McWatt and Easthope

FAMILY COURT OF AUSTRALIA

MCWATT & EASTHOPE

[2007] FamCA 392

CHILDREN - Best interests - With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT:

Mr McWatt

RESPONDENT:

Ms Easthope

INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

FILE NUMBER:

SYF

372

2005

DATE DELIVERED:

4 May 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

31 January 2007 –
2 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Applicant appeared in person

COUNSEL FOR THE RESPONDENT:

Ms Reynolds

SOLICITOR FOR THE RESPONDENT:

Dribbus Kovacevic

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Boyle

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Commission of NSW

Orders

(Orders made 2 February 2007)

That all previously orders made in this matter be discharged.
That the children the eldest daughter born in November 2001, the middle daughter born in February 2004 and youngest daughter born in August 2006 live with the mother.
That any person who currently has the eldest daughter in his or her care forthwith return her to her mother.
That the father spend time with the children as follows:-
4.1.With the eldest daughter each alternate weekend from after school Friday or 3pm Friday if it is not a school day until 5pm Sunday and each other Sunday from 10am until 5pm (first Friday to be 9 February 2007 and first other Sunday to be 4 February 2007);
4.2.With the middle daughter until 27 July 2007, from the date of these orders from 10am to 5pm each Sunday;
4.3.With the middle daughter from 27 July 2007 from after school or 3pm Friday if it is not a school day, until 5pm Saturday and each other Sunday from 10am until 5pm so that the middle daughter is available to be collected at the same time and place as the eldest daughter on Fridays, and has overnight time on the same weekend that the eldest daughter has overnight time with her father;
4.4.With the middle daughter from 4 January 2008 at the same times as the eldest daughter in order 2.1 herein;
4.5.With the youngest daughter until 2 March 2008 for 1 hour from 5pm to 6pm Sundays at the mother’s home;
4.6.With the youngest daughter from 2 March 2008 from 10am to 5pm each Sunday;
4.7.With the youngest daughter following 6 August 2009 from after school or 3pm Friday if it is not a school day, until 5pm Saturday and each other Sunday from 10am until 5pm, so that youngest daughter is available to be collected at the same time and place as the eldest and the middle daughters on Fridays and has overnight time on the same weekend that the eldest and middle daughters has overnight time with their father;
4.8.With the youngest daughter following 6 August 2010 at the same times as the eldest daughter in order 2.1 herein;
4.9.With the eldest and middle daughters on Christmas Day from 11am until 5pm and that at 5pm on Christmas Day the youngest daughter spend time with her father for approximately one hour in the presence of the mother, unless the parties otherwise spend Christmas Day together;
4.10.At such other times with any of the children as may be agreed in writing;
4.11.The father is to pick up the child/children at the commencement of her or their time with him and redeliver the child/children at the conclusion of her or their time with him.
That the father’s time with the girls be suspended on Mother’s Day from 10am and on the mother giving the father 21 days notice for a period of up to 14 days during school holidays no more than twice each year.
That the father be restrained from the following:-
6.1.Consuming any alcohol or illicit substances when he spends time with the children, or for a period of 12 hours prior to spending time with the children;
6.2.Bringing them into contact with any person who is consuming illicit substances, or is apparently affected by alcohol or illicit substances.
That each of the parents are restrained from criticising or speaking badly of the other parent, or other parent’s family.
That the mother have sole parental responsibility with respect to the children’s education, and authorise the principal of any school the children may attend to provide the father with copies of school reports, notices, school photograph order forms and other information ordinarily provided to parents.
That both parents be entitled to attend at school events to which parents are invited, such as concerts and sports days.
That except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
That pursuant to Rule 1.12 Family Law Rules 2004 (“FLR”) the time for starting an appeal from these orders under Rule 22.03 FLR not commence until the publication of the reasons for making these orders.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 372 of 2005

Mr McWatt

Applicant

And

Ms Easthope

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is about what parenting orders should be made in the best interests of the eldest daughter born in November 2001 (currently aged 5 years and 2 months); the middle daughter born in February 2004 (currently aged 2 years and 11 months) and the youngest daughter born in August 2006 (currently aged 5 months).
The father filed an application on 21 July 2005. The mother filed a response on 25 August 2005.
This matter has proceeded by the consent of the parties under the Children’s Cases Program. Consequently the hearing of this matter has taken place over a number of days, including applications relating to alleged contraventions of interim orders and applications for recovery.
This matter was initially before me on 8 November 2005 and has subsequently been before me on 25 May 2006, 31 May 2006, 28 June 2006, 11 August 2006, 16 November 2006 and 31 January – 2 February 2007.

APPLICATIONS

When the matter was before me on 16 November 2006 there was a discussion about each party’s proposal in respect of the children.

