend half of all school holidays with their father, or at least some of the term school holidays and substantial time during each Christmas school holiday period, and that the older two children spend time with their father according to their wishes and subject to agreement between the parents.”
During the trial Ms N changed her recommendation as to P spending time with the father. Instead of according to her wishes Ms N recommended that the order for her be the same as for V and S.
Following the trial, and on 26 October 2007 orders were made by consent for the mother to spend time with the children V and S from 5:30pm on 27 October 2007 to 3:00pm on 28 October 2007.

The current circumstances of the parties
The mother

The mother resides in a rented Housing Commission unit in New South Wales. She sought to keep her address and her telephone number secret saying that she was in fear of the father and so were the children. However, I do not accept that that is the case, and I find that there is no need or justification for keeping these details from the father. There is no Domestic Violence Restraining Order in existence, and there is no injunction in place preventing the father attending at the mother’s home. Indeed, there are good reasons why they should be revealed, namely in order that the father knows where D and P are currently living and to enable him to contact them quickly and easily in an emergency.
The unit is in a block of four with its own front and back yard and a car park. There are three bedrooms, one for the mother, one for P and one for D. If V and S live with her, the mother says that she could put them in P’s bedroom, but realistically she would need to apply for a four bedroom house.
The mother does not work and her sole income is a disability support allowance. She did not know how much she receives and she claimed that she receives this allowance because of “emotional factors”.
The mother failed to provide any evidence as to how P is progressing generally at her school in New South Wales, however, there is evidence that she has been getting into trouble there and she was suspended for fighting. She has been disruptive in class and coming home late. The mother said in cross examination that P has not yet settled down in Sydney but her move there has not been a total disaster. This, despite the mother revealing that P had run away from home on one occasion as well.
D attends TAFE where he is in a support unit because of reading and writing difficulties. He is studying automotive trade. He has been doing work experience stacking shelves and price marking in a department store and a supermarket, and he has been offered a part-time job in one of these stores.
Both D and P have Attention Deficit Hyperactivity Disorder (ADHD) and take medication for this.

The father

The father now resides in rented Housing Trust accommodation at D with V and S. The home comprises three bedrooms and the usual facilities. Both V and S attend D Primary School which is only four houses away from their home. V is in Year 7 and S is in Year 3.
V appeared to be progressing well at school but she has now had three or four suspensions and if she is suspended again she might have to leave the school. She has been disruptive in class, she disobeys school rules, and she has been aggressive and violent. At her previous school V was also suspended including on two occasions in 2006.
V has been diagnosed with ADHD and she now takes medication for that.
With S her school report indicates that she has settled into a class routine. However, she has been diagnosed with an auditory processing problem which has impeded her progress.
The father does not work and he receives Centrelink payments of approximately $800.00 per fortnight.
The father smokes marijuana on a regular and frequent basis. He says he needs to do this to deal with the pain that he experiences from a stomach complaint. He says that he is allergic to mediation and cannot take antibiotics and that he has been told by his doctors to continue to smoke marijuana. I will refer to this again later in my reasons, but, for now, I note his evidence that he consumes marijuana each day in the morning and in the evening. He grows marijuana at a friends home and he smokes up to six cones a day.

The issues in dispute

In relation to the three children, P, V and S the primary issue is whether they should live with their mother or with their father. Depending on the result of that dispute there are then issues as to the terms on which the children should spend time with the other parent. For example, the mother opposes the father having any overnight time with them and she suggests that there be a lengthy delay before he spends any time with them at all.
With D, to repeat, the issue is whether the mother should have the power to veto any arrangement made between D and his father for them to spend time together.
Separate to these issues there is a dispute about who will pay any travel costs, the mother submitting that the father should pay them all. There is also a minor dispute over telephone communication. The mother does not want to reveal her telephone number and proposes that the father use D’s mobile phone number.
In the context of the primary issue the following disputes emerged:
69.1The circumstances in which the children P and D came into the care of the mother in January 2006. The mother says that the children were sent over to her by the father and they then stayed with her because they wanted to. The father says that the children travelled to New South Wales to collect their dog from the mother and to see her for a few hours, but the mother retained the children and refused to return them.
69.2Whether the mother is now capable of caring for all four children. In the past she has not been, and that is clear on the evidence before me. She has assaulted at least two of the children, and the children have been removed from her care because of the neglect. However, she has now had the care of the two eldest children, D and P since January 2006 and she says that she is able to care for the other two children as well. The father denies this.
69.3Whether the father is adequately caring for the children V and S and whether he would be able to care for P if she returned to live with him. The father says that he is caring adequately for V and S and he would be able to care for P as well, but the mother denies this citing, inter alia, the father’s admitted drug taking and his alleged neglect and lack of supervision.
69.4The views of the children and whether they should be taken into account. The child P indicated to Ms N that she “would rather live in Adelaide”, but the mother says she has since changed her mind. V told Ms N that she “kind of want(s) to be with mum”, and S said that she wanted all the children to live with her father.
Separate to these issues, the mother seeks the ability to take the children to Norfolk Island and/or New Zealand to meet with her family and experience her cultural heritage. The father opposes this.

The principles to be applied

In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act 1975. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))

