MCKINNON & PORTER

[2017] FamCA 80

FAMILY COURT OF AUSTRALIA

MCKINNON & PORTER [2017] FamCA 80

FAMILY LAW – CHILDREN – With whom the children should live – Where the children have been living in separate households for the last 15 months – Where the eldest child has a meaningful relationship with both parents – Where the youngest child has a rudimentary relationship with the father, but a stronger relationship with the mother – Where the parenting capacity of each party is impaired, albeit for different reasons – Where the mother’s intoxication by illicit drug use impaired her parenting capacity – Where the father’s insight into the importance of the children’s relationships with the mother is virtually non-existent – Where the father’s contempt for the mother is barely concealed – Where the Family Consultant concludes that the father is likely aligning the eldest child against the mother – Where the mother genuinely wishes to remain abstinent from illicit drug use – Where the risk posed to the children by the mother will be ameliorated by them being monitored by the father, their teachers at school and pre-school, and the State child welfare authority – Concluded there are disadvantages for the children living with either party however, on the balance, the mother is a marginally better alternative – Ordered the children live with the mother and spend substantial and significant time with the father

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties do not communicate – Where the parties are incapable of courteous consultation and consensus – Where neither party sought to share parental responsibility – Concluded parental responsibility should be allocated to the party with whom the children live – Ordered the mother have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT: Ms McKinnon

RESPONDENT: Mr Porter

INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Foat Roberts Lawyers

FILE NUMBER: NCC 2358 of 2012

DATE DELIVERED: 21 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 8, 9 & 10 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Graham

SOLICITOR FOR THE APPLICANT: Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Betts

SOLICITOR FOR THE RESPONDENT: The Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Foat, Foat Roberts Lawyers

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)       B, born … 2010; and

   (b)       C, born … 2013.

2. The mother shall have sole parental responsibility for decisions about all “major long-term issues” (as defined in the Family Law Act) related to the children.

3. The children shall live with the mother.

4. Each party shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   (a)During NSW public school terms:

   (i)Each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday, commencing on Friday 3 March 2017 and otherwise on the first Friday of each new term; and

   (ii)Each alternate week from the conclusion of school on Monday until the commencement of school on Tuesday, commencing on Monday 13 March 2017 and otherwise on the Monday after the preceding visit pursuant to Order 4(a)(i) hereof.

   (b)During the Autumn, Winter, and Spring NSW public school holidays, for the first half of such holidays in every odd numbered year, and for the second half of such holidays in every even numbered year; and

   (c)During the Summer NSW public school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

5. For the purposes of implementation of Order 4 hereof, the NSW public school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the day upon which the new school terms starts, and the mid-point is noon on the day halfway between those first and last days.

6. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

   (b)Between 9.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. For the purposes of implementing Orders 4 and 6 hereof, the parties shall respectively ensure the children’s:

   (a)Collection from the eldest child’s school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to the eldest child’s school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to the paternal grandmother’s home.

8. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   (a)The father each Wednesday at 6.00 pm, when the children are living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure that the children are able to receive the father’s calls on that number at that time.

   (b)The mother each Wednesday at 6.00 pm, when the children are spending time with the father during NSW public school holidays, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.

   (c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

9. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

11. Each party, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

12. The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.

13. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address and mobile telephone number.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

16. Costs are reserved for 28 days

17. Any and all other outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McKinnon & Porter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2358 of 2012

Ms McKinnon

Applicant

And

Mr Porter

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the two young children of the applicant mother and respondent father, who are presently six and three years of age respectively.

2. Without intending any disrespect to the parties, the evidence objectively demonstrated they each had, and still have, seriously depreciated parenting capacities which are liable to compromise the children’s safety or security and impair their opportunities in life.

3. The Family Consultant engaged by the Court to consult with and report upon the family observed:

   It is the Family Consultant’s view that, given all the risk factors identified across both households, that neither party may currently be able to provide an environment for the children that is free from an unacceptable level of risk of harm.

   …

   Given the multiple risk factors/potential risk factors identified in both households, the Family Consultant is unable to recommend that the children live with and spend time with either party. As such it is recommended that [the State child welfare authority] be invited to intervene.

4. The NSW Department of Family and Community Services (“the Department”) was invited by the Court to intervene in the proceedings, but declined to do so. Consequently, only the parties vied for the future care of the children, requiring a selection between two less than satisfactory alternatives.

