Naylor and Hernandez
[2009] FamCA 1191
•1 December 2009
FAMILY COURT OF AUSTRALIA
| NAYLOR & HERNANDEZ | [2009] FamCA 1191 |
| FAMILY LAW – CHILDREN - Child related proceedings – Magellan matter - allegations that the twin boys of the marriage, now aged nearly 10 years had previously been sexually abused at age 4 by the sons of the father’s partner, then aged six years – sexual touching between the daughter and son of the father’s partner, both then aged some 11 years – alleged family violence and physical discipline in the father’s household – the willingness and ability of each party to facilitate a close and continuing relationship between the children and the other party – whether equal shared parental responsibility is possible – children diagnosed as suffering from ADD and ADHD and issues in relation to the children’s medication and treatment |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Naylor |
| RESPONDENT: | Mr Hernandez |
| INDEPENDENT CHILDREN’S LAWYER: | Ross Clarke & Associates |
| FILE NUMBER: | SYC | 2756 | of | 2008 |
| DATE DELIVERED: | 1 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Fowler |
| HEARING DATE: | 28-30 September 2009, 1 October 2009, 12 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gersbach |
| RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie |
Orders
All previous parenting orders made be and are hereby discharged.
The mother and the father have equal shared parental responsibility for the three (3) children of the marriage, namely:
(a) S born … July 1996
(b) L born … December 1998 and
(c) R born … December 1998
subject to Order 3 herein.
The mother and the father shall jointly consult with the paediatrician treating the children for Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD) and after consultation if they are not able to agree on a course of treatment for the children the mother shall have the power to make a decision on treatment and each of them is to do all such things as may be necessary to provide prescribed treatment to the children as recommended by that Doctor including the provision and supervision of the taking of any of the children’s ADD/ADHD medication. The first consultation is to take place within 28 days of the making of this order and the parties are at liberty to publish this order to the children’s treating paediatrician.
The mother advise the father in writing and keep him advised as soon as practicable, in relation to any advice received from the children’s treating medical practitioners/paediatricians.
The children live with the mother.
The father spend time with the children as follows:
(a)By way of periodic time during school terms, in accordance with the Schedule attached and marked “A”, based on the father’s current seventy (70) day work roster.
(b)During each school holiday period, for one half of each such period, as agreed between the parties and failing such agreement during the second half thereof.
(c)From 5.00 pm Christmas Eve to 12.00 noon Christmas Day in years ending in an even number.
(d)From 12.00 noon Christmas Day to 5.00 pm Boxing Day in years ending in an odd number.
(e)From 5.00 pm on 31 December in each year ending on an odd number to 5.00 pm the next day.
Order 6(b) is conditional upon the father giving the mother 21 days prior written notice of his intention to exercise such holiday contact.
(a) The father give the mother at least 7 days notice of occasions when he is to play cricket during periods he would otherwise spend time with the children.
(b)On any day when the father is playing cricket the children will live with the mother from 5.00 pm on the preceding day to 6.30 pm on the day the father is playing, the father to take the children to the mother’s residence at the commencement of such periods and collect the children from the mother’s residence at the end of each such period.
(a) The children will live with the mother from 10.00 am the day before half yearly and yearly school examinations for the children begin, until the end of such examinations.
(b)The mother to give to the father at least two weeks notice in writing of the dates upon which children’s school examinations are to take place.
In the event that Mother’s Day falls on a day that the father would otherwise be spending time with the children, such time shall be suspended so that the children spend Mother’s Day with the mother, and the father shall return the children to the mother no later than 10.00 am on that Sunday.
In the event that Father’s Day falls on a day that the children would otherwise be spending time with the mother, and the father is available to spend time with the children, the mother shall deliver the children to the father at 10.00 am on that day and the father shall return the children to the mother at 5.00 pm on the same day.
The father is restrained during the time to be spent by the father with the children and each of them pursuant to these Orders from bringing the children or any of them into contact with MP and/or CP and/or EP.
By consent, at all times when the father does not have accommodation separate from the P family then the father’s time be in accordance with Schedule A but overnight time be suspended from 6.00 pm to 10.00 am.
The mother and father undertake within a reasonable period of time after the making of these final orders, and in any event within one year thereof, at least three of the following courses conducted by the Interrelate Family Centre at W:
(a) Making Choices – dealing with anger in relationships
(b) Creating Positive Relationships
(c) Talking Positively to Children
(d) Being a Dad
(e) Positive Parenting.
Each party is restrained from discussing these proceedings and/or the previous proceedings involving the children in the Family Court of Australia with the children or in the presence or hearing of any of them.
The father is restrained from drinking alcohol during any period that he has contact with the children and for 12 hours prior to the commencement of any period to the extent that such drinking would give him a blood alcohol content greater than permitted by law for the purpose of driving.
The children are permitted to telephone the mother during any period in which they are spending time with the father, and the father is restrained from taking possession of or damaging or in any way using any mobile phone in the possession of any of the children for the purpose of having telephone contact with the mother.
The children are permitted to telephone the father during any period in which they are living with the mother, and the mother is restrained from taking possession of or damaging or in any way using any mobile phone in the possession of any of the children for the purpose of having telephone contact with the father.
Should any of the children be taken to a hospital or doctor when the father spends time with them, the father is to forthwith inform the mother of the details of the hospital or doctor and the reason the child is there.
Should any of the children be taken to a hospital or doctor when the mother has the children living with her, the mother is to forthwith inform the father of the details of the hospital or doctor and the reason the child is there.