The evidence

The mother was represented by Ms Haughton. The mother relied on her affidavits sworn on 10 May 2006 and 15 May 2006 and filed in this Court on 7 August 2006 following a transfer of the proceedings from the Federal Magistrates Court. She also relied on her affidavit filed on 5 October 2007. The mother gave evidence and was cross examined.
The father was represented by Mr Pickhaver. The father relied on his affidavit sworn on 9 May 2006 and filed in this Court on 7 August 2006 after the transfer of the proceedings. The father also relied on his affidavit filed on 4 October 2007. He gave evidence and was cross examined.
The Independent Children’s Lawyer was represented by Ms Du Barry. She called one witness namely Ms N, Family Consultant, who prepared a report dated 23 July 2007. She gave evidence and was cross examined.
In addition, the Independent Children’s Lawyer relied on the report dated 31 July 2003 prepared by Dr S, Family Consultant, a report from Families SA dated 15 March 2007, and a psychological report in relation to the father and the children prepared by Family and Youth Services on 28 January 2004. All of these reports were tendered by consent and none of the authors were required for cross examination.
The mother gave her evidence reasonably well, and in general terms I found her to be a credible witness. However, she clearly viewed her past history and in particular her inability to care for her own children through rose-coloured glasses. She only put in her affidavit material what suited her purpose, and she took no responsibility for past events. She sought to justify her position by blaming the father for the children being removed from their care. She alleged domestic violence on his part and his drug taking as being the root causes of their difficulties.
There is no doubt that the father’s actions and his behaviour left a lot to be desired, but he cannot be held responsible for the mother’s own abuse and neglect of the children. In this regard I do not need to go beyond the report of Dr S dated 31 July 2003. She said in paragraph 52:
“52.Both parents are able to articulate an awareness of appropriate parenting standards but have been unwilling or unable to put these standards into practice for any consistent length of time.” (my emphasis)
and then in paragraph 55:
“55.Given the chronic abuse and neglect that has been perpetrated on the children by both parents, it is therefore recommended that the children reside with neither parent. Family and Youth Services should become a party to proceedings and intervene in this matter.” (my emphasis)
The mother’s case is that she has changed, she has successfully cared for D and P since January 2006, and she is capable of adequately caring for V and S as well. However, it is concerning that she still appears to play down the events of the past and that there is a sense of déjà vu in saying that she has changed. In July 2003 she also told Dr S that she had changed. Dr S reported as follows:
“When asked about the abuse to [P], [the mother] said, “Well I hit her but it wasn’t to the extreme like [D]. She didn’t end up in hospital or anything like that. I had problems with toilet training and stuff. That’s the thing I found a bit hard at the time. Since the incident with [D] I’ve had ongoing counselling up until 1999.” [The mother] stated that she found the counselling very helpful. When asked what she thought had changed [the mother] said, “I’ve learnt to be assertive. I’ve learnt to find myself. I’ve learnt new things like how to deal with the kids in a non-aggressive way and be more patient with them. I’ve learnt not to yell at the kids, because they are not going to listen to that but to sit down and talk to them quietly, even one to one. That’s better sometimes….ask them what’s your problem and sit and listen to them. Learn to be a friend as well as a parent.” ”
However, that did not translate into actuality according to the assessment of Dr S.

