Masters and Anor and Heresford and Ors
[2007] FamCA 1622
•21 December 2007
FAMILY COURT OF AUSTRALIA
| MASTERS AND ANOR & HEREFORD AND ORS | [2007] FamCA 1622 |
| FAMILY LAW – CHILDREN – Residence – Violence & Abuse – Alcohol abuse and illegal drugs – Mental health problems |
| Family law Act Ss. 60B, 60CA, 60CC |
| APPLICANTS: | Mr Masters & Ms March |
| FIRST RESPONDENT: | Mr Heresford |
| SECOND RESPONDENT: | Mr Kaleb |
| THIRD RESPONDENT: | Ms Konrad |
| INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| FILE NUMBER: | NCF | 813 | of | 2005 |
| DATE DELIVERED: | 21 December 2007 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Mullane |
| HEARING DATES: | 9, 10, 11, 12 & 13 July 2007 |
REPRESENTATION
| THE APPLICANTS APPEARED ON THEIR OWN BEHALF: | In Person |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr M. Graham |
SOLICITOR FOR THE FIRST RESPONDENT: | Messrs Kinnear & Company Solicitors |
| THE SECOND RESPONDENT APPEARED ON HIS OWN BEHALF: | In Person |
| COUNSEL FOR THE THIRD RESPONDENT: | Mr G. Sundstrom |
| SOLICITOR FOR THE THIRD RESPONDENT: | Messrs Barbara Garrick & Associates Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke, Legal Aid Commission |
Orders
All previous Orders regarding the children J born … January 1999, D (also known as …) born … April 2000 and R born … February 2004 are discharged.
The children J AND D are to live with their father Mr Heresford and he has sole parental responsibility for the long term decisions for J and D and parental responsibility for day to day decisions when they are in his care.
The children J and D are to spend time with and communicate with the maternal grandmother as follows:
3.1. During school terms, each alternate weekend from 4.00pm Friday to 4.00pm Sunday, such weekend time to commence on the 1st weekend of each school term.
3.2On each of the children's birthdays if a school day from 4.00pm to 7:30pm and if a non school day from 8:30am to 2:00pm.
3.3For one half of each school holiday period at the conclusion of Terms 1, 2 and 3 defined as follows:
3.3.1. the 2nd one-half in 2007 and each odd-numbered year thereafter commencing at 12.00 noon on the 2nd Sunday and concluding at 4.00pm on the day preceding the children's return to school, and
3.3.2. the 1st one-half in 2008 and each even-numbered year thereafter, commencing at 4.00pm on the last school day and concluding at12.00noon on the 2nd Sunday.
3.4Subject to paragraph 2 herein, for one-half of each school holiday period at the conclusion of Term 4 defined as follows:
3.4.1. the 2nd half of the school holidays commencing in 2007 and each odd numbered year thereafter, commencing at 12.00 noon on the 3rd Saturday following the last day of the school term and concluding at 12.00 noon on the Saturday immediately prior to the new school year resuming, and
3.4.2.the 1st half of the school holidays commencing in 2008 and each even numbered year thereafter, commencing at 12.00 noon on the 1st Saturday following the conclusion of the school term and concluding at 12.00 noon on the 4th Saturday thereafter.
3.5. Such further times as the parties may agree.
Notwithstanding Order 3, J and D are to spend time at Christmas as follows:
4.1in 2007 and each odd-numbered year thereafter, with their father from 3.00pm 24 December to 3.00pm 25 December and with the grandmother from 3.00pm 25 December to 3.00pm 26 December; and
4.2. In 2008 and each even-numbered year thereafter, with the grandmother from 3.00 pm 24 December to 3.00pm 25 December and with their father from 3.00pm 25 December to 3.00pm 26 December.
Mr Heresford must deliver the children J and D to the home of the maternal grandmother at the commencement of time the children are scheduled to spend with the maternal grandmother in accordance with these Orders and collect the children J and D from the home of the maternal grandmother at the conclusion of the time the children are scheduled to spend with the maternal grandmother in accordance with these Orders.
For implementing these arrangements Mr Heresford may arrange for a responsible adult known to the children to collect and/or deliver the children, and must notify the maternal grandmother beforehand of the identity of the person collecting or returning the children.
The maternal grandmother has responsibility for day to day parental responsibilities for J or D when the child is spending time with her and the paternal grandfather and Ms March have that responsibility when J or D is spending time with them.
The maternal grandmother is permitted to telephone the children J and D at all reasonable times when in the care of their father.
Mr Heresford is permitted to telephone the children J and D at all reasonable times when the children are spending time with the maternal grandmother during periods of school holidays.
The father Mr Heresford must sign all consents submitted by the maternal grandmother to enable J'S and D'S school(s) to provide to the maternal grandmother on a regular basis and at her expense copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to either child.
The father Mr Heresford must keep the maternal grandmother informed about the welfare and education of the children J and D.
The maternal grandmother is permitted to approach the school(s) attended by J and D to obtain copies of all notices and details of all functions, parent and teacher nights and other activities (including sporting activities) to which parents are invited and to attend such activities.
The father Mr Heresford must encourage and foster J's relationship and D's relationship with the maternal grandmother and with the maternal grandfather and Ms March.
The father Mr Heresford must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to any time the children J and/or D are scheduled to live with him or during the time J and/or D live with him.
The child R ("[R]") born … February 2004 is to live with her maternal grandmother Ms Konrad and she has sole parental responsibility for long term decisions for R and parental responsibility for day to day decisions when R is in her care.
The maternal grandmother is restrained from changing the place of residence of R to a place outside a radius of 20 kilometres from B except with the permission of the Court.
Subject to the father of R, Mr Kaleb, giving the maternal grandmother at least 3 weeks written notice R is to spend time with her father Mr Kaleb for up to 7 successive days in any calendar month for the following times:
Day 1 - 10 am to noon; Day 2 - 10 am to noon; Day 3 - 9 am to noon; Day 4 - 9 am to noon; Day 5 - 9 am to 2 pm; Day 6 - 9am to 3 pm; and Day 7 - 9am to 3 pm;
to be implemented by Mr Kaleb collecting R from outside the home of the maternal grandmother at the start of each period and returning R to the same place at the end of each period.
Orders providing for R to live with the maternal grandmother or spend time with Mr Heresford or the maternal grandfather and Ms March are suspended during any period R is to spend time with Mr Kaleb under Order 17.
Mr Kaleb may communicate by telephone with R at all reasonable times when she is in the care of the maternal grandmother.
The maternal grandmother must hand to the child R unopened all letters, mail and any other item addressed to R from Mr Kaleb.
The maternal grandmother must keep Mr Kaleb informed about the care, health, welfare and education of the child R.
The maternal grandmother must encourage and foster R's relationship with her father Mr Kaleb and with her maternal grandfather and Ms March.
Mr Kaleb must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to the time the child R is to spend time with him or during the time R spends with him.
Mr Kaleb has day to day parental responsibility for R when she is in his care, the maternal grandfather and Ms March have that responsibility when she is in their care and Mr Heresford has that responsibility when she is in his care.
R is to spend time with Mr Heresford as follows:
25.1 each second weekend of each school term from 4.00pm Friday to 4.00pm Sunday; and
25.2 for half of each NSW public school vacation being the half when pursuant to order 2 J and D are with Mr Heresford.
Mr Heresford is to communicate with R by telephone by calling her at the maternal grandmother's home at 11am on Wednesdays until she commences school and then between 5pm and 5.30pm on Wednesdays.
J, D, and R are to spend time with the applicant maternal grandfather and Ms March in the Port Stephens area on the first weekend in each of February, March, May, June, August, September, November and December from 9.30am Saturday to 7.30pm Sunday.
The orders providing for the children J, D, and R to live with or spend time with Mr Heresford or the maternal grandmother are suspended for the purpose of the applicant maternal grandfather and Ms March spending time with the children in accordance with order 27.
The time the children spend with the maternal grandfather and Ms March ("the applicants") is to be implemented by the applicants at the start of the time collecting R from the home of the maternal grandmother and J and D from the home of Mr Heresford and at the end of the period returning R to the home of the maternal grandmother and J and D to the home of Mr Heresford.
The maternal grandfather and Ms March must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to the time any of the children is to spend time with them or during the time any of the children spends time with them.
Each party must as soon as practicable telephone the others upon the happening of any of the following:
31.1any of the children in that party's care becoming seriously ill;
31.2. any of the children in that party's care being hospitalised; and
31.3. any of the children in that party's care becoming involved in an accident requiring medical attention.
Each party must notify the others of any change of residential address, landline telephone number or mobile telephone number within 24 hours of such a change.
By 31 January 2008 Mr Kaleb, the maternal grandmother, the maternal grandmother and Ms March must each complete a course, or a course of counselling in Parenting After Separation nominated by the Manager of Child Dispute Services of the Family Court of Australia, Newcastle Registry as ordered on 30 August 2007 and must:
33.1 upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
33.2 promptly provide the other parties and the independent lawyer for the children with a copy of the letter.
Each party is restrained from denigrating any other party in the presence or hearing of any of the children or permitting anyone else to do so.
Each party is restrained from discussing with any of the children or in the presence or hearing of any of the children any other party or events in the home of any other party.
These Orders incorporate and have attached to them a document setting out:
36.1 the obligations that these Orders create;
36.2the consequences that may follow if a person contravenes an Order;
36.3 the availability of programs to help people understand the responsibilities under parenting orders; and
36.4 the availability and use of location and recovery orders to ensure that parenting orders are complied with.
Otherwise any outstanding applications are dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as:
Applicants
MASTERS & MARCH
Respondents
(1st) = HERESFORD
(2nd = KALEB
(3rd) = KONRAD
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF813 of 2005
| MR MASTERS & MS MARCH |
Applicant
And
| MR HERESFORD |
First Respondent
And
| MR KALEB |
Second Respondent
And
| Ms Konrad |
Third Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These were defended proceedings regarding the care, welfare and development of three children of the mother J who is 8 years old, D who is 7, and R who will turn 4 in February.
The applicants are the maternal grandfather of the children, and his partner, Ms March. They reside in C in Western New South Wales. The first respondent, Mr Heresford, is the father of J and D and he resides in the Port Stephens area. The second respondent, Mr Kaleb is the father of R and he resides at M in South Australia. The third respondent is the maternal grandmother, Ms Konrad, and she resides in the Port Stephens area close to the first respondent.
BACKGROUND
The mother and Mr Heresford commenced a romantic relationship in 1998 when he was 23 and she was 18. They were both regular users of cannabis. Until J was born in January 1999, they maintained separate residences but stayed overnight at his residence about 5 nights per week.
From when J was born she and her parents resided in the Port Stephens area at E, not far from B. Mr Heresford was working as a labourer 4-5 days per week. The mother suffered post-natal depression for about a year. There was serious conflict between the parents and some violence by the mother towards Mr Heresford.
In early 2000 J and her parents moved to H in Queensland so that the mother could be near the maternal grandmother who was living there. In H the father had full time employment in the labour industry. D was born in April 2000.
Mr Heresford alleges that the parties separated in November 2001, but that evidence is completely inconsistent with the evidence of the maternal grandmother and also the evidence of Mr Kaleb. It is clear that by early 2001 they were separated. The evidence of the maternal grandmother is that the separation occurred in late 2000. It appears that Mr Heresford is mistaken and that the separation occurred in late 2000 rather than late 2001.
In any event by late 2000 the mother, Mr Heresford and the 2 children were living in B in NSW. The parents were possibly already separated. Mr Heresford had been unable to obtain employment since the move from H in QLD. When they separated, the mother moved back to H with J and D. After the separation the mother was using amphetamines. Once the children moved to H, the father had weekly telephone contact with them and visited them in Queensland about 3 times in the first year and then about twice per annum.