The mother advise the father in writing as soon as practicable, and keep him advised as soon as practicable, in relation to any advice received from the children’s treating medical practitioners.
Each party is restrained from physically disciplining the children, or either of them, or permitting any other person to do so.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
Schedule “A”
Key:
F – Time spent with the father
| Day Shifts 0600-1800 | Night Shifts 1800-0600 | Zombie Day | Days Off | |||||||
| 1. Fri | 2. Sat F | 3. Sun F | 4. Mon | 5. Tue | 6. Wed | 7. Thu | 8. Fri F | 9. Sat F | ||
| 10. Sun | 11. Mon | 12. Tue | 13. Wed | 14. Thu | 15. Fri | 16. Sat F after school | 17. Sun F | 18. Mon F | ||
| 19. Tue | 20. Wed | 21. Thu | 22. Fri | 23. Sat | 24. Sun F | 25. Mon F to school | 26. Tue | 27. Wed | ||
| 28. Thu | 29. Fri F | 30. Sat F | 31. Sun | 32. Mon | 33. Tue | 34. Wed | 35. Thu | 36. Fri | ||
| 37. Sat | 38. Sun | 39. Mon | 40. Tue | 41. Wed | 42. Thu | 43. Fri F | 44. Sat F | 45. Sun F | ||
| 46. Mon | 47. Tue | 48. Wed | 3 day shifts and 4 days off (no night shifts + zombie) | 49. Thu | 50. Fri F | 51. Sat F | 52. Sun F | |||
| 53. Mon | 54. Tue | 55. Wed | 56. Thu | 57. Fri F after school | 58. Sat F | 59. Sun F | 60. Mon F to school | 61. Tue | ||
| 62. Wed | 63. Thu | 64. Fri | 65. Sat | 66. Sun | 67. Mon | 68. Tue | 69. Wed | 70. Thu | ||
IT IS NOTED that publication of this judgment under the pseudonym Naylor and Hernandez is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2756 of 2008
| MS NAYLOR |
Applicant
And
| MR HERNANDEZ |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are proceedings seeking to vary the terms on which the parents exercise parental responsibility for their children, S born in July 1996 and now aged 13 years and twins, L and R born in December 1998 and now aged 10 years (“the children”), from a present joint exercise of that responsibility to a sole responsibility being exercised by the mother. In addition, a variation of the existing orders is sought in relation to how long the children spend time with their father, and upon what terms.
Three proposals for time sharing were put to the Court by the mother, the Independent Children’s Lawyer, and the father. The father works on a seventy day roster as set out below. Shown on that roster are the three separate proposals referred to:
Key:
C – Current 2004-2009
F – Father’s proposal
M – Mother’s proposal
| Day Shifts 0600-1800 | Night Shifts 1800-0600 | Zombie Day | Days Off | |||||||
| 1. Fri | 2. Sat F | 3. Sun F | 4. Mon | 5. Tue | 6. Wed | 7. Thu | 8. Fri | 9. Sat | ||
| 10. Sun | 11. Mon | 12. Tue | 13. Wed | 14. Thu | 15. Fri | 16. Sat | 17. Sun | 18. Mon | ||
| 19. Tue | 20. Wed | 21. Thu | 22. Fri | 23. Sat M | 24. Sun | 25. Mon | 26. Tue | 27. Wed | ||
| 28. Thu | 29. Fri F | 30. Sat F | 31. Sun | 32. Mon | 33. Tue | 34. Wed | 35. Thu | 36. Fri | ||
| 37. Sat | 38. Sun | 39. Mon | 40. Tue | 41. Wed | 42. Thu | 43. Fri | 44. Sat | 45. Sun | ||
| 46. Mon | 47. Tue | 48. Wed | 3 day shifts and 4 days off (no night shifts + zombie) | 49. Thu | 50. Fri | 51. Sat | 52. Sun | |||
| 53. Mon | 54. Tue | 55. Wed | 56. Thu | 57. Fri F | 58. Sat | 59. Sun | 60. Mon | 61. Tue | ||
| 62. Wed | 63. Thu | 64. Fri | 65. Sat | 66. Sun | 67. Mon | 68. Tue | 69. Wed | 70. Thu | ||
The father opposed the orders sought by the mother as to parental responsibility. The father sought an order (with which order the Independent Children’s Lawyer agrees in part) that the parties have equal shared parental responsibility.
The father agreed with a variation proposed by the mother in relation to the children spending time with her when they were undertaking or preparing for their half yearly or yearly school examinations.
The father sought, and the mother did not oppose, some variations to accommodate the father’s application that whilst he was playing cricket he would forgo some of the time he spent with the children.
The Independent Children’s Lawyer sought a specific order in relation to the treatment of the children for Attention Deficit Hyperactivity Disorder (ADHD) and Attention Deficit Disorder (ADD) and proposed that the mother have sole parental responsibility in the determination of treatment for those conditions.
The father sought orders that the children spend time with him. He sought substantially that the present orders apply with only those deletions as would permit the children spending time during the week in school term with him other than on Friday afternoon and Monday morning. The proposal he makes is consistent with the request of the mother, save in so far as it proposes that the children spend time with their father on Monday mornings during school term, the mother seeking the return of the children to her household on Sunday evening.
The father sought on hearing to amend his Response to seek orders which would, for a time, restrain him from bringing the children into contact with the children of his current partner. Ultimately, however, he sought that in the future he be permitted to do so during daylight hours only.