The only evidence that the mother is now capable of caring adequately for the children is her own. She presented no expert or other evidence in support of that claim. That is concerning when there is evidence of the difficulties that P is having at school.
The mother continues to claim that she is afraid of the father and, to repeat, she asked that her address be kept secret. However, there is no Domestic Violence Restraining Order or injunction in place, and I do not accept that she has any fear of the father. I consider it important that each party have the address where the children are living when they are not in their care. The mother also sought to keep her telephone number and the address of the school that P attends kept secret, but equally I consider that this detail should be revealed to the father. It is important that he is able to contact the mother and/or the children by telephone, and he is entitled to know the schools that his children attend and to be able to contact those schools where appropriate.
The father was a poor witness and he clearly still has problems with anger management. In Court he was aggressive and hostile, he frequently raised his voice and he would become angry whenever he was challenged. At one point he refused to answer any more questions saying that his answers were being “twisted”. He showed little respect for the Court. He was late on the first morning of the hearing and he was absent on the last afternoon with his counsel citing a “medical emergency”.
I agree entirely with the submissions of the counsel for the Independent Children’s Lawyer that the Court should “treat his evidence with extreme caution”. Indeed, I found him to be evasive and prepared to fabricate his evidence to meet his own purposes.
In paragraph 70 of his affidavit of evidence in chief he referred to two child protection notifications in 2005 and he then said this in paragraph 71:
“It is my understanding that subsequent concerns have been raised regarding my care of the children however they have been minor in nature and has not warranted intervention by the Department.”
However, nothing could be further from the truth. In the report from Families SA dated 15 March 2007 (Exhibit M1) this appears:
“In 2006 2 CP notifications were received both in relation to [S] and [V] both on one intake and one in relation to [V] only. Both were from mandated notifiers. One was assessed as requiring departmental involvement however records highlight that matter was closed by Families SA as Resources Prevented Intervention. The other was accorded a community response however a Family meeting was not attended by the father.
Allegations of neglect were raised by several notifiers one mandated. The concerns included
·the sisters not being fed adequately and being sick & losing weight
·the father not providing adequate food for the children & getting food out of bins to feed the girls.
·The father never having any money or what money he does have is spent on drugs.
·the house is in a dirty state that there is “shit” all around the house and the house has been “trashed”
·the children are sleeping on “bare floorboards”.
·that the father goes out to the local hotel and leaves the children unsupervised.
·the father selling the children’s medication for ADHD
·That [V] had “gone mad” at school and began throwing chairs and tables around the class, to the extent the room had to be evacuated. She was then suspended for 3 days. When asked her why she did the damage she advised it was her father’s fault because “he sold my medication”. School staff phoned the father to request he collect her. They considered he sounded quite tired query drug affected.”
The father then denied in his evidence that there had been these notifications.
The father failed to put anything at all in his affidavit about the difficulties that V was having at school. He also claimed that since moving to his current rented accommodation in D he had ensured that the children V and S were no longer late in getting to school. However, their school reports indicate otherwise. For example, according to V’s term 2 report for 2007 she was late 28 days out of the 71 days she attended, and with S she was late 25 days out of the 87 days that she attended.
I have no doubt that the father’s habit of starting the day off by smoking a number of cones of marijuana has resulted in his failure to properly supervise the children and ensure that they get to school on time.
The father’s drug taking is a serious concern in this case. He is an habitual user of marijuana, and although he claims to ensure that the children are not exposed to this, I find that that is completely untrue. I will say more about this later, but for now, I note that in evidence the father claimed that because he is allergic to some medication his doctors have encouraged him to continue to use marijuana to deal with the constant pain he says he experiences from a stomach complaint. However, this was not borne out by the report that he subsequently produced (Exhibit C1). He has refused to consider medication options suggested by the specialist investigating his complaints.
A serious allegation made by the children against the father is that he sold their ADHD medication. The father denies this and then in cross examination he came up with a fanciful story about the medication being stolen in a break-in at his home. I find that he has sold the children’s medication and that he is capable of doing that is indicated by his own admission to Dr S that he had put the children’s belongings “in hock” on previous occasions.
Like the mother, the father now will not take responsibility for his own actions. He provided a lame excuse for the children getting to school late, namely that there was a power blackout and the alarm did not go off. He says the mother has influenced the children in what they have said to Dr S and to Ms N, and with the latter despite the mother not having seen the children V and S since January 2006 except for the purposes of Ms N preparing her report. He even says that the children have fabricated their comments and he says that he has been mis-represented and mis-quoted in the reports that are before the Court.
Finally, in relation to the father’s evidence, the father revealed in his oral evidence that he has a girlfriend by the name of E. However he failed to call her as a witness despite it being clear from his own evidence that she has a significant role in caring for the children V and S. The mother’s counsel urged me to imply from that failure that if she was called she would not support the father’s case that he is adequately caring for the children V and S, relying on the High Court case of Jones v Dunkel (1959) 1001 CLR 298. I agree with this submission.
Ms N is an experienced psychologist and her report and her oral evidence have assisted me greatly in this case. She was circumspect in her approach and sympathetic to the plight of the children given the failings of both of their parents. She demonstrated considerable insight in assessing the parties and the children, and it is useful to set out her assessment in full:
“Assessment
20.The long history of difficulties associated with both parents’ ability to provide good care for the children is well documented. It is clear that the parents’ relationship was dysfunctional and chaotic. While [the father] has stated in his affidavits that is was [the mother] who was violent, he was charged with assaulting [the mother] in 1999 and subsequently convicted, and there have been Domestic Violence orders made against him. In the course of their lives, these children have experienced many changes in their care arrangements in their earlier lives. The older children have suffered confirmed abuse from their mother when they were young. All four children have suffered ongoing neglect in the past. There have been problems with the care of the children while with their father.
21.[The mother’s] presentation during this assessment was positive and was characterised by coherent statements about her proposed care of the children. She seemed to have established a stable lifestyle in Sydney, and spoke of her extended family relationships and her wish to include those relationships in the children’s lives. Her responses to a range of questions were considered a coherent. While she has not been the primary carer for [S] for about five years, the children appeared to all have a strong sense of their relationships with each of their parents. When asked what about her opinion and strategy in relation to the possibility that if all four children lived with her [D] may pose a threat to the younger girls, [the mother’s]response was thoughtful and constructive.
22.[The father] presented as a committed and dedicated father who loved and wanted to ensure the well being of all the children. At the same time, he was overly intense, aggressive, and very negative about [the mother] in the presence of the children, and it was clear that he had very limited insight into the effect of this kind of negativity on the children. [The father] seemed unable to contain his negative and hostile attitude toward [the mother], and at one stage responded to a comment from the writer by saying he did not care (if he was presenting as being very negative about [the mother]). He was apparently unable to see that his behaviour created unnecessary discomfort for all the children. He appeared to have a very limited ability to restrain his impulse to badger the children in regard to his concerns. He used the time during the observation to interrogate [D], which clearly was very uncomfortable for the boy. [The father] stated afterwards that he considered it his duty as a parent to try to obtain information from the children and presented as being unaware of any inappropriateness about his manner toward the children. It was clear that [the father] was unable to separate out his own strong need to gain information which he saw as important, from the needs of the children in that situation. It was also concerning that [the father] said that he communicated the contents of court documents to the children and that he apparently believed that this was appropriate.
23.[The father] presented as stridently protective of the children in relation to the possibility that they were being treated badly by a partner of the mother. It became clear that it was likely that this information had been fabricated by [P]. In the writer’s view, [the father] may have had some understanding that [P] was a child who sometimes fabricated information and yet he did not seem to consider this in his response to the information which disturbed him.
24.[D] at 16 years of age indicated that he was happy living in Sydney and that he had no wish to move to his father’s care. [P] conveyed that she wanted all the children to be together, and her presentation also indicated the likelihood of some teenage rebellion against her mother. [P] appears to have relayed a range of distorted reports to her father. It is well understood that children who have experienced interruptions to their care arrangements as a result of parenting deficits can sometimes develop manipulative and oppositional acting out behaviours and attention problems.
25.[V], in the writer’s view, conveyed a strong wish to live with her mother. [S] at eight years of age is, in the writer’s view, confident about the love of both her parents, and was only about three years old when she began to be in her father’s care which therefore has been her main experience of parenting. In the writer’s view, [S] is likely to adapt well to living with her mother, and it is likely to be particularly positive for this child if all her siblings are living together.
26.In the writer’s opinion, it is likely that the children’s best interests will be served if they are all together and living with their mother. This situation is only likely to occur if the decision is made for the younger two children to be placed in their mother’s care, since [D] is old enough to make his own decision about his living arrangements. Other reasons which contribute to this recommendation by the writer include that the two younger girls may benefit from the opportunity to live with their mother as they move into their teenage and pre-teenage years, and also the writer’s reservations about the ability of the father to support the children’s relationships with their mother appropriately.”
The only reservations that I have about her conclusions are that firstly she has very much taken the mother’s evidence that she has adequately cared for the children D and P, and that she can now care for the children V and S as well, at face value. To repeat, there is no evidence, expert or otherwise, to support this except the evidence of the mother herself. One saving grace though is that there is no evidence from say DOCS to indicate that there have been any child protection notifications made in relation to her care of D and P, but there is still the concerning evidence about the behaviour of P at school. In addition, there are P’s own comments to Ms N about her mother but which Ms N felt were “fabricated to some extent”.
Secondly, she felt the mother was able to acknowledge the events of the past, that she has come to terms with them, and she has learnt from them. However, I do not agree and I consider that she is not prepared to take responsibility for her past actions. Ms N said herself that she did not really focus on this in the assessment, and I find that surprising given the issues in the case.
Thirdly, one reason for her recommendation is that she had “reservations about the ability of the father to support the children’s relationship with their mother appropriately”. This may be an issue but in my view there is at least an equal concern on the evidence before me that the mother will not support the children’s relationship with their father.
These are matters that I have to weigh up in reaching my decision.
As already mentioned there were three other reports tendered before me in evidence. Firstly, there was the report of Dr S of 31 July 2003. To repeat, no-one sought to cross examine Dr S and thus I can rely on her assessment and findings at that time. Importantly, she found that neither parent should have the residence of the children and that Family and Youth Services should intervene and I refer again to what Dr S said in her report and which I have set out in paragraph 37 above. That was a damning indictment of how the parents had behaved towards their children to that point in time, and even worse there was no light at the end of the tunnel. I do not intend to repeat the extensive history of neglect and abuse of both parents which stretched back as far as 1991, but I emphasise that it was made worse by the fact that both parents had received extensive support from various agencies over this time including counselling, attending parenting courses, and the assistance of family support workers as well as assistance with housing and finances.
Apart from what the children relayed to Dr S about the abuse and neglect they were subject to, one of the saddest comments contained in the report was Dr S recording that,
“When observing the parents with their children, no signs of affection were noticed. When the children approached [the father] in the waiting room be brushed them off. [The mother] had not seen the children for six months until the night prior to the assessment but when given the opportunity to spend time with the children while [the father] was being interviewed, [the mother] elected to sign the children into child care rather than spend additional time with them.”
The children remained living with the father following this report but the Department did act, and in December 2003 care and protection proceedings were commenced in the Youth Court of South Australia. It was in this context that the psychological report dated 28 January 2004 and which is marked Exhibit M2 was prepared.
The father was referred for an assessment of both his mental health status and his parenting, and recommendations were sought regarding whether the father’s continuing care of the children was in their best interests.
It is important to note that the mother was not seen or interviewed for the purpose of this report, but only the father and the children. However, again, the authors were not required for cross examination and thus their findings and their assessment can be relied on by this Court.
The father conceded that he had difficulty coping with the demands of all four children and he would often just tell them to go away and not bother him.
The report noted that having worked with the father and the children in the past the senior clinical social worker for the Child and Adolescent Mental Health Service indicated quite clearly that the father could not put the children’s needs ahead of his own, he had limited insight into the effects of his behaviour on the children, and he had a limited understanding of appropriate behaviour towards the children.
The school counsellor reported to the psychologists preparing the report that P and V often cried and expressed distress about their home situation, and he believed that the father “would find it very difficult to change his behaviour in a consistent fashion to enable the children to be properly cared for”.
Sadly, the assessment of the children was that they appeared to have resigned themselves to surviving in and adapting to their situation the best way they can. It was felt that this would have long term deleterious effects on their own behaviour patterns with their future partners and their own children.
A telling comment about the father appears at page 19 of the report as follows:
“[The father] stated he coped with stress by increasing his marijuana use of by distracting himself. The avoidant and negativistic personality traits indicated by testing also suggested that he would tend to minimise, ignore or deny the importance of his difficulties in caring for and interacting appropriately with his children. For instance, he believed that it was possible to hide his marijuana smoking from the children, and he also minimised the effects on the children of having often witnessed incidents of domestic violence between himself and [the mother]. These cognitive strategies allowed him to avoid having to experience shame or other negative emotions that occur when an individual accepts responsibility for his or her actions. He would therefore be unlikely to initiate changes in his behaviour and might continue to perceive himself as a victim of his circumstances.”
Unfortunately this could well be a description of his attitude now, and this highlights the lack of any change at all in his parenting of his children.
The conclusion in the report is also instructive, as follows:
“Major concerns therefore still exist about [the father’s] ability to ensure the emotional wellbeing of the children, in addition to their basic physical care. It is therefore felt that [the father] should only be allowed care of the children over the next 12 months under a Supervision Order. He needs to undertake long-term education in parenting skills and demonstrate that he is able to reach appropriate skill levels.
As [the father has] difficulty in understanding and applying abstract verbal concepts, practical demonstrations of appropriate parenting behaviours are needed to supplement personal counselling. Regular, long-term supervision of his progress will allow consolidation of new behaviours. [The father] will find it difficult to learn new ways of relating to others as many of his previous relationships have been abusive. He will need to accept responsibility for his children’s emotional and physical wellbeing, and have the determination and persistence to learn and demonstrate mastery of new behaviours.”
There were then a series of recommendations made in order to support the father and ensure that he developed the appropriate skills to properly care for and parent the children. Frequent and regular monitoring of the children’s emotional and physical wellbeing and safety was required. This then puts into context the orders that were made in the Youth Court on 28 April 2004 which left the children with the father. The orders were made on the basis of certain undertakings by him and that there be strict supervision by the Department.