Mother’s proposal

The mother’s proposal at the final hearing is that the eldest daughter be with her father from 9am to 6pm at the father’s option on one day a fortnight or two days a fortnight. Those days will be Saturday and Sunday each alternate weekend from 9am to 6pm. The mother’s proposal in relation to the middle daughter is that on one day each fortnight from 9am to 6pm at the same time that he is seeing the eldest daughter, the father would see the middle daughter.
The mother proposed that the father see the youngest daughter in accordance with Dr R’s recommendation, that is, for ½ hour two times a week to longer periods as the baby grows older.
The mother proposed that any order that the girls spend time with their father overnight be conditional upon him obtaining medical treatment.
The mother also said she wanted orders that the children only be taken to the paternal grandfather’s place and that an order be made that the father not consume alcohol and marijuana.
In relation to the order about alcohol and drugs, it was pointed out that the current interim order was that the father not drink alcohol or take non prescription drugs during contact periods. The father agreed on a without admission basis for the continuation of that order on a final basis, on the condition that an order in the same terms be made against the mother. The mother agreed to this order being made against her, also on a without admission basis.

The mother’s proposal in affidavit sworn 11.12.2006

In respect of the eldest daughter, the mother confirmed in her affidavit her position that this daughter should not spend time with the father on an overnight basis. The mother had changed her proposals somewhat from those she stated on 16 November by adding a third day in a fortnight, being the Sunday on all alternate weekends from 9am to 6pm. In summary therefore her proposal is that the eldest daughter be with her on one day on a weekend every fortnight.
The mother’s proposal in relation to the middle daughter has not changed.
In relation to the youngest daughter her updated proposal is for one half hour occasion each week rather than two.
The mother says that she wants an order that she be able to take the children away for one two week period during school holidays each year (upon giving the father 14 days notice).
She wants the children with her on Christmas Eve on all occasions with the father to have them from 12pm Christmas Day to 6pm Christmas Day each year. There are some other consequential orders that she wishes relating to the children not being brought into contact with people other than the father’s immediate family members, that he not expose the children to violence, that neither party denigrate one another, that the father not consume alcohol or illicit substances for 24 hours prior to or during any time the children spend with him and that he refrains from keeping drugs on his premises.

Father’s proposal

In relation to the eldest daughter, the father’s proposal is that she be with him most of the time and that she see the mother alternate weekends. Alternative, he proposes a 50/50 co-parenting arrangement. He said things are a bit more difficult in relation to the middle daughter, she is still being breastfed. He agrees with the proposal in relation to the youngest daughter.

Father’s affidavit sworn 12.12.2006

The father has filed virtually no affidavit material in response to the directions that I made on 16 November.
His affidavit simply states that his proposal is that the eldest daughter would live with himself and spend fortnightly weekends with her mother from 6pm Friday to 4pm Sunday and if wanted by the mother, a day on the other weekend. He would have contact with the middle and youngest daughters as agreed by the parties. His proposal was that the children be separated.

Transport

The mother’s proposal in relation to transport is that the father, who has a licence and who is paying minimal child support, bear the burden of transporting the children for the purposes of their movement between one household and the other.
The father’s proposal in relation to the transport is that they meet halfway, that they both mutually share the burden of transporting the children from one household to the other.

The eldest daughter’s schooling

This is the eldest daughter’s first year at school. The father’s proposal is that she attends B School. The mother’s proposal is that this daughter attends at L School.
The conclusion of the hearing of this matter was scheduled to commence at 10am on 31 January 2007 and be heard on that day and the two following days.
The father did not attend at 10am on 31 January 2007. Telephone communication was established with him in the Court room. He indicated the reason he hadn’t attended at 10am was because the eldest daughter had to start school that day at B School.
In discussions the father asserted that he had not remembered the discussion that had taken place during the hearing of this matter on 16 November 2006. I refer to that discussion below.

EXISTING ORDERS

There are Local Court orders in place providing that the eldest daughter be with her father from Monday 9am to Wednesday at 5pm (that is, she stays overnight with her father Monday and Tuesday nights). This has been the case since the interim orders were made on 25 August 2005. The father is also supposed to have the middle daughter from 1pm to 5pm each Wednesday.
On 16 November I was told that the arrangement developed by the parties in relation to the youngest daughter was that the father saw her for 5 – 15 minutes when he dropped the eldest and middle daughters back on Wednesdays. The mother’s most recent affidavit says that the youngest daughter has had very little interaction with the father to date. Her evidence is that although she actively encourages the father to pick her up and nurse her he has not done so as yet on more than one occasion.