The mother and one or both of the children stayed with the father for a week or 2 whenever she was travelling through Newcastle on her way to or from South Australia. She had met a man called “[A]” living in Adelaide and in early 2001 she left J and D in the care of the maternal grandmother in Queensland for about 4 months while she lived in Adelaide with A. She then returned to Queensland in about July. But in about August she took D and returned to live with A in South Australia. She left J with the maternal grandmother. The mother was away that time for about 3 months. At her request, in November the maternal grandfather went to Queensland, collected J and brought her back to B where he and Ms March were then living. The mother, A and D travelled up from South Australia, stayed for a couple of days, and then returned to South Australia with both children.
In December 2001 the mother, A, J and D spent Christmas with the maternal grandmother in H. They then left to return to South Australia. On the way they stayed over with the maternal grandfather and Ms March at B. The mother and A left the children there and returned to South Australia. The children were there about 6 weeks. Then the mother returned and stayed about a month before returning with the children to South Australia.
In June 2002 the mother met Mr Kaleb while he, the mother and the children were residing at a caravan park in South Australia. The mother separated from A in about July 2002 and she then returned to H with the children.
In about October 2002 the mother went to South Australia to cohabit with Mr Kaleb. She left the children in the care of the maternal grandmother in H. In South Australia the mother and Mr Kaleb cohabited.
In late 2002 Mr Heresford obtained part time work as a tradesman. In the period 2003 to 2005 he travelled to H once a year and stayed for 1 or 2 weeks at a time having contact with the children. The mother lived with Mr Kaleb from October 2002 to August 2003. During that period on one occasion they were travelling by car with the children when the car broke down in the Hunter Valley area. By agreement Mr Heresford drove to the Hunter Valley and collected J and D. The mother and Mr Kaleb returned to South Australia and J and D remained with their father for about a month. They later were delivered to the mother in South Australia by the paternal grandfather.
The mother fell pregnant with R in about May 2003. She left Mr Kaleb in August 2003 and returned to H with J and D. They lived with the maternal grandmother for about 4 weeks and then in rented accommodation nearby. Meanwhile, Mr Kaleb within about a month of the separation from the mother, commenced cohabiting with Ms N.
In 2004 J commenced attending school at H School. R was born in February 2004. Mr Kaleb eventually found out about the birth, but despite attempts by him to contact the mother so that he could see R, he was unsuccessful.
While the mother, D and J (and later R) resided in H, they either resided in the same house as the maternal grandmother or nearby. The maternal grandmother saw the children almost every day, she often had the evening meal with the children, and the children often stayed overnight with her.
The maternal grandmother’s mother was diagnosed with terminal cancer in September 2003 and the maternal grandmother then nursed her mother until her death. She died in December 2004. Both the mother and the maternal grandmother were particularly distressed by the death. In February 2005 the maternal grandmother moved to stay with the mother and the children because the mother was not coping with the loss.
It appears that D commenced school at H School at the start of the 2005 school year. In early May 2005 Mr Heresford visited the mother and the children in H and stayed 9 days with them. On 17 May 2005 the mother was proposing to move to C, where the maternal grandfather resides, as she had formed a relationship with a man in that area. At her request the maternal grandfather drove to H with his partner Ms March. They then drove J, D and R to their home at C. The mother had intended to accompany the children, but there was insufficient room in the vehicle.
The mother was killed in a motor vehicle accident in June 2005 when she was travelling to C.
The children remained with the maternal grandfather and his partner after the mother’s death. They travelled to B after the mother’s death. Mr Heresford went to see the children there and asked that the children, or at least J and D come to live with him. The Applicants refused. Proceedings were commenced in the Federal Magistrates Court at Newcastle by the applicants naming Mr Heresford as the respondent and it appears they obtained an urgent interim order (without notice to Mr Heresford) for the children to live with them. They returned with the children to their home. Meanwhile Mr Heresford was concerned about the children’s welfare, he consulted a solicitor. He also raised his concerns with DoCS and the police (both in the Port Stephens area and at C and he travelled to C. They made a home visit to the home of the applicants.
Mr Heresford was served with documents in the proceedings and on 22 June 2005 interim orders were made that all 3 children live with Mr Heresford. He was then living at B in the residence which he has since continued to occupy. When the children were handed over by the applicants, J had 2 large sores on her face, D had some cuts on his toes and a sore in his nose, and R had thrush and bad nappy rash. (She was teething.) On the day the Orders were made Mr Heresford agreed to R staying with the mother’s sister, who also resides in the B area. She has 3 children of her own and at the time the maternal grandmother was staying with her.
In July 2005 J and D were enrolled at the B Public School and they have since attended there. Early in July the maternal grandmother returned to H in Queensland. In the August her son constructed a flat on the back of his home for her to occupy. She undertook to care for his autistic 6 year old son every second week.
Mr Kaleb was not notified of the mother’s death or the whereabouts of R until August 2005.
Mr P is a social worker in private practice. He graduated with a Bachelor of Arts degree from University in 1976, with an Associate Diploma in 1981, and with a Bachelor of Social Work in 1990. He obtained mediator accreditation and is qualified in workplace assessment and training. Mr P has worked as a specialist at various locations for the Department of Community Services. … His practice in private practice since 2001 has included individual casework, relationship counselling, family assessments, domestic violence research and clinical assessments.
Mr P was assigned responsibility for preparation of a Family Report by the Federal Magistrates Court. At the time the report was ordered, Mr Kaleb had not been joined as a party to the proceedings and had not been notified of the mother’s death or R’s whereabouts. The interviews were conducted on 10 August 2005. Mr Kaleb did not attend as he was not notified. The maternal grandmother had not intervened in the proceedings and she was not notified.
The Family Report was released on 23 August 2005. Mr P concluded the report as follows:
Evaluation
46. In my view, there are a myriad of concerns that currently exist regarding the wellbeing of all three children. There appears no doubt that even prior to their mother's death, all three children have had a transient lifestyle, being cared for by a range of extended family members and other unknown adults. Having initially stayed with their grandfather, following their mother's death and now residing with their biological father, [J] and [D] are clearly in need of some stability and some immediate grief counselling.
47. Given their respective histories and their current living situation it does not appear that [Mr Masters, the maternal grandfather] and Ms [March] can be the long-term carers of the subject children. The children will clearly exhibit challenging behaviours for an unknown period of time in the future, and they will require dedicated input from the identified fulltime carer.
48. Mr [Heresford] appeared to demonstrate little insight into his children's needs and I found him less than honest on several issues throughout the assessment. He clearly has had little time in being the primary carer of his children, and I remain sceptical as to who has actually been the primary carer in the last two months. He clearly acknowledged that he has not had the care of [R] since the last Court appearance in June of this year and that responsibility has fallen to [R]'s maternal aunt. Ms [M] clearly identified what she believes to be neglectful parenting by Mr [Heresford], and clearly Mr [Heresford] has not facilitated the appropriate follow up for his children since they have been in his care. Whether Mr [Heresford] can remain the long-term carer of both [J] and [D] remains doubtful at this stage.
49. The issue of residence of all three children, in my view, remains unresolved at this point in time, given the late applications to these proceedings by Mr [Kaleb], [R]'s father, and Ms [Konrad], the maternal grandmother of all three children. Clearly both of these persons will need to be assessed as to their suitability, but at the same time it is my view that the Department of Community Services should be joined in these proceedings and that the children also have their own separate legal representation.
Recommendations
50. It is my view that these proceedings cannot be finalised until an assessment of Ms [Konrad] and Mr [Kaleb] can be facilitated.
51. Given the concerns that I have for the future wellbeing of [J] and [D] in their current placement with their father, it is my view that the Department of Community Services should be joined in these proceedings.
52. I am of the opinion that all three children will require a complete paediatric assessment.
It was in that month that Mr Heresford abandoned his part time work as a tradesman to devote himself full time to parenting J and D. Since about August 2005 the maternal grandfather and Ms March have travelled to the Port Stephens area every second or third weekend to spend time with the 3 children. In September Mr Kaleb was ordered by the Federal Magistrates Court to file and serve a Response and affidavits. When the matter was before the Court on 14 September 2005 the Magistrate made orders for the proceedings to be transferred to the Family Court of Australia.
In September the maternal grandmother came to the Newcastle area and stayed for 9 days with the mother’s sister and her family. During that time the maternal grandmother cared for R.
In October the maternal grandmother obtained accommodation for herself and R in the home of the brother of the maternal grandmother and they then resided there. That month the maternal grandmother became a party to the proceedings.
In the Family Court of Australia on 31 October 2005 the matter was listed for directions. Orders were made for the children to be separately represented and an order was made inviting the Department of Community Services (“DoCS”) to intervene. The Department has not intervened.
In October/November 2005 Mr Kaleb and Ms N came and stayed in the B area and met R for the first time. He saw her for about 2-4 hours on each of 7 occasions during that stay.
In late October 2005 the maternal grandmother and R moved to reside near B with the maternal grandfather’s cousin. Mr Kaleb and Ms N returned to South Australia in November and then there was no contact between them and R until February 2006.
On 8 November 2005 the maternal grandmother and R moved to a cabin at a caravan park north of Newcastle. The maternal grandmother returned to H in November for a short time to pack her belongings and move them from the flat attached to her son’s home. When she and R returned from Queensland, they resumed residing at the caravan park north of Newcastle.
Whereas Mr Heresford had initially in his Response sought that all 3 children reside with him, on 12 December 2005 he filed an Amended Application in which he sought that J and D reside with him and R live with the maternal grandmother.
Mr Kaleb filed his Response on 18 January 2006 and sought an order that R live with him and the maternal grandmother have contact with R as agreed.
In January 2006 the maternal grandmother and R resumed residing with the maternal grandfather’s cousin near B. In February they took up rented accommodation in E, not far from B.
On 26 March 2006 Mr Kaleb and Ms N arrived unannounced at the home of the maternal grandmother requesting to have time with R. There was an argument, the Police was called and R then spent some time with them. The following day there were interviews for a further Family Report. The interviews were conducted by Mr P. He recited in his Report that the maternal grandmother was still seeking residence of all 3 children but said if she had residence of R only she would relocate to E permanently so as to facilitate contact between R and the other children. Mr Heresford was wishing to retain the residence of J and D only. Mr Kaleb was seeking residence of R and Mr Masters and Ms March were seeking residence of all 3 children.
After the interviews, in the period 28 March to 1 April R spent about 2 hours each day with Mr Kaleb and Ms N, supervised by the mother’s sister.
There was an interim hearing on 3 April 2006. Interim orders were made for J and D to reside with Mr Heresford, R to reside with the maternal grandmother, J and D to have contact with the maternal grandmother every second weekend, R to have contact with Mr Heresford every other weekend, and notwithstanding those provisions, Mr Kaleb to have contact with R as follows:
1)from 9am to 1pm on 4 April; and
2)4 hours on any school day in May 2006 (this contact was all to be in the presence of the mother’s sister or such other person as agreed).
There was also an order for the paternal grandfather and Ms March to have such contact with the children as agreed between the parties and the following notations were included:
1. It is noted that the parties intend that the children spend each weekend together.
2. It is noted that the natural father of [R] resides in South Australia.
3. It is noted that the parties intend that [R] have as much opportunity as possible to develop a relationship with her natural father and that the solicitor for the father will advise the solicitor for the maternal grandmother in writing of the proposed dates for contact in May 2006.
4. It is noted that the father intends making inquires as to the availability of supervised contact at […] Contact Centre located at […] in Newcastle.
5. It is noted that the parties attended for an assessment with the Family Report writer on 27th March 2006 and that a supplementary Family Report will issue.
The second Family Report by Mr P was released on 4April 2006. It concludes as follows:
Evaluation
57. There is no doubt that the challenges which the three subject children currently face will continue for some time, until there is sufficient stability in their lives, combined with the ongoing need for further professional input. There needs to be a combined recognition by all the interested parties, that the best interests of the three subject children will only be served by the adults cooperating in a constructive manner and not protective of their individual needs.