Unfortunately, and with all due respect to the Department, the evidence does not indicate that the terms of that order were carried out to the letter, and this is borne out by the report of Families SA dated 15 March 2007 (Exhibit M1).
It is said in that report that the father “made some progress in addressing the identified concerns”, but the Department held ongoing concerns including regarding the children attending school late on a regular basis.
In 2004 there were two child protection notifications in relation to D and his siblings. The first related to allegations of D facilitating the sexual abuse of one of his sisters by one of his friends, and the second related to allegations of D sexually abusing his sister. There was no confirmation of these allegations but the Department were not satisfied that nothing had happened, and were concerned that pressure may have been exerted on the girls not to disclose.
The Department became concerned in January 2005 when a female friend of the father commenced to live in his household. She was known to the Department and there were issues around “her ability to safely parent her own children”, but the Department did nothing about this.
In 2005 there were two child protection notifications in relation to D and one in relation to all of the three girls. They related to neglect and failure to supervise. However the Department did not consider it necessary to intervene.
Then, as referred to already, there were two further child protection notifications in 2006, one in relation to V and S, and one in relation to just V. Both notifications were by mandated notifiers and raised serious allegations of neglect.
These reports provide a sorry picture of the lives of these children, particularly in the care of their father.

Section 60CC of the Family Law Act 1975

I now turn to the factors that I must take into account in determining what is in the best interests of the children (subsections 60CC(2) and (3)).

The Primary considerations

(a) the benefit to the children of having a meaningful relationship with both of the children’s parents;

The children have been separated since January 2006 and there has been almost no contact between D and P on the one hand and V and S on the other, and between the father and D and P on the one hand and the mother and V and S on the other. Despite this Ms N observed that V and S, “immediately sought to establish a close and nurturing relationship” with their mother, and with P she spoke positively about her father. For completeness I note that with D he told Ms N that “he felt ‘okay’ about seeing his father”.
On the other side of the coin, V and S appear to have a good relationship with their father. P has a strained relationship with her mother but D enjoys a close relationship with his mother.
All of the children have suffered as a result of what Ms N describes as their parent’s “dysfunctional and chaotic” relationship, and I add, their parent’s inability to provide adequate care for them in the past. Thus, although there is no issue that in most circumstances there is a benefit to a child of having a meaningful relationship with both parents, that is not necessarily the case here. If the establishment of a meaningful relationship entails risks to a child’s health, welfare and safety then that would outweigh the benefits of the relationship. Again, this is an issue here. However, there is nothing in the legislation which says that a child living with a parent is the only way to ensure a meaningful relationship between them. Thus, if the children all live with one parent in one place and spend time with the other parent in another place, that says nothing about whether there can be a meaningful relationship between the children and the parent with whom they only spend time.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in Section 60B. One object is to ensure that the best interests of the children are met by:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children;” (paragraph 60B(1)(a))
Further, one of the principles underlying the objects in Section 60B is that, except where it is or would be contrary to a child’s best interests:
“(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (paragraph 60B(2)(b))
It has been said that the objects and principles in Section 60B guide the interpretation of Section 60CC, and for that matter Section 60CA. Now that may be the case, but the best interests of the children are still the paramount consideration and that is quite apparent from the wording, for example, of paragraph 60B(1)(a) and 60B(2)(b).
Paragraph 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the Court of the importance in most cases of the benefit to a child of having a meaningful relationship with each parent. It requires the Court to take that benefit into account but leaves the additional considerations in Section 60CC to determine whether that benefit can be achieved in each individual case consistent with the best interests of the child involved.