CHRONOLOGY

The mother was born in August 1964 (now aged 42 years).
The father was born in March 1966 (now aged 40 years).
In June 1986 B was born (child of previous relationship of mother, now aged 20 years).
In approx 1991 R was born (child of previous relationship of father, now aged 15 years).
In April 1994 C was born (child of previous relationship of mother, now aged 12 years).
In October 1995 A was born (child of previous relationship of father, now aged 11 years).
On 24 November 1996 E was born (child of previous relationship of father, now aged 10 years).
On 3 November 2000 Rowlands J delivered judgment after a three day hearing with respect to children of father, A & E. Orders were made for residence to the mother and contact to the father.
In February 2001 the parties commence cohabitation. The father and mother met in Queensland at a time when the father had taken his two sons, A & E, away from their mother and secreted them. The children were recovered by the Federal Police in April 2001 and returned to New South Wales. When the father returned to New South Wales the mother accompanied him.
In approximately October 2001 the mother’s daughter C returned to live with her father in Queensland.
On 26 November 2001 Moore J after a five day hearing granted residence of sons A & E to their mother. The father was to have contact for two hours once a month at Centacare Contact Service in W.
In November 2001, the parties’ first child of the relationship, the eldest daughter was born (now aged 5 years 2 months).
On 18 July 2003 Le Poer Trench J after a four day hearing ordered that contact between father and sons A & E be suspended for two years.
The parties’ second child, the middle daughter was born in February 2004 (now aged 2 years 11 months).
Father alleges date of final separation is in July 2005.
On 21 July 2005 the father filed an Application in the Local Court at W returnable on 1 August 2005 seeking the eldest and middle daughters live with him.
On 25 August 2005 the mother filed a Response.
On 25 August 2005 orders were made in the Local Court at W that:
44.1.The children reside with the mother;
44.2.The eldest daughter have contact with her father from 9.00am each Monday to 5.00pm Wednesday;
44.3.The middle daughter have contact with her father from 1.00pm to 5.00pm each Wednesday;
44.4.The changeover be outside Kmart at H;
44.5.Both children have contact 12 noon to 5pm on Father’s Day;
44.6.The father not drink alcohol or take non prescription drugs during contact periods;
44.7.The matter be transferred to Family Court.
On 22 September 2005 the mother filed an application seeking a warrant alleging the children were not returned on 21 September 2005.
On 28 September 2005 the father filed a Contravention application alleging:
46.1.the mother refused to deliver the 2 children at 1pm on 28 September 2005;
46.2.the mother refused to allow contact with the middle daughter at 1pm on 21 September 2005;
46.3.the mother to collect the middle daughter from the father on 21 October 2005 at 5pm
On 28 September 2005 the father also filed an interim application seeking:
47.1.a recovery order;
47.2.residence to the father;
47.3.the mother to have contact from 9am Monday to 5pm Wednesday.
On 5 October 2005 orders were made in the Family Court providing for:
48.1.Inter alia appointment of a Child Representative;
48.2.adjournment to 19 October 2005
48.3.that contact for 5 October 2005 be suspended.
On 19 October 2005 orders were made in the Family Court that:
49.1.the matters be adjourned to 8 November 2005 to be heard at W in the Children’s Cases Program;
49.2.by consent the father’s application for contravention filed 28 September 2005 in the Local Court at W be dismissed;
49.3.a request for transmission of previous proceedings involving the Mother being … of … to the Sydney Registry;
49.4.it was noted that the proceedings cannot come before Justices Rowlands, Moore or Le Poer Trench.
On 8 November 2005 orders were made in the Family Court concerning:
50.1.Directions in relation to the matter pursuant to Children’s Cases Program;
50.2.The child representative was ordered to provide to the father, the mothers solicitor and the court copies of the two reports by Dr W and the reasons for Judgment of Justices Moore and Le Poer Trench in proceeding number SYF 85 of 2005;
50.3.Directions for inspection of file … /… ;
50.4.the father was to have contact with the middle daughter from 1pm to 5pm on 27 November 2005 and 1pm to 6pm on 25 December 2005 and from 12pm to 5pm on 10 February 2006;
50.5.the father was to have contact with the eldest daughter from 1pm 27 November 2005 to 5pm 29 November 2005 and 1pm 25 December 2005 to 5pm on 27 December 2005 and from 12pm to 5pm on 10 February 2006;
50.6.the interim order made 25 August 2005 was suspended so that the father does not have contact from 5pm 29 November to 5pm 30 November and does not have contact from 5pm 27 December 2005 to 5pm 28 December 2005;
50.7.the mother was to supply to the father and the child representative all material obtained by her pursuant to a Freedom of Information request to Centrelink.
In late 2005 there was at least one occasion when a sexual encounter occurred between the mother and the father and the mother became pregnant with the youngest daughter.
On 11 May 2006 orders were made in the Family Court:
52.1.there be an undertaking by father to return the eldest daughter to the Mother by 6pm that evening;
52.2.otherwise there was to be an adjournment to a date to be fixed in the week of 22 May 2006.
On 25 May 2006 orders were made in the Family Court for the matter to be adjourned due to the father not attending.
On 30 May 2006 orders were made in the Family Court for the preparation of a report by Dr R.
On 9 August 2006 the father filed a Contravention Application returnable on 11 August 2006
On 6 August 2006 the youngest daughter was born, now aged 6 months. The eldest and middle daughters were placed by the mother in foster care for 3 days without the father’s consent whilst she was giving birth to the youngest child.
On 11 August 2006 orders were made in the Family Court for the contravention application to be dismissed.
On 31 August 2006, without my knowledge, the mother applied for and obtained a recovery order from the Local Court in W.
The report of Dr R was released on 6 November 2006.
On 16 November 2006 orders were made in the Family Court that:
60.1.the matter be set down for three days commencing 31 January 2007;
60.2.the parties were directed to file affidavit material on or before 15 December 2006 setting out facts relevant to the issues as follows:
60.2.1.the school the eldest daughter will attend commencing 2007;
60.2.2.proposals of each party in respect of what time each of the children will spend with themselves and the other parent and evidence about the care arrangements during the period of time the children are with that person;
60.2.3.proposed arrangements in relation to transportation of the children at changeover time, including any practical difficulty and expense;
60.2.4.the steps the Mother has taken to continue with supportive counselling and psychiatric care to monitor her mood and to ensure that she doesn’t become depressed;
60.2.5.the steps the Father has taken to have ongoing counselling to help him with any anger management, alcohol abuse, gambling problem and paranoid ideas;
60.2.6.any evidence by the Father in relation to any further diagnosis in respect of his medical condition;
60.2.7.the steps the Father had taken to have a psychiatric assessment (part of which assessment might include a trial of medication to see if that could reduce his paranoid ideas); and
60.2.8.how each party would financially provide for the children.