The father further proposed that there be counselling of his children and those of his current partner by a specialist and that a report be provided immediately upon receipt to the Independent Children’s Lawyer and the mother’s solicitors. He sought liberty to apply for all parties in relation to matters going to the question of the reintroduction of those children to the subject children.
The mother sought orders that the children not be brought into contact with the father’s new partner and her children, asserting that the partner had an alcohol problem and that the partner’s two boys, or one of them, were the perpetrators of sexual encounters with S and the twins. She further asserted that the daughter of the father’s new partner, EP, was a teenager “out of control”, drinking alcohol and behaving in a way which could not be regarded as a positive model for S, with whom she had an acquaintance.
The father appeared for himself and said on the hearing that he had provided an outline of the orders he sought but that he was prepared to accept that the Court might change the wording. In essence, it seemed to the Court that he wanted the opportunity of the children having a relationship with the children of his partner, providing it was safe for them to do so.
The mother asserted that the father posed an unacceptable risk of physical harm to the children because of his physical chastisement of them, which she said was beyond reasonable chastisement. It was for this reason that she said she opposed the father having joint parental responsibility for the children. Notwithstanding that, she did propose that the father spend extensive time with the children including overnight time during term times and in school holiday periods.
The mother further said that the communication between the parties was so appalling that for this reason there would be difficulty in exercising joint parental responsibility.
The father asserted that, whilst communication in the past had been fraught, he saw it as improving and that he could be assisted by the mother’s new husband, with whom he had been able to communicate with ease to assist in the rebuilding of effective communication, if direct communication was not possible.
Each of the mother and the father knew of the possibility of the Court ordering them to undertake courses designed to improve their skills as separated parents and improve their ability communication and did not oppose the making of such orders.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1963 the father was born.
In 1966 the mother was born.
In June 1987, according to the mother, and in April 1988, according to the father, the parties commenced cohabitation.
In 1990 the parties married.
In July 1996 the parties’ daughter, S, was born and she is now aged 13 years.
In December 1998 the parties’ twin boys L and R were born and are now aged 10 years.
The mother and the father separated in June 2002 according to the mother and on 13 April 2002 according to the father.
In 2002 the children L and R then aged four years disclosed sexual contact with the children MP and CP (then aged 6 years) who are the children of the father’s de facto spouse, Ms P.
The children were interviewed, including by the Department of Community Services (DoCS), as it was then known, and the Police and Child Protection Unit at the Sydney Children’s Hospital. The family was also interviewed by
Dr W who made recommendations that the children be seen by Mr B to facilitate a reintroduction of MP and CP to the Hernandez children, with a focus on protective behaviours.
In 2003 to 2004 proceedings were commenced by the mother and interim orders were made accepting undertakings from the father, inter alia, that he would not leave his children alone with MP and CP.
On 14 September 2003 the parties’ divorce decree became absolute.
On 14 December 2003 an Expert Report was prepared by Dr W.
In 2004 the child S was diagnosed with ADD.
In 2004 the children R and L were diagnosed with ADHD.
On the hearing of the proceedings before Justice Rose his Honour made orders ultimately by consent on the 8 September 2004. In summary those orders provided that:
·the children live with the mother
·the children spend time with the father during school weeks and on weekends during school time
·the children also spend additional time with the father for the second half of the School holidays
·the children would spend time with each of their parents on certain important occasions, as specifically nominated
·machinery provisions providing for the movement of the children between the two households
·the parties were restrained from consulting with Dr M or any other paediatrician in relation to the diagnosis of the children having ADD without notice to the other within 14 days of any appointments made with the paediatrician
·that the final arbiter on the question of prescribing medication for the children would be their treating paediatrician
·the parties were ordered to facilitate counselling with Mr G, a psychologist, and were required to follow his directions with respect to contact between the respective groups of children as well as ensuring that the children attend such counselling as was required by Mr G
·both parties attend a parenting after separation course and
·the parties ensure the children received all prescribed medication during school days.
InJuly 2005 the mother married Mr Naylor.
In May 2006 the mother says that S said to her that bruises that she had sustained had been caused by the father hitting her with a belt. The father denied the allegations but the mother made a report to the police.
On 14 June 2006 an Apprehended Violence Order (AVO) was made at Sutherland Local Court with the children named as the protected persons.
In July 2006 the mother alleged, and the father denied, that the children were unsupervised whilst in the father’s care, including that the children were unsupervised whilst swimming at the beach.
In November 2006 the mother alleged that the father had spoken inappropriately to the children and behaved in an inappropriate fashion toward them. The father denied the assertions. The mother alleged the father assaulted the children by hitting them on the top of the head with a closed fist and the father denied the allegation.
Between late December 2006 and early February 2007 the mother asserted that the father spent no time with the children but the father said that although there was a period during which he did not have contact, contact otherwise took place on a limited basis.
In December 2006 it is asserted by the mother that the father had bashed the children’s heads against a brick wall. The allegation was denied by the father.
On 14 February 2007 the AVO previously made in 2006 was extended on the application of the mother for a two year period commencing 14 February 2007.
That AVO provided, in general terms, that the father not assault the children or any person living in a domestic relationship with the children. The order expired on 14 February 2009. No application appears to have been made alleging a breach of that order.
In September 2007 the mother asserted that R informed her that the child CP touched the child S between the legs, and that this was confirmed by L and S. The father said he had not witnessed any such conduct.