(b) the need to protect the children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence;

This is a very real issue in this case.
There is a disturbing history of physical violence towards at least two of the children by the mother and of abuse by the father towards all of the children, and an equally disturbing history of violence between the parties to which the children have been exposed, and an appalling history of neglect of the children by both parents. In more recent times, there is evidence that the father has failed to adequately care for the children living with him, and he continues to expose these children to his drug taking and chaotic lifestyle. With the mother, there is a paucity of evidence as to her care of the children living with her, and given the history of the mother, that is concerning in itself, but there is some evidence that all is not well in her household, and I refer to the problems she is having with P and P’s unruly behaviour at school.
Thus, there is a lot to consider in the context of the need to protect the children from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence.
The father denies that he has been violent towards the children or to the mother, and he attempts to put the blame for what has happened in the past on the mother. For the mother’s part she has also been in denial. In her affidavit material she makes a number of allegations against the father but makes no or little mention of her own behaviour. She said in evidence that she does not like to recall the events of the past.
Despite this avoidance of responsibility, both parties say that they have changed, and that they are capable of caring for all of the children. However, I do not accept that the father has changed at all, and with the mother, I am not entirely convinced that she has either. To repeat, the only advantage she has is that there is no evidence of any intervention by DOCS since she has had the care of D and P. However, that does not necessarily provide this Court with any confidence about her ability to care for all four children given that she could not do so previously, and there is the concerning evidence as to P’s disruptive and defiant behaviour.
Thus, the Court is not left with much of a choice in looking to protect the children.

The Additional considerations

(a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;

The only independent evidence of the current views of the children comes from Ms N.
In summary, and excluding D given that he will continue to live with his mother, P told Ms N that she “would rather live in Adelaide”, and that she wanted all of the children to live together. V said that she “kind of want(s) to be with mum” and S said that she “wanted all the children to live with her father”.
The real issue though is what weight can be put on these expressions of views.
Ms N’s assessment of P is that she is a “complex and somewhat troubled 13 year old”. She made negative comments about her mother and seemed to blame her for the trouble that she is getting into at school, having been suspended a number of times. She has also conveyed information to her father about her mother, including allegedly being treated badly by a partner of her mother. However, Ms N considered that her “accounts were fabricated to some extent” and opined that:
“It is well understood that children who have experienced interruptions to their care arrangements as a result of parenting deficits can sometimes develop manipulative and oppositional acting out behaviours and attention problems.”
Ms N agreed that P would expect to get her own way with her father whereas at the moment that is not happening with her mother. Ms N also commented in cross examination that P was not so much saying she wanted to live with her father, but rather she preferred to live in Adelaide because she did not like Sydney.
With V, Ms N felt that her views should be respected, but otherwise with S. S’s views were coloured by the circumstance that she has been in her father’s care since she was about 3 years old and she has little experience of being parented by her mother. Ms N said that she was influenced in her assessment of V’s views by her observations of the girls together and how well they interacted.
In relation to P, it is perhaps instructive to consider what occurred in January 2006 when D and P travelled to Sydney and were retained by the mother. I find that the children were sent over by the father on the basis that they would see their mother, collect their dog and then return. The mother says though that both children told her that they wanted to stay with her and that they were frightened of their father because he hit them and he was always yelling and screaming. Again, putting D aside, P told Ms N that “she had stayed with her mother … not because she wanted to but because her mother had wanted the children to stay”.
In reality I consider that this is an example of P being manipulative and looking to turn a situation to her advantage. At the time she thought she might be better off living with her mother but now because things are not going her way she is looking to change that.
It is also noteworthy to refer to what the three eldest children told Dr S in 2003. All three were living with their father at the time, and each said that they wanted to live with their mother because of the conduct of their father and his treatment of them. That included him smoking marijuana, his physical discipline of them, his anger, and his failure to supervise. Of course, at that time, as was extensively noted by Dr S, the mother was no better equipped to care for the children than the father. Dr S also said this in paragraph 53 of her report:
“While the children communicated wanting to live with their mother, it was considered that this wish may stem more from a desire to escape the chronic abuse and neglect that is a feature of their current lives rather than a real desire to live with [the mother]. For example, the children have had very little contact with their mother over the last two years and none over the last six months. This wish is therefore not based on a current memory or recent experience.”
The mother’s evidence is that since the report of Ms N P has changed her mind and wants to stay with her. However, the context of that is P wanting to have the opportunity to travel to Norfolk Island and/or New Zealand and see her mother’s family, something which would not happen if she was living with her father. The mother also said that when she asked P why she told Ms N what she did, P said that she missed her friend ….
Now, again this is another clear example of P changing her position according to what suits her at the time, and I attach no particular weight to it. I am also less than impressed with the mother challenging P as to what she told Ms N, and in my assessment, enticing P to change her mind with the promise of travelling to Norfolk Island and/or New Zealand.
The father of course is not beyond criticism given that he has inappropriately discussed with V what she told Ms N. Not unexpectedly, his evidence is that when challenged V told him that she does not want to live with her mother and that she would run away if required to, she just wants to visit her. However, confronted by her father in this way, what else would anyone expect her to say, and thus, I take no notice of this evidence save and except to take it into account as an example of the ongoing inappropriate conduct of the father towards the children. From Ms N’s evidence, V presented as a confused and unhappy child and that will not have been alleviated by the conduct of the father. Ms N felt that she loves her father but yearns to be with her mother.
In summary then, I do not consider that I should attach any weight to the views of P and S, but otherwise with the views of V put to Ms N.
(b) the nature of the relationship of the children with:
(i) each of the children’s parents; and
(ii)other persons (including any grandparent or other relative of the children);
I have already touched on the relationship that the children have with their parents, but in summary, according to Ms N, despite a lengthy period of almost no contact V and S are looking to re-establish a “close and nurturing relationship with their mother”. They also appear to have a good relationship with their father despite his failings.
P has been able to maintain an ongoing relationship with her father through telephone communication, but currently her relationship with her mother is somewhat strained because she is not able to have everything her own way.
From a strict relationship point of view there would not seem to be any impediment to the children, P, V and S, living with either parent. However, there are many other factors that need to be taken into account as well. For example, Ms N is of the view that the children should be together, and of course that can only happen if the children are with their mother. Ms N formed this view for two main reasons. Firstly, she says the children need to be together because of their disturbed upbringing, the enforced separations from one another, and having been subjected to a range of difficult situations. The sibling relationships are very important in these circumstances and they need to be developed and strengthened. The relationships need to be “protective and enduring”. Secondly, her observations of the children together and with their mother reveal the complex bonds that they have with each other and the affection they have for each other. She considered that the four children “gravitated together”.
(c) the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;
I find that there is very real doubt that either party is either capable of or indeed prepared to facilitate, encourage or ensure any sort of relationship between the children and the other parent. Their antagonistic feelings towards each other still dominate their thinking.
One only needs to look at the circumstance that since the mother retained D and P in January 2006 there has been no attempt by either party to facilitate the children in that party’s care spending time with the other party.
It is the case that when the four children were living with the father he allowed the mother to see them when she came to Adelaide, and he even permitted her to stay at his home. It is also the case that the father sent the children D and P over to Sydney intending that they would visit their mother. However, that is all history and to repeat, nothing like that has occurred since January 2006.
In her report Ms N said that she “had reservations about the ability of the father to support the children’s relationship with their mother appropriately”. I agree, but if that was meant to imply that the mother had that ability then I disagree. Apart from anything else there is her proposal about the children spending time with the father in the event that the children live with her. With D she also wants the power to veto any arrangement that is reached between D and his father as to when D will spend time with him, and with the girls her proposal is that the father always travel to New South Wales, that he not take them outside a radius of 200 kilometres from the Central Railway Station, and that there be no overnight time.
Clearly, there are serious concerns about the father’s care of the children but he has been the parent with whom the children have spent most of their lives, V and S have been in his sole care for many years, and given the mother’s lack of interest, her own lack of proper care in the past, and the trouble that P is involved in, it is hypocritical of her to propose restrictions like these. It is either vindictiveness or she simply has no appreciation of the need for the children to have an ongoing relationship with their father.
(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i)either of their parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is an important factor in this case.
The proposals of each party entail significant changes to the lives of all of the children, including D. The father’s proposal entails the child P living with him and with V and S, but leaving D with his mother. The mother’s proposal entails all children, including D, living with her.
Obviously, it is only on the mother’s proposal that all of the children, including D, will be together, and to repeat, Ms n’s evidence is that that is the outcome that is in the children’s best interests. She says that not only will all of the children be together, but V and S will particularly benefit from being with their mother “as they move into their teenage and pre-teenage years”. She observed that V and S were in need of nurturing from their mother.
However, it is not necessarily as simple as that. V and S have been living with their father for many years, and moving to live with their mother would entail starting in a new school, meeting new friends, and coming to terms with an entirely new environment. They will also not see their father on the daily basis that they currently do. The mother will also have difficulty in accommodating everyone in her home, and she conceded that she would need to find larger accommodation. However, perhaps the most significant issue is whether the mother will be able to cope with caring for all four children. She wasn’t able to do that in the past, and there was violence and neglect, and the children were removed from her care. To repeat, she says that she has changed, but apart from whether that is the case or not, she has not been put to the test again of having four children to care for. Currently she only has two with her, and already it is apparent that she is having trouble with P. She will not only have to continue to deal with that, but V has been in severe trouble at her school with her conduct leading to suspensions, and the mother will have to deal with this as well. In addition, S’s express view is that she wants to stay with her father, and this is something else the mother will have to address, although Ms N was of the view that S would easily settle in with her mother.