CREDIT

Father

At times, when giving evidence and otherwise participating in the proceedings, the father was unco-operative and belligerent.
During the proceedings on Thursday 1 February, when tested about where the eldest daughter was, the father gave a series of answers. In re-examination he volunteered that those answers were untrue. Given the father’s concession that he lied on his oath, I am unable to accept his evidence where it conflicts with the mother’s direct evidence. However, where the mother has given hearsay evidence that conflicts with the father’s direct evidence, I accept the father’s evidence.

Mother

During her evidence the mother conceded that on occasions she lied but “never under oath”. The mother gave straight forward and spontaneous evidence. I accept that she is telling me accurately what she has seen and heard.

THE HUSBAND’S MEDICAL CONDITION

The father has had to cope with a number of difficult situations in his life. His brother N, died at the age of 10 in a motor vehicle accident as a pedestrian whilst the father was coming home from school with him. The father told Dr R that he felt responsible because he was the older brother at the time and his old man had blamed him for the death.
The father currently does not have any contact with children of his prior relationship, sons A & E who are now aged 10 and 11. After a hearing, Justice Le Poer Trench decided it was in the best interests of those children for them not to see their father for two years. That two years is now three and a half years and given what the father said during the hearing it is unlikely that his contact with those boys will resume any time soon.
It was an example of the impulsive behaviour by the father that he absconded with sons A & E when they were 7 and 8 years of age. He took them to Queensland and lived in hiding. It was during this period that the father met the mother.
The mother told Dr R that the father thought that foster carers were all abusers. He was also against Children’s Home B whom he calls “the brain washing lesbian cult”.
Dr R noted that Dr W had made a previous assessment that the father had a paranoid personality disorder. Dr R recorded that there was no other sign of mental illness suggesting psychosis, such as hallucinations or delusions. Dr R concluded that the father appeared to be irrational but not delusional in his thoughts and beliefs about “men haters”. He formed the view that these ideas were overvalued. Whilst Dr R didn’t fully endorse the diagnosis by Dr W of paranoid personality disorder, he agreed with Dr W’s assessment that the father had overvalued paranoid ideas about the world.
Dr R records that the father appeared quite pre-occupied with the belief that the mother had been influenced unduly and was still under the influence of an anti-male group of women.
The father quite clearly was of the view that the mother had on occasions been brainwashed by men haters. Dr R was of the opinion that the father’s overvalued ideas regarding “men haters”, the court system and the fact that anyone taking care of the children would abuse the children was extreme. As just mentioned, he agreed with a previous assessment by Dr W that the father had overvalued paranoid ideas about the world. Dr R formed the view that the father cared a great deal about the children, however his anxiety and concerns about their welfare led him to extreme actions, such as the abduction of the two children to Queensland. He formed the view that whilst the father did have a contribution to make to the children’s lives it should be kept to a limited period of time and it should be in a supportive role to the mother.
Dr R warned that once the children reach an age of being able to make demands and ask questions, the father is likely to have difficulty coping with the children.
Dr R made some recommendations in relation to the treatment of the husband’s mental condition. Before the final phase of the hearing, the Court made some directions in respect of that treatment. The father did nothing to comply with those directions. It became clear during the hearing that the father does not recognise there are any problems, which in itself is part of the problem. It emerged during evidence that the father has had some form of interaction with a counsellor from an organisation that he referred to as “Access”. No evidence was provided by the father from that counsellor. The counselling is connected with the father continuing to receive benefits from Centrelink. The father was not able or willing to provide details as to the nature of the counselling he was receiving.
Dr R does not believe that the father has good insight or good intuition about what is in the best interests of the children. He says his paranoid beliefs about others are a danger to his children because they prevent him from being able to allow the children to have normal experiences in their lives. Dr R opines that the father is likely to restrict the children and smother them such that they would become enmeshed and swamped with his distorted views about others.

