MURDOCK & ELWOOD

[2019] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURDOCK & ELWOOD [2019] FCCA 1868

Catchwords:
FAMILY LAW – Best interests of the children – living arrangements – equal shared parental responsibility – poor school attendance – child neglect.

LIVING ARRANGEMENTS – Involvement by the Department of Health and Human Services – involvement of Victoria Police – possible exposure to sexual assault in maternal household by the maternal grandfather and the maternal uncle – considerations of drug addiction and family violence – whether the father can remain abstinent from alcohol and illicit substances.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2)-(3), 61DA, 64B, 65AA, 65DAA(2)-(3).

Applicant: MS MURDOCK

Respondent: MR ELWOOD

File Number: MLC 3355 of 2016

Judgment of: Judge McNab

Hearing dates: 4 and 5 April 2019

Date of Last Submission: 5 April 2019

Delivered at: Melbourne

Delivered on: 5 July 2019

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Morrison & Sawers

The Respondent: In Person

Counsel for the Independent Children’s Lawyer : Mr Allan

Solicitor for the Independent Children’s Lawyer : Sofra Solicitors

ORDERS

1. All current parenting orders be discharged.

2. The Applicant mother (‘the mother’) and Respondent father (‘the father’) have equal shared parental responsibility for [Y] born … 2011 (‘[Y]’) [X] born … 2016 (‘[X]’) (‘the children’).

3. The children live with the mother at times that they are not living with the father as provided for in Orders 4 to 12.

4. The children live with the father:

   (a)on a four-week cycle, from 6pm on Friday to 6pm on Sunday for three consecutive weekend (with the fourth weekend off), commencing on 12 July 2019; and

   (b)unless otherwise provided by this Order, if the father’s time coincides with a long weekend arising from a non-school day or public holiday, then the father’s time shall be extended to include those additional days:

   (i)if the additional non-school day or public holiday is a Friday, then the father shall have the children from 6pm Thursday; and

   (ii)if the additional non-school day or public holiday is a Monday, then the father shall have the children until 6pm Monday.

5. Notwithstanding any other order, the children spend time with each party during school holiday periods as follows:

   (a)with the mother in the first half of the school holidays in 2019 and each alternate year thereafter and the second half of the school holidays in 2020 and each alternate year thereafter; and

   (b)with the father, if the father’s work schedule permits, in the second half of the school holidays in 2019 and each alternate year thereafter and the first half of the school holidays in 2020 and each alternate year thereafter.

6. For the purposes of Order 5 above:

   (a)the school holidays shall be the school holidays as determined by the Victorian government in each year;

   (b)the school holidays shall be deemed to commence at 6pm on the last day of the school term;

   (c)the middle of the school holidays that fall at the end of Terms 1, 2 and 3 shall be deemed to be 6pm on the Saturday that falls in the middle of the school holiday period;

   (d)the middle of the school holidays that fall at the end of Term 4 shall be deemed to be 6pm on the Saturday that falls at least 3, and no more than 4 weeks after the commencement of the school holidays; and

   (e)the end of the school holidays shall be deemed to be 6pm on the day before the new school term begins.

7. Notwithstanding any other order, the children spend time with each party during the Christmas period each year as follows:

   (a)with the father from 3.30pm on Christmas Eve to 3.30pm on Christmas Day in 2019 and each alternate year thereafter and from 3.30pm on Christmas Day until 3.30pm on Boxing Day in 2020 and each alternate year thereafter; and

   (b)with the mother from 3.30pm on Christmas Day until 3.30pm on Boxing Day in 2019 and each alternate year thereafter and from 3.30pm on Christmas Eve to 3.30pm on Christmas Day in 2020 and each alternate year thereafter.

8. Notwithstanding any other order, the children spend time with each party during the Easter period each year as follows:

   (a)with the mother from the conclusion of school on the Thursday before Good Friday to 6pm on Easter Saturday in 2019 and each alternate year thereafter and from 6pm on Easter Saturday until the commencement of school on the following Tuesday in 2020 and each alternate year thereafter; and

   (b)with the father from 6pm on Easter Saturday until 6pm on Easter Monday in 2019 and each alternate year thereafter and from 6pm on the Thursday before Good Friday to 6pm on Easter Saturday in 2020 and each alternate year thereafter.

9. Notwithstanding any other order, the children spend time with each of the parties on each of the children’s birthdays as follows:

   (a)In 2019 and each alternate year thereafter from either the conclusion of school or 3.30pm (if on a non-school day) on the night before the birthday either until either the commencement of school or noon (if on a non-school day) on the birthday with the mother and from the conclusion of school or noon (if on a non-school day) on the birthday until either the commencement of school or noon (if on a non-school day) on the day after the birthday with the father, if the father’s work schedule permits; and

   (b)In 2020 and each alternate year thereafter from either the conclusion of school or 3.30pm (if on a non-school day) on the birthday until either the commencement of school or noon (if on a non-school day) on the day after the birthday with the father (if the father’s work schedule permits) and from the conclusion of school or noon (if on a non-school day) on the birthday until either the commencement of school or noon (if on a non-school day) on the day after the birthday with the mother.

10. Notwithstanding any other order, in each year the children spend from either the conclusion of school or 3.30pm (if on a non-school day) on the day before the mother’s birthday until either the commencement of school or noon (if on a non-school day) on the day after the mother’s birthday and with the father from either the conclusion of school or 3.30pm (if on a non-school day) on the day before the father’s birthday until either the commencement of school or noon (if on a non-school day) on the day after the father’s birthday, if the father’s work schedule permits.

11. Notwithstanding any other order, the children shall spend time with the Mother from 6pm on the Saturday immediately preceding Mother's day until the commencement of school on the following Monday; and

12. Notwithstanding any other order, the children shall spend time with the Father from 6pm on the Saturday immediately preceding Father's day until 6pm on Sunday.

13. Changeover of the care of the children shall occur as follows:

    (a)if the changeover occurs at a time that the children are attending school the parent with whom the children have been living or spending time (or that parent’s nominee) deliver the children to school at the beginning of the school day and the other parent (or that parent’s nominee) collect the children from school at the end of the school day; and

    (b)if the changeover occurs at a time that the children are not attending school, changeover shall occur at Suburb L Police Station.

14. The times that the children live with and spend time with each of the parties may be altered by agreement between the parties.

15. Each parent be at liberty to communicate with the children by telephone between 5pm and 7pm each weekday or 4pm to 6pm on the weekends, and the parent with whom the children are living or spending time shall ensure that the children are available to speak with the other parent during those periods.

16. Each parent be at liberty to communicate with the children by email, text message, Skype or other such electronic means.

17. The children shall attend upon a general practitioner at the Victorian Aboriginal Health Service, Street M, Suburb N for:

    (a)a referral to a Paediatrician for a full health check for both children; and

    (b)to obtain a Mental Health Care Plan for [Y] and referral to a culturally sensitive and specific Psychologist or program,

18. The mother attend therapeutic counselling in relation to her history of trauma and mental health issues through the Aboriginal Health Service accessed through Aboriginal Healing Service.

19. The mother authorize all schools, kindergartens and daycare centres at which the children may attend, from time to time, to:

    (a)provide the father, at the expense of the father, copies of all reports, notices and photographs in relation to the children;

    (b)communicate with the father, either by telephone, in writing or by personal attendance, in respect to the children’s progress at their respective schools, kindergartens and daycare centres;

    (c)attend all school, kindergarten and daycare centre function to which parents are normally invited;

    (d)subject to any school, kindergarten and daycare centre policy in relation thereto.