58. There appears little doubt that Mr [Kaleb] was unsure about his paternity regarding [R], in view of the statements made by [the mother] to him. However, it appears that this process of establishing his paternity took an inordinate amount of time and it also seems that he demonstrated little initiative in the early stages to have some parenting role of [R]. Given his own familial history and his abuse of illicit substances for some years, it is my view that Mr [Kaleb] will need to sustain his drug free status for a period of up to six months, as well as participating in a parenting group with his partner. Mr [Kaleb] and his partner will also have to review their excessive use of cannabis. Presently, it remains unknown as to the level of Mr [Kaleb]' s parenting capacity but certainly the events of the last few days does not engender immediate confidence, in his ability to discern what are critical issues for very young children.
59. Mr [Heresford] certainly appeared more focused and more in tune with his children's needs than when I last saw him in August 2005. He certainly appeared to be more truthful in his responses, but in my view there are issues with which Mr [Heresford] struggles to relate the truth. His effort in following up with the paediatrician, the ear specialist and his involvement with his children at school, are indeed all positives for which he should be commended. However, Mr [Heresford] needs to remain open to more input with both of his children and he needs to be integrally involved in providing some protective behaviours education for his children, with the assistance of a professional in this area. This appears to be an immediate priority, especially in lieu of the concerning allegations that he and the children's grandmother have made. Clearly, Mr [Heresford] has provided continuous care for his children since June 2005, and although Mr [Heresford] claims that there has been no involvement from DOCS in his life since then, there are still question marks over his parenting. Although Mr [Heresford] indicated that he is prepared to facilitate contact between [J], [D] and [M] if she is residing in South Australia, it is my belief that he will need to be ordered to do so, as it is my view that Mr [Heresford] does not currently recognise the importance of this.
60. Ms [Konrad] as the maternal grandmother of all three subject children remains primarily concerned about the separation of the siblings. There is no doubt that this is a genuine concern, however, the reality is that for all three subject children they have experienced extreme disconnection in their lives to date, and in reality the last eight months have probably been the most stable in the three children's lives to date. The extent and nature of Ms [Konrad]'s ongoing bouts of depression remains unknown but given her own familial history with both dysfunction and depression, I remain unconvinced as to Ms [Konrad]'s capacity to care on a full time basis for three high needs children. However, there is no doubt that Ms [Konrad] has provided consistent and what appears to be appropriate care for [R] since September 2005, but in my view it remains unlikely that Ms [Konrad] would be able to provide the range of inputs that all three children will continually require.
61. I do not believe that there have been any significant changes in the lives or the capacity of Mr [Masters] and Ms [March] to provide the appropriate care of all three subject children. There is no doubt that the maternal grandfather and his partner have an ongoing connection with [J] and [D] and it appears likely that they are more able to negotiate this ongoing contact with Mr [Heresford] directly, providing Mr [Masters] and Ms [March] give Mr [Heresford] the required assurances regarding their care.
62. I remain unaware as to any action that the Department of Community Services may have instigated in this matter, but it remains clear that the current proceedings cannot be finalised until a comprehensive child assessment is made of both [J] and [D] whilst in their father's care. In addition, the father will require therapeutic intervention for himself and this will be able to be obtained from his local community health centre. There is also a need for Mr [Heresford] to maintain his participation in the children's school and participate in a parenting program to address his children's challenging behaviours. Mr [Heresford] will also need to follow up with paediatric reviews of both of his children, given their use of Dexamphetamine.
63. It is my view that Mr [Kaleb] will need to participate in ongoing urine analysis, providing urines on a weekly basis for a period of up to six months. Complementary to this, will be his participation in the parenting program which he has initiated, and to avail himself of fortnightly contact with [R], if he is able to make the journey from South Australia on a fortnightly basis during the adjourned period.
64. In my view during this adjourned period, it is important to maintain the stability in the children's lives and to that end it would be preferable for [R] to remain in the maternal grandmother's care at this point in time.
65. There is no doubt that currently there are a lot of adults involved with the three subject children. This in many ways, although possibly nourishing for the children, makes it difficult for the children to maintain consistency in their behaviour, as well /as exposing them to a range of risk factors. In my view at this current time, it remains unlikely that all three siblings will remain together in the future.
Recommendations
66. That these proceedings not be finalised for a period of up to six months, so as to allow a range of interventions to occur.
67. [J] and [D] to remain in residence with their father during the interim period.
68. Mr [Heresford] to continue providing his children for counselling as required by the clinician, and that a report from the respective clinician be furnished to the Court for the final hearing.
69. Mr [Heresford] to also participate in counselling with the same clinician, as well as receiving some assistance in providing protective behaviours education for both of his children.
70. A paediatric update report regarding both children be provided to the Court.
71. Mr [Kaleb] to participate in weekly urine analysis and for those results to be furnished to the Court. A report from the parenting program co-ordinator to be also furnished to the Court.
72. Mr [Kaleb] to have fortnightly contact at the […] Contact Centre in Newcastle for a period of up to four hours in the presence of the maternal grandmother if [R] is too distressed.
73. That during the interim period that [R] remain in residence with Ms [Konrad], and Ms [Konrad] to facilitate overnight contact with [D] and [J] on a fortnightly basis.
74. An updated report be provided to the Court for the final hearing.
On 4 April Mr Kaleb spent 3 hours with R. He telephoned her on 10 April. Orders were made on 10 May 2006 for R to be able to have contact with Mr Kaleb for two 3 hour periods per week in the Port Stephens area from 4pm to 7pm each Friday and from 9.30am to 12.30pm each Tuesday, and for this contact to be in the presence of Mr Heresford.
R had contact with Mr Kaleb on 12 May for 3 hours and Mr Heresford was present. From 5-21 June 2006 Mr Kaleb and his father were in the Newcastle/Port Stephens area to see R. They spent 3 hours with her on 13 June, about 2 hours with her on 16 June, and about 3 hours with her on 20 June. They briefly visited R on 22 June to say goodbye as they were returning to South Australia.
R’s next contact with Mr Kaleb was on 18 December 2006 when he telephoned her. In March 2007 R received a birthday card and gifts from Mr Kaleb.
The applicant’s telephoned Mr Heresford about 3 weeks before Christmas 2006 to say they were coming up on the following weekend to give the children their Christmas presents. He agreed. But he subsequently received a call from them on the weekend to say they could not come and they would try to come the following weekend. They did not attend on that weekend. They then did not contact Mr Heresford until 1 February 2007 and advised they were coming the following day. He agreed and also agreed to them having the children for a couple of hours. When they arrived the following day, he invited them in. They had presents for the children. He described their appearance, “Both of the applicants looked shabby and unclean. They both looked as though they had not had a wash for a substantial period of time. They literally had brown and black dirt all over them. [Ms March]’s hair looked like a bird’s nest.”
Y, the child of Mr Kaleb and Ms N, was born in February 2007.
Dr W was appointed as Single Expert in the proceedings. Dr W is a Consultant Child Psychiatrist. He carried out the interviews and observations for the report on 13 and 14 February 2007. There were also some telephone conversations with persons on 28 February. The report was released on 7 March 2007. His conclusions and recommendations are as follows:
CONCLUSIONS AND RECOMMENDATIONS
a. Emotional/behavioural state of the children
From the material available to me, I formed the view that [J] is doing quite well at the moment, although I have not seen recent material from school. She is probably an average student who seems to be popular and well regarded. I formed the view that her life has significantly stabilised since her mother's death and she is probably doing rather better. She appears to have been quite disruptive when she first arrived, but this may well have been an artefact of her mother's recent death and I note that she has been on dexamphetamine for more than 12 months now. I wonder whether this is necessary.
If anything, she seems a somewhat socially precocious child and has a degree of over-familiarity to her. This is a common consequence of early emotional deprivation and an insecure bond to the primary caretaker (in this case her mother).
[D] is clearly a boy with significant developmental difficulties. While both of his sisters are of at least average abilities, his cognitive abilities lie somewhere between low average and borderline developmentally delayed. In addition he has difficulties with articulation and verbal expression, and he is poorly coordinated. The origins of this are undoubtedly biological.
He also has a history of significant behavioural difficulties. He has been very disruptive and unruly at school, although his father has found him generally more manageable recently. Dexamphetamine assisted when Dr [O] made a diagnosis of Attention Deficit Hyperactivity Disorder, but despite what are probably quite adequate doses, his behaviour deteriorated towards the end of last year and he began 2007 on the basis of partial attendance at school.
Despite [D]'s reported disruptive behavioural problems, over a very extended period of observation during which he spent time with his father, his grandmother and his grandfather and step grandmother, he showed a consistent capacity for solitary activities. With all three he was inclined to quietly immerse himself in an activity which, although it was relatively purposeless for his age, seemed to engage his attention. He showed the same intensity when working his way inexorably through a bag of chips.
I formed the view that [D] has a disruptive behaviour disturbance of an Attention Deficit Hyperactivity Disorder type complicating a degree of developmental difficulty. However, observing him, he also seemed capable of being a well-behaved boy who was quite sensitive to his little sister, but he also showed a significant solitariness throughout the assessment. He was quite happy amusing himself in only a semi-purposeful way.
[R] presented as a strong willed, bright child with an advanced vocabulary, although her expression was sometimes indistinct. She also showed a degree of insecurity and clinging behaviour around her grandmother, although surprisingly she did not show this in respect of the other parties. She seemed to be quite a well-socialised child. She showed good manners and attention to appropriate behaviour, for instance when she sought out the painting jacket before she resumed painting.
b. The nature of the relationship of the children with each of the children's parents and other persons.
[R] seemed to show a selective pattern of rather clinging behaviour with her grandmother, whereas she did not show the same sort of clinging or even attention seeking behaviour with Mr [Heresford] or her grandfather. Indeed she seemed quite comfortable with them. I formed the view that she has a somewhat insecure attachment with her grandmother which is associated with attention seeking behaviour.
[D] and [J] appeared to have quite a secure relationship with their father and grandmother and they were well behaved with both throughout the assessment. They were also keen to see [the maternal grandfather] and his partner and indeed [J] protested when the time came for them to go. However I formed the view that her protests were based on a rather insecure and immature relationship with [the maternal grandfather] and Ms [March].
c. Relationship between the children.
I observed quite harmonious relationships between all three children. Both [D] and [J] were quite protective, gentle and patient with [R]. [D] seemed to assume a rather peripheral position and throughout the assessment he primarily amused himself, apart from if one of the adults approached him to engage him or on a couple of occasions when he helped [R] out.
d. The benefit to the children of having a meaningful relationship with both parents.
In general, children who can maintain a satisfactory relationship with both parents or primary carers are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.
e. The willingness and ability of each parent (or grandparent) to facilitate and encourage a close and continuing relationship between the children and the other parties, including participating in decision making, communicating with the children and spending time with the children.
Although Mr [Heresford] and Ms [Konrad] have had their differences it the past and each still voices some reservations about the other, I formed the view that they are basically quite cooperative with each other at the present time and that each now recognises that they are not in a position to take over the child or children in the other's care. I formed the view that they will continue to foster the children's relationship with each other and with the other party where relevant.
I am reluctant to express an opinion about this in relation to Mr [Masters, the paternal grandfather] and Ms [March], firstly because I am concerned they significantly misrepresented their own circumstances and personal histories, and secondly because they expressed very strong negative views about both Ms [Konrad] and Mr [Heresford] which would be a reasonable basis for holding a significant distrust of them.
I cannot voice an opinion on Mr [Konrad] in this regard.
f. The likely effect of any changes in the children's circumstances including separation from either of the parents or any other children or person with whom the children have been living.
[J] and [D] in particular have had quite a disrupted childhood. I formed the view that their mother led a rather nomadic existence and that the children had accompanied her for much of this, although they had been left with other relatives including both grandparents at various other times. They have almost certainly been exposed to significant domestic violence and substance abuse.
Since living with their father their life has been far more stable and both children in their own ways are staring to settle down, most evidently [J]. However bearing in mind the disruption their early years culminating in their mother's death, it is not my view that either of them would cope with a substantial change of circumstances very well. This is particularly the case with [D].