THE MOTHER’S MEDICAL CONDITION

The mother has had a depressive illness for some time. She has been on Efexor, medication for depression, for nine years.
The mother has had two suicide attempts, the first in 1988 and the second about six years ago. The mother is involved in support groups. Dr R is of the opinion that she is currently coping very well with her three young children. Dr R’s opinion is that she is now managing her condition satisfactorily and I accept this opinion.
The mother has had her own difficulties in her life. She was molested sexually for several years from the age of seven by her step-father’s nephew.
The mother has contact with children from her previous relationship. She has regular contact with her adult son B. Her other daughter C was born in 1994 and lives with her father in Queensland, this arrangement resulting from the moving to New South Wales with her new partner, the father in these proceedings. C spends holiday time with her mother, this occurred most recently during school holidays over the Christmas period. C also has 15 minute weekly telephone calls with her mother.
The mother is anxious about the children from this previous relationship being with their father. She believes the father spends every day with alcoholics and is not sure what happens when the kids are in his care. There is no strong evidence that the mother’s fears are properly founded.

THE FATHER’S INABILITY TO BEHAVE CONSISTENTLY

There are a number of instances where the father has demonstrated an inability to behave consistently. On three occasions the mother sought recovery orders. On one of these occasions the father agreed to return the eldest daughter. On another occasion the mother obtained a recovery order from the Local Court at W.
The father’s inability to behave consistently was also demonstrated in his decision to disregard court directions regarding hearing dates and the eldest daughter’s first day of school. When the matter was before me on 16 November 2006 and set to start for a three day hearing commencing 31 January 2007 there was a discussion about whether or not the hearing should start on that day. It was to be the eldest daughter’s first day at school. I made a decision on that day that on balance it was more important for the girls to have a decision about where they should live and which school the eldest daughter should to go as soon as possible. I said it was regrettable that the child would miss her first day at school.
Notwithstanding that the father was present during that discussion and aware of that decision, he decided that the eldest daughter would start school, at the school that he wished her to go to, on 31 January. The father did not turn up on the first day of the hearing. His excuse for not turning up on the first day of the hearing was that he had to go to school with the eldest daughter on her first day. His evidence was that he purchased school uniforms for her in early January. On the second day the father gave an elaborate explanation as to the daughter’s whereabouts. It was only later in the day that he volunteered that in fact the child had gone to school again for a second day at the school that he wished her to go to.
The father also demonstrates inconsistent behaviour in his ability to get along with the mother. He is at times in strong conflict with the mother and at other times is able to get on very well with her. Examples of the latter were the fact that on Christmas Day 2005 and Christmas Day 2006 the parties were able to spend a pleasant day together at the home of the father’s parents. The parties in late 2006 had a day out with the girls looking at trucks as part of a cancer fundraising event. They had gone out together on two other occasions. Of course there was one occasion at the end of 2005 where the parties had a sexual relationship which resulted in the conception of the youngest daughter.
The father can be a good and caring father most of the time. If, however, the court does something which in his view is not in the children’s best interests, there is a risk that he will act impulsively and unilaterally.

THE FATHER’S HISTORY OF TIME WITH THE MIDDLE DAUGHTER

The mother gave evidence, which I accept, of an extensive number of days during 2006 when the father did not see the middle daughter in accordance with the court orders. Exhibit 2 is a list of dates which are said to be dates when the father could have had contact with her pursuant to the orders but failed to do so. When looked at on an overall basis it was about one half of the occasions when the father was due to see the middle daughter, that he did not. Dr R-Bell gave evidence it is not too late to establish a relationship with the middle daughter. Dr R comments in his report that there is a bond between the daughter and her father. He describes that during the interview the middle daughter was asleep on her mother’s lap and woke up. She left her mother, went over to where her father was, nursing the eldest daughter. She climbed up onto her father.
The father gave several reasons as to why he hadn’t been consistent in seeing the middle daughter. The first that he points to is the cost and inconvenience of transport. Secondly he says that there is jealously between the eldest and middle daughters and by not having the two girls together he minimises that conflict. Thirdly he says that to have the middle daughter without going back to his home means that he has to have the children in parks local to the mother’s residence. He alleges that the mother’s environment is unsavoury (littered with syringes and broken bottles) and says he is not happy having the girls in that area. I do not accept that any of these explanations are reasons why the father should not spend time on a regular basis with the middle daughter into the future.
Dr R gave evidence it is not too late to establish a relationship with the middle daughter. Dr R comments in his report that there is a bond between the middle daughter and her father. He describes that during the interview the middle daughter was asleep on her mother’s lap and woke up. She left her mother, went over to where her father was, nursing the eldest daughter. She climbed up onto her father.
The orders that I will make will provide an opportunity for the middle daughter to have a relationship with her father. The period of time this daughter may spend with her father will build reasonably quickly.

THE MIDDLE DAUGHTER AND BREASTFEEDING

The middle daughter is yet to be weaned. The mother said that there were two reasons why she was still being breastfed. The first was the nutritional value of breastfeeding. The second was the emotional bonding that it facilitated between herself and the child. Dr R accepted that it would be reasonable over a six month period for the child to come off the breastfeeding and the mother accepted this was a reasonable target. The orders that I make are structured accordingly.