20. The mother and father will sign authorize any medical practitioner upon which the children, or either of them, may attend from time to time, to communicate with the Mother in respect to the children’s medical condition and/or requirements.

21. Each parent keep the other informed as to any serious illness, accident, hospitalisation or medical condition with respect to the children while the children are in that parent’s care and keep the other informed of any medication to be taken by the children.

22. Until [X] is 18 years of age, the parties keep each other informed of their respective residential addresses and telephone numbers (including home landline, work landline and mobile) and, for the purposes of this order, advise the other party of any changes to these contact details within 24 hours of such change occurring.

23. The father, his servants and agents be and are hereby restrained by injunction from

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the mother, and

    (b)discussing these proceedings,

    (c)to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.

24. The mother, her servants and agents be and are hereby restrained by injunction from

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating the father; and

    (b)discussing these proceedings,

    (c)to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.

25. The mother, her servants and agents be and are hereby restrained by injunction from:

    (a)leaving the children in the unsupervised care or company of the Maternal Grandfather MR E born … 1946 or the Maternal Uncle, MR B born … 1990; and/or

    (b)allowing either the Maternal Grandfather MR E born … 1946 or the Maternal Uncle, MR B … 1990 as being the supervisor; and/or

    (c)allowing MS A born … 1994 to act as a supervisor when the children are in the company of those persons.

26. For 24 hours immediately prior to the commencement of any time spent with the said children (including any period during which the said children live with the parents), and during all such time spent, the mother and father be restrained by injunction from ingesting, consuming or using, otherwise being under the influence of, alcohol or any legal or illegal drug or substance, (or having a BAC above 0.05), save and except for:

    (a)any legal medication prescribed for the relevant party by a registered medical practitioner, and taken or used by the relevant party strictly in accordance with such prescription; and

    (b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the relevant party strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

27. The Father, the Mother and/or the Independent Children's Lawyer shall be at liberty to provide a copy of these Orders to any one or more of the following:

    (a)the Principal/Manager or delegate of the Principal/Manager of the school, kindergarten or daycare centre attended from time to time by the children;

    (b)any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the Mother or the Father;

    (c)the relevant Regional Director of the Department of Health Human Services;

28. The Independent Children’s Lawyer explain these Orders to the parties (if they are unrepresented).

29. The Independent Children’s Lawyer shall serve a copy of these Orders and these reasons on the Department of Health and Human Services.

30. From 2 months of this Judgement being delivered, the Order of the Court appointing the Independent Children's Lawyer be discharged.

31. The parties be at liberty to apply on short notice.

IT IS DECLARED THAT:

1. It is in the best interests of [Y] born … 2011 (‘[Y]’) and [X] born … 2016 (‘[X]’) to be known as

   (a)[Y]; and

   (b)[X].

IT IS ORDERED THAT:

1. Each of the mother and father henceforth exclusively use the surname ELWOOD-MURDOCK as the surname of the said children (until now known as [Y] and [X]  and not cause or permit any other person to use any names other than [Y] and [X] as their names.

2. The mother and father be authorised to apply to the Registrar of Births, Deaths and Marriages to change the name of the children previously registered as [Y] and [X] to ELWOOD-MURDOCK, and the said Registrar do register the said children’s name as [Y] and [X].

3. The mother and father do all such acts and things and sign all such documents as may be required to give effect to these orders.

4. A sealed copy of these orders be served by the mother upon the Registrar of Births, Deaths and Marriages who IS REQUESTED to give effect to them, and to any application made to the Registrar pursuant to them.

AND THE COURT NOTES THAT:

1. Where possible, the children should access the Suburb L and District Aborigines Co-Operative Ltd, Suburb L in relation to any health issues.

2. The children may obtain a Mental Health Care Plan from the Australian Childhood Foundation via Aboriginal Healing Service, Suburb DD.

3. The issues to be addressed with the psychologist include a history of trauma, behavioural difficulties, exposure to family violence between his parents and possible exposure to influence by his mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3355 of 2016

MS MURDOCK

Applicant

And

MR ELWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter was the subject of final hearing on 4 and 5 April 2019 in relation to the parental responsibility and parenting arrangements of [Y] born … 2011 (eight years old) and [X] born … 2016 (three years old) (‘the children’).

2. The parents are MS MURDOCK born … 1988 (aged 31 years) (‘the mother’) and MR ELWOOD born … 1968 (aged 50 years) (‘the father’).

3. The children currently live with their mother at a two-bedroom rental property in Suburb EE. They reside there with their maternal Aunt, Ms A (‘Ms A’) and their cousin, [Q].

Orders sought

1. By an amended initiating application filed 5 March 2019, the mother seeks orders, amongst other things, providing:

   a)her to have sole parental responsibility of the children;

   b)the children spend time with the father:

   i)each alternative weekend from the conclusion of school on Friday until 4pm Sunday;

   ii)subject to him being able to take leave from his employment, for one week of each term holiday; and

   iii)on special occasions including birthdays, Christmas, and Father’s Day.

2. The orders proposed by the mother also seek a restraint in relation to the parents leaving the children in the unsupervised care of the children's half-sister, Ms D, their half-brother, [F], their maternal grandfather, Mr E, and their maternal uncle, Mr B.

3. The father’s position, which he raised at trial, was that the children should live with him. He presented his case in this manner, proposing that he would be able to manage his full-time job while caring for [F] (his son, aged 16) and the children.

4. This position differs from his brief trial affidavit which was sworn on 2 April 2019. In that affidavit he stated that he had read the Family Report and the Case Outline provided by the Independent Children’s Lawyer (‘ICL’), stating that ‘I would like to acknowledge and accept [...] my shortcomings both current and historical, have been highlighted’. He accepted the recommendations made by the Family Consultant, subject to suggesting that:

   alternate weekends are more suitable as I work full time and enjoy weekends with my kids, paternal family […].

5. He also suggested that there should be more unsupervised phone calls and FaceTime with the children.

6. The father also relied upon an affidavit sworn 18 November 2016 made in response to the initiating application.

7. The ICL adopted the recommendations of the Family Consultant that the children live with the father and spend significant and substantial time with the mother.

8. For the reasons set out below, the Court has not adopted the recommendations made by the Family Consultant or the ICL. The Court will make Orders that the children remain living with the mother, and with the father increasing his time with the children. The Court has made this decision principally on the basis that the evidence did not support a finding that the father was in a position to assume primary care of the children.

Background

Family Network

1. Due to the extended relevant family networks in this matter, I reproduce (in part) a table provided by DHHS:[1]

   [1] I do not reproduce the children’s details as they are above.

Name	Date of Birth	Relationship to the children	Living arrangements  and relationship
Ms Murdock	… 1988	Mother	Suburb EE
Mr Elwood	… 1968	Father	Suburb FF
[F]	… 2002	Half-brother (son of the father)	Lives with the father
Ms D	… 1991	Half-sister (daughter of the father)
Mr H & Ms G	… 1946 & … 1946	Paternal grandparents
Ms R	… 1966	Maternal Grandmother
Mr E	… 1946	Maternal grandfather
Mr B	… 1990	Uncle (mother’s brother)	Partner of Ms A
Ms A	… 1994	Maternal Aunt (partner of Mr B)	Lives with the mother
[Q]	… 2013	Cousin – maternal (daughter of Ms A)	Lives with the mother

Chronology

1. There is an extensive and well documented history – predominantly by the Department of Health and Human Services (‘DHHS’) – into this mater.