[R] has had a much more stable life in that she has been living with her grandmother for the past 18 months and she had been within her grandmother's immediate sphere of influence for virtually all of her life. I formed the view that she has a more stable array of relationships, although I note that there is a degree of insecurity in her relationship with her grandmother, which I think is probably due to her grandmother being rather overprotective with her. I also formed the view that the siblings' relationship is very important to these children as a source of ongoing stability and that it would be preferable if the children either lived together or at least in close proximity to each other
g. The capacity of the parents and other relevant person to provide for the needs of the children, including emotional and intellectual needs, including taking or failing to take the opportunity to participate in decision making about the children, communicating with the children and spending time with the children.
Unfortunately I formed the view that none of the parties in this matter have a good record of parenting behaviour, nor am I of the view that they are particularly discerning or reliable informants on the other parties, although at this particular point in time, Mr [Heresford] and Ms [Konrad] seem to have put aside fairly trenchant criticisms that they have made of each other at other times and there seems to be corroboration that both have accepted Mr [P]’s advice. For that reason, I draw attention to documents obtained under subpoena which provide at least glimpses of a more objective account of their personal stability and abilities.
I have very considerable concerns about the parenting capacity of Mr [Masters]' partner Ms [March]. There were some materials available to me which provided independent reports in respect of their circumstances, habits and parenting capacities, which although incomplete, appear to be consistent with the critical accounts provided by Ms [Konrad], her daughter [Ms M], and Mr [Heresford], who of course at varying times have been competing parties in this matter with Mr [Masters]. Moreover, Ms [March] in particular presented a significantly older than her chronological age and was rather unkempt, a habitus which was also generally consistent with these allegations. Finally, they both talked about their circumstances and habits in a way which, while challenging the allegations made about them and observations of others, also indicated that their standards about personal behaviour, standards of hygiene etc. are probably significantly below that generally recognised as acceptable by the community, although satisfactory to themselves.
Overall I form the view that there is an appreciable risk if the children were to reside with them, they would live under circumstances of significant material impoverishment and neglect, the standards of parenting would be both superficial and inconsistently applied, and they would be exposed to overuse of alcohol and quite possibly inappropriate behaviour while the adults were intoxicated.
From the information available to me, I formed the view that [R] had probably led a rather unsettled and disrupted life until the mother's death and that she had probably been rather neglected or inconsistently cared for. However she now presents as quite a well-socialised child apart from some separation anxiety from her grandmother and she is possibly somewhat advanced in her knowledge of colours, birthdays etc. I formed the view that this was a consequence of the grandmother's parenting, who probably has not only helped [R] to overcome 16 months of disadvantaged parenting but she has caught up and perhaps is doing rather better than one might expect for her chronological age.
While I formed the view that Ms [Konrad] is managing [R] quite well at the moment and there are indicators that [R] is flourishing as a result of a purposeful approach to parenting, I am not of the view that she would be able to cope with the two other children, particularly when one of them is as challenging as [D]. She seems to be able to manage them satisfactorily on weekends, although she has not yet had them for significant blocks of contact, but provided that the blocks were not too long and that Mr [Heresford] or some of her family were available to take the two older children off her hands if necessary, I see no reason why significant blocks of contact cannot be ordered.
Mr [Heresford] seems to have made significant gains in his parenting abilities from a fairly low base. Mr [P] thought when he first saw him, only a few weeks after the children started living with him, that he seemed quite overwhelmed by the task of parenting the children and they seemed very unruly. However when he saw him on the second occasion the children were much more orderly and he outlined what seemed to have been significant progress by Mr [Heresford] in terms of acquainting himself with parenting issues and what appeared to have been a more coherent approach to parenting. I also formed the same view. As far as I can see, Mr [Heresford] has cooperated with a number of appropriate assessments for [D], some of which he initiated, and he seems to have followed through with the recommendations.
h. The emotional/behavioural state of the parents, including their maturity, lifestyle and background.
Ms [Konrad] has clearly had quite a troubled history. She describes a disinterested father, a mother with schizophrenia who was hospitalised for a significant portion of her childhood, care with relatives, sexual abuse at the beginning of her adolescence, leaving home at the about the age of 14 and her first pregnancy and child about a year later. She also has a documented history of numerous psychiatric admissions and assessments between 1995 and 2002, some of which were probably associated with delusional thinking and for which she required shock treatment. At the time a variety of diagnoses were made including Psychotic Depression, Obsessive Compulsive Disorder, Panic Disorder, Borderline Personality and Dependent Personality traits. She appears to have taken numerous overdoses over this time and in the previous years.
It is somewhat difficult to piece together all of this material, particularly since Ms [Konrad] claims to have very poor recollection. I do not accept that the electroshock treatment has had such a profound effect on her memory for those events over those years because it seems to me that her amnesia was fairly selective. I also note that there was a reference to her having admitted to intravenous drug use in the early 1990's.
Nevertheless it appears that, at least using the measure of the hospital records, her emotional state seems to have settled down quite a bit in the last four or five years, apart from an understandable stress reaction to her daughter's death. Overall, from the materials available to me including my interviews, I formed the view that it is probable that she did not suffer from Borderline Personality Disorder but rather that she had a form of depression referred to as Dysthymic Disorder which is often associated with unstable personality traits and that she had several episodes of quite severe depression associated with possibly even a delusional preoccupation with germs. She made a good response to electrotherapy. I think that she probably had rather dependent personality traits if anything and at this stage of her life, she is coping reasonably well but she is vulnerable to stress.
The cause of this is probably rather complex and I note a strong family history of mental illness as well as a history of diazepam overuse and of course a very unstable and tumultuous personal life.
At this point it is my view that support is probably the best management of her state and I note that she has a family support worker visiting. She also relies quite a lot I think on family support, which is located both around [E] and also in the [H] region, possibly more so in the latter.
Mr [Heresford] seems to be free of mental illness or personality disorder.
I am very concerned that Mr [Masters], Ms [March] and Mr [Kaleb] all have substance abuse disorders and Mr [Kaleb] appears to have a pattern of antisocial conduct.
i. The need to protect the children from physical or psychological harm from being subjected to any form of abuse, neglect or family violence.
I note the concerns about whether [J] has been molested. However I also note that there appears to have been no further progress in this since Mr [P]'s last report and indeed I felt that neither Ms [Konrad] nor Mr [Heresford] wished to make an issue of this at this point.
As I have indicated above, I felt that Mr [Heresford] has made significant progress in his parenting abilities which I would now describe as "good enough", although certainly not exceptional. I was not of the view that it is likely that the children are either emotionally or physically abused in his care, although I did form the view that a further area of progress for him would be to completely eliminate any corporal punishment from his repertoire. I did not observe any evidence that Mr [Heresford] neglects [D] or favours him over [J]. I did observe that [D] is very inclined to rather solitary activities and that although each of the parties were able to draw him into various other activities, he fairly quickly drifted away into his own reverie. I did not form the view that this was more marked with Mr [Heresford] than it was with any of the other parties.
I did not have the opportunity to assess Mr [Kaleb] or to appraise whether there might be any risks to [R] in his care. I have noted his forensic and drug history, which ordinarily would be associated with significant risk, but I note that he alleges that these are things of the (fairly recent) past now.
I have indicated that I have considerable concerns about Mr [Masters] and Ms [March]. I did not feel that they provided me with a reliable account of their current drug and alcohol use and the material on hygiene circumstances of their home, as there is independent material as well as their own presentation, which seems to argue against the account that they provided. I was also concerned that they were relatively unaware of the impact of these deficits on the children and for that reason I would be concerned that the children could be exposed to at least emotional and material neglect and emotional abuse in that household.
I have commented on my view of Ms [Konrad]'s psychiatric state and that I felt that she was less than completely frank about it. However ultimately I formed the view that although she is a person who is prone to depression, at the moment she is coping with [R] and if anything she is a rather overprotective and indulgent parent.
j. The effect on the children of spending equal time, or substantial and significant time, with each parent having regard to the parents current and future capacity to implement such an arrangement and to communicate with each other and resolve difficulties that may arise.
I am not recommending this. I would support orders along the current lines, including splitting the school vacations between the two households.
k. Any other matter.
I would suggest subpoenaing records from [V Facility], where [D] had several developmental assessments last year. I would also suggest that the [B] Public School subpoena be updated.
Provided there is a gradual transition of contact with Mr [Masters] and Ms [March] from days in the [B] area to overnight at their home, I would support this.
Without seeing Mr [Kaleb], I am unable to make any recommendations about [R] spending time with him.
Dr W subsequently interviewed Mr Kaleb on 7 May 2007 and a Supplementary Report was released on 29 May and concludes with the following conclusions and recommendations:
a. The nature of the relationship of the children with each of the children's parents and other persons.
It is unlikely that [R]'s relationship with her father goes beyond recognition.
b. The willingness and ability of each parent (or grandparent) to facilitate and encourage a close and continuing relationship between the children and the other parties, including participating in decision making, communicating with the children and spending time with the children.
Mr Kaleb generally expressed positive views abut children's relationships with the parents and also with their siblings. However he expressed clearly on a number of occasions that he felt that Ms Kaleb had not facilitated his relationship with R. Despite this, I formed the view that if R were to live with him, he would probably take quite a constructive approach towards R maintaining a relationship with her siblings and her grandmother, probably moreso the former.
c. The likely effect of any changes in the children's circumstances including separation from either of the parents or any other children or person with whom the children have been living.
Mr Kaleb's intention is to remain residing in M, or at least in South Australia in the vicinity of one or both of his parents. If R were to reside with him, her ties with those to whom she is very close at the moment, by whom I mean her maternal grandmother, her siblings and Mr Heresford, would be seriously affected. At the age of just over three years, and being a child who has a somewhat anxious attachment to her grandmother, I think that she would find this quite a stressful experience. I also doubt that Mr Kaleb's parenting skills would be sufficient to satisfactorily help her through this situation, although I do not doubt the genuineness of his motivation.
R's reaction is likely to be in the direction of a great deal of anxious, clinging and insecure behaviour, although she may also show some challenging and oppositional behaviour as she is quite an assertive little girl as well. My concerns about Mr [Kaleb] are not his sensitivity to this but rather the consistency which he could apply to the task and his capacity to secure appropriate advice and support and to implement recommendations.
d. The capacity of the parents and other relevant person to provide for the needs of the children, including emotional and intellectual needs, including taking or failing to take the opportunity to participate in decision making about the children, communicating with the children and spending time with the children.
Mr Kaleb is an only child. Although I think he did not reveal everything about his early years, the view I formed was that his family life had been less than happy and that although he is quite close to his father, he did not feel that either of his parents has been completely satisfactory. He expressed a strong motivation to be a good parent and inferred that to some extent his desire to be so was motivated by dissatisfaction with his own experience of being parented. However I generally found him to be rather naive in his perspective on parenting and also that he has not fully put behind him aspects of his past behaviour which have a significant potential to interfere with parenting. He clearly still has a rather troubled relationship with Ms [N]. He minimises their respective problems with social behaviour, and the fact that their three month old son is currently in care, for reasons which I do not think were satisfactorily explained to me, also casts a considerable cloud over his parenting ability and his capacity to maintain an appropriate household for a child of [R]'s age.
e. The emotional/behavioural state of the parents, including their maturity, lifestyle and background.
Mr [Kaleb] has a well-documented and fairly extensive history of minor antisocial conduct right up until the present time, although it is possible that his behaviour was somewhat more orderly in the 18 months prior to my assessment. He has also been incarcerated on two occasions. Drug use has clearly played a part in a significant amount of this misconduct, but some of it has also occurred at times when he was probably not drug affected. Finally, he has a history of treated anxiety disorder and he presented as a somewhat anxious person.
My overall impression was not that he has an Antisocial Personality Disorder but rather that he experiences significant anxiety and insecurity as an individual, and that he is also quite impulsive and that his impulsiveness is worse when he is under the influence of any intoxicant.