5. All aspects of the children’s care were in dispute: the allocation of parental responsibility for them, their residence, and their future interaction with the non-residential parent.

Short history

1. The parties had a chaotic relationship over several years, fluctuating between relative peace and pronounced conflict. Their relationship began in 2009 at the earliest and ended in 2014 at the latest. For the entirety of that time they lived in or around the same NSW country township, but did not cohabit for more than a few months at any one time.

2. The two children were born in 2010 and 2013.

3. Following their final separation, the children remained in the mother’s care and the father visited them at her home from time to time. In about June 2014, a family violence order was made by the Local Court of NSW for the mother’s protection from the father and that order impeded his interaction with the children for “a couple of months”.

4. After that initial period, the mother allowed the eldest child to spend intermittent weekends with the father. The youngest child did not accompany the eldest child, though there was a dispute as to why. The mother alleged the father doubted his paternity and showed no interest in the youngest child, whereas the father alleged the mother simply did not permit it. In any event, it was common ground the mother was the primary carer for both children until late September 2015. The youngest child spent no time at all with the father from May 2014 until interim parenting orders were made in December 2015. The father detained the eldest child following a weekend visit in late September 2015 and the eldest child then spent no time at all with the mother until the interim parenting orders were made in December 2015.

5. The interim orders made by the Federal Circuit Court in December 2015 maintained the children’s split residences by providing for the eldest child to live with the father, the youngest child to live with the mother, and the children to spend time together in the care of both parents for three hours on three occasions each week. The parties later voluntarily altered the times of the visits to accommodate the eldest child’s commencement of school in 2016.

6. Compliance with the orders was sporadic, which is perhaps unsurprising, given the orders forced the parties to be together with the children several times each week. The strain of maintaining their family unit was precisely why they finally separated, so orders that compelled them to repeatedly endure that strain during the litigation were probably unwise. It was common ground that, by April 2016, the orders were not being implemented at all, though both parties blamed the other for failing to attend the designated venue for the visits. Accordingly, neither child spent time with their sibling or non-residential parent between April and June 2016. Following the family’s meeting with the Family Consultant in June 2016, the parties’ compliance with the interim orders improved, but it waned again and each party remains dissatisfied with the other’s adherence to the orders.

7. The proceedings were transferred to this Court in July 2016 and heard in February 2017.

Proposals

1. The parties’ proposals for the children fluctuated and were difficult to identify.

2. The mother told the Family Consultant the parties should have equal shared parental responsibility for the children. She expressed a preference for the children to live with the parties for equal time, because she considered that would be fairest to the parties, but otherwise she suggested the children should continue to live separately and each child should spend substantial time with the non-residential parent and sibling.

3. The mother made a completely different proposal in her Amended Application filed in December 2016, but abandoned it at trial anyway. She even abandoned the proposed orders her counsel orally outlined at the commencement of the trial. Ultimately, she adopted the orders proposed by the Independent Children’s Lawyer.

4. The Independent Children’s Lawyer did not reveal the orders he sought until the evidence was closed and he tendered a minute of proposed orders.[1] In essence, he proposed that the mother have sole parental responsibility for the children, that they live with her, and that they spend substantial amounts of time with the father, amounting to five nights in two tranches each fortnight during school terms, half of all school holidays, and on other special occasions.

   [1] Exhibit ICL3

5. In his Amended Response filed on 21 December 2016, the father proposed that both children live with him and that he have sole parental responsibility for them. He was unable to make any specific proposal for their future interaction with the mother, leaving it entirely to the Court’s discretion.

6. During the trial, the father’s counsel confirmed the father proposed the children should spend time with the mother on alternate weekends and for periods of each school holidays and tendered a minute of orders to that effect.[2] However, as soon as the father began cross-examination he renounced the proposal. He said he only made it on legal advice and, really, he only wanted the children to have brief visits with the mother, confined to a few hours each week, which would be permanently supervised by him. His genuine proposal resembled his earlier discussion with the Family Consultant in June 2016.

   [2] Exhibit F2

7. In final submissions, presumably on instructions, the father’s counsel proposed orders that were an amalgam of the tendered minute of orders and the father’s evidence. He proposed orders over the next 12 months that reflected the father’s desire for short supervised visits between the children and mother which, subject to the father’s satisfaction about the mother’s abstinence from illicit drug use, would then transform to the more expansive regime without the need for any further supervision. The proposal suffered from various defects, but most importantly it lacked any evidentiary platform. It did not correlate with the father’s evidence and was almost surely a compromise he felt importuned to make.