2. The chronology, as reproduced below, sets out an overview of the issues in the matter: long-term drug and alcohol abuse; the father's incarcerations for violent offences; frequent interventions by DHHS in relation to both parents and their treatment of the children; allegations of sexual offences against children involving the maternal uncle and the maternal grandfather; and significant family violence.

3. The chronology, as provided by the ICL, shows:

Date

Event

… 1968

Father born.

… 1988

Mother born.

… 1991

Father’s child, Ms D, born (28 years).

… 1993

Father’s child, Ms C, born (25 years).

… 1995

Father’s child, Mr H, born (23 years).

1998

Maternal Grandfather, Mr E,[2] pleads guilty to indecent assault of a child and sentenced to 9 months imprisonment.

Maternal Grandfather charged with sexually assaulting the Mother. Maternal Grandfather acquitted of those charges.

… 2002

Father’s child, [F], born (16 years).

… 2009

Parties commence cohabitation (mother aged 21, father aged 41).

Late 2010

Parties separate and Mother moves back into her parents’ home after becoming pregnant with first child.

… 2011

Father incarcerated for causing serious injury (6 months) after assaulting a neighbour.

Mother commences visiting Father in prison and the parties reconcile.

… 2011

[Y] born.

… 2011

Father released from prison and parties return to live in Melbourne.

14/10/2013

Protection Application issued in relation to [Y] and [Y] placed primarily in the Father’s care.

26/10/2014

Mother calls after hours Child Protection and police attend the home and locate an ice pipe, two paper bags filled with syringes, a blood filled syringe and a bong.

Mother alleges drugs and paraphernalia belong to the Father.

[Y] was placed in the care of the Father’s eldest daughter, Ms D (… 1991).

Mother returns to live with her parents in Town GG.

21/11/2014

DHHS seek Supervision Order placing [Y] in the Mother’s care in Town GG.

12/12/2014

Mother obtains full IVO against the Father.

February 2015

Parties recommence relationship.

May 2015

Parties separate on a final basis.

… 2016

[X] born.

18/04/2016

Mother commences proceedings in the Federal Circuit Court

23/05/2016

Orders made in the Federal Circuit Court at Town HH providing, inter alia, as follows:-

a)   ICL be appointed;

b)   the Father file and serve responding material within 28 days;

c)   Mother have sole parental responsibility for the children;

d)   Children spend time with the Father at the Berry

Street Contact Centre, Town HH;

e)   the Father undertake supervised drug screens;

f)    the Father obtain a Psychiatric Report;

g)   the Father undertake drug and alcohol counselling; and

h)   Proceedings adjourned to 15/08/2016

15/08/2016

The Father having not completed his responding material, the matter was adjourned to 28/11/2016

18/11/2016

Mother relocates with the children to Suburb P.

28/11/2016

Orders made in the Federal Circuit Court at Town HH providing, inter alia, as follows:-

a) the matter be transferred to the Federal Circuit Court at Dandenong for a Duty List Hearing on

21/02/2017; and

b) the parties would enrol in a Children’s Contact Centre in metropolitan Melbourne.

21/02/2017

Father fails to appear at Mention at the Federal Circuit Court at Dandenong.

Orders made providing, inter alia, that the matter be adjourned to 15 August 2017.

March 2017

Berry Street Children’s Contact Centre in Town HH terminate supervised time with the Father, as no longer able to facilitate.

Maternal Uncle, Mr B,[3] commences residing with the Mother and the Maternal Grandparents.

DHHS issue Protection Application in relation to the children due to Maternal Uncle and Maternal Grandfather residing in the home.

Interim Accommodation Order made requiring that Maternal Grandfather and Maternal Uncle leave the home.

30/06/2017

Father commences spending supervised time with the children at the Berry Street Contact Centre at Suburb JJ.

05/07/2017

Children’s Court makes Orders for the Father to spend unsupervised time with the children each alternate weekend from Friday to Sunday and each Wednesday for several hours.

25/07/2017

Orders made in Chambers by Judge Jones adjourning proceedings to 2 November 2017, to allow for Children’s Court Proceedings to be finalized.

30/10/2017

Orders made in Chambers by Judge Jones adjourning proceedings to 8 May 2018, to allow for Children’s Court Proceedings to be finalized.

15/12/2017

Mother applies for IVO against the Father and obtains Interim Order.

15/01/2018

Psychological Report of the Maternal Grandfather prepared in Children’s Court proceedings by Dr S, concluding that the psychiatrist had no serious concerns about the children spending time with the Maternal Grandfather.

02/05/2018

Department withdraws involvement with the children, and Children’s Court proceedings dismissed.

08/05/2018

Orders made by Judge Riley in the Federal Circuit Court at

Dandenong providing, inter alia, as follows:-

a)   The Mother be restrained from bringing the children into contact with the Maternal Grandfather and Maternal Uncle;

b)   The children spend unsupervised time with the Father each Wednesday from 5.00pm to 7.00pm and each alternate weekend from 3.30pm Friday to 4.00pm Sunday;

c)   Father undertake supervised urine drug screens as requested by the ICL; and

d)   the matter be adjourned to 22 August 2018 for Directions.

31/05/2018

Drug screen requested of the Father by ICL.

No results received.

25/06/2018

Drug screen requested of the Father by ICL.

No results received.

26/07/2018

Drug screen requested of the Father by ICL.

No results received.

22/08/2018

Orders made by Judge Harland in the Federal Circuit Court at Dandenong providing, inter alia, as follows:-

a)   a Family Report be prepared; and

b)   the matter be adjourned to 4 April 2019 for Final Hearing (2 day estimate).

27/09/2018

Drug screen requested of the Father by ICL.

No results received.

December 2018

Mother’s IVO application listed for final hearing. Mother withdraws her IVO application.

18/12/2018

Drug screen requested of the Father by ICL.

No results received.

19/02/2019

Parties and children attend for interviews with Family Consultant Ms J.

14/03/2019

Family Report of Family Consultant Ms J released, recommending, inter alia, as follows:-

a)   equal shared parental responsibility;

b)   the children live with the Father;

c)   the children spend time with the Mother 3 out of 4 weekends from after school Friday until before school Monday, each alternate Wednesday from after school to before school Thursday, and half school holidays;

d)   injunction against the Mother from bringing the children into contact with the Maternal Grandfather and Maternal Uncle; and

e)   the children’s names be hyphenated.

[2] Chronology amended from Mr E to Mr E

[3] Chronology amended from Mr B to Mr B.

Relevant Family Background

1. The Family Report prepared by the Family Consultant, Ms J, provides an in-depth background into this matter. The Family Consultant reiterated what is evident from the chronology, that since meeting in 2009, the lives of the parents have been marked by significant alcohol and drug use, mental health issues, and the incarceration of the father for offences involving violence on third parties.

2. The mother has been the subject of numerous reports involving concerns in relation to her parenting capacity. These reports, predominantly from DHHS, are referred to in detail by the Family Consultant. In 2013 the family were labelled by the Victoria police family violence unit as a ‘high risk family’. [4] It was reported that the family were ’at crisis point’.[5]

   [4] Family Report by Ms J, 14 March 2019 [18].