THE CHILDREN AND FOSTER CARE

When the mother gave birth to the youngest daughter she placed the two elder daughters in foster care. She said that she had previously made an arrangement for her older son B to look after the two older girls but the youngest daughter came early and things had to be organised at short notice. The mother’s motivation in not allowing the girls to be with their father while she was giving birth to the youngest arose from the apprehensions that she has in respect of his use of alcohol and his association with persons who use alcohol and drugs.
It however was an error of judgment on the part of the mother to have taken the action that she did. There was no unacceptable risk in her leaving the two girls with their father during the period when she gave birth to the youngest.
On the other hand the father has totally overreacted to the risk that the mother put the children in as a result of putting them into foster care. His view was that the mother thereby exposed the girls to risk of abuse. I find that she did nothing of the sort. The father’s view about the risk to the girls whilst in temporary care is an example of his illogical thought patterns and an overvalued idea which he holds. The mother immediately offered the father makeup time with the girls. The father made an application for the mother to be dealt with for what he asserted was non compliance with court orders without reasonable cause. That application, which was being dealt with by telephone link, was dismissed when during the hearing of that application the father terminated his involvement in the court hearing by hanging up the telephone.

THE YOUNGEST DAUGHTER

The orders that I make in relation to the youngest daughter will allow her to spend a full day with her father when she is 18 months old. This order is made having in mind the previous history of the two elder daughters’ breastfeeding by the mother. The youngest daughter will be able to spend overnight with her father when she is three years old. When she is four years old the child will spend time with the father at all times with her two sisters.
The orders have been drawn in fairly proscriptive terms. Dr R stressed the need for lack of ambiguity given the father’s impulsive nature.

THE FATHER’S INVOLVEMENT WITH ALCOHOL, DRUGS, GAMBLING AND INAPPROPRIATE ACQUAINTANCES

Dr R also concluded that the father drinks alcohol intermittently to an excessive amount. I currently have no evidence that the father does this when the children are with him or that he has not complied with the order that he not consume alcohol for 12 hours before and during the time he has with the children. I shall continue that order.
The father conceded to Dr R that he would at times drink on Friday nights in order to numb himself but he denied any blackouts. He said he had been drinking more regularly since 2001.
When Dr R interviewed him in September 2006 he said he hadn’t had any alcohol for a month. He denied to Dr R the use of drugs although he conceded that he had experimented a little with amphetamines and marijuana when he was a teenager.
The mother gave oral evidence of the father’s use of alcohol during the relationship. She also gave evidence that on occasions when the father has turned up to pick up one or both the girls he has had alcohol on his breath. She gave no evidence however that he was affected to such a degree that she had some concerns about the child/children going with him. There was no evidence that he smelt of alcohol on returning the children.
Most importantly in this regard is the evidence from the mother that the girls and particularly the eldest daughter did not exhibit any disturbed behaviour upon returning from time with their father apart from the usual level of disturbance that you would get in respect of a child moving between two households. There is also a lack of any reporting of any disturbance of the children at preschool. In that regard I note that the history in the last 18 months has been that the eldest daughter has been with her father Monday morning through to Wednesday evening and has gone to preschool on Thursday and Friday.
The mother’s fears in relation to the father’s gambling and keeping company with inappropriate acquaintances was not supported by any probative objective evidence. I do not intend to make any order about the friends the father keeps but an order will be made that the children not be brought into contact with persons who are at that time using illicit drugs or abusing alcohol.

THE PARAMOUNT CONSIDERATION

In deciding what parenting orders to make for the children, I must regard their best interests as my paramount consideration (Section 60CA Family Law Act (“FLA”)).
In determining those best interests I must primarily consider Section 60CC(2) FLA:
100.1.the benefit to the children of having a meaningful relationship with both of their parents
100.2.the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

PRIMARY CONSIDERATIONS

Section 60CC(2)(a)

It is clear that the eldest daughter would benefit from having a meaningful relationship with her father and it is important for him to reconsider the position that he presented to the court during the hearing (that is, if he didn’t have her all the time he would abandon his role as father). Dr R has given evidence that it is not too late for the father to develop a meaningful relationship with the middle daughter. It is still possible for the youngest daughter to form meaningful attachments with her father.

Section 60CC(2)(b)

The mother has expressed fears about the children being in the presence of the father. Those fears relate to his use of alcohol, drugs, his involvement in gambling and his association with inappropriate acquaintances. There is a lack of objective corroboration in relation those fears. The eldest daughter’s current behaviour is a contra indicator to those fears being objectively accurate. Counsel for the mother submitted that the problem might be a longer term one. Given the father’s impulsive nature and his ability to become angry easily, the problem might arise when the eldest daughter becomes more challenging of her father’s notions. The submission is that at this latter point the risk is that the father’s delusional systems might impact adversely upon the eldest daughter. I accept that that is a longer term risk and it is one which I have taken into account when making the orders. The extension of longer periods of consecutive overnight time with the girls with their father, if contested, will be made in the context of any behavioural disturbances exhibited by the children between now and when those extended orders are considered. The state of the father’s mental health at that time will also be a factor. It might, at that time, be appropriate to consider obtaining a further report from Dr R.

ADDITIONAL CONSIDERATIONS

Expressed views and their weight

The children are currently too young to express any view as to what time they wish to spend with each parent.

Relationships

With mother

The eldest daughter has a good relationship with her mother.
The middle daughter is closely bonded to her mother.
The youngest daughter currently dependent upon her mother. The mother breastfed her on occasions throughout the hearing.