There is also good evidence that he has been making a genuine attempt to put these problems behind him. He has attended appropriate treatment for his anxiety problems as well as adhered to a methadone program, both with some effect. His drug use has significantly reduced, although he still uses marijuana regularly, but it is likely that his heavier drug use has either completely or substantially disappeared. He also has learned a number of techniques to manage his anxiety, although he feels the need to return to counselling to see whether he can make further gains in this area. It also appears that his misbehaviour in the community is a lot better than it was.
Although I am satisfied that he has made significant progress, I would agree with him that he is in need of continuing support along the lines which he himself has identified. In particular, I am of the view that particularly in the context of [Y] having recently been taken into care and his general demeanour, his residual emotional and behavioural problems are still of a degree which would significantly adversely affect his capacity to parent in an appropriately consistent manner.
f. The need to protect the children from physical or psychological harm from being subjected to any form of abuse, neglect or family violence.
Clearly Mr [Kaleb]'s relationship with Ms [N] is still rather stormy. His desire to have a separate household from her probably reflects this. For that reason at least one concern is the possibility of [R] being exposed to domestic violence. However, the reasons for [Y] being in care are also relevant. I do not feel satisfied that I heard the full story on this, but whatever risk factors are substantiated in relation to [Y] should obviously be applied to [R], subject to whatever qualifications are appropriate.
g. Orders sought by the parties.
The material available to me is not consistent in my view with a recommendation that [R] resides with her father, however subject to material which would cause me to substantially change my views about him as expressed above, a schedule of increasing time with him would probably be appropriate. A problem is that [R] is not of an age where contact every three or four months is likely to enable the development of a relationship beyond mere recognition, but Mr [Kaleb]'s circumstances are probably only ever going to permit this. Nevertheless, if he does commit himself to regular visits to New South Wales, then it is my view that blocks of day visits could give way to overnight visits of short, then longer duration from about the age of four, and appropriately supervised visits to South Australia from about the age of six or seven during the school holidays.
Visits of this frequency would undoubtedly be enhanced by more productive telephone communication between them. Mr [Kaleb] alleges that this has been sabotaged by Ms [Konrad]. I also note that there are materials from Mr [Heresford] that suggest that Ms [Konrad] has been rather unhelpful at times about relations between [R] and her siblings as well. If the Court is satisfied that she has misbehaved in this way, then I would suggest fairly strong orders in relation to telephone contact. I would note however that [R] is not of an age yet where she is likely to be able to make very much productive use of telephone calls and certainly three times a week is both unnecessary and probably of little value in a child of this age. However an order for weekly telephone calls would probably be appropriate and with the passage of time, would be a medium which should enable [R] to improve the quality and intensity of her relationship with her father.
I would not recommend a transition to visits to South Australia until Mr [Kaleb] is able to demonstrate that brushes with the law and serious drug use are fully a thing of the past. I am less concerned about his anxiety disorder, which in itself is not a significant barrier to him spending time with his daughter or supervising her in his sole care during the school holidays.
Mr Heresford met Ms T in May and they formed a romantic relationship. She commenced cohabitation with him from about the beginning of June.
The hearing proceeded on 9-13 July 2007 and judgment was reserved. While Mr Kaleb, Ms N and their child Y were staying in the B area for the hearing, they spent some time with R.
On 30 August the following interim orders were made pending delivery of the judgment:
1.The children [J] born […] January 1999 and [D] (also known as […]) born […] April 2000 are to live with their father [Mr Heresford] and he has sole parental responsibility for the long term decisions for [J] and [D] and parental responsibility for day to day decisions when they are in his care.
2.The children [J] and [D] are to spend time with and communicate with the maternal grandmother as follows:
2.1During school terms, each alternate weekend from 4.00pm Friday to 4.00pm Sunday, such weekend time to commence on the 1st weekend of each school term.
2.2On each of the children's birthdays if a school day from 4.00pm to 7:30pm and if a non school day from 8:30am to 2:00pm.
2.3For one half of each school holiday period at the conclusion of Terms 1, 2 and 3 defined as follows:
2.3.1the 2nd one-half in 2007 and each odd-numbered year thereafter commencing at 12.00 noon on the 2nd Sunday and concluding at 4.00pm on the day preceding the children's return to school, and
2.3.2the 1st one-half in 2008 and each even-numbered year thereafter, commencing at 4.00pm on the last school day and concluding at 12.00noon on the 2nd Sunday.
2.4Subject to paragraph 2 herein, for one-half of each school holiday period at the conclusion of Term 4 defined as follows:
2.4.1the 2nd half of the school holidays commencing in 2007 and each odd-numbered year thereafter, commencing at 12.00 noon on the 3rd Saturday following the last day of the school term and concluding at 12.00 noon on the Saturday immediately prior to the new school year resuming, and
2.4.2the 1st half of the school holidays commencing in 2008 and each even-numbered year thereafter, commencing at 12.00 noon on the 1st Saturday following the conclusion of the school term and concluding at 12.00 noon on the 4th Saturday thereafter.
2.5Such further times as the parties may agree.
3.Notwithstanding Order 2, [J] and [D] are to spend time at Christmas as follows:
3.1in 2007 and each odd-numbered year thereafter, with their father from 3.00pm 24 December to 3.00pm 25 December and with the grandmother from 3.00pm 25 December to 3.00pm 26 December; and
3.2In 2008 and each even-numbered year thereafter, with the grandmother from 3.00 pm 24 December to 3.00pm 25 December and with their father from 3.00pm 25 December to 3.00pm 26 December.
4.[Mr Heresford] must deliver the children [J] and [D] to the home of the maternal grandmother at the commencement of time the children are scheduled to spend with the maternal grandmother in accordance with these Orders and collect the children [J] and [D] from the home of the maternal grandmother at the conclusion of the time the children are scheduled to spend with the maternal grandmother in accordance with these Orders.
5.For implementing these arrangements [Mr Heresford] may arrange for a responsible adult known to the children to collect and/or deliver the children, and must notify the maternal grandmother beforehand of the identity of the person collecting or returning the children.
6.The maternal grandmother has responsibility for day to day parental responsibilities for [J] or [D] when the child is spending time with her and the paternal grandfather and [Ms March] have that responsibility when [J] or [D] is spending time with them.
7.The maternal grandmother is permitted to telephone the children [J] and [D] at all reasonable times when in the care of their father.
8.[Mr Heresford] is permitted to telephone the children [J] and [D] at all reasonable times when the children are spending time with the maternal grandmother during periods of school holidays.
9.The father [Mr Heresford] must sign all consents submitted by the maternal grandmother to enable [J]'S and [D]'S school(s) to provide to the maternal grandmother on a regular basis and at her expense copies of all school reports, any other reports on school progress and behavioural issues and other school circulars in relation to either child.
10.The father [Mr Heresford] must keep the maternal grandmother informed about the welfare and education of the children [J] and [D].
11.The maternal grandmother is permitted to approach the school(s) attended by [J] and [D] to obtain copies of all notices and details of all functions, parent and teacher nights and other activities (including sporting activities) to which parents are invited and to attend such activities.
12.The father [Mr Heresford] must encourage and foster [J]'s relationship and [D]'s relationship with the maternal grandmother and with the maternal grandfather and [Ms March].
13.The father [Mr Heresford] must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to any time the children [J] and/or [D] are scheduled to live with him or during the time [J] and/or [D] live with him.
14.The child [R] (“[R]”) born […] February 2004 is to live with her maternal grandmother [Ms Konrad] and she has sole parental responsibility for long term decisions for [R] and parental responsibility for day to day decisions when [R] is in her care.
15.The maternal grandmother is restrained from changing the place of residence of [R] except with the permission of the Court.
16.Subject to the father of [R], [Mr Kaleb], giving the maternal grandmother at least 3 weeks written notice and pending the judgment and further orders, [R] is to spend time with her father [Mr Kaleb] for up to 7 successive days in any calendar month for the following times:
Day 1 – 10 am to noon; Day 2 – 10 am to noon; Day 3 – 9 am to noon; Day 4 – 9 am to noon; Day 5 – 9 am to 2 pm; Day 6 – 9am to 3 pm; and Day 7 – 9am to 3 pm;
to be implemented by Mr [Kaleb] collecting [R] from outside the home of the maternal grandmother at the start of each period and returning [R] to the same place at the end of each period.
17.Orders providing for [R] to live with the maternal grandmother or spend time with Mr [Heresford] or the maternal grandfather and Ms [March] are suspended during any period [R] is to spend time with [Mr Kaleb] under Order 16.
18.[Mr Kaleb] may communicate by telephone with [R] at all reasonable times when she is in the care of the maternal grandmother.
19.The maternal grandmother must hand to the child [R] unopened all letters, mail and any other item addressed to [R] from [Mr Kaleb].
20.The maternal grandmother must keep [Mr Kaleb] informed about the care, health, welfare and education of the child [R].
21.The maternal grandmother must encourage and foster [R]'s relationship with her father [Mr Kaleb] and with her maternal grandfather and [Ms March].
22.[Mr Kaleb] must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to the time the child [R] is to spend time with him or during the time [R] spends with him.
23.[Mr Kaleb] has day to day parental responsibility for [R] when she is in his care, the maternal grandfather and [Ms March] have that responsibility when she is in their care and [Mr Heresford] has that responsibility when she is in his care.
24.[R] is to spend time with [Mr Heresford] as follows:
24.1each second weekend of each school term from 4.00pm Friday to 4.00pm Sunday; and
24.1for half of each NSW public school vacation being the half when pursuant to Order 2 [J] and [D] are with the [Mr Heresford].
25.[Mr Heresford] is to communicate with [R] by telephone by calling her at the maternal grandmother’s home at 11am on Wednesdays until she commences school and then between 5pm and 5.30pm on Wednesdays.
26.[J], [D], and [R] are to spend time with the applicant maternal grandfather and [Ms March] in the Port Stephens area as follows:
26.1on the 1st weekend of October from 9.30am on Saturday until 7.30 pm on Sunday; and
26.2on the 2nd weekend of September and November from 9.30 am on Saturday until 7.30 pm on Sunday.
27.The orders providing for the children [J], [D], and [R] to live with or spend time with [Mr Heresford] or the maternal grandmother are suspended for the purpose of the applicant maternal grandfather and [Ms March] spending time with the children in accordance with order 26.
28.The time the children spend with the maternal grandfather and [Ms March] (“the applicants”) is to be implemented by the applicants at the start of the time collecting [R] from the home of the maternal grandmother and [J] and [D] from the home of [Mr Heresford] and at the end of the period returning [R] to the home of the maternal grandmother and [J] and [D] to the home of [Mr Heresford].
29.The maternal grandfather and [Ms March] must not consume alcohol to excess or use illegal drugs for a period of 12 hours prior to the time any of the children is to spend time with them or during the time any of the children spends time with them.
30.Each party must as soon as practicable telephone the others upon the happening of any of the following:
30.1any of the children in that party's care becoming seriously ill;
30.2any of the children in that party's care being hospitalised; and
30.3any of the children in that party's care becoming involved in an accident requiring medical attention.
31.Each party must notify the others of any change of residential address, landline telephone number or mobile telephone number within 24 hours of such a change.
32.Within 6 months [Mr Kaleb], the maternal grandmother, the maternal grandfather and [Ms March] must attend and complete a course, or a course of counselling, in Parenting After Separation within 80 kilometres of the person’s residence nominated by the Manager of Child Dispute Services of the Family Court of Australia, Newcastle Registry and must:
32.1telephone the Manager of child Dispute Services within 7 days and obtain the necessary approval or nomination;
32.2pay any reasonable fees for the course;
32.3upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
32.4promptly provide the other parties and the independent lawyer for the children with a copy of the letter.
33.Each party is restrained from denigrating any other party in the presence or hearing of any of the children or permitting anyone else to do so.
34.Each party is restrained from discussing with any of the children or in the presence or hearing of any of the children any other party or events in the home of any other party.
35.These Orders incorporate and have attached to them a document setting out:
35.1the obligations that these Orders create;
35.2the consequences that may follow if a person contravenes an Order;
35.3the availability of programs to help people understand the responsibilities under parenting orders; and
35.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.