There were discussions between the mother and the father concerning the report and the father expressed concern and discussed with the mother how to deal with the problem in a co-operative fashion. He accepted at that time that what is asserted did occur but suggested that the conduct may have been introduced by other children in the mother’s household.
From September 2007 the father spent his time with the children away from the home of Ms P, with whom he otherwise resided.
The mother asserted that for a time thereafter the father did not see the children.
The mother reported the allegations to DoCS and the child S was interviewed by the Joint Investigative Response Team (JIRT) and attended sessions at the Child Protection Unit at Randwick.
In April 2008 the father moved out of the home he occupied with his de facto spouse, Ms P, during times when he had the children with him. The father took up residence at those times at premises which comprised shared accommodation, and did not bring the children in contact with the children of Ms P.
On 12 May 2008 the mother filed an Application for Final Orders and affidavit in the Federal Magistrates Court, seeking a variation of the orders previously made.
In interim proceedings and without admissions, the father undertook that the children would not spend time with CP and MP, namely two children of Ms P.
On 16 December 2008 a Family Report was provided by the Family Consultant, Ms B.
The Family Consultant recommended that the mother have sole parental responsibility for the children and that she provide to the father certain information about the children’s education and health consultations and sports attendances and that the children spend less time with the father on the basis that the children will not stay with their father overnight during the school week.
Recommendations were also made for counselling for the children to help them adjust to changes in the orders and for supervision of their homework responsibilities whilst with each of their parents.
The father is presently employed on a seventy day roster and the proposals of the mother mean that, if adopted, the father’s time with the children will be reduced significantly in that period.
However, the father agreed to much of what the mother seeks, as indicated above. At the conclusion of the hearing and in relation to time spent during the term time for the children, the parties were only at odds on whether the father’s weekend time should conclude on Sunday or Monday morning. The father says there is no reason to change the present situation and that although the mother says that it is necessary to prepare the children for school the following day the father points out that the children when in the mother’s care will have more than enough time to prepare their homework. In any event, the father said that he can assist them on Fridays should that be required.
The father had, however, previously accepted, somewhat naively, the suggestions of the children that either they had no homework or were in advance on those matters. It is noted that S is in her first year of high school and will be expected to have an increasing homework burden as she progresses through her secondary education and that non compliance with requirements for its completion could have negative consequences for her. The father asserted that if the Court required the children’s return on Sunday then it ought not to be a return before 8.00 pm. The mother sought an earlier time of return.
As referred to in paragraph 2, a schedule was prepared by the father and agreed to by the mother showing the father’s rotating seventy day roster. Those days nominated on it as “Zombie days” by the father are days upon which time is provided for the father to recover from his shift and readjust his body clock. This is a process on which no expert evidence was called but I accept the father’s evidence (he having been a shift worker for a long time), that he requires this day to adjust and be effective. On that day the father sleeps in two shifts in order to adjust his body clock. It is, he says, a necessary thing given the roster and he says that on those days with perhaps one exception a month he could not undertake the responsibility of caring for the children.
The hearing proceeded before the Court for four days and was adjourned part heard before me on 1 October 2009. At the time of the resumption of the hearing on 12 November 2009 the orders then sought by the parties had reduced the issues significantly and the parties all agreed (the father’s share occupancy of the home he had established separate from Ms P having terminated) that the following order should be made, regardless of what order otherwise was made, namely:
At all times when the father does not have accommodation separate from the [P] family then the father’s time be in accordance with the Schedule A but overnight time be suspended from 6 pm to 10 am.
I will make this order.
In the course of the hearing the Court received the evidence of Mr Y, a psychologist who had consulted with the child CP concerning his behaviour with the child S. This assessment was made in part in writing and was the subject of oral evidence given in the proceedings.
Although the evidence was of an interview conducted with CP, Mr Y nevertheless offered evidence on a number of the matters in contention. However, whilst his evidence was relevant on a number of aspects, he had not had the opportunities of making assessments of all relevant children and the parties and had, on that account, to be treated with some caution.
In addition, Dr K, the children’s treating paediatrician, gave evidence, inter alia, that:
·he had not met the father
·it was his practice to take into account before prescription of medications for the treatment of ADD and ADHD the views of the parents
·he was not aware at the time that he prescribed medication for the children’s conditions that the father had an involvement with the children on 140 nights per year
·it is not an unusual situation where the medication he prescribed for the children was not given on weekends and holidays
·he was not aware that the father was supervising the children on weekends when the medication was not prescribed for them and he usually takes into account the experience of both parents and did not do so in this prescription
·it was his usual practice to advise parents of alternatives to drugs in the treatment of ADHD and ADD disorders
·he was prepared to consult with the father, jointly with the mother if desired
·he was not prepared to make decisions on the parents’ behalf as to treatment which was a matter for them. His preferred position was that if the parents did not agree on prescription then he would not prescribe. He had not been shown the prior order in relation to the taking of the advice of a paediatrician in the event that the parties were in dispute on treatment. He was equally unaware of the requirement of orders made that the parties give notice to the other within 14 days of any appointment with a paediatrician in relation to these matters
·the treatment of ADHD and ADD in children with drugs was not non controversial.
The Issues
Whether the parties should share parental responsibility for the children.
Whether the children were exposed to an unacceptable risk of harm by being brought into the presence of the father’s defacto spouse and all, or any, of her children.
Whether the father was a responsible father capable of supervising the children and not prone to excessive anger and not prone to violence toward the children.