In relation to the father:
193.1There is the sad history of neglect which has led to the various welfare departments intervening and supervision and guardianship orders being made. There has also been the continued drug taking by the father to which I have already referred.
193.2Despite significant periods of respite care and the substantial assistance and support from various agencies, the father has not been able to properly care for the children.
193.3In July 2007 when the mother was in Adelaide for the interviews with Ms N, she arranged to spend time with the children one night. She collected V and S from the father at 9:00pm and they went to a friend’s house where the mother and the other two children were staying. However, about 1:00am the father came and removed the children V and S. In doing so I accept the mother’s evidence that he was abusive, threatening and violent to the children. This was clearly inappropriate given that V and S had not seen their mother for a considerable period of time. The father says that the arrangement was for the children to only spend one hour with the mother, but I do not accept this. In any event, to have imposed such a limited timeframe in the circumstances would have been totally unreasonable and insensitive to the children’s needs.
193.4During the course of the trial the mother wanted to have the children V and S spend some time with her. However, the father refused saying that he did not want a repeat of July 2007. Eventually the father agreed to allow V and S to spend one overnight period with their mother, but his initial stance again highlighted his lack of appreciation of the needs of the children.
193.5The father has not been prepared to take any responsibility for his actions in relation to the children. All he is able to do is to criticise and make allegations against the mother, and attempt to lay the blame for the appalling history of this matter at her feet. That was how he conducted himself during the interviews with Ms N, and that was certainly his presentation in Court. He made the comment to Ms N that he “was doing really well with the four until the two oldest were taken off me”, however, nothing could be further from the truth, and I need look no further than the Families SA report of 15 March 2007 (Exhibit M2). There was also the father’s lame attempt to explain why the children were still getting to school late, namely, they slept in because there was a power blackout and the alarm did not go off.
193.6As Ms N summarised in her report, during the interviews the father did not take the opportunity to make the time with D and P productive and enjoyable for them. All he could do in the presence of the children was to “interrogate [D]” and make a series of negative comments about the mother. Ms N said that, “(h)e was apparently unable to see that his behaviour created unnecessary discomfort for all the children”, and “(h)e appeared to have a very limited ability to restrain his impulse to badger the children in regard to his concerns”. Further, Ms N felt that, “[The father] was unable to separate out his own strong need to gain information which he saw as important, from the needs of the children in that situation”.
193.7The father freely admitted to Ms N that he had communicated the contents of Court documents to the children, and that he considered such actions appropriate. In evidence he attempted to back-track and say that he had not provided any of the recent documents to them, and he had only shown the earlier documents to the eldest children, but I do not believe him. Moreover the father volunteered in evidence that during the course of the trial he discussed the evidence with the children. This again shows a failure by the father to appreciate the needs of his children.
193.8It is instructive to compare what is happening now with what is contained in the report of Dr S of 31 July 2003. For example, Dr S said this in paragraph 39:
“When observing the parents with their children, no signs of affection were noticed. When the children approached [the father] in the waiting room he brushed them off. [The mother] had not seen the children for six months until the night prior to the assessment but when given the opportunity to spend time with the children while [the father] was being interviewed, [the mother] elected to sign the children into child care rather than spend additional time with them.”
Now, as Ms N observed, the father has not changed and instead of interacting with the children he chose to question D and criticise the mother. However, with the mother she seems to have changed in that Ms N reports that, “(d)uring observation of all four children with their mother there was a relaxed interaction amongst them all”, and, “it was clear that (the children) immediately sought to establish a close and nurturing relationship with her”.
193.9In a similar vein, Dr S reports the father as admitting to leaving the children unattended at times and giving every indication that he intended to continue to do so. The evidence points clearly to the fact that the father was true to his word, and he continues to leave the children alone.
193.10Despite protesting about the mother retaining P and D in January 2006, after the Court proceedings initiated by the mother concluded in November 2006 the father did nothing about attempting to spend time with D and P. He also did nothing about V and S spending time with the mother and their siblings. I have no doubt that like the mother, the father has no appreciation of the need for a child to spend as much time as possible with both of the parents.
193.11The father’s drug taking has led him to be constantly in financial difficulties. As a result, in the past he has “hocked” the children’s toys and belongings including their school bags, and sold their medication. There have also been occasions when he has had insufficient money to be able to feed the children and himself properly.
193.12The father has had no compunction in challenging the children both privately and in public as to what they have said to others including Dr S and Ms N. Invariably, and understandably, the children indicate to their father that they did not say those things and the father then presents that as an answer to what is in the reports. Clearly that is totally inappropriate conduct by the father, but it is typical of his attitude.
193.13The father’s refusal to take responsibility for his actions is further highlighted by his claim that “the mother has put things into the heads of” V and S, and thus what they say is not true. However, the father overlooks the fact that V and S have not spent time with the mother for a number of years and thus she has not been in a position to influence them.
193.14The father has continued his heavy drug taking, and I have found that he does so in the presence of the children. In so doing the father has presented himself as a poor role model to the children.
As should be obvious, these examples cannot provide the Court with any great optimism or confidence that the parties are capable of demonstrating an appropriate attitude to the children and to the responsibilities of parenthood. Turning though to Ms N’s assessment, she seems to feel that the mother could do this, and I refer to what she said in paragraph 21 as set out in paragraph 99 above. Ms N also said that the father “presented as a committed and dedicated father who loved and wanted to ensure the wellbeing of all of the children”. Now, it may be that her assessment of the mother is accurate, but there are still concerns that I have about her. With the father though I simply cannot describe him in the way that Ms N did, and I find that he is incapable of demonstrating the proper attitude and parental responsibility.