Evidence

1. The mother relied upon her affidavit filed on 12 January 2017.

2. The father relied upon his affidavit filed on 25 January 2017. No issue was taken about its belated filing. The father was formerly granted to leave to rely upon evidence given by the paternal aunt and the paternal grandmother, but he elected not to avail himself of that permission.

3. The parties and the Independent Children’s Lawyer also relied upon the Family Report dated 13 June 2016.

Legal principles

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. The meaningfulness of the children’s filial relationships needs to be considered individually because they are still young, they have been living in separate households for the last 16 months, and they have had their interaction with their respective non-residential parent periodically interrupted.

1. There was no dispute the eldest child has a close relationship with the father. The mother’s concession of that fact flows implicitly from her proposal for him to spend substantial amounts of time with the father, if he returns to live with her. The Family Consultant observed, without challenge, the eldest child appears to enjoy a “comfortable and familiar” relationship with the father.

2. Conversely, there was a dispute about the quality of the eldest child’s relationship with the mother. In cross-examination, the father repeatedly asserted the eldest child never mentions the mother in his household and seems unconcerned by the minimal amount of interaction he has with her. He told the Family Consultant he thought the eldest child would be “devastated” if he had to live with the mother. When asked if he thought the eldest child loved the mother, he replied with the rhetorical question “why doesn’t he ever talk about her at home then?”, which plainly implied he believes the eldest child does not love her because he never discusses her within his home. The father even asserted that, at or about the time the interim parenting orders were made in December 2015, the eldest child saw the mother in the street and wanted to run away and hide from her. The father was asked directly if he regarded it as important for the eldest child to have a deep and loving relationship with both of his parents, but he said he did not know, which answer raised serious questions about his intuition.

3. The father’s insight and capacity to promote the children’s relationships with the mother were a focus of attention in the proceedings, but those issues inform conclusions about his parenting capacity and are more properly considered under the rubric of s 60CC(3) of the Act. For the purposes of application of s 60CC(2)(a) of the Act, it is sufficient to recognise the eldest child does have a meaningful relationship with the mother from which he derives benefit, and furthermore, the orders made should ensure his continued derivation of such benefit. That conclusion flows from the opinion evidence of the Family Consultant, about which she was not challenged. She reported that, once given permission by the father to do so, the eldest child happily accompanied the Family Consultant to meet with the mother. When he saw her, he smiled, exclaimed “that’s my Mum!”, and happily engaged with her in conversation and play. When it was time to end the session, the eldest child wished to remain with the mother and the youngest child. Consequently, any stoicism exhibited by the eldest child about the mother when with the father must be a product of their residential environment.

4. As for the youngest child, there is now no dispute about her paternity. Although no paternity test was undertaken, the father accepts his paternity. The Federal Circuit Court made an order in December 2015 declaring the father to be the biological father of the youngest child.

5. The youngest child has always lived with the mother. Her interaction with the father has only ever been brief and sporadic. She has never spent any time alone with him. She has only ever seen the father for a couple of hours at a time at a public venue, while the mother and eldest child were also present, pursuant to the orders made in December 2015. The Family Consultant offered no opinion about the quality of the youngest child’s relationship with the father, other than to say it was “limited”, she seemed “quite content” in his company, and she was “not distressed” in his company. The mother was only prepared to concede in cross-examination they had an “OK relationship”. Inferentially, it must be a relationship of only rudimentary quality from which she presently derives marginal benefit.

6. The youngest child’s relationship with the mother is more important to her than her relationship with the father, but she still derives less benefit from it than she desirably should. Despite doubts expressed by the mother in cross-examination, the Family Consultant’s evidence that the youngest child’s psychological attachment to the mother is not as secure as it should ideally be was more probably correct, as was evident from the youngest child’s “lack of boundaries” and willingness to seek physical comfort from the Family Consultant in the mother’s immediate presence. The Family Consultant thought it “highly likely” the youngest child’s apparent lack of strong attachment to the mother was due to the mother’s past inconsistent parenting, caused by her regular intoxication by illicit drugs. The validity of that opinion was not challenged by the mother. However, irrespective of the quality of the youngest child’s psychological attachment to the mother, as the Family Consultant remarked, one needs to be “mindful” of their bond because it remains more important to the youngest child than the relationship she currently has with the father.