Whether, if those matters were established, the harm to the children by a reduction in the time spent with the father would be outweighed by the benefit that would accrue to them by not being exposed to that risk.
Whether, having regard to the differing views of the father and the mother about the treatment of their children’s ADD and ADHD, the decision making in relation to that treatment should be undertaken by one or other of the parents, rather than them jointly.
Whether the problems of the children with their educational progress would be benefited by a change in the arrangements made for their time with the father so that the mother might be the one to supervise the majority of their schoolwork and also supervise their medication during the school week.
Certainly in relation to the question of school time, the father conceded that the children’s interests would be better served if they were to remain with their mother during a school week, save for the time when he picked them up from school on Fridays and returned them to school on Mondays.
What, when considering all the issues above, would be a regime which would best advance the interests of the children.
Relevant Law
Legal principles
The principles governing this case are set out in the Family Law Act1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
These children are, by common agreement of the parties, attached to each of them and love each of them. In the circumstances of this case there is no doubt that each of the children’s interests would be served by each of them having a meaningful relationship with the other parent. Each of them indeed suggests that the children should have such a relationship.
A meaningful relationship with each parent would be hard to maintain of course if the child or children in the relationship was the subject of constant actual harm or at risk of harm. In this case it is those actual or potential risks of harm which must be examined to see if they exist.
If they do, not only would the relationship with the parent in whose care the children are exposed to such harm be affected, but also the relationship between the parties and the children and the other parent, who would no doubt be troubled by that possibility.
What needs to be looked for is the maintenance of a meaningful relationship between the children and each parent, in circumstances where there is no unacceptable risk of harm to them.
In this case although the communication between the parents is less than ideal, I accept that effective communication can take place and the parties are prepared to undergo courses which hopefully will improve that communication. It seems that the task of communicating might be improved by the assistance of the mother’s new husband, with whom the father has a reasonable relationship.
It seems to me that joint parental responsibility for the children will serve the needs of these children:
·to have both of their parents involved in their lives
·to see a better example of communication from their parents
·for the better encouragement of their parents to follow a course leading to co-operative parenting and a recognition by each of them of the importance of the place of each other in the children’s lives
·to have their parents provide an exemplar of the way in which communications and conduct can occur co-operatively and
·to have their parents behave in relation to them and each other in a child focussed and a co-operative way.
This is not simply a wish list. It has occurred in the past. The parents have had the cathartic experience of these proceedings which I believe will reduce their negative feelings about each other arising in the past. It seems that they do have both a capacity and a willingness for the sake of the children to consign their angst to the dustbins of history and make a new start. I certainly hope that that is so.
I propose to make orders for joint parental responsibility to be exercised because I believe that the violence which has occurred in this relationship means that the presumption in favour of such an order is removed, it nevertheless is a thing of the past. The father has recognised the inappropriateness of his behaviour and the need to be able to otherwise secure compliance with parental discipline.
To support that progress I will make an order restraining each of the parents from physical discipline of the children. The father is willing it seems to undertake parenting courses which will afford him the skills to achieve this. I believe that it is in the cause of promoting these children’s best interests and the maintenance of a meaningful relationship with each of their parents that such an order be made.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In this case the allegations are that the father has been physically violent to the children.
I accept the evidence of the father that although he has used physical chastisement on the children he has not gone beyond the upper limits of reasonable chastisement. I understand the father is prepared to accept an order that he not physically discipline his children and I propose to make such an order. I think that the father has learnt much in the course of these proceedings and I am content that this will not be a problem.
I propose to order that the father attend courses which were nominated by the Independent Children’s Lawyer with a view to assisting him to develop methodology in dealing with the problems of the misbehaviour of children without the need to resort to physical punishment.
It is asserted that the father has neglected the children by failing to provide their prescribed medications for their disorders.
The father has a clear view that the prescription of amphetamine drugs for his children is inappropriate. He points to what he describes as unusual behaviour in the children when they are under the influence of these medications. He nevertheless says that he has provided them during school days and by agreement does not provide them during other times the children are with him. He says the mother, in providing a lower dose of the drug to better enable the children to play basketball, was without his consent although he seems prepared to accept that this can now be done.
The evidence by the children’s doctor was that he had not seen the father and that he would be prepared to consult with him. The mother seemed to think that on the father’s prior attitudes it was not necessary to consult him on these matters. I think that was a mistake. The Doctor gave evidence that he does not usually prescribe such medications as prescribed to these children, absent the consent of both parents and that their prescription is, in the medical world, far from non controversial.
The Doctor also said that it was not uncommon to withdraw the medication in circumstances where children were not dealing with school tasks or tasks which required significant concentration.
It is fairly clear that the mother did not fully inform the Doctor of the father’s significant involvement in the children’s lives. Such lack of communication and care for the future of the relationship between the parties as parents and the role of the children’s father in their lives does not reflect credit on the mother in the discharge of parenting responsibility.
In any event it is my intention to order that there be further consultations with the children’s doctor and both of the parents. It is my view that the parties should agree to accept his professional advice. In the event that they cannot agree on that course then the mother shall be the final arbiter of what is to be done in terms of medication of the children and both parties will be ordered to give effect to that decision.
It is asserted that the father has neglected the children by failing to supervise their schoolwork and insist on the completion of homework.