   [5] Family Report by Ms J, 14 March 2019 [18].

3. In 2014, at a time when the parties were living together after having previously separated, the police attended their home and found the father intoxicated. The police located drug paraphernalia (including syringes) and transported the mother and [Y] to Suburb FF police station. [Y] was then placed in the care of Ms D for a period, until the paternal grandparents were able to take care of him.

4. The Family Consultant raised the particular concerns of DHHS regarding the children’s exposure to possible sexual assault by the maternal uncle and maternal grandfather. It appears on the face of the records maintained by DHHS that the mother has not acknowledged the gravity of this issue.

Current Arrangements

The mother’s current arrangements

1. The concerns regarding the children’s exposure to sexual assault is due to their living arrangements. The children currently live with their mother at a two-bedroom rental property in Suburb EE. They reside there with their maternal Aunt, Ms A and Ms A’s daughter (their cousin), [Q].

2. The difficulty with this arrangement is Ms A’s partner, Mr B (‘Mr B’) (who is the mother’s brother). Mr B has been the subject of serious allegations of sexually assaulting a child, which is recorded in the subpoenaed records from DHHS. The documents disclose that on 10 August 2017 a video of the alleged victim recounting the assault was assessed as providing ‘clear and detailed disclosures of sexual abuse perpetrated by Mr B against the five-year-old victim’.[6] There is no evidence before the Court that Mr B has been charged with any offence against that child, however the Court proceeds on the basis that DHHS hold significant concerns about the children being left alone with him unsupervised.

   [6] Subpoenaed documents from Child Protection page 157 of 173.

3. The mother asserted in her evidence that, notwithstanding that Ms A was in a relationship with Mr B and that Mr B would spend time at the house, Mr B spent no unsupervised time with the children. I do not accept that, in circumstances where Mr B is in a relationship with Ms A and she is residing in a house with the children, there would not be times when Mr B would spend unsupervised time with the children. Whilst the mother has sought orders that the children not spend unsupervised time with Mr B, she did not appear concerned about the children spending time with him.

4. There is also a significant issue arising in relation to the children having unsupervised contact with the paternal grandfather, Mr E (‘Mr E’). Mr E, as noted in the chronology and in the DHHS reports, served a nine-month sentence for Indecent Assault of a Girl in 1998.

5. The mother’s lack of concern regarding these allegations has been a significant issue for DHHS and the Family Consultant. A report from DHHS, dated 10 July 2018, makes reference to the interview with the mother in the following terms:

   [The mother] was advised of the new report in relation to her brother. [The mother] provided contradictory statements in her interview and initially advised that [Mr E] had no unsupervised contact with [the children]. [The mother] then acknowledged that [Mr E] did have unsupervised contact with [Y] on at least six occasions. [The mother] denied the allegations and stated that the concerns against her brother, [Mr B] were absolutely false and completely ridiculous. [The mother] admitted that she held no safety concerns leaving [the children] with [Mr E]. [The mother] was uncertain about her own sexual abuse history. [The mother] stated that [Mr E] poses no risk and I trust him implicitly with my welfare, my niece’s welfare and my children.[7]

   [7] Subpoenaed documents from Child Protection page 146 of 173.

6. On page 147, the DHHS interviewer relates an interview with Mr E:

   [Mr E] was questioned in relation to his sexual offending history. [Mr E] was polite and willing to be interviewed. [Mr E] advised that the reported concerns in relation to his son was ‘a witch hunt’. [Mr E] stated that his time in prison was ‘supposed to have been about “sexual molestation” but that he did not recall the victim’. When asked about the alleged sexual abuse of his daughter, [the mother], [Mr E] alluded that it may have been someone else that ‘tampered with her’.

7. The report also makes reference to the maternal grandmother having been previously assessed as a non-protective person in the home ‘given the established pattern and history of non-adherence to safety plans on continuing to facilitate access to children, despite the high likelihood and significant risk of sexual abuse’.

8. The subpoenaed notes of 10 July 2018 conclude:

   this is the 11th report to [Child Protection (‘CP’)] for [Y] and the fourth report for [X].

   There has been a long history of CP involvement with the family in relation to the children's exposure to family violence; parental drug and alcohol use; significant concerns regarding the mother's mental health; environmental neglect; poor parenting skills and a refusal to engage on a sustained basis with CP or support services.

The father’s current arrangements

1. The father told the Family Consultant that he currently rents a two-bedroom unit in Suburb FF which he shares with his son, [F]. He further stated that ‘when the children spend time with him they share the bedroom where [F] usually sleeps and [F] sleeps on the couch. [The father] advised that [X] frequently co-sleeps with him’.[8]

   [8] Family Report by Ms J, 14 March 2019 [5].

2. The Family Consultant noted that the father has four other children to two different relationships. Three of these children were from a seven year marriage: Ms D, Ms C and Mr H. At the time of the report being written, they were 28, 26 and 24 respectively. [F], mentioned above, is 16 and from a subsequent relationship to this marriage. The father also has one granddaughter, [KK] (the child of his eldest daughter, Ms D). [KK] lives her maternal great-grandparents ([Y] and [X]’s paternal grandparents).

3. The father is employed full-time as a tradesman which is reasonably local to his residence. He works Monday to Friday from 7am to 3pm, although he does considerable overtime finishing at 5pm. He earns about $70,000 a year but does not pay child support.

Evidence

The mother

1. The mother relied on:

   a)her trial affidavit sworn 5 March 2019; and

   b)the Family Report prepared by the Family Consultant dated 14 March 2019.

2. At the hearing, the mother gave evidence that she is currently unemployed and is supported by the parenting payment scheme through Centrelink. She stated that her finances were very limited and her long-term plans were to move to Town HH which she thought would be more affordable. She gave evidence that she wished to work as a health care worker and that she had previous work experience as a customer service officer but had not worked since about 2004.

3. It was the mother’s evidence that she did not use medication. She does drink alcohol, but not to excess, and stated that she had linked with a counsellor.

4. The mother acknowledged that she has had issues in having [Y] attend school and having [X] attend kindergarten. The Court heard evidence that the mother had episodes where she had been unable to get out of bed to get her son to school and her daughter to kindergarten. She said that recently she had been better and that whilst [Y] continued to be late for school, he was missing less days.

5. The mother told the Court that, despite previously being ordered to have [Y] assessed by Dr T, she stopped going to Dr T because she couldn't afford to meet the fee. The cost that the mother found prohibitive was the cost of travelling to Dr T once per month (as the sessions were free).

6. The mother gave the impression that she was not motivated to obtain assistance for herself to address what appears to be long standing mental health issues. The image presented by [Y] in relation to how he copes with his mother's incapacity was saddening. At [89] of the Family Report the Family Consultant stated:

   [Y] spoke about the things he enjoys at his mother’s house including the PS4 and watching his mother play “Fortnight” which he stated she “plays a lot.” He advised that he has his own bed at his mother’s but enjoys sleeping in his mother’s bed and watching Netflix with her. He then stated “when she is sad I get her chocolate” and “she spends a lot of time in bed.” He advised that he misses school because his mother does not get out of bed or he is late. He stated “I don’t like it, I miss maths.” He advised that when his mother does not get out of bed he takes care of [X] and his niece, [Q]. He advised he gets them breakfast, either Nutrigrain or Weetbix and he gets upset when “they don’t say thank you.” He reported that his aunty Ms A does not help because she stays in bed playing X-box. He advised that this makes him feel sad. When [Y] was talking he was quiet, withdrawn, sitting on the floor and looked sad. He advised that on a scale of 0 – 10 (0 being really sad and 10 being super happy) he reported feeling 3.