Section 60CC(2)(b)

1. The evidence revealed contested allegations between the parties about family violence, neglect, and child abuse, which had the potential to ground findings concerning the need to protect the children, or either of them, from physical or psychological harm that would arise from their subjection or exposure to such conduct.

Family violence

1. The mother asserted she was the victim of family violence perpetrated by the father, which he denied. Although the occurrence of past family violence was plainly in factual dispute, the need to make findings resolving the dispute abated because neither party sought to use such findings for forensic effect. Despite the mother’s alleged victimisation by the father, she advocated for the children to spend substantial time in his care. It was not her case that the children are in need of any protection from harm they may suffer through their exposure to family violence committed by the father in the future. Both parties sought sole parental responsibility for the children because they cannot communicate effectively (s 61DA(4)), regardless of whether or not the presumption of equal shared parental responsibility was rendered inapplicable due to the past occurrence of family violence (s 61DA(2)). Given those circumstances, the parties effectively abandoned the issue and it would be futile to analyse the irreconcilable evidence just to vindicate one party’s version of history when it makes no difference to the outcome of this litigation.

2. The Independent Children’s Lawyer contended the father’s past history of assault convictions proved he posed a risk of harm to the children by exposing them to violence (albeit not “family violence” as defined in the Act), but it was a submission that lacked pragmatism. On about four occasions over the last 15 years the father assaulted other folk in fist fights because of some grievance or another,[3] but it was really evidence of the father’s limited intellectual acuity and capacity for reasoned debate to resolve conflict, not proof of his alacrity for and propensity to provoke violent confrontations.

   [3] Exhibits ICL1, ICL2

Neglect

1. The father deposed that, before he detained the eldest child in September 2015, the eldest child was “quite often” dirty and his hair was “full of nits” when he arrived for visits. The Family Consultant also noted that records produced on subpoena by the Department revealed one of the mother’s older children was presenting at school in 2015 “shabbily dressed” and without sufficient food. That evidence was likely correct and is probably explained by the mother’s heavy illicit drug use throughout 2015, which she admitted.

2. Such neglect of the children in the mother’s care may even have extended into the first few months of 2016. She presented for a drug test in March 2016 with the youngest child in her company. There was no evidence the drug screen was positive, but the mother and youngest child were noted by clinic staff to be dirty and without shoes.[4] On another occasion in March 2016, clinic staff noted the youngest child looked dirty and scruffy, though she at least “smelt clean”.[5] In late March 2016, the mother admitted to clinic staff she used amphetamines, though only once in the past three months.[6]

   [4] Exhibit F12

   [5] Exhibit F11

   [6] Exhibit F9

3. Such evidence about the unkempt appearance of the mother and her children does, of course, illustrate limitations in her past ability to provide for the children’s physical needs, but it does not prove the children are currently in need of protection from harm they may suffer through her neglect of them. There was no evidence the mother’s physical care of the youngest child has been sub-standard since March 2016, by which time her illicit drug use had substantially abated. Both parties have been subject to close supervision by the Department in recent times and the records of the Department were produced on subpoena. Surely, any documents which implied the mother’s neglect of the youngest child over the last year would have been tendered in evidence if such records existed. The Department only ceased supervising the father recently[7] and the mother was recently informed the Department would maintain its supervision of her for another three months, apparently because of an isolated positive drug test in January 2017.

   [7] Exhibit F1

4. The father’s contentions about the risk of the children’s neglect in the mother’s care were inextricably linked with his concern about her use, or relapse to use, of illicit drugs. Significantly, it was not contended she would neglect the children if she can remain abstinent, so her propensity for illicit drug use is the ultimate issue and is therefore considered under s 60CC(3) of the Act.

Abuse

1. The father decided to detain the eldest child in September 2015 when he concluded the mother burned the skin on the eldest child’s neck. Eventually, there was no doubt the child sustained a burn. The dispute was as to its cause and severity. The mother asserted it was sunburn, whereas the father believed it was caused by the mother’s application of hot water to his skin.