Since the hearing the maternal Grandmother vacated her rental accommodation at E because she could not afford the rental. She and R are temporarily residing with the maternal grandmother’s brother at B while the maternal grandmother seeks suitable rental accommodation. On her application and despite opposition by the maternal grandfather and Ms March, on 15 October 2007 orders were made permitting the move and further relocation, so long as it is within the Port Stephens area.
the child j
J will turn 9 next month. Mr Heresford considers that she has always been a very inquisitive child. He described J as being a “lovely little girl” if she is using her ADHD medication, but said that if she does not use the medication she “gets very moody and violent to [D]”.
The maternal grandmother told Dr W in February that J is a lovely child most of the time and she is mostly very protective of her brother and sister, but can become impatient with them. She said that J loves movies, going to the beach and spending time with friends. She said that J will try anything.
When Mr P prepared his first report in August 2005, he spoke to J’s teacher at the B Public School. She told him that J can be “a bubbly child, but then can get quite upset quickly, and has found making friends difficult, with school generally being an over-whelming experience for her.” But the school file for J for the 2005 school year includes a general comment, “[J] has improved greatly in all areas. A lovely student.” In March 2006 the father told Mr P that J’s behaviour at school was “generally okay”. At the end of 2006 school year she was the classroom monitor for the junior choir. This year J is in Year 3. In her end of year report for 2006 the general comments are:
Although not reflected in some of her semester two assessments, [J] has made significant improvements across all Key Learning Areas. She can also spell her last name! Number and Measurement still present difficulties for [J] however she is much more willing to have a go. Practice of addition facts and times tables at home may assist in building her confidence further for next year. Consistent homework routines and a continuation of [J]’s positive attitude towards learning will be of benefit to [J] in Stage Two. It has been a pleasure to have had [J] in our class and I wish her luck in future learning.
Mr P reported in his first report that he had a very brief conversation with J because she was reluctant to speak with him. She said it was “fun” living with her father. He said she was aware that her mother had died in a car accident and said she usually sees R on weekends. She also said that D “gets angry” and aggressive with her and she would like this behaviour to stop.
When he observed J with the maternal grandfather and Ms March, all the children were “very boisterous and not very affectionate with their grandparents”. D was aggressive with his grandfather and “totally disinterested” in Ms March. J appeared unstructured in her play but after some time warmed towards both the adults. Ms March primarily focused on engaging R. He observed that J was being somewhat aggressive to R and roughly handling her until he intervened. He said he could not suggest that the relationship between the children and the maternal grandfather and Ms March was very close. He also said, “It also appeared that the children’s anarchic behaviour could not be managed by the grandparents and at the same time during my observations of the children with their father, it is fair to say that he, too, was not able to manage all 3 children simultaneously.”
Mr P noted that there appeared to be little affection between Mr Heresford and the children and it appeared that he found it difficult to meet their competing demands. “On several occasions he was engrossed with the loud and demanding behaviour of both [J] and [D] and therefore was unable to interact with [R].”
When reporting from his interviews in March 2006, Mr P noted that he had spoken to the Social Worker with the Community Health Service at E and she had reported that she had 4 sessions with the children, and to a lesser extent with Mr Heresford, between September 2005 and February 2006, counselling the children and Mr Heresford regarding the children’s grief and loss relating to their mother’s death. The social worker was of the view that there was a significant and beneficial impact of the Dexamphetamine medication the children had started to take. At the time of her conversation with Mr P, she had another appointment arranged with the children the following week.
When Mr P saw J in March 2006, he found that she was less reluctant to talk with him. She said she was learning to read and mostly enjoyed her friends at school. She told him that it was still “fun” with her father. Mr P reported:
47. [J]'s presentation is still sometimes confusing, as it appears that on occasions when she is asked questions, that she appears very disconnected from her current situation. However, [J] was able to recognise and clearly state that the medication that she was on 'makes her feel good'. When I asked her to elaborate, she indicated that the major impact of her medication was to quieten her down.
48. [J] stated that it was 'good seeing [R]' but was clear to say to me that she would prefer to see [R] 'every second weekend', primarily because she likes to have time with her friends. I did observe that [J], not unlike her brother still has unclear speech at times.
49. [J] could not recall any incident with her cousin […], nor could she recall having a conversation with her grandmother about anyone having sex with her. [J] could not express to me whether she knew what sex was. She indicated that she did not know the meaning of the word. [J] indicated that she 'doesn't get smacked' by her father but that on occasions '[D] does'. [J] gave no indication as to whether [D] was hit by his father around the head. [J] also advised me that the medication 'has been good for [D]', because he was now less aggressive with her.
When Dr W interviewed J in February 2007, she told him that she wanted to continue living with her father. The reason she gave was that their dog “Patch” is there and that they have pizza there as well. She said her grandmother has lots of rules and it is boring because her grandmother lives in a flat and she used to live in a caravan before that. She said that they are not allowed to go outside.
When asked about schools she said she had gone to “Mummy’s school first, then Poppy’s school, then [B School]”. She said she liked, “Poppy’s school best because she made lots of friends there, but then she said that she has 3 best friends at B and named them. She told Dr W that she visited her friend’s home and her friend has slept over at her house. She said they watched movies all night and did not go to sleep. Dr W reported:
She did not want to talk about her mother's death, so I asked her about how she felt about her father's recent motorcycle accident. She said that they had been told that he was in hospital after his bike had landed on him. She said that she was a bit scared but that [D] had said that he wanted his father to die. She said that this was because [D] and their father do not get on very well. I asked her why she thought that was and she said that their father sometimes has to hit him. She described her father hitting him behind the head with his hand. She said that he might do this if [D] steals something, like Yu-Gi-Oh cards from children at school.
I asked her about corporal punishment. She said that her father only ever taps her on the hands.
I asked her what her grandmother does if they get into trouble. She told me that they get sent to the corner or to their room.
I asked if she had talked with anyone about her mother's death. She said that she had a few times but they had not seen her for a long time. She was unable to recall the counsellor's name.
She told me that she would like to be a ballerina or a doctor or maybe a pilot.
[J] separated from her grandmother to talk with me without any distress. She seemed to answer questions willingly and in some detail. She did not show any abnormality in her mood or behaviour when I was speaking with her.
When asked about corporal punishment by the father, she said that he only ever tapped her on the hands. She said that if they get into trouble with their grandmother, they get sent to the corner or their room.
Dr W observed that J separated from her grandmother to talk with him without any distress and answered his questions willingly and in some detail. He observed no abnormality in her mood or behaviour when he was speaking with her.
The maternal grandfather’s evidence was that he and Ms March have a good relationship with J. Mr Heresford agrees with that. The maternal grandfather’s evidence is that relationship with D is not so good.
In his report of March 2007 Dr W reported of his observations of the children interacting with Mr Heresford in a large playroom. He said:
Initially, when I was asking Mr [Heresford] a bit about his current situation, the children had no difficulty finding activities from those available. They played quietly by themselves initially, using opposite sides of the paint board. Although he was quiet, [D] seemed a little restless, but [J] seemed quite purposeful and organised in her activities. She finished a couple of well done paintings, then moved to a tea set where she prepared a play afternoon tea and meal for her father. He joined her and seemed to be able to engage with her in this activity at her own level in quite an appropriate way. After a few minutes, [J] indicated that she would like to play a more competitive game with her father and they found a form of card game. They read the rules together and [J] adhered to them while they played for about ten minutes or so.
In the meantime, [D] had moved away from the painting easel and was engaged in trying to construct things from a box full of construction elements. Although these leant themselves quite easily to the construction of recognisable objects, it was obvious that [D] was having a great deal of difficulty putting things together and constructing something which satisfied him. He seemed to have problems with fine motor control as well as with organization and imagination. He made no sound while playing and was intensely focussed on the activity, although he was motorically a little restless. After a while he seemed to tire of this activity and then he moved to another area where he examined a number of toys but did not select any.
At this point I decided to bring [R] in. [D] was keen to come with me. [R] had separated from her grandmother to go with [D] without, any evidence of discomfort. He gently took her hand and led her into the playroom where he showed her a puppet stage and quite patiently showed her how to use the puppets. He was quite inventive in this and was quite patient with [R]'s enthusiastic but disorganised approach.
After tiring of this, he and [R] went over to Mr [Heresford] who explained what he and [J] were doing. [R] appeared to be quite comfortable and content in his presence. [J] set out a meal for all three of them and she managed to engage [R] in this activity. [R] then decided that she wanted to explore the playroom herself. She quickly gravitated to the easel where she started painting quite proficiently for a child of her age.
For about 10 or 15 minutes, all three of the children played appropriately and more or less independently. Mr [Heresford] moved between the three of them. The children did not seem to be competing for his attention. He was quite verbal, responsive and demonstrative with all of them.
When Dr W observed the children with the maternal grandmother J and D said a few words of greeting and then D resumed silently playing by himself. A while later he opened a packet of potato chips and sat quietly for about 10 minutes eating the chips. Dr W said, “He seemed to be intensely focussed on eating to the exclusion of anything else”. R and the maternal grandmother were painting at an easel. The grandmother said that she had been telling R for a couple of weeks they would be coming there and promised R would be able to paint.
J was very chatty with her grandmother. She told her a long story and the grandmother distracted her to a rack of dress-up clothes, whereupon J amused herself for quite some time. The grandmother was quite patient in engaging R in the same activity, watched over them, made useful comments and generally checked on what D was doing. She offered to play a game with D and J searched for a suitable game and began to explain it to D.
She managed to engage all 3 children in the same activity for a while and 3 children seemed to be content in her presence. She seemed to be able to well supervise them. On several occasions she indicated clear expectations of manners from R. Several times she asked R to identify colours of people’s birthdays and R was able to attribute a month to each person’s name. When Dr W wanted to interview the maternal grandmother on her own, R refused to be separated from her, even when the grandmother offered small bribes and made various promises. She was therefore present during the interview until she became bored and then was agreeable to joining the other children with Mr Heresford.
Dr W also observed the children together with the maternal grandfather and Ms March. The children greeted the adults when they entered the playroom except that R was playing and did not react. But she seemed quite content in their presence. Dr W left the children with the adults for about half an hour and then returned to observe them. The children were quite happy and continued to play quietly in the same fashion he had observed with Mr Heresford and subsequently with the maternal grandmother. R was playing with Ms March, D was amusing himself with play dough and J was playing with the maternal grandfather. J and the grandfather did painting while Ms March continued to play with R. D sat beside them but did not involve himself in what they were doing. He did not say anything for about 20 minutes. Ms March then tried to talk to him about his play, but she received only monosyllabic and rather disinterested responses. It appears he was making scones out of play dough. J showed Ms March her painting and was praised appropriately. J then helped R start a painting and also started one herself for her grandfather. R was active and chatting with Ms March. J continued to be watchful over R and made a point of involving her.
Dr W reported that the children related to the adults as familiar people with whom they felt comfortable and close. When the adults were leaving, J clung on to Ms March and begged to be allowed to go with them. D and R gave them a cuddle when asked.
From his observations, Mr P expressed an opinion in his March 2006 report that J had a closer relationship with Ms March than with the maternal grandmother. In cross-examination Dr W said that J loves the maternal grandfather and Ms March and loves to be with them, “But I don’t think that that means the relationship does not have some insecurity”.
Mr Heresford’s evidence is that J loves his partner Ms T.
Dr W reported from his interview with the father in February this year:
He said that when [J] first came to live with him, she was a "clean addict". He said that she used to search for cleaning implements and start to clean. He was not sure why this was but he thought it was possibly because her mother was quite messy, although he conceded that it was possible that she had picked up these traits from her grandmother who was living next door or with them for much of the time. However he said that she has relaxed on this now.
He told me that [J] is doing very well at school. She has a number of friends whom he thinks are good children. He described [J] as an A student. He said she is the teacher's pet, though [J] interjected to declare "I'm not". He said that she is doing very well in spelling.