The father

1. The father filed two affidavits in this matter: the first on 18 November 2016 and the second on 4 April 2019.

2. The father gave evidence that he lives in a rented house in Suburb FF with his son, [F]. He lives reasonably close to his parents (the paternal grandparents) who live in Suburb LL.

3. The father’s proposal to care for the children recognised the importance of their indigenous heritage. He stated that he would ensure that both children were engaged in appropriate activities linking them with their aboriginal heritage, including Koori football at the Suburb U Koori Auskick.

4. He said that if he was to have the full-time care of the children that he would book [Y] into the same school his granddaughter (being his daughter’s daughter) attends.

5. The Court questioned the father on how he would manage to look after the children: how he would get them to school or child care while maintaining his employment. The father stated that he plans to drop [X] off at the local early learning Centre at about 6:30am and place [Y] in the before school program at about 7am before commencing work. He said that he had been employed with his current employer for about four months and that there was some flexibility in the workplace to cope with his family responsibilities. He hoped that this flexibility would allow him to keep more manageable hours.

6. The mother raised concerns about [F] and his purported cannabis use. The father was questioned on this during cross-examination. He responded that while [F] had experimented with cannabis, he has since stopped. The father said that his son smokes cigarettes and seems more settled since he came to live with him from his mother's house.

7. The father admits to using marijuana and admits that he would fail to provide clean drug screens and that further drug screens would be a waste of time. When challenged as to why he had been unable to stop using cannabis, he described the drug as being like ‘an old comfortable friend’. He said that he had come a very long way in terms of dealing with alcohol and drug addiction and that he was actively attending Narcotics Anonymous. He also acknowledged his long criminal history dating back to when he was a teenager and long periods of alcoholism and drug addiction, including heroin. The father did himself no favours in failing to undergo a drug test that might show that he was free of illicit drugs other than cannabis.

8. I got the clear impression from the father’s evidence that he cares deeply about his children. He also acknowledged his shortcomings and accepted that simply acknowledging past wrongdoing or shortcomings did not necessarily provide a basis for confidence about the future.

9. I also got the impression that he is so used to telling his story of addiction and other difficulties to counsellors and others who have an interest in him that he has developed the ability to tell people what they want to hear. His plans for a very active involvement with these young children and the assumption of full time care does not marry with the picture presented by the chronology of events as it relates to him: the mother’s trial affidavit, which he did not challenge, deposed to the father only exercised his weekly Wednesday night visit with the children 6 times since 22 August 2018. His marked lack of involvement in these proceedings also speaks volumes: the father acknowledged that people can, to use his expression, slip into rhetoric when discussing their rehabilitation as a means of glossing over difficulties.

The Independent Children’s Lawyer

1. The ICL relied on:

   a)the Family Report prepared by the Family Consultant dated 14 March 2019;

   b)the subpoenaed material from:

   i)DHHS;

   ii)Victoria Police;

   iii)Mr V, Paediatrician;

   iv)Dr T, Psychologist;

   v)Region W Consortium of Alcohol and Drug Agencies;

   vi)Region K Community Health Services; and

   vii)Dr CC, Psychiatrist.

2. The ICL made submissions and proposed orders that were in line with the recommendations made by the family report writer.

Family Report

1. The Family Consultant provided the Court with a comprehensive and helpful Family Report, dated 14 March 2019. The Family Report summarised the affidavits filed by the parties and recounted the interviews that she held with each of the parties and the children on 19 February 2019. The Family Consultant also observed the children’s interactions with their parents, and had telephone conferences with a preschool teacher in relation to [X] and the principal of [Y]’s school.

2. The Family Consultant had further regard to the materials filed in the proceeding including the interim orders made and the significant volume of material subpoenaed from Victoria police, DHHS and various treating medical practitioners and services.

[Y]

1. The Family Consultant reported that [Y] presented as highly anxious, hyper vigilant, hyperactive and frightened during his interview with her. He presented to the Family Consultant as a child who had been interviewed many times – and was suspicious that he was being spoken to by DHHS at the time of the interview.

2. The child spoke warmly of his paternal family and reported that he enjoyed seeing his paternal grandparents together with his cousin.

3. The Family Consultant reported that when [Y] was asked about his maternal family, he immediately withdrew and turned his back. The Family Consultant changed the topic, but questioned [Y] about the maternal family at a later point. [Y] responded by becoming hyperactive and appeared to try and deflect from talking about the maternal family.

[X]

1. [X] was not directly interviewed by the Family Consultant due to her age and stage of development. The Family Consultant reported that [X] ‘presented as energetic, with signs of disinhibited behaviour when relating to adults and incessant chatter’.[9] The Family Consultant further noted that:

   When asked to hold the writer’s hand upon a first meeting, [X] complied without any apprehension. It could not be assessed whether [X] is meeting her developmental milestones, however, these presenting behaviours were concerning.[10]

   [9] Family Report by Ms J, 14 March 2019 [91].

   [10] Family Report by Ms J, 14 March 2019 [91].

Oral evidence of the Family Consultant

1. In her oral evidence, the Family Consultant stated that she held grave concerns about the psychological well-being of the children. She reiterated to the Court that the mother stopped seeing the Court appointed psychologist, Dr T, due to cost of travelling to the psychologist once a month. That was a highly concerning matter to the Family Consultant.

2. The Family Consultant was questioned about the father’s proposal to be the primary carer of the children. The Family Consultant was of the view that waking the children at 5.45am to drop them at before school care was not in the best interests of the children. She stated that children need to sleep between 9 to 11 hours per night. She did, however, comment favourably in relation to the paternal family, stating that it is in the children’s best interests for the paternal grandparents to be involved in the care of the children.

3. The Family Consultant gave evidence that she held great concerns in relation to the maternal grandfather. She noted that he had been assessed as a risk by DHHS, that his crimes are opportunistic, and that the children were in his care unsupervised.

4. The Family Consultant was asked to compare the levels of her concern vis-à-vis the mother and father’s proposals. The Family Consultant noted the mother had a high degree of instability of accommodation, that the mother relies heavily on the maternal family, and there are particular concerns about the mother's mental health and her capacity to care for and parent the children.

5. The Family Consultant appeared to say that the father had a higher parenting capacity than the mother. She commented favourably that the father appeared not to use drugs in the presence of the children, that he is currently enrolled in alcohol and drug addiction assistance programs, and is supported by the paternal family.

6. The Family Consultant, in the context of considering the living and spend-time arrangements, is of the opinion that both parents pose significant concerns and risks for the children. She stated at [114] of the Family Report, that:

   [t]hroughout the children’s short lives, they have lived in the primary care of both parents and at times with members of the paternal family. The DHHS have been a part of [Y] and [X]’s lives since both children were born in relation to high level risk factors in the care of both parents. There are concerns that regardless of what decision is made during these proceedings, there will most likely be an ongoing risk to the children and a role for the DHHS subsequent to the finalisation of these proceedings.

7. The Family Consultant noted there is a risk of both parents reverting to using illicit substances or alcohol when triggered by stress. Her concern was exacerbated in circumstances where neither party has received adequate long-term ongoing treatment.