The children are, it appears, having some problems at school. I accept, on the evidence, that there is a higher likelihood of supervision of the children’s homework in the mother’s household than in the father’s and that is one of the reasons which suggest the orders that I propose to make are in the children’s best interests. The father gave recognition for the need for this change in his consent to it. I think he showed some real concern for his children’s educational progress and the decision is one which is creditable.
That is not to say that the father should exclude himself from the children’s educative progress but rather should assist them whilst they are with him to acquire and maintain the joy of learning. The father should also engage with the mother in matters such as parent/teacher nights and also in school events of significance to the children and I urge him to do so.
It is asserted that the father has neglected the children by failing to adequately supervise them such that the twins were the subject of sexual interchange with the twin boys of the father’s partner, Ms P, and that the daughter, S, was the subject of sexual fondling by one of those children.
It appears that when it comes to his children the father is less risk adverse and alert than the mother. This, in the normal scheme of things, is unremarkable. On occasions the children have, it is said, got into trouble in the surf whilst in his care and have had to be rescued. I take it as perhaps approaching the extremes of permitting children to be exposed to risks.
However, the father has now been faced with a number of occasions in which his children have been put at risk as a result of lack of proper supervision and the supervision of the children of his de facto partner. Those were the occasions on which the twins engaged in sexualised behaviour and the occasion on which the daughter was engaged in sexual behaviour with one of his partner’s children. Apart from the event in the surf already referred to, the children also caused the creation of a fire whilst in his care.
However, in one of the most poignant moments in the cross examination of the father, was his complete palpable disillusionment and disappointment and even depression at the evidence produced to him of the conduct and statements of his step-daughter EP said to be sourced from the child’s internet MySpace page. Whilst it is true that he gave evidence that that child was under the control, discipline and supervision of her father and mother nevertheless those pages indicated that his household was not one in which one could have confidence that children were supervised. His comments during the course of the trial indicated that his partner liked consuming alcohol and that she did so. This behaviour appears not to have discouraged EP, her daughter, from doing likewise.
Whilst I reject the strongly made assertion that the household in which he resides with his partner is totally dysfunctional, I do find that it is one in which one could not be confident that these children would not be exposed to a risk of harm and until such time as one can be confident that the father’s children have developed their own protective techniques and maturity, is not one to which they should be currently exposed.
The father has said that this case has put stresses on his relationship with his partner. He has in the past, as has his partner, been able to live with those stresses and he has put the interests of his children above his personal interests, as exemplified by giving undertakings to DoCS and removing the children from the home in which he resided and procuring another. The father says that he will continue to give priority to the children’s safety.
Following that alternative occupancy being recently terminated he has referred to his need to find another home which is safe for his children. His reactions in relation to the incidents involving the boys were regrettable in so far as he sought to blame anyone else he could, and without support for such a position.
However, no doubt he was reacting to his own visions of what those events might have meant for his future relationship with his children. He now, I find, has matured since then to the point where at least he can accept the need for remedy on his part.
Notwithstanding that reaction in relation to the incident involving his boys he otherwise dealt with the circumstances of that and also the problem between his daughter and CP appropriately.
He expressed the appropriate level of concern and procured appropriate support for CP and removed his children from the associations. In these ways he has acted responsibly once he became aware of the problems.
The Court notes, however, that the real question is whether he should have been aware of them beforehand or at least provided an environment where they would not occur. This is perhaps a counsel of perfection but the father has not been as successful as he might in this regard. However, I think that these proceedings have brought home to this father the fact that the promotion of his children’s welfare involves perpetual vigilance.
As to the likelihood of the continuation of this risk, I deal firstly with twin boys of the father, L and R.
L and R have been treated before in relation to their sexual interchange with the twin boys of the husband’s partner, as have those children. There seems to be no suggestion that there has been any recurrence of what seemed to be unacceptable sexual exploration by these children of each other and in which the treating Psychologist sees no lasting damage.
DoCS, in a report say the following:
It was concluded that sexual abuse could not be substantiated in this case. Whilst it was considered that an incident of a sexual nature quite probably had occurred it was open to question whether this was to be viewed as sexual abuse or children engaging in sexually exploratory behaviour. Consultation with the pre school attended by [L] and [R] did not yield any concerns about their presentation or behaviour in general. Furthermore there was no corroborative medical evidence to suggest abuse and when the children were interviewed neither [L] or [R] expressed fear of [CP] and [MP]. Hence a decision not to confirm the allegations of sexual abuse.
The second consideration relates to the sexual fondling which took place between CP and S. The evidence of Mr G, although a product of only an interview with CP, suggests that that also is unlikely to be repeated. His observation was:
In response to questioning he [the father] told me that both [CP] and his daughter [S] were approximately eleven years of age at the time when the touching occurred.
Mr G goes on to discuss the interview he had with CP, in a brief report, and which was Exhibit “8”:
… [CP] denied any other affectionate or romantic contact. There was no kissing. They never talked about their actions.
[CP] told me that he was upset when interviewed by JIRT. He told them the truth.
[CP] said that he’s sad because he hasn’t seen [L], [R] or [S] for about eighteen months. He misses them a lot. [MP] misses them too. [CP] said [MP] has blamed him for being responsible for the separation.
[CP] told him that when his step-dad sees his children he now has to see them in another house. He expressed awareness that the reason he and [S] are kept apart is, “so I won’t do it again”.
In response to questioning [CP] asserted that he will never touch [S] again. He knows all the trouble it has caused. He knows that he would be in serious trouble with JIRT. He feels guilty over the troubles he’s caused.