2. The precise details of the father’s belief about the manner in which the injury was inflicted were never clearly articulated by him. He contended it was deliberate but, until his cross-examination at trial, it was quite unclear whether he meant the mother deliberately inflicted the injury, or rather, she deliberately applied hot water to his skin for some benign purpose and the burn injury was merely an unintended consequence. Conduct of the former type would certainly be “abuse” within the meaning of the Act (s 4) and warrant protective measures, but conduct of the latter type would probably not be abusive and fall to be considered as an incident of impaired parenting capacity which may or may not justify protective measures.

3. Regrettably, the father’s evidence in cross-examination did not entirely eradicate the uncertainty, but he most probably accepts the mother did not deliberately inflict injury to the eldest child. He speculated the mother may have applied hot water to the child’s neck and around his ears and lower scalp in an attempt to eradicate his head lice, in which event he was obliged to concede there would have been no intent to injure the child. He conceded he did not really believe the mother set out to intentionally burn the eldest child. Nonetheless, despite such concessions, he later reverted to his denial the eldest child was burned accidentally. He also maintained the incident was serious enough to warrant the removal of both children from the mother’s care and, inferentially, warranted their permanent supervision whenever they spend time with the mother in the future. If that was his genuine belief, he failed to explain why he did not seek an interim order for the youngest child to also move to live with him once he admitted his paternity of her. It was absurdly inconsistent for him to retain the eldest child, asserting that was the only way to ensure his safety, but abstain from making any interim application for the youngest child’s residence and acquiesce to her retention by the mother for well over a year until final trial.

4. Irrespective of the curiosity about the father’s evidence, the mother’s evidence about the eldest child’s injury seemed less than frank. At different times, she referred to it as dermatitis, a rash, and sunburn, and it is difficult to appreciate how a blistering burn could be confused with skin irritation. The father’s speculation about the manner in which the burn was caused may be correct and the mother may be too embarrassed to admit the foolhardy remedy she employed to eradicate head lice, but the evidence fell far short of proving she deliberately sought to inflict a burn injury on the child. On the available evidence, it was not an incident of child abuse, though the incident exposed the mother’s lack of parenting skill because, even if it was sunburn as she finally asserted, she should have prevented its occurrence.

5. Neither party poses any risk of harm to the children by reason of their subjection to abuse.

Children’s best interests – additional considerations

1. The parties’ parenting capacities emerged as the most compelling issue in the proceedings (ss 60CC(3)(f), 60CC(3)(i)). The parenting capacity of each party is impaired, albeit for different reasons. Both have afforded unsatisfactory physical and emotional care to their older children in the past, their past care of the subject children was desultory at best from time to time, the mother remains at much greater risk of relapse into illicit drug use than the father, and the father’s insight into the importance of the mother to the children was virtually non-existent.

2. The mother has two older children (Ms D and E) who are now aged 20 and 15 years. They were both removed from her care 10 years ago by the Department, because of their neglect caused by the drug addiction of both the mother and their father. Both children gravitated back to live with the mother for short periods, but both now live independently of her. The mother and Ms D still stay in touch but, presently, the mother and E do not speak.

3. The father has three older children (Ms F, G, and H). Ms F is aged about 23 years, but the father does not know their dates of birth, does not know their ages, and is unsure of their full names. He lost contact with Ms F when she was only three years of age and she only re-established contact with him after 20 years a few weeks ago. When Ms F and her mother moved away he made no attempt to stay in touch because he was “moving around a lot”. He said he did not know how Ms F might have felt about his absence from her life and his failure to stay in touch with her, which seemed remarkably banal. The father has not seen G since he was five years of age and, even though G was removed from his mother’s care, the father was discounted by the Department as an alternate residential carer. H lived with the father for about 13 years but he was often suspended from school and using cannabis so the father must have found caring for him to be a challenge. H voluntarily left him and returned to live with his mother and maternal grandmother during his early adolescence. The frequency of their interaction now is uncertain.

4. Until only a few months ago, neither party had ensured the registration of either child’s birth, for which each party blamed the other. The father did not even know the youngest child’s date of birth. The parties’ mutual failure to attend to such a basic parenting task as birth registration for so long is testament to their unsophistication. Unfortunately, the combination of their lack of sophistication and heavy illicit drug use for long periods of their relationship dramatically impaired their parenting skill.