(j) any family violence involving the children or a member of the children’s family;

I addressed this issue when considering the primary considerations, and I do not need to repeat what I said there.

(k) any family violence order that applies to the children or a member of the children’s family, if;

(i)the order is a final order; or
(ii)the making of the order was contested by a person;

I understand that there have been Domestic Violence Restraining Orders in the past but there are none that are current.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;

Neither party made any submissions about this factor. For my part, whatever order is made here will still leave open the prospect of further litigation.

(m) any other fact or circumstance that the court thinks is relevant;

Neither party suggested there were other relevant facts or circumstances to be considered.

Section 60CC(4) of the Family Law Act 1975

As referred to above, pursuant to Section 60CC(4) of the Act the Court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibilities as a parent. I have considered this important issue when addressing paragraphs 60CC(3)(c) and (i) of the Act, but nevertheless I highlight the following:
199.1Neither party has really fulfilled their responsibilities as parents in all respects at any one time. That is, there are examples of where one party has for a period of time provided adequate care of a child but has then failed to demonstrate any insight into the need for that child to maintain a relationship with the other party. This could be said about the mother’s care of D since January 2006.
199.2Each party has in effect participated in making decisions about major long term issues in relation to the children, but rarely together, and only in relation to the children in the party’s care at the time. For example, the father has determined solely what school V and S will go to, and since January 2006 the mother has determined solely what schools P and D will attend.
199.3Since January 2006 the father has failed to pursue spending time with P and D, although he has communicated with P by telephone. The mother on the other hand has made no attempt to spend time with or communicate with V and S since January 2006. She did of course institute proceedings seeking a final order that all four children live with her but as I understand it in those proceedings she did not seek any interim order to spend time with or communicate with V and S.
Prior to January 2006 and for a number of years the mother also rarely took the opportunity to spend time with or communicate with any of the children. She says that she was afraid of the father, but I do not accept this claim.
199.4Between at least 2001 and January 2006 the father did not facilitate the mother participating in making decisions about major long term issues in relation to P, D, V and S, since January 2006 the father has not facilitated the mother participating in such decisions about V and S, and since January 2006 the mother has not facilitated the father participating in such decisions about D and P.
199.5Since January 2006 the mother has not facilitated the father spending time with either D or P, and indeed, she has kept her address and telephone number secret.
199.6Prior to January 2006 there were periods of time when the father would facilitate the mother spending time with all children and he even allowed the mother to stay at his home for this purpose. He also facilitated telephone communication. However, since January 2006 he has not facilitated V or S spending time with or communicating with the mother.
199.7The only apparent issue on the evidence in relation to the parents’ obligation to maintain their children is the father’s financial difficulties as a result of his drug taking, and the impact of that on the children. However, separate to that, since January 2006 neither parent has assisted the other parent in maintaining the children in the care of that other parent.

Parental responsibility

The mother seeks an order that she have the sole parental responsibility for all of the children, but the father makes no application about this. I suspect though that this was an oversight on his part.
As referred to above, when the Court makes a parenting order the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children. That presumption does not apply though in the circumstances set out in paragraph 61DA(2), and this is a case that fits squarely into that category. Indeed, even if the presumption did apply I consider that there is ample evidence to satisfy the Court that equal shared parental responsibility is not in the best interests of the children. It would be impossible for these children to allow their parents to equally share parental responsibility for them.
However, despite this, I am of the view that whatever the position is as to with whom the children live, it is not in their best interests for one or other of the parents to have sole parental responsibility. Indeed, I consider that each parent should have parental responsibility for each child, and the best way to achieve that is to make no order about parental responsibility and leave Section 61C of the Act to govern the situation.
In these circumstances I do not need to address Section 65DAA of the Act. However, that is not to say that in framing the orders I will not need to consider all options that are in the best interests of the children.