The father also said that J gets on very well with D and they are best friends. J said her favourite activities were cleaning and the computer. She said she liked to play games and write letters. She also has a painting program and likes to do dress up and make up and play with dolls. At the time of the interview, she was not involved in any after school programs, but she was interested in doing ballet. The father said that she helps out around the house, almost too much. Without being asked, she will clean the toilet, clean up the sink and do other cleaning tasks.
When she first went to live with her father she was repeatedly asking him if she could take off her nightie or pyjamas and sleep in just her panties. But the father emphasised to Dr W that he never allowed her to sleep naked. He said he did not understand why she made those requests, but she is now quite comfortable sleeping in appropriate clothing.
J’s medication, Dexamphetamine, was prescribed for her by Dr O, a paediatrician. When Dr W saw J in February 2007, he said in his report that he formed a view that she was doing quite well at the moment, although he had not seen recent material from the school. He said:
She is probably an average student and seems to be popular and well regarded. I formed the view that her life has significantly stabilised since her mother’s death and she is probably doing rather better. She appears to have been quite disruptive when she first arrived, but this may well have been an artefact of her mother’s recent death and I note that she has been on Dexamphetamine for more than 12 months now. I wonder whether this is necessary.
In his cross-examination the father’s attention was drawn to Dr W’s opinion that J may not need to continue with her medication. He said that he believes she does. But he said she was seeing a paediatrician every 3-6 months and the next appointment was to be on 20 July.
In cross-examination on 12 July, Dr W said that there was a need to check whether J needed to be on Dexamphetamine now. He said, “I wouldn’t have thought so – from looking at her school material. Some doctors find more reasons to prescribe these drugs than others. I tend to prescribe less, father than more.” He said he was concerned because another problem was that family members have problems with drugs and alcohol “so the less drugs the better. It has the potential to be misused.”
the child d
D is 7. The paternal grandfather described him as “a Mum’s boy”. He and Ms March are of the opinion that he was closer to the mother than J was. The father told Dr W that D is a very active child who prefers outdoor activities. He told him that D loves running, kicking a ball and any sort of sport. D had asked him a number of times to be able to play soccer this year and the father has enrolled him. He also said that D is fanatical about playing cards, but has difficulties with concentration. Mr Heresford told Dr W in February that D can be very well behaved at home, and is generally co-operative, although he can be unco-operative. He also said that D has always been extremely patient with R although he can be very impatient with other people. He said his main difficulties occurred at school.
Mr Heresford told Dr W that as a baby D had been excellent. He was quiet and he did not cry. He said that the parents separated about the time of D’s first birthday and over the next 3 years when he saw the children D seemed to be quite co-operative, but the mother told him that he could be very unco-operative and difficult. He said that when D came to live with him when he was 4, he immediately noticed that D seemed to be having problems with his development. He could not kick a ball well or stand on 1 foot or hop. D also did not seem to know how to interact with other children and could be very rough. He thought at the time that the reason was that D had been roughly handled and was copying this behaviour.
RELEVANT LAW
The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of 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 child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) of the Family Law Act provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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); 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 (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) of the Family Law Act provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 60CA of the Family Law Act provides:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC of the Family Law Act provides:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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.
SUBSECTION 60CC(3) FINDINGS
The findings under subsection 60CC(3) are as follows:
a) Expressed views of the child
J expressed views that she wants to continue living with her father. She has also expressed a wish that she would rather see R only every second weekend as she wants weekend time to spend with her friends.
D’s reported expressed views were limited to matters such as his enjoyment of soccer, but because of his age, immaturity and limited intellectual abilities, any expressed views about with whom he should live and what time he should spend with others could not be given much weight as they would not reflect any careful consideration of the short and long term implications.
Similarly, J’s expressed preference to live with her father must be given less weight than if she were older and more mature.
Any expressed wishes of R about issues to be determined could not be given much weight at all.
b) The child’s relationships
The most important and most beneficial relationship each of J and D has is with their father. For R it is with her maternal grandmother. The next most beneficial relationship J and D have is with each other and then their next most beneficial relationships are with the maternal grandmother and R.
After the grandmother, R’s most important relationships are with Mr Heresford, and J and D.
For each of the children his or her relationship with each of the applicants is less significant and less beneficial than the relationships discussed above.
R has not established any attachment or relationship with her father. She recognises him. She knows him, but it is an “association” rather than a relationship. They need to spend more time together more frequently before any relationship could be achieved.
The relationship J and D have now developed with Ms T while living in the same home with her is probably now more significant to them than the relationships each has with the applicants.
R’s relationship with the grandmother is somewhat insecure. It may be that the insecurity is at least partly because of the history of erratic and inadequate care of R prior to the grandmother assuming her care. But she seems to be secure in her relationships with J, D and Mr Heresford. It appears that at least part of the insecurity in her relationship with her grandmother arises from her grandmother’s way of relating to her.
R is dependent on her grandmother for most of her emotional and other needs. Similarly, J and D depend on Mr Heresford for the meeting of most of their needs.
c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The children’s mother is deceased. The Court takes into account though that Mr Heresford and the maternal grandmother have facilitated the children spending time with the applicants and R spending time with Mr Kaleb, despite difficult behaviour by him.
If R lived with Mr Kaleb in South Australia, he could not facilitate her spending reasonable time with her siblings, her maternal grandmother, Mr Heresford or the applicants. If R lived with the applicants, they and her father would not have the resources between them to facilitate him travelling to C to visit her. The visits would have to be facilitated by them bringing R to the B area to spend time with Mr Kaleb and they would need to stay with friends for the period during which R would spend time with Mr Kaleb.
d) Likely effect of any changes including any separation
If R lives with Mr Kaleb it is likely to involve a separation from her grandmother, her siblings, Mr Heresford, and the applicants. It would be extremely traumatic for her.
If any of the children lives with the applicants it would involve considerable disruption: a change of home and environment, change of school for the elder 2, change of support services and medical practitioners, separation from the grandmother, Mr Heresford, Ms T, established school friends and other friends, and separation from any of the 3 children who do not go to live with the applicants.
On the evidence a change to the care of the applicants would for any of the children involve a lower standard of care in the home, and less support in their schooling and other aspects of their education.
e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
The distance between Mr Kaleb’s residence in South Australia and the grandmother’s home in the B area, when combined with the limited financial resources of the parties in these proceedings and R’s young age, dictate that if R continues to live with the grandmother, it will be very difficult or impossible for Mr Kaleb to spend time with R before she starts school sufficient for him to develop a relationship with her that is secure enough for her to be able to enjoy spending time with him in South Australia. If R resides with the grandmother, the financial and geographic aspects will substantially adversely affect R’s right to achieve and maintain a relationship with her father and direct contact on a regular basis.
Similarly, if J or D lived with the applicants the distance and finances of the applicants and Mr Heresford would substantially and adversely affect their right to maintain a relationship with their father and have direct contact with him on a regular basis. If only one or 2 children live with the applicants then that would prevent that child or those children from continuing the present close relationship with the other child or children living with Mr Heresford or the grandmother.
f)Capacity of each parent and any other person to provide for the child’s needs
Mr Heresford is the party best able to provide for the needs of J and D on a residential basis. The grandmother is best able to so provide for R.
There are serious risks if the applicants had any of the children living with them. Their parenting capacity is compromised by several risks, namely, abuse of alcohol, conflict and abusive behaviour, hygiene and health care, accommodation, physical care and supervision. They also have less capacity than Mr Heresford and the grandmother to encourage and support the children in literacy, computer use and schooling generally.
Mr Kaleb’s parenting capacity is grossly compromised by his continuing drug use, his antisocial behaviour, his anxiety problems, his use of abusive behaviour, his difficult relationship with Ms N, and his inability to cope with stress. He has no past success or experience in full time parenting and there is no evidence by any person willing and available to assist him in parenting R.
Mr Heresford’s use of marijuana poses an ongoing problem for parenting of J and D in terms of impairing his capacity to care for and supervise them and also in terms of the inappropriate example it will provide the children. But of all the parties he seems to have the best parenting capacity.
The grandmother’s parenting of R may be compromised if she suffers further mental health problems like those of the past. But given her adequate parenting of R since R came into her care and her continuing good health, that risk is considered to be slight.
J and D have special needs because of ADHD and other problems. Mr Heresford has demonstrated since June 2005 that he is more likely to satisfy their health needs and any special needs than are the applicants. That is partly because specialist medical and other health and education support services are already available to the children with him, and are likely to be less available in the rural area where the applicants live, but it is also because he has demonstrated that he gives priority to such needs of the children, whereas the applicants have not, and on the evidence they are unlikely to do so as well as he has.
All 3 of the children have experienced prior to June 2005 unstable and inconsistent care. They have a special need for stability, continuity, predictability and security. For J and D, continuing Mr Heresford’s care is more likely to do that. For R, continuing the grandmother’s care is more likely to do that.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
As a male child D has a need for a close and positive relationship with a suitable male role model. His father is likely to provide a better role model than the maternal grandfather and D’s relationship with his father is a stronger and more positive relationship than his relationship with the maternal grandfather.
J and R, as female children, have a need for a close and positive relationship with a suitable adult female role model. Under the present arrangements the maternal grandmother is that role model. Both children have a close and positive relationship with her. For each child her relationship with Ms March is not so close or so positive.
If R went to live with her father, the Court could have no confidence there would be a suitable adult female available for her. Ms N and R’s paternal grandmother have not given evidence. They have not been cross-examined. Ms N has a history of anti-social and criminal behaviour. Her relationship with the father appears to be volatile. The paternal grandmother has a background of heroin addiction. Neither was established to be a suitable role model or willing to undertake the role.
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
Not applicable.
Attitude to the child and the responsibilities of parenthood
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The applicants since the decision of the Federal Magistrates Court on 22 June 2005 have been inconsistent in spending time with the children and have not spent sufficient time with the children to develop close and positive relationships and provide the children with emotional support they could have. Clearly that is primarily because of the distance and expense involved in visiting the children. But infrequent telephone and written communications and failure to implement a promised visit with Christmas gifts demonstrates they have difficulty giving priority to the children’s needs.
Mr Heresford’s parenting between his separation from the mother and her death may have been less than adequate. It appears he was aware of serious inadequacies in her parenting but did not intervene to assume responsibility for his children. But in his parenting since then he has given priority to the children’s needs.
The maternal grandmother has demonstrated adequate attitudes to the responsibilities of parenting the children. Her difficulties in dealing with Mr Kaleb have been a predictable result of his difficult and abusive behaviour.
Mr Kaleb has difficulty recognising R’s interests are different to his. This is a serious problem, particularly where it results in him lacking insight into the emotional needs of R and her need for a relationship with him and the capacity to separate from the grandmother before she could happily stay with him in South Australia. He has little insight into her needs in this regard.
Mr Heresford has adequately recognised and addressed the need for J and D to spend time with the grandmother, the applicants, and R.
The grandmother has adequately recognised and addressed R’s need to spend time with Mr Heresford, her siblings, the applicants and Mr Kaleb.
j) Any family violence
Abusive behaviour, whether physical abuse, intimidation, controlling behaviour, shouting, swearing, threats, name calling, or put downs, is not an attribute of a particular victim or a particular relationship. Abuse is an attribute of the perpetrator. It is a fact that some people use abuse in dealing with others, but most do not.
Children who spend time with an adult who uses abuse in his or her dealings with others are at an obvious risk of physical injury. Children, (some would say especially at certain stages such as “the terrible two’s” and adolescence) can test an adult carer’s patience as much as any argumentative or aggressive adult.
But spending time with an abusive adult involves other risks to children. One of those is the risk of psychological harm. Children can as a result of experiencing abuse or witnessing abuse of loved ones, suffer insecurity, apprehension, unhappiness, anxiety, fear, hypervigilence and terror.
Verbal abuse and put downs can especially diminish a child’s self esteem and self confidence, and that can cause long term damage. But generally experiencing or witnessing abuse causes insecurity and inhibits a child’s emotional development.