5. The mother began using cannabis when aged 14 years and was a daily user by 17 years. She started using amphetamines at 19 years, which progressed to intravenous use by 21 years of age. She said she had a period of abstinence for about five years immediately following the removal of Ms D and E from her care, but she relapsed. Her heavy drug use continued until the end of 2015. The mother told the Family Consultant she made “a conscientious and determined effort” to quit drug use by the end of 2015, which effort seemed to correlate with her distress over the father’s retention of the eldest child and her realisation she could not recover him unless she improved her parenting performance. She engaged with drug and alcohol counselling services in 2016, which seemed to help her, and she appears to have met with some success.

6. With such a long history of drug addiction or dependence until late 2015, it would have been somewhat surprising if the mother did not suffer some setbacks. She admitted to clinicians her use of amphetamines once in March 2016 and she later returned two positive drug screens; one for using “ice” in June 2016 and the other for smoking some cannabis at a New Years Eve party in December 2016. She disavowed any other drug use. The father was sceptical about the truth of her evidence, but she had some objective corroboration. She produced over a dozen negative drug screens for the Department after the positive test in June 2016 and, due to the most recent positive test for cannabis in January 2017, the Department now intends to monitor her and require more random drug screens for at least another three months.

7. The mother gave the distinct impression in cross-examination of genuinely wanting to remain abstinent, which impression the Family Consultant also independently formed, but her relapses prove the fragility of her resolve. No confident prediction of her abstinence could be made yet and, for the time being, she remains at high risk of relapse and, importantly, that directly threatens her capacity to provide proper care for the children.

8. The mother foolishly denied in cross-examination that her past intoxication would have adversely affected her parenting performance. It is doubtful she was being honest. More likely she was trying to minimise the issue in the hope of not damaging her case. If her answer was honest, it was evidence of an alarming lack of insight.

9. The father’s assessment of the mother’s drug rehabilitation was derisory, but he could not afford to be too self-righteous. The most that could be said is that he appears to have made a more promising effort at rehabilitation. He was just as stupefied by drugs as the mother during their relationship and just as responsible for their deficient past care for the children. The father began using cannabis when aged 15 years and graduated to daily use some years later. He began using amphetamines when aged 27 years, which use became intravenous. He admitted to the Family Consultant that he and the mother cared for the children while intoxicated or while withdrawing from drug-induced intoxication.

10. The evidence about when the father ceased use of illicit drugs was somewhat inconsistent, but he asserted abstinence from amphetamines since 2013 and abstinence from cannabis since 2015. He provided two negative drug screens when requested in February and August 2016, but he has had no counselling to help insure against his relapse. He consulted a drug and alcohol counsellor in July 2016, but only to obtain proof for these proceedings that he did so. He did not actually undertake any of the counselling strategies that were recommended to him. The evidence was not sufficiently convincing to prove the father will certainly not relapse, but it was certainly strong enough to prove the chance of his relapse is significantly less likely than a relapse by the mother.

11. The father’s disdain of the mother is, at least in part, explained by his disgust at his honest belief in her failure to abstain from illicit drug use. Unfortunately, he has not been able to shield the children from his feelings. The eldest child, who has lived with him for the last 16 months, is attuned to his antipathy and reacts accordingly. It directly affects his relationship with the mother.

1. When the family met with the Family Consultant in June 2016, the father reported the eldest child tells him he does not want to see the mother. He did not have the insight to understand the eldest child may profess rejection of the mother because the child perceives such comments are gratefully received by him. The father took such comments at face value, which made it easy for him to avoid the eldest child’s visits with the mother under the interim orders when, for example, he had clashing work commitments.

2. Importantly, the eldest child’s expressed sentiments about the mother did not match his effusive and loving interaction with her. The Family Consultant observed the father was displeased when he saw the eldest child hug the mother and was told he was playing happily with her. When the father was introduced into the same room, the eldest child appeared uneasy, most probably because he was worried his amiability with the mother would anger the father. On several other occasions during the observation sessions the eldest child baulked at engaging positively with the mother in the father’s presence before gauging the father’s reaction. The child told the Family Consultant he knew the father would be “sad” even if he merely went to play with the mother. He told her he knew the father did not like the mother.

3. The father professed in cross-examination he did not “bag” (by which he meant criticise) the mother to the eldest child, but that only emphasised his concrete thinking. He seemed not to realise that children resonate to the feelings of their carers without needing to be expressly told of their feelings. He does not need to “bag” the mother because the eldest child is well aware of his dislike of her anyway. The father’s ill-disposition towards the mother was accentuated by his evidence during cross-examination. He said he could not think of a single positive thing to say about her and he admitted he had never thought that saying something positive about her to the eldest child might relieve some of the pressure he feels to show allegiance to him. Amazingly, he remained confident the eldest child was ignorant of his dislike for the mother.