Conclusion

Having regard to the evidence, the submissions of the parties, and the principles relevant to my determination including the objects and principles set out in Section 60B, I have concluded that it is in the best interests of the children P, V and S that they live with the mother and spend time and communicate with the father.
In summary, my reasons for this are as follows:
205.1It is a case of finding the least detrimental alternative.
205.2Although there are doubts and concerns about the capacity of the mother to adequately care for all four children, not only is there far more doubt and concern about the capacity of the father to properly care for P, V and S, but he is not properly caring for the children currently in his care, namely V and S.
205.3The evidence indicates that P would be a handful no matter with which parent she was living but there is simply no evidence to suggest that her behaviour would improve if she lived with the father.
205.4I accept the recommendation of Ms N supported by the Independent Children’s Lawyer, that all four children need to be together, and given that the father does not pursue his application for D to live with him, the only way that that can happen is for P, V and S to live with the mother.
To repeat, this case presents an appalling history of violence and neglect by the parents of these children. Both parties claim that they have changed, and they are now capable of caring properly for these children. The evidence though is that the father is still not able to properly care for V and S, and thus there is no reason to assume that he will be able to properly care for P if she came to live with him as well. There have continued to be child protection notifications in relation to the father’s neglect of V and S, he refuses to take any responsibility for his behaviour, he continues to consume drugs, and that directly impacts on the safety and wellbeing of the children, he cannot properly supervise them, he cannot ensure that they attend school on time, V is on the verge of being expelled from school, and there is no sign that any of this is going to change.
With the mother, it is only the absence of any evidence of any violence, of any child protection notifications, and of any involvement at all with the family by DOCS that supports her claim that she has changed. It does seem though that she has properly cared for and raised D since January 2006. With P, there is still an element of doubt, but that relates to P’s conduct at school and her oppositional behaviour towards her mother. There is no credible evidence of neglect of or violence towards P by the mother. I also accept the evidence of Ms N that P is going through a difficult time as a teenager and given the history of “interruptions” to her “care arrangements” because of “parenting deficits”, she has developed “manipulative and oppositional acting out behaviours and attention problems”. Indeed, the likelihood is that if she went to live with her father this would continue to be the case.
The children’s views are important in a case like this, but they need to be looked at in context. P said that she would “rather live in Adelaide”, but importantly she said that she “wanted all the children to live together”. V, to use Ms N’s words, “conveyed a strong wish to live with her mother”, and although S said that she wanted all the children to live with her father, I accept Ms N’s assessment of why she might say that. Importantly, I also accept Ms N’s evidence that the younger girls “sought to establish a close and nurturing relationship with their mother”, and that they would benefit from “the opportunity” to live with her “as they move into their teenage and pre-teenage years”. Thus, I am confident in finding that if all the children are together living with their mother then they will all adapt well to that scenario.
The mother of course, as she said, will have to find larger accommodation, and there will be the immediate concern of how she will react to the stress of all four children living with her and having to attend to their daily needs, but I consider that that has less risks to the safety and wellbeing of the children than leaving V and S in the unacceptable environment that the father provides, and putting P in there as well, with the additional consequence of P, V and S being separated from their brother D, and he being isolated from them.
Whatever order I make is an experiment in this case, but the chances of success are greater if the children live with their mother than with their father. Importantly, she now appears to have a stable and settled lifestyle and she has a number of family members who live in New South Wales and who are able to provide support and assistance to her if she requires it.
As to the timing of V and S moving to live with their mother and how that can best be achieved, I seek further submissions from the parties.
There is then the vexed question of how to ensure that the children spend time with and communicate with their father. To repeat, I do not accept Ms N’s assessment that the mother has demonstrated a greater ability than the father to support the children’s relationship with the other parent. Indeed, a case can even be made out that the mother is less prepared to do this than the father. Importantly, there is the mother’s history of breaching and ignoring court orders, with the latest example of that being what happened in January 2006. Thus, this is a dilemma, but it is not a reason for changing my mind about where the children should live. On that basis then all I can do is make the order that is in the best interests of the children and stress to the mother that that order must be obeyed or there will be consequences.
I have already said that I reject the mother’s proposals to limit the time spent to day time, to restrict where that time can be spent, to delay the commencement of any such time, and for the mother to be able to veto any arrangements reached between D and his father. Clearly though with the mother and the children in New South Wales and the father in South Australia, and their limited financial circumstances it will be difficult to put satisfactory arrangements in place. What I propose to do though is to adopt Ms N’s recommendation that the children P, V and S should spend one half of each school holiday period with the father, and that D should spend such time with the father as he wishes. In addition, there should be a provision allowing for the children P, V and S to spend such other time with their father as may be agreed.

In relation to the cost of any travel by the children for the purpose of spending time with their father, I consider it appropriate that the same should be shared equally by the parties. The mother’s counsel submitted that the father should bear all these costs because the mother will have the financial burden of caring for all four children. However, it was the mother who moved to New South Wales and who could have remained in South Australia where the father and the children were living. Moreover, the mother will have increased payments from Centrelink to assist her with caring for the children. The father though will have far less by way of any benefits.
However, I do accept the submission of all counsel that if the cost is shared then a convenient way to set that up is for each parent to pay the entire travel costs for each alternate period of time spent.
With telephone communication I accept that that should be frequent and regular, and I propose to order that there be two telephone calls each week. That should also apply when the children are with their father.
The mother of course wants to keep her address and her telephone number secret. However, I do not accept her reasons for this and I consider it essential that the father know where the children are, that he know what schools they are attending, and how to contact them. Thus, I will require the mother to provide her address, her telephone number and the address of the schools that the children attend to the father and keep him informed of any changes to the same. Likewise, with the father.
Apart from these orders I consider that there should be what I would call the usual orders that provide for each parent to be kept informed of what is happening in the lives of the children, eg, by the provision of school reports to the father and the sharing of information in relation to medical emergencies and the like.
Finally, I turn to the issue of the children being at liberty to travel to Norfolk Island or to New Zealand for up to four weeks with the mother.
The father opposes such an order because of the history of the mother breaching orders, and in particular her failure to return the children D and P in January 2006. On that basis he suggests that she will not return with the children if she is allowed to take them.
The Independent Children’s Lawyer supports the ability of the mother to be able to take the children to meet their relatives and to learn about the mother’s family history and cultural background. However, the father should be notified in advance of any trip, be provided with an itinerary, and be able to speak to the children whilst they are away. Ms N also supported such an order.
For my part, it would have been easier to determine this issue if the mother had bothered to raise it formally before mentioning it in her affidavit filed on 4 October 2007. Indeed, she raised it with Ms N in her interview in July 2007, yet she still failed to make any formal application. Nevertheless, it is a question of what is in the best interests of the children, and on balance I consider that I should make the orders sought. The children will benefit from such a trip, and I have little doubt that the mother will return with them.

I certify that the preceding
222 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland
the 16^th day of May 2008.

……………………………………….
Associate

[2008] FamCA 387

16 May 2008

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