The worst danger that an abusive parent or carer presents to a child, however, is as a role model. The child can learn to use abuse in dealings with others, including those they love. It is a social disability that can destroy the most intimate relationships and bring the child into conflict with relatives, friends, other people they socialise with, the police and the law. The role model of an abusive parent or carer puts a child at risk of adopting the role of an abuser or the role of an accommodating victim of abuse when they partner. Either way, it is a long term damaging legacy from the adult(s).
Mr Kaleb and Ms N each use abusive behaviour as part of their methods of dealing with other people. There is a need to minimise R’s exposure to such behaviour. If she resides with her father she is likely to be exposed to more of such behaviour and at times be the victim of it.
The maternal grandfather also in the past has been abusive of others. There is a need to protect the children from exposure to such behaviour by him. The risk would be maximised for a child who resides with him.
The Court is not satisfied on the balance of probabilities that Mr Heresford has been physically abusive of D or J or anyone else.
k)Any family violence order that applies to a child or a member of the child’s family
There is no such order.
l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child
If any of the children reside with the applicants, the matters of concern regarding their parenting capacity and abusive behaviour are likely to result in further proceedings in this Court or in the Children’s Court welfare jurisdiction.
If R resides with her father there is a likelihood, because of the matters of concern regarding his parenting capacity and antisocial and abusive behaviour, that there will be further proceedings in this jurisdiction or the State Child Welfare jurisdiction concerning R.
There is, regardless of where R lives, some underlying likelihood of further proceedings about R, because of Mr Kaleb’s problems and difficulty in relating to people. There is also a likelihood of further proceedings regarding R if she continues to reside with the grandmother because of the uncertainty as to the frequency and duration of periods R will spend with her father between now and when she commences school. It is impossible to predict whether Mr Kaleb will be sufficiently involved with her to establish by then the kind of relationship sufficient to enable R to cope with and enjoy spending a week at a time, for example, in her father’s care, even in the B area. There is always the possibility that by the time R starts school the parties will agree on what time R should then spend with her father, and file consent orders and have them made by a Registrar in chambers. But there is a real chance that they won’t agree and there will have to be further proceedings.
The evidence does not establish so much of a likelihood of further proceedings about R if she resides with the grandmother or about J or D if they continue to reside with Mr Heresford.
This factor weighs in favour of continuing the present residence arrangements for all 3 children.
m)Any other fact or circumstance the Court thinks is relevant
There is no such factor other than as discussed later.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents
Each of the children has only one living parent and that parent is part of the child’s identity. Each of J and D do recognise, and R will recognise, herself or himself as the child of the mother and of her or his father. The benefit of a meaningful relationship with a parent usually involves unqualified love and emotional support by the parent, as well as financial and other material support. It assists development of the child’s self confidence and self esteem. In a sense parents are usually leaders of the child’s “cheer squad”; a small group of adults who give the child unqualified love, support, praise and encouragement. Where a child does not have a meaningful relationship with a living parent, the child can perceive that as rejection or abandonment by the parent and that would be very damaging for self esteem. That could be particularly so for a child who has only one living parent.
Another benefit of a meaningful relationship with a father is that usually it facilitates knowing and relating to other members of the paternal family, such as grandparents, aunts, uncles and cousins, and the child enjoys time with those people, the relationships with them and the support they give the child.
J and D each have a positive, enjoyable and meaningful relationship with their father. This is likely to continue if they continue to live with him. If either of them resides with the applicants, then because of the distance between the households and limited finances in both, there is a likelihood that each child’s time with his or her father will be so reduced and less frequent that the relationship with the father will be eroded and be less significant to the child.
R has not yet established a relationship with her father. If R continues to reside with the grandmother there is a likelihood that Mr Kaleb will continue living in South Australia and his time spent with R will continue to be so infrequent that in the foreseeable future he will not establish a meaningful relationship with her and as a result she will not be able to travel to South Australia to stay with him.
The benefit to R of a relationship with her father is qualified because of his drug use, antisocial and abusive behaviour, his relationship with Ms N and his mental health problems.
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is a need to minimise the risk of R being exposed to abusive behaviour, neglect and family violence in her father’s home. There is no such risk in the grandmother’s home or Mr Heresford’s home. In the applicants’ home there is a lesser risk of exposure to abuse, neglect or family violence, but still a need to protect the children if they reside there.
There is no need to protect the children from such risks in the home of Mr Heresford or in the grandmother’s home.
Other conclusions
Each of the children’s interests are best served if his or her present residence arrangements are continued. J and D’s interests are best served if Mr Heresford has sole parental responsibility for long term decisions about them. The applicants’ poor relationship with Mr Heresford would mean that if they were involved in long term decisions for J or D, the arrangement would be unworkable and would be contrary to the child’s interests. When J or D is spending time with the applicants, they should have parental responsibility for day to day decisions about the child. The Grandmother should have that responsibility when J or D is spending time with her. Otherwise Mr Heresford should have that responsibility.
It is in J and D’s best interests that there be orders for them to spend time with the grandmother (and R) as proposed by the Independent Lawyer for the Children, including the arrangements proposed for Christmas. These arrangements appear to be acceptable to both the grandmother and Mr Heresford.
It is in the J and D’s interests that the arrangement where Mr Heresford delivers and collects the children continue. This arrangement is acceptable to Mr Heresford and the grandmother. Mr Heresford should have the option of having another responsible adult known to the children collect or deliver them.
It is also in the interests of J and D that if they are with their father, the grandmother be able to telephone them at any reasonable time, and if they are with her in school holidays, the father be able to telephone them at any reasonable time.
I will be beneficial for J and D if there are orders, as their representative proposes, for:
· Mr Heresford to keep the grandmother informed about the welfare and education of the children;
· Mr Heresford to sign any documents she needs to have J and D’s school(s) provide her with copies of reports, newsletters, etc;
· Mr Heresford to encourage and foster J and D’s relationship with the Grandmother; and
· the grandmother to be able to attend the school(s) to obtain information.
An order restraining Mr Heresford from using illegal drugs or abusing alcohol during or just before J or D are in his care would be in the best interests of the children, to protect them from exposure to incompetent care and a bad example.
R’s interests are best served if the maternal grandmother has sole parental responsibility for long term decisions about R and parental responsibility for day to day decisions about R when R is in her care. The difficulties in Mr Kaleb’s relationship with the grandmother dictate that if he had any involvement in long term decisions there would be repeated disagreements and conflict. It would be unworkable. The applicants’ hostility towards the grandmother would mean that if they were involved in long term decisions for R, the arrangement would be unworkable and would be contrary to R’s interests.
When R is spending time with Mr Kaleb he should have parental responsibility for day to day decisions about her. Similarly, Mr Heresford should have that responsibility when she is spending time with him, and the applicants should have it when she is spending time with them.
There is a problem that the grandmother may wish to move back to H in the future or move somewhere distant from B where Mr Heresford, D and J are living (e.g. to secure premises for less rent). B is very close to Newcastle Airport and there is a bus service between those places. That is convenient for Mr Kaleb’s visits to R. If the grandmother changes R’s place of residence it may be quite prejudicial to R’s contact with her father or with the applicants. The applicants can stay with friends or relatives in the B area on weekends they spend with the children in order to minimise the expense. If the grandmother moves elsewhere, the applicants might not have cheap accommodation available.
There should be an injunction restraining the grandmother from changing R’s place of residence to a place outside a radius of 20 kilometres of the B area except with the permission of the Court. If in the future the parties all agreed to a move outside that area and signed a consent order giving permission, it could be filed with the Court and made in chambers by a Registrar without any appearances.
The question of what time the court should order for R to spend with her father is quite difficult. The geographic and financial problems are serious. They are compounded by Mr Kaleb’s perceived need to bring another adult with him because of his anxiety, the additional fare for another adult, and by Ms N sometimes being the other adult. There is also the problem that Mr Kaleb did not commit himself to visiting the B area with sufficient frequency to establish a relationship with R. (This is not a criticism of him. The distance and cost are formidable.) The Court does not have any confidence that he will. If the evidence had established that he would, orders could have been made for staged contact commencing with day contact in the B area, then some single overnights, then longer periods with multiple overnight stays, leading to a whole week at a time and then followed by stays of a week at a time in South Australia. It would be expected that by then R would have achieved a relationship with Mr Kaleb and a level off maturity that would ensure she was happy and secure during such a period.
In the circumstances the order should provide for R’s time with her father until she starts school. It should be day contact only, as there is a likelihood that Mr Kaleb will not exercise it sufficiently frequently to establish a relationship with R that would be secure enough for her to stay with him overnight. The contact should be daily for a week at a time, so that if Mr Kaleb travels to implement it, it can occur on 7 successive days and the duration can increase over the period. Mr Kaleb should have the option of implementing a week in each calendar month. Each occasion would be subject to him giving at least 3 weeks notice in writing to the grandmother. On each day when R is to spend time with her father, it should be implemented by Mr Kaleb collecting her from the grandmother’s home at the start of the period and returning her there at the end of the period.
Given the travel and expense Mr Kaleb would incur and the importance to R of a relationship with her father, if Mr Kaleb properly nominates a week, then the orders should provide that any provision in the orders for R to spend time with any other party will be suspended for that week in order to facilitate R’s time with her father.
Subject to provision for time with her father and with the applicants, R’s interests are best served if she spends half school holidays, half the school term weekends with Mr Heresford (and J and D) and also time at Christmas, as proposed by the Independent Lawyer for the Children. The effect of the orders would be that generally the 3 children are together for the whole of each school vacation and for each weekend in school terms.
It is in R’s best interests that there be orders for
· her father to complete a parenting after separation course or a course of counselling in parenting after separation, particularly to assist him to better deal with the grandmother and also to improve his insight into R’s emotional needs and the effect on R of exposure to conflict and abusive behaviour;
· her grandmother to complete such a course for the general benefits, but especially to assist her in coping with bad behaviour by R’s father;
· her father be able to communicate with her by telephone at all reasonable times when she is with her grandmother;
· her grandmother keep her father informed about her care, health, welfare and education;
· Mr Heresford be able to communicate with her by telephone as proposed by the Independent Lawyer for the children;
· her grandmother keeping R’s father informed of any email address R may be able to use;
· her father to be restrained from consuming alcohol to excess or using illegal drugs when R is spending time with him or within 12 hours prior; and
· her grandmother to foster and support R’s relationship with her father and her relationship with the applicants, and hand to R unopened all letters, mail and other items addressed to her from her father.
The interim orders included orders for the parties to attend a course, or course of counselling, in parenting after separation. The final orders should require them to complete such, in case they haven’t already done so.
In order to minimise the risks to J, D and R of exposure to incompetent care, alcohol abuse and abusive behaviour, the time they spend with the applicants should be limited to 8 weekends per annum, occur in the Port Stephens area, and include only one night per weekend. It is in their best interests that generally the 3 of them are together when they have time with the applicants. The weekends should generally occur during school terms so as to generally preserve for the grandmother and Mr Heresford the option of travelling with the children in school holiday periods.
The orders for time to be spent with the applicants should override the time the children would otherwise be with the grandmother and Mr Heresford, but not the time R is to spend with her father.
The time spent with the applicants should be implemented by them collecting the children from their homes at the start of the period and returning them to their homes at the end of the period.
For further protection of the children there should be an order restraining the applicants from abusing alcohol for 12 hours prior to, or during, time spent with any of the children, and requiring them both to complete a parenting after separation course or course of counselling in parenting after separation.
It is in the best interests of all 3 children that there be orders requiring each of them to
·notify the others is any of the children whilst in his or her care is seriously ill, hospitalised or involved in a car accident and requires medical attention;
·keep the others informed of his or her residential address, landline telephone number and mobile telephone number;
·refrain from denigrating any of the others in the presence or hearing of any of the children; and
·refrain from discussing with any of the children, or in the presence or hearing of any of them, any other party or events in the home of any other party.
I certify that the preceding 431 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Mullane.
Associate
21 December 2007
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Remedies
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Fiduciary Duty
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Standing
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