8. It is also felt by the Family Consultant that the father lacked insight into his role in perpetrating family violence. The Family Consultant reported that he appeared incapable of linking his alcohol or illicit drug use to the allegations of family violence against him and the involvement of DHHS in respect of this family violence. That is, he presented as ‘unable to take any responsibility for his behaviour and lacked insight into the circumstances of family violence and the types of behaviours that contribute to it’.[11]

   [11] Family Report by Ms J, 14 March 2019 [116].

9. The Family Consultant also made reference to the risks of the children being exposed to Mr E and Mr B whilst unsupervised. She was concerned that the mother lacked the protective capacity to ensure the children’s safety by not exposing them to those maternal family members whilst unsupervised. The Family Consultant was concerned that the mother may revert to living with her parents and thereby expose children to risk.

1. It should be noted that the Family Consultant proceeded on the basis that the mother had in fact been sexually abused by Mr E, despite the mother recanting her previous accusations. The Court is not in a position to determine whether or not the abuse took place, but the Court is aware that Mr E has been convicted and jailed for sexual offences involving a child and DHHS have raised concerns regarding the safety of the children in his company.

2. The Family Consultant was also concerned about the proposed living arrangements by both parties as neither parents live in a property that could adequately house the children. The mother’s household has five people living in a two-bedroom unit. Similarly, if the father had the children, there would be four people in a two bedroom apartment. There are, of course, great concerns in relation to the mother’s house due to Mr B (as raised earlier).

3. The Family Consultant placed particular emphasis on the positive benefits of the children’s relationship with their paternal grandparents. She saw this as a major protective factor, particularly given that the paternal grandparents have played a significant role in the lives of the children and the father’s grandchild. They live reasonably close to the father and the father expressed the view that they were able to continue to assist.

Recommendations of the Family Consultant

1. At the conclusion of the report, the Family Consultant made the following recommendations that:[12]

   [12] Family Report by Ms J, 14 March 2019 [126]-[139].

   The parties have equal shared parental responsibility.

   [Y] and [X] live with Mr Elwood.

   [Y] and [X] spend significant and substantial time with Ms Murdock as follows:

   For three weekends out of four from the conclusion of school or childcare on Friday to the commencement of school or childcare on Monday.

   Every alternate week from the conclusion of school or childcare on Wednesday to the commencement of school or childcare on Thursday.

   For half of the school holidays.

   Ms Murdock be restrained by injunction from bringing the children into contact with the paternal grandfather and paternal uncle.

   As the issue of identity for children is important to supporting their long-term emotional wellbeing, it is recommended that the children’s family names be hyphenated.

   Attendance upon a general practitioner at the Victorian Aboriginal Health Service, Street M, Suburb N:

   a referral to a Paediatrician for a full health check for both children; and

   obtain a Mental Health Care Plan for [Y] and referral to a culturally sensitive and specific Psychologist or program, such as the trauma counselling offered through the Australian Childhood Foundation via Aboriginal Healing Service, Suburb DD. The issues to be addressed include a history of trauma, behavioural difficulties, exposure to family violence between his parents and possible exposure to influence by his mother.

   [X] participate in an indigenous playgroup such as those offered through VACCA, or similar at a venue closest to where the children live.

   Consideration be given to [X] participating in the Stronger with Stories program for children under the age of 5 years which promotes connection to culture for Aboriginal children. This program is run by the Australian Childhood Foundation accessed through Aboriginal Healing Service, Suburb DD.

   Where possible, the children access the Suburb L and District Aborigines Co-Operative Ltd, Suburb L, in relation to any health issues.

   Both parties ensure the children participate in appropriate cultural activities, such as:

   local Gathering Places e.g. Suburb AA, Suburb P, Region MM at Street O, Suburb P, or Suburb FF, ;

   Homework club for [Y] as offered through the Gathering Places;

   Indigenous AUSKICK with the Suburb U Koori Auskick, email on … or …;

   NAIDOC week; and

   activities at school.

   The parties be restrained from consuming alcohol to excess or illicit substances 24 hours prior, or in the presence of, the children.

   Mr Elwood continue with his counselling in relation to substance abuse.

   Ms Murdock consider further therapeutic counselling in relation to her history of trauma and mental health issues through the Aboriginal Health Service accessed through Aboriginal Healing Service, Suburb DD.

   That each party, and their agents, be restrained by injunction from:

   Insulting, belittling, abusing or otherwise denigrating the other parent, or a member of their household, in the presence or hearing of the children, and

   Discussing these proceedings or providing documents relating to the proceedings to the children.

Oral Submissions

On behalf of the mother

1. The mother, by her Counsel, made submissions which highlighted the father’s history of alcohol and drug abuse, his family violence, issues associated with [F] living with the father, and concerns about the father’s capacity to look after the children whilst in his current employment.

2. The mother also agreed that the children’s time spent with Mr E and Mr B should be supervised. She also agreed that [Y] should be assessed by a paediatrician but said that she currently wasn’t in the position to afford that.

3. The mother referred to the father’s late filing of material and claimed that he is being contemptuous of the legal process. The mother also raised concerns in relation to the paternal grandparents’ capacity to care for the children given that they were both elderly.

By the father

1. The father made submissions that the mother had been given many chances, had the opportunity to obtain treatment and had failed to undertake any treatment which might assist her. He said that he had no confidence that she would abide by any orders after the Court hearings have concluded, notwithstanding that orders might be made.

2. He said that the mother had consistently discounted the nature of the risk posed by Mr E and Mr B. He proposed the mother be restrained by an injunction from bringing the children into contact with the maternal grandfather and uncle.

3. The father agreed that his employment requires him to start early in the morning, and such early mornings are not ideal for the children. He told the Court he would seek permission from his work to vary his work hours to better accommodate the needs of the children. He also stated he may be able to obtain alternative employment.

4. His affidavit handed up at the start of the trial proposed that, in contrast to him being the primary carer, the children live with him on alternate weekends.

On behalf of the ICL

1. Counsel for the ICL made reference to the fact that both parents suffered abuse as children. The parents have not had easy lives: both parties have been involved in criminal conduct, and have been affected by significant family violence.

2. Counsel noted that for the majority of the children’s lives, they had been neglected. Counsel for the ICL further reiterated the mother’s failure to attend appointments for [Y], based on her unwillingness to pay transport costs once per month.

3. Counsel also made submissions that the mother’s struggle to care for the children was not necessarily a result of lack of funds, but may arise from mental health problems which were largely untreated. The ICL indicated this was causing the children’s poor school attendance and their lateness to school.

4. Counsel referred the Court to pages 89 and 90 of the DHHS reports which commented on the mother’s disorganised household. Counsel further noted that Ms A suffers from depression and offered the mother little support.

5. Counsel for the ICL was very concerned about the proximity of Mr E and Mr B to the children, reiterating what was said by the Family Consultant.

6. Counsel was also aware of the risk presented by the father (particularly arising from his long history with drugs, alcohol and violence).

7. The ICL did submit that the father, on his evidence, was able to engage with [Y]’s homework (particularly maths), and that he appeared attuned to the educational needs of the children.

8. The fact that the father has full-time work was seen as a benefit, but the proposal that was put by the father in relation to the children attending school very early raised concerns. The ICL suggested that there could be an order preventing the children attending school or childcare prior to 7:30am.