4. The Family Consultant was inclined to the view the father was aligning the eldest child with him against the mother, which she said was “tantamount to [his] psychological abuse”. She explained the consequences of that dynamic to be the child’s development of anxiety about contact with the rejected parent, for fear it will aggravate the aligning parent. The child then begins to live in terror of aggravating the aligning parent for fear of losing that parent too.

5. The father’s alignment of the children would be particularly damaging in this case because both parties still live in the same small rural community. If the children live with the father and feel forbidden from interacting with the mother, their sense of loss will be exaggerated by regularly seeing her in and around the town. The eldest child’s school is only a short distance from her home and the town’s shopping precinct is small. They would be at risk of seeing her often, knowing they cannot engage with her for fear of offending the father, and probably feeling guilty for rejecting her. It would be an intolerable emotional burden for them.

6. The father said he would comply with any Court orders, regardless of his feelings towards the mother, but that was merely bravado. He is not regularly complying with existing interim orders and, as the Family Consultant said, his alignment of the children is likely to be compounded if he genuinely adheres to his belief the children are at risk of harm in the mother’s care. There can be no room for doubt about the honesty of his belief. He said in cross-examination:

   It scares me [the eldest child] will even go and spend time with [the mother]

7. The Family Consultant concluded the Court could have little confidence the father would encourage and support the children’s relationships with the mother if they live with him, which conclusion was well-founded on the evidence and is probably valid.

8. Although the father is open to criticism about his inability to meet the children’s emotional needs, he deserves credit for having fulfilled all of the eldest child’s physical needs over the last 16 months. The eldest child’s school attendance and performance has been excellent and, in the last few months, the father moved house from the periphery of the town into the urban area and now has more secure rental accommodation. However, he has never had to care for two young children before. There was a paucity of evidence about how he would absorb the care of the youngest child and still maintain his work commitments. Even though he asserted he would have support from his family, he said he would put the youngest child in pre-school or “external care”, by which he presumably meant she would attend such care for five days per week instead of the two days per week she already attends pre-school, so that he can continue to work. That begs the question of why she should live with the father if he intends to place her in external care and the mother is willing and able to care for her.

9. The mother also has secure rental accommodation in the township, but her life is still a struggle while she tries to maintain drug abstinence. While not overtly resentful, she gives the impression of feeling under pressure to continue satisfying the supervisory requirements of the Department, which entails her submission to random drug screens and presentation of the youngest child for physical and cognitive assessments. She admitted she had not read the eldest child’s school reports, though it was doubtful she was disinterested in them. More probably, she feels weary and overborne by the effort she mustered to improve her parenting performance to only a modest level.

Conclusions and orders

1. The presumption of equal shared parental responsibility is rebutted, since the evidence demonstrates the parties are incapable of constructive communication over important decisions concerning the children (s 61DA(4)). An allocation of equal shared parental responsibility to the parties would require their courteous consultation, willingness to seriously consider the other’s opinions, and an honest effort to reach consensus (s 65DAC). Both are incapable of that. The mother said in cross-examination the parties “don’t communicate” and they “don’t speak at all”. The father did not contradict that evidence. He could not conceive any positive aspect of the mother’s character, which implied his disdain for her and his disinclination to engage with her. Neither party wanted to share parental responsibility, regardless of where the children live. Parental responsibility for each child should therefore be vested in the parent with whom they are each designated to live.

2. The children have been separated between the parties’ households for the last 16 months, but nobody considered it was desirable for that arrangement to be perpetuated. Each party sought the residence of both children.

3. The Family Consultant reported as follows on that issue:

   It is also of significant concern that [the children] have lived as separated siblings [for the six months prior to preparation of the Family Report]. A sibling is the person who we have known most of our lives and they share common experiences and knowledges of the family of origin. When siblings live separately, their relationship with each other is minimised and often as they mature, feelings of favouritism or jealousy can arise and negatively affect the sibling relationship, if there is a disparity in wealth and/or opportunities across the two households. A close sibling relationship can often offer a wealth of support throughout a child’s life.