With father

The eldest daughter is closely bonded to her father. When the father saw Dr R the doctor reported that the father was taking care of the eldest daughter who had been unwell and appeared to have a temperature. She was cuddling him whilst he talked. He appeared to cuddle and manage her well whilst she was obviously a little irritable and uncomfortable. He described the father’s management as very sensitive.

The father’s relationship with the middle daughter is probably at the cross roads. As referred to elsewhere in this judgment, the father has chosen in the last year or so not to see her on about 50% of the occasions when he otherwise would have been able to. When the father initially in November 2005 made an application before the court for the middle daughter to be with him for all of the time which she was with him, it was declined because of problems associated with weaning the middle daughter from her mother at that time. Given the date when the parties separated, the father’s relationship with the daughter has not developed in the same way as has his relationship with the eldest daughter. Dr R says however that that is not an irretrievable problem. There is sufficient bond between the middle daughter and the father for him to be able to develop a relationship with her should he so desire.
The father’s comment that he was merely a sperm donor for the youngest daughter might indicate that he does not feel a bond with her. As against that however he did indicate that he did nurse the child for significant periods when the parties were together at his parent’s home on Christmas Day 2006.

Willingness to encourage and attitude to relationship between child and the other parent; attitude to the responsibilities of parenthood

Apart from the criticism I have made of the mother’s unsubstantiated fears of the girls spending some time with their father (the worst example was her placing the elder and middle daughters in foster care while she gave birth to the youngest daughter), I accept that she has and does cope very well as the children’s mother. There never has been any issue as to the mother’s willingness and ability to facilitate and encourage a close and continuing relationship with the father.
Apart from the father’s impulsive actions which are referred to elsewhere in these reasons, and the father’s failure during 2006 to take up about half the opportunities that he had to spend time with the middle daughter, there is also no criticism of him in relation to his attitude to the mother as the parent of their children and to his attitude and responsibilities to parenthood.
There has been no question of the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and their mother.

Effect of change

The eldest daughter may suffer a short term loss arising from the reduced time that she spends with her father but part of that change is brought about by the circumstances in which she and her parents find themselves. The eldest daughter has to start school. The parents live a long way apart in terms of the amount of time that it takes to travel between the two residences by public transport.
The orders have been structured so as to minimise the effect of the change to the middle daughter of increased time with her father and her being weaned from her mother.

Practical difficulty and expense of being with and in touch with other parent

As the crow flies, the parties only live 12 kilometres apart. The mother lives at H. The father lives at B. Annexure F to the mother’s affidavit provides a map.
If one or other of the parties had a motor vehicle then the amount of interaction that both parents could have with the children would be significantly increased. Currently a round trip by public transport from the mother’s home to the father’s home takes about five hours.
The mother does not have a licence or a motor vehicle or access to a motor vehicle. Not withstanding the short distance, the mother’s evidence is that given she has no car she has to use public transport in order to make a trip between H and B. Her evidence is that by public transport the trip is an hour and a half to two hours one way. She catches a bus into W and then another bus out to B and a further two buses to get home. The round trip is therefore one that takes, at best, about five hours. She says it can take longer on weekends when the waiting time for buses is longer. She has to take the youngest daughter on the bus with her. She says that travelling with the pram and two other younger children and all their belongings is extremely difficult and I accept that that is so.
The father has a motor vehicle licence. On occasions he can obtain access to a motor vehicle but was not prepared to concede that that was something he could ordinarily do. He had a motor vehicle at least up until the latter part of 2006 but chose to dispose of that motor vehicle.
His evidence before me in relation to his financial circumstances was that he was unable to pay on a regular basis for the cost of petrol or the maintenance of a motor vehicle. I have some reservation about this evidence. His evidence (if it can be accepted) that the reason he was late on the second morning of the hearing was that he had to go and work as a builders labourer. When asked how much money he is able to earn on an annual basis by working as a builders labourer he indicated it was $500 per annum.
I indicated during the hearing that in the event that either party obtained the regular use of a motor vehicle I would consider an arrangement that would extend the time that the father had with the children so that he could become a little more involved in their school activities than the current orders allow. Obtaining that flexibility with transportation would in my view be a significant changed circumstance from the situation that presents itself in the evidence before me and would open up additional possibilities of the children spending time with him during at least some part of the school week.
The father pays only minimal child support. The father proposes the parties share transportation with each of them meeting at W. That has the inherent risk of people not turning up on time. It would be better if one parent took the children the whole distance. The father’s earning capacity is better than the mother’s. The mother would have to travel with all three children. It is easier for the father to do the travelling and I’ll make an order accordingly.

Family violence/any family violence order

The mother obtained an interim AVO at the date of separation but no final AVO was made. There is no existing order.
There is evidence in the mother’s affidavit that the father perpetrated some domestic violence during the marriage. However, apart from one allegation that he attempted to strangle her (an allegation which was not referred to in submissions nor was the father asked any questions about it), there is no evidence that the father was involved in serious domestic violence. The father told Dr R that he had grabbed the mother’s little finger once to get hold of the eldest daughter. This was at the time of the separation. The mother did not say she currently feared the father.