Consideration

Parental Responsibility

1. In making a parenting Order (s 64B of the Family Law Act 1975 (Cth) (‘the Act’)) the Court must regard the children’s best interests as the paramount consideration.[13] Accordingly, I must consider the factors in section 60CC of the Act to determine what is in the children’s best interest.

   [13] Family Law Act 1975 (Cth) s 60CA and 65AA.

2. At the hearing each party agreed to equal shared parental responsibility.[14] Neither party urged the Court to make an Order that the children spend equal time with each parent, and in those circumstances the Court must consider whether to make Orders that each parent spend substantial and significant time with the children.[15]

Best Interests of the Children

[14] Family Law Act 1975 (Cth) s 61DA.

[15] Family Law Act 1975 (Cth) s 65DAA(2).

s 60CC(2) – Primary Considerations

s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both the children’s parents

1. It is uncontested that the children should maintain a meaningful relationship with both parents and this includes spending regular time with the non-resident parent.

s 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The ICL’s submissions on this point are instructive:

   The children have been exposed to physical and psychological harm, as follows:-

   both parents have admitted substance abuse during and following the relationship, and the Father has failed to return any clean drug screens;

   both parents have perpetrated family violence during the relationship, the Mother having been charged with and found guilty of assaulting both the Father and the child, [Y];

   the Mother has exposed the children to risk of sexual abuse in the home of the Maternal Grandparents, both from the Maternal Grandfather and the Maternal Uncle. In this regard, the Family Consultant has commented that the Mother “presented with little insight or responsibility for the safety of the children and their exposure to the maternal family”.

   The children need to be protected from any similar circumstances in the future.

2. I accept the ICL’s submission on this point. It is clear that, despite Mr B not having been charged with sexual offences against children, the concerns regarding the children’s safety in the company of Mr B (and Mr E) are genuine and rationally held by DHHS representatives.

3. However, when considering the mother’s position vis-à-vis Mr E, I take into account the risk assessment report prepared on behalf of DHHS by Dr S, a senior clinical psychologist engaged by Forensicare. Dr S’s report, dated 15 January 2018, reflected his observations and testing of Mr E which occurred over 6 hours on 12 and 27 December 2017. Over these two days, Mr E was interviewed and underwent psychometric testing.

4. Dr S’s report is detailed and sets out a personal and family history of Mr E and his offending history. The report notes that based on Mr E’s official criminal record, that ‘he was charged and convicted of Indecent Assault of a Girl in 1998 at the Town BB County Court’.[16] The report further states that ‘[h]e served a nine-month sentence and was released in … 1998’.[17] Mr E was further charged with three sexual offences against his daughter (being the mother) but he was acquitted of these charges. The report also notes that he was charged with a historical sexual offence of indecent assault against his daughter’s classmate, which reportedly occurred in 1972. Otherwise, Mr E does not have any prior convictions nor has he reoffended since his release from prison in … 1998.

   [16] Subpoenaed documents from DHHS; pages 104 of 173.

   [17] Subpoenaed documents from DHHS; pages 104 of 173

5. The risk assessment conducted by Dr S is detailed and sets out the basis for the opinion that Mr E can be considered to be a low risk of sexual recidivism:

   [Mr E] displays few of the risk markers associated with sexual reoffending. After more than 15 years of offence-free time in the community, research has shown that most individuals with a history of sexual offences were no more likely to commit a new sexual offence than individuals with a criminal history that did not include sexual offences.[18]

   [18] Subpoenaed documents from DHHS; pages 108 of 173

6. Under the heading ‘recommendations’, Dr S stated:

   Given that [Mr E] presents with few risk markers for sexual recidivism, and has not reoffended since he was released from prison in 1998 despite having access to his grandchildren since they were born. The writer does not have any serious concerns about [Mr E] having access to his grandchildren. It appears that DHHS’ current concerns about [Mr E] may have been triggered by the allegations against [Mr B]. It is therefore recommended that a safety plan be made to address any concerns that DHHS may have had around [Mr E’s] access to his grandchildren.[19]

   [19] Subpoenaed documents from DHHS; pages 109 of 173

7. The Family Consultant made only passing reference to the report. A close reading of Dr S provides a basis for the mother expressing the view that she is not seriously concerned for her children in the presence of her father. It may be that DHHS and the Family Consultant have viewed the mother’s attitude through the prism of assuming that Mr E is a significant risk to the children when there is expert opinion that suggests that he is not such a risk. If the primary reason for the change of residence is derived from the Family Consultant’s concerns about Mr E then, in the circumstances where there has been an extensive report prepared that says Mr E is a low risk and where there has been no reoffending by Mr E for over 15 years, those concerns can be met with orders recognising the need to protect the children.

8. The need to protect the children from Mr E can be met by an Order preventing the mother or her agents from leaving the children in Mr E’s unsupervised care (or where Mr B is deemed to be the supervisor).

9. The Court also accepts the serious concerns in relation to Mr B, and orders that any time spent with him must be supervised by someone other than Ms A or Mr E.

10. I also accept that neither of the children are thriving in the care of their mother and for these reasons I make orders which adopt the Family Consultant’s recommendations that the children engage with health care professionals.

11. I have made Orders that a copy of these Orders be provided to DHHS and that the parties may apply to the Court on short notice. I expect that the father will be vigilant and protective of his children, and if there is evidence that the children are being neglected or at risk in the mother’s household, then an application may be made. The same position applies to the mother in relation to the children whilst in the care of the father.

s 60CC(3) – additional considerations

s 60CC(3)(a) – Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views

1. Due to their age and the issues involved, the children did not express any clear views on the matter.

s 60CC(3)(b) – The nature of the relationship of the children with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the children)

1. There did not appear to be much difference in how the children related to their parents. The Family Consultant reported that the children were comfortable with both parents; though did not display overt physical affection, particularly towards the father. This is consistent with the submissions put by the ICL.

s 60CC(3)(c) – The extent to which each of the children’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the children; and (ii) to spend time with the children; and (iii) to communicate with the children

1. It was not argued that either of the parents did not love their children. There appeared to be a general understanding that the parents have done the best for their children in their circumstances, and have always sought to spend time and communicate with the children in a meaningful way.

s 60CC(3)(ca) – The extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children

1. The ICL states:

   The Mother alleges that the Father is presenting indebted to the Mother in the sum of approximately $1,000.00 for child support.

2. The evidence does support a finding that the father has not made adequate payments in respect of child support and he should resume making payments to support his children.

s 60CC(3)(d) – The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or (ii) any other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living

1. The Court is ordering that the children will spend more time with the father than they currently do. The increased involvement of the father should benefit the children: he will be able to help the children with their school work and if he maintains his sobriety, provide a positive role model for the children.

2. The Court accepts that evidence of the children’s current living arrangements suggests that the home environment is chaotic: the young children have been left to fend for themselves and organise themselves for school. Whilst the mother suggested there has been some improvement in more recent times, I did not get the impression that the mother’s household is a stable environment. I acknowledge that the Family Consultant is not a paediatrician, but she did give evidence of observations of the children and noted that there are risks faced by the children in the mother’s household.

3. There are also risks faced by the children in the care of the father. The Court has significant doubts as to the father’s capacity to act as a primary carer for these two young children, particularly where he has full-time employment during hours which make it very difficult for him to get the children to school and childcare without consistent support.

4. It is hoped that the father’s involvement in the children’s lives will alleviate some of the pressure on the mother and allow her to seek any help that may benefit her.