In response to questioning [CP] denied any email or phone contact with [S]. In response to further questioning he denied any romantic feeling towards [S]. He perceives their relationship to be one of brother and sister.
Mr G goes on to say that, arising out of this interview, he came to the conclusion that CP and S “engaged in mutual sexual exploration”. There was no suggestion of force, bullying or inducement associated with the contact. Mr G says that at interview, CP:
… expressed awareness of the consequences of his behaviour. He asserted that he would not touch [S] again as he has the cognitive awareness of the likely implications of such behaviour.
Mr G says that he formed the view that there is no evidence of a romantic association between CP and S. There is evidence of an emotional attachment between CP and S as there is between CP and the twins R and L.
Mr G goes on to say that he formed the view:
… that there was nothing sinister in [CP’s] behaviour with his
step-sister, [S]. Sexual experimentation is not uncommon between prepubescent siblings and step- siblings.It is further observed by Mr G that prepubescent sexual experimentation between children is rarely associated with later psychological disturbance. This is considered related to the naivety and relative innocence of the participants.
In his oral evidence Mr G conceded that he had not inspected the DoCS file and was not aware that CP had denied any responsibility or that he was an initiator of the actions, nor was he aware that CP sought to blame others.
Mr G also conceded that the scope of his investigation was limited and that so far as it was based on interview that interview was of some 40 minutes.
Given the limited base for his observations, whilst I am prepared to place some weight on it, it is not a decisive piece of evidence in my view.
The perhaps more current concern is the influence on the child S of the daughter of the father’s partner, EP. EP (as is apparently the fashion amongst some) has an internet MySpace page. That site is one in which she puts comments and seeks responses from those reading it. She has included pictures on the site. The contents of the site are unseemly. It contains, in general terms, pictures of young girls making rude gestures and some of young girls smoking or drinking. The titles under those pictures include “farkeen trassheeed” and “DrunkBitchesz” and “soo farkeen drrunnk...”, “…everyonesz wasteed”, “fuccckyou”, “just a bit drunk” and “fucking wrecked and a half”, to name a few.
The images portray young women and suggest that they are drunk. A consideration of the photographs themselves would lend support to that suggestion being accurate and it is this behaviour and its adulation and the language and communicating gestures used (aside from the total ineptness of the spelling) which gives rise to some concern. A number of them display young women protruding their tongues apparently to display an article of current ornament attached to them.
The evidence, since this was revealed to the father on the first occasion and that of his partner, is that his partner and the child’s father have spoken to the child. Apparently assurances as to behaviour have been sought, and as to not smoking at least, have not been complied with.
The father accepted that he was a supervisor of EP, although in a way secondary to that of her mother and father. He said of her that S did when she was younger look to EP as a role model. He further said that having been confronted with the MySpace photographs he has serious concerns about bringing his children into contact with EP.
I find that EP and S should not be together at the present time and in particular that steps need to be taken to monitor S’s internet usage so that there is supervision of whatever contact is made between these girls using that medium.
It is further asserted that the father has neglected the children by playing cricket at times when he should have been supervising them.
It seems that the sport is important to the father however I was not impressed with his willingness to forgo contact with his children whilst engaging in his hobby. It did not, it seemed to me, demonstrate an appropriate level of priority being accorded to the welfare of his children. His comment that he did not want to let down the team may have been how he felt but I think that not letting down his children should take precedence.
It is asserted that the children, by reason of a failure in the father’s supervision of them, got into trouble in the surf whilst in his care and have had to be rescued.
This is an example perhaps of the willingness of the father, whilst the children are in his care, to approach the permissible extremes of permitting children to be exposed to risks. He also came under criticism for pushing his children to jump into water with him from a wharf. I accept that this may have happened but I accept the father’s assertion that once in they enjoyed themselves.
It is asserted that the father drinks to excess whilst the children are in his care and that that habit presents a danger to the children.
The evidence, in my view, did not sustain this allegation as at the present time although at the time of the trauma of the breakdown of his relationship with the mother he did then have a problem. It seemed more likely that the husband’s new partner had a continuing habit of consuming alcohol to excess. I find that the reports of the children, when taken with the evidence of the father on this topic, “she gets drunk more often than I do” make it more probable than not that the father’s partner takes alcohol to excess. The father suggested that this was so. For more abundant caution, however, it is my intention to make an order restricting the father’s consumption of alcohol whilst the children are in his care.
I have real concerns that this father lacks insight into the perceptions of the mother of the risks associated with his care of the children. Much of his approach to this litigation has been “father’s rights” and “fairness” based. This approach reflects long standing conflict between these parents. It was submitted that the father has at times placed on some of his needs a priority which was inconsistent with child focussed parenting. I agree that this is so but there are also good examples I hasten to add of the father subordinating his needs to those of the children. His removal of them from risk in the household he shares with Ms P has been one of them.
This poses a problem and I think it would be appropriate for him to take the training courses referred to in my Orders to assist him to gain some insight into those perceptions and gain skills in better supervising the children. Although somewhat late in the day, the father was prepared to concede that he had been less than vigilant in his supervision of the children and that his performance in that regard needed to improve.
It is asserted that the mother has failed to seek to maintain the relationship between the father and the children and in particular with respect to the relationship with his sons.
Equally, I have real concerns that the mother has not fully committed to the desirability of maintaining a relationship, certainly subject to a safe environment, between the children and the father and her attitude to L in permitting, and even encouraging him, to withdraw from his father’s company and care gives rise to those concerns in particular.