4. The issue was taken up with her in cross-examination. She repeated the above opinions and added that a child is prone to feel rejected by the non-residential parent if the child’s sibling lives with that other parent, which can destroy the child’s self-esteem. Her firm view was that, other than in rather extraordinary circumstances, siblings should live together in the same household. With particular relevance for this case, the Family Consultant opined that when neither parent offers an optimum residential experience for the children, the children are best served by living together, as they can offer mutual support.

5. There are disadvantages for the children living with either party but, on balance, the mother is a marginally better alternative. She is at significantly greater risk than the father of relapse into illicit drug use, which would compromise the quality of her care for and supervision of the children, but that risk is ameliorated because the children will continue to be monitored in the community and any deficiencies in their care will be drawn to the attention of the father and independent authorities. The eldest child attends school and the youngest child attends pre-school, so both will be under the surveillance of teachers, which the Family Consultant described as a “protective factor”. The children will also regularly spend time with the father, so he will be alerted to any serious problems for the children. Additionally, the mother will remain under the direct supervision of the Department for at least the next three months, which supervision will require her continued submission to random drug screens.

6. There is unlikely to be too much upheaval for the eldest child moving back to live with mother. It will require some re-adjustment by him, but his relationship with the mother is strong. To her credit, the mother anticipated some difficulty and did not gloss over it. She admitted she did not know how it would go, though she was planning to consult the school counsellor if needed. Since both parties live reasonably close to one another in a small rural community, the change of residence for the eldest child will not require him to change schools, so that aspect of his life will be undisturbed. The youngest child will continue to attend her pre-school.

7. Conversely, the youngest child would likely experience considerable distress, not merely confined to the short-term, if she moved to live with the father. Her relationship with him is rudimentary and unlikely to be developed quickly, especially if he sends her to pre-school or “external care” for five days each week so his work commitments will be unfettered. The father told the Family Consultant he was confident the youngest child would “settle quickly” into his care, but his expectation is unrealistic. It would be far better for her to remain living with the mother and to spend time with the father in the eldest child’s company. If her visits with the father are initially problematic, at least the mother lives close by and can be called to intervene and help if the father is willing to accept her involvement.

8. The father told the Family Consultant he would “not be hanging around” if orders are made for the children to live with the mother, but that was most probably a dramatic flourish. He said in evidence he reacted angrily to such a prospective outcome being mooted, but it is unlikely he would act on that impulse. Still, it is further evidence of his concrete thinking. He immediately defaults to impulsive reactions that reflect his own feelings without regard for the children’s feelings and needs.

9. Although the father perhaps offers superior capacity to meet the children’s physical needs, he lacks the capacity to meet their emotional needs. His contempt for the mother is barely concealed, he harbours an honest opinion the children should not spend any time with her unless supervised, and he believes it is unnecessary for them to retain their relationships with her unless they expressly tell him they wish to do so. Of course, as young children, they are unlikely to be so bold when they are probably well-aware of his scorn for her. His lack of capacity to fulfil the children’s emotional needs (ss 60CC(3)(f), 60CC(3)(i)) and the likely destruction, or at least impairment, of their meaningful relationships with the mother if they live with him (s 60CC(2)(a)) are the most compelling features of the evidence.

10. There is no reason the children should not spend substantial and significant time with the father. The Independent Children’s Lawyer suggested their visits should entail five nights each fortnight, half of school holidays, and other special occasions,[8] which proposal correlated with the Family Consultant’s evidence. The mother endorsed the proposal. The orders provide for five nights per fortnight, but not exactly as was proposed. The orders provide for visits of four consecutive nights across each alternate weekend and on the Monday night in the intervening weeks. In that way, during school terms, the children will spend every Monday night in the father’s care and spend alternate weekends with the parties.

    [8] Exhibit ICL3, Order 4

11. The orders reflect the parties’ agreement about the venues at which the children should be exchanged: preferably at the eldest child’s school, which school the youngest child will also likely eventually attend, and otherwise at the home of the paternal grandmother.

12. The orders provide for once weekly telephone communication. The father proposed it occur twice weekly,[9] but in the absence of any evidence or submission on the topic once should suffice. Opportunities for conflict between the parties should be minimised.

    [9] Exhibit F2, Order 6

13. The remaining orders reflect the miscellaneous proposals of the parties and Independent Children’s Lawyer or could not be the subject of sensible objection.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 February 2017

Associate: 

Date:  21 February 2017