5. In either case, it is hoped that the greater the involvement of the parents will mean that there is more focus upon the children and support for their wellbeing.

s 60CC(3)(e) – the practical difficulty and expense of a children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parents currently live about one hour drive from the other. This issue might be overcome if the mother moves closer to the father, particularly as her current location is not convenient to [Y]’s school.

s 60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs

1. Both parents acknowledge that they have shortcomings in relation to their capacities to provide for the needs of the children.

2. The father presented to the Court as a person who is genuinely trying to deal with long-standing issues of alcohol and drug addiction, and spoke lovingly as a concerned parent. The father also spoke in some detail about assisting [Y] with his maths homework and he did seem to be genuinely interested in doing that. However, the father’s inability to abstain from illicit substances and/or alcohol tends to indicate that he may be unable to place the children’s needs ahead of his own in the future.

1. The Family Consultant referred to the mother’s difficulties in trying to control the children in the waiting area prior to the consultation and her failings in relation to getting [Y] to school either on time or at all.

2. The mother’s lack of insight into the risks arising from the children’s exposure to the maternal family and the apparent lack of parental protective capacity has been noted above. The Family Consultant expressed concerns that the children were displaying side-effects of their needs not being met:

   They presented as indiscriminately displaying over-friendly behaviour towards adults […]. These types of behaviours can develop in children who have difficulty identifying safe and secure adults and then tend to respond equally to any potential caregiver. Should the needs of children not be met, they may display behaviours such as those identified as being displayed by [Y], including lack of impulse control, hyperactivity, difficulties focusing and erratic behaviours and result in long term emotional and psychological health problems into adulthood. [20]

s 60CC(3)(h) – if the children are Aboriginal or Torres Strait Islander: (i) the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

[20] Family Report by Ms J, 14 March 2019 [119].

1. The mother identifies as aboriginal and is a member of the … Aborigines people.

2. Both parents seemed attuned to the need and value of making the children aware of their aboriginal heritage and the need to engage them in activities in that regard. Neither party suggested that the recommendations made by the Family Consultant were not in the best interests of the children. Accordingly, I will incorporate the Family Consultant’s recommendations into the Orders.

s 60CC(3)(i) – The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

1. Neither parent is particularly better placed to parent the children. This is due to the long-term and serious issues facing each parent. Accordingly, each parent has continued to engage in behaviour that places the children at risk of harm.

s 60CC(3)(j) – any family violence involving the children or a member of the children’s family

1. Both parents have perpetrated family violence during the relationship.

2. The mother has been charged with, and found guilty of, assaulting both the father and [Y].

3. Whilst the father denied the extensive allegations of family violence made against him by the mother, it seems likely that that family violence perpetrated by both parents occurred in the context of a chaotic drug or alcohol fuelled environment.

4. Having changeover occur at the Suburb L Police Station or at school (if such an event occurs), will limit any future family violence between the parents.

s 60CC(3)(k) – if a family violence order applies, or has applied, to the children or a member of the children’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;

1. There are no current family violence orders in place and the Court notes that there seems to have been a greater level of cooperation between the parties in recent times.

s 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that children

1. It is, of course, preferable to make an order which is least likely to bring the parties back to Court. However, it may not be possible to frame orders such that the parties would not be involved in litigation in the future. Given the complexities of the situation and the very long history of involvement of DHHS and the Children’s Court with this family, some further litigation may occur.

2. I do note that there are no current intervention orders in place between the parents, and it appears that the parents have been able to negotiate some parenting arrangements in a civil and constructive way, and hopefully this will continue.

Conclusion

1. I am of the view that the best interests of the children will be served by having them remain living with the mother but spending three weekends out of four with the father. I am of that view despite both the ICL and the Family Consultant recommending a change of residence.

2. I think it is simply not feasible for the father to manage to get these young children to school or kindergarten and maintain his employment. He is a 50 year-old man who has had significant stress in his life. The arrangement as recommended by the Family Consultant would have him caring full-time for these young children effectively on his own, although with some assistance from his elderly parents. Being responsible for, and living with, two young children (and a teenager) in a small unit is a significant challenge. If the father was to assume full time care, he would require significant assistance. He does have his parents who have assisted in the past, however there was no evidence from them in relation to their current capacity to look after these young children on a daily or near daily basis.

3. The father’s plans in relation to combining his employment with the care of the children appear to be untenable unless there are significant allowances made by his employer to take into account the father’s family responsibilities. It is obviously important for the father’s own self esteem for him to be employed, and I expect that he would find it more difficult to remain free of alcohol and hard drugs if he was unemployed.

4. I accept that the current arrangements are not ideal and the children are not thriving. However, I am of the opinion that the father’s affidavit filed on the first day of trial is a realistic response to the difficulties he has in balancing work and family. By that affidavit he sought to have the children on alternative weekends given that he worked full-time during the week. It appears that the weekday visits on Wednesday have not been successful because of his work commitments and a more realistic approach is for him to have a greater amount of weekend time with the children.

5. The protective concerns in relation to the children’s time with their mother can be addressed by Court Order. I also note that this family is being actively reviewed by DHHS and if there are concerns in relation to the care of the children by either parent, I assume that those concerns will be raised by DHHS and the father.

6. The mother made comments in the course of evidence that she has struggled to find more suitable accommodation. It is hoped that if she is able to find other accommodation it will be closer to the father so as to reduce travel time. This will also enable the father to be in a position to provide assistance at times when he may not necessarily be caring for the children pursuant to Court Orders. A move to Town HH at this stage would not support the children or their relationship with their father.

7. If the children are living closer to the father it may also provide greater opportunity for the paternal grandparents, who are a positive presence in the children’s lives, to assist with their care.

8. This has certainly not been a straight forward matter to determine given the complex and difficult issues in this case: there is ongoing involvement of DHHS and significant concerns were raised by the Family Consultant. It may be the case that whatever order is made by the Court, this family is likely to be subject to ongoing involvement with DHHS. Consequently, I will order the ICL to provide a copy of these Orders and reasons to DHHS.

Spend Time Arrangements

1. The Court has ordered that the parents have equal shared parental responsibility and is not ordering that the parents spend equal time with the children. Accordingly, the Court is required to consider an Order that the parents spend substantial and significant time with the children.[21] It is noted that substantial and significant time must include days that do not fall on weekends or holidays.[22]

   [21] Family Law Act 1975 (Cth) s 65DAA(2)(c)-(e).

   [22] Family Law Act 1975 (Cth) s 65DAA(3)(a)(ii).

2. The Orders provide for the father to spend three weekends in four with the children and no time during the week. When considering an order for substantial and significant time, the Court must consider whether such an order is reasonably practicable.[23] This requires the Court to consider, amongst other things, the parent’s current capacity to implement such an arrangement.[24]

   [23] Family Law Act 1975 (Cth) s 65DAA(2)(d).

   [24] Family Law Act 1975 (Cth) s 65DAA(5)(3)(a).

3. The Court has considered that due to the father’s employment arrangements and the difficulty that he has had previously spending time on Wednesday evenings, that weekday time is not currently reasonably practicable.

4. The Orders allow the parties to agree for the father to have weekday time if there is a change to his employment arrangements or if he otherwise becomes able to spend time during the week.

5. The father’s time will commence at 6pm as this will enable him to finish work and collect the children.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 5 July 2019