The order least likely to lead to the institution of further proceedings

I intend to make an order that will allow me to remain as the managing judge in this case. The primary reasons for this is to deal with any issues in relation to contravention of orders but also to deal with any application based on changed circumstances arising from the effect of the distance the parties currently live apart in terms of travelling time and arising from any dispute once things settle down in terms of extending the children’s time with their father during school holidays.

EQUAL SHARED PARENTAL RESPONSIBILITY AND THE CHILDREN’S TIME WITH THEIR FATHER

Neither party has applied for an order for equal shared parental responsibility. The Family Law Act presumes that the parties will have equal shared parental responsibility. Whilst it is probably not mandatory for me to do so given that no order is being made or proposed, I will consider whether or not it is in the best interests of the children for them to have equal time with both parents or for there to be significant and substantial time with the parent with whom they do not ordinarily reside.
There is one specific issue in relation to the children’s school that I will deal with separately (see below).
The travelling time between the parties’ homes is one reason why equal or substantial and significant time is not practicable. At this stage it is logistically impossible because of the amount of travelling time between the residences of each of the parents. As I have commented elsewhere, that circumstance may change in the future and some greater flexibility might then be available.
However, the most important reason why equal or substantial and significant time is not appropriate relates to the father’s mental health and the fact that he does not have good insight into his overvalued paranoid ideas. Some limit has to be placed on the children’s time with their father so as to place some limit on the risk that they might become enmeshed in his distorted views about others.

CONCLUSIONS

It is important for the three girls to grow up together.
I accept that the eldest daughter has a close bond with her father.
The father reacts badly to stress and in particularly he has reacted badly at times to the processes involved in this court hearing. This is partly due to his medical condition and partly due to things that have happened to the father in the past, during previous litigation. The father has experienced unfavourable outcomes from previous processes involving other children (including being restrained from seeing his two sons for a period of two years).
The father’s character traits of being impulsive and exhibiting anger have to be balanced against the positive things that the father can offer his children as a father.
The father said things during the trial that hopefully, when away from the stress of this process, he will rethink, for the sake of the girls, with a less impulsive judgment. Examples are:-
133.1.If he can’t have [the eldest daughter] with him full time he will walk away from her, the middle and youngest daughters for ever.
133.2.He was only a sperm donor for the youngest daughter.
It is important for all of the girls for the father to participate in their lives in the future.

PROPOSED ORDERS

The mother’s application that the father’s time with the children be linked to the father obtaining appropriate medical treatment

The mother’s application links the time that the father will have with his daughters with the father accepting treatment and providing satisfactory medical reports to the mother.
I accept the Independent Children's Lawyer’s submission that orders of that nature are setting up a situation which has a high probability of failing. It is highly probably that the result of any such order would be that the father is excluded from the girls’ lives.

School

Given that I have decided that all three children should be together and reside with their mother most of the time, it is appropriate to adopt the mother’s proposal in relation to schooling. The girls will go to a school that is within walking distance from the mother’s residence.
It is unfortunate that the father commenced the eldest daughter at the B school prior to the court having an opportunity to make a decision about which school she goes to.
The events of 31 January and 1 February mean that the father is unlikely to be co-operative in respect of issues in respect of schooling and for that reason it’s appropriate for the mother to have sole decision making in relation to the schooling of the girls.

The mother’s ability to go to Queensland

The mother in her application has applied for the flexibility of being able to go to Queensland for a 14 day period once a year to see her family. The mother has no family in Sydney. The mother gave evidence that her family would fund trips for her.
The mother conceded that her own mother drank three glasses of wine a night. Notwithstanding that evidence, I am satisfied that it would be in the mother’s best interest to have regular contact with her family in Queensland if she is able to arrange that. The girls would also benefit from the interaction with their extended maternal family and from the benefits the mother herself will receive from the holiday. The Independent Children's Lawyer suggested that the mother have the flexibility on two occasions a year to take a trip away and I accept that there are benefits for the children in making such an order.

School holidays

I have not made any order for school holidays at this point in time. I have made an order that the parties can agree on extensions of time between themselves. If that is not possible then the matter can be brought back before me for the purpose of considering an extension in relation to school holidays. Given the attitudes articulated by the father during the hearing however it is important to allow some time for the parties to put the current orders into operation before extended periods of overnight with the father are contemplated.

The referral of papers

At the commencement of his oral evidence, the father renewed the oath that he took to tell the truth before me. During his evidence the father answered a number of questions about the eldest daughter’s whereabouts on that day. The father later in his evidence, without prompting, indicated that earlier evidence was untrue. I have also made a finding that the father suffers from a psychiatric illness. He did however adequately represent himself and there was no suggestion that any case guardian needed to be appointed. Given that the father has given evidence that prior evidence given on oath was untruthful I am duty bound to refer the papers to the Director of Public Prosecutions.

I certify that the preceding one hundred and forty three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate:

Date: 4.5.07

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MCWATT & EASTHOPE

[2007] FamCA 392

4 May 2007

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