The mother’s behaviour in calling the police to search the father’s home on the off chance that during a televised significant sporting event he might have breached a prohibition on drinking alcohol displayed a lack of concern for the embarrassment of the children and a desire to procure evidence with which she could make an allegation against the father. I do not accept her denials in this regard.
Both these parties endanger their children psychologically by a continuation of their disputes.
The mother is said to endanger the children by not seeking the path of communication and agreement and rather seeking the path of confrontation and dispute.
The evidence suggests that there has been a clear point-scoring process going on between the parents which has little to do with any regard for the children. There is indeed a suggestion that the mother seeks vindication of her antagonism toward the father.
Whilst it is clearly appropriate and legitimate to air concerns about the children’s needs and their welfare and security and, where there is no alternative process to take those concerns to a Court, there needs to be an immediate reappraisal by these parents of their communication capacity and their capacity to become child-centred and put their children’s interests above their own and certainly in priority to venting angst about each other.
In the absence of them so doing there is a continuing risk of psychological harm to these children (whom they love and whom love each of them) with long term disruptive effects on their lives and their development.
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The child S has asked that the arrangements remain as they are.
The child R also said he wanted things to remain as they were.
The child L has expressed some reticence about seeing his father as a result, he says, of an episode when his father “yelled at him”. He reported to the Family Consultant that his father “… just gets angry”. He did however say that he “… ‘kind of’ misses his father.”
It seemed clear from the evidence that L was not subject to any support or encouragement from his mother to be with his father, notwithstanding that the child has spent time with the father after the Family Report on a holiday in Darwin, where he had reportedly enjoyed himself.
It seems that the mother has taken the view that it is for the child to decide whether he wishes to spend time with the father or not. The attitude that she takes does not represent a responsible parenting of the child and on occasions it seemed that she positively rewarded the child for failing to go with the father by taking him to the cinema. This form of positive reinforcement of abandoning the relationship with the father should cease.
The reticence shown by the child, L, in conversation with the Family Consultant mellowed somewhat as the interview progressed and he made concessions that he would like to see his father under certain circumstances. He was reported as presenting as tense and anxious but progressed however in his father’s presence to a relaxed state.
The Family Consultant expressed the view that the children were anxious and tense with each of their parents. Her conclusion about this is ambivalent. She says that it may have been a demonstration of wariness in the children of being in a position where they felt that they had to choose between the parents or a fear of angering one parent or the other.
In the circumstances I note the wishes of the children, particularly S, as expressed to the Family Consultant and I will place some weight on them. I do however think the Family Consultant may well be right in her view, at least at the time that she saw the children, that they were victims of parents engaged in high levels of conflict.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I have referred above to some of these matters. It appears that in addition the children do have a relationship with the P children and enjoy their company. That this relationship has had its negative aspects is regrettable. It seems, according to the evidence of the psychologist, Mr Y, that the problems in relation to CP and MP with R and L, are probably not likely to recur in the future. The evidence of Mr Y of the incident between S and CP suffers from the inherent weakness arising by reason of the expert not having had the advantage of meeting S and also hearing from the mother and others and relies for its force on one interview of 40 minutes. Accordingly, whilst it may be the case, I could not but accept that it was evidence given after limited investigation and must be weighted accordingly.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The level of conflict between these two people suggests that they, although now expressing willingness to foster a relationship between the children and the other parent, have had real problems in going beyond words to institute such changes in their deeds. In particular, I refer to the insouciance of the mother in relation to L’s refusal to go with his father and her apparent lack of concern at the disobedience of a Court order to the effect that he should.
The level of present communication between the parties is far from optimal, although on the evidence it is improving. It is my hope that the courses which they undertake will improve their capacity for at least neutral communication and that it will develop in due course to polite even pleasant communication. They will be judged in the future on their capacity to make good their promises in this regard.
In particular the father, who I find is not slow to wrath, will need to do what is necessary to modify his behaviour and expression and likewise he will be judged on the success or failure of his efforts to do so.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been livingPerhaps in the view of some, surprisingly, for all the problems that have existed for these children, arising out of the events above and their parents hitherto perennial conflict, they nevertheless maintain their love for both their parents albeit that L is presently having some difficulties and is not being aided in overcoming them by his mother.
I am confident that will change and the mother will provide encouragement for the relationship. She will do so because she is now aware that failure to do so will reflect poorly on her parenting abilities.
Accordingly, having a separation from either of their parents would in my view not be good for the children. Neither of the parents suggests such a separation from the other although the mother seeks, for other reasons, to limit the school time the children spend with their father because of the lack of supervision of their school work.
I think that a separation of the children from each other and the P children will be a potential continuing sadness for them. There needs, however, to be a greater maturity and ability to self protect evident in these children and significant change in the P household before it was reconsidered. I presently find that their best interests are served by such a separation.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father has said that he can move house if required to see the children absent from his partner’s household. I think that this should be done. The father volunteered to the Court that he was, having regard to the termination of his occupancy of the premises he presently occupied, seeking another residence which was “safe for his children”.
There will be a significant cost associated with the rental of those premises but the father has been able to meet that and presumably will be able to continue to do so.
Otherwise there is no evidence of particular expense or practical difficulty in the children spending time with or communicating with each parent.
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The father has a relationship with his partner, Ms P.
This partner filed an affidavit in support of the father in this case. She was required for cross examination. The father did not produce her for that purpose. He declined to seek an adjournment to enable her to be brought to the Court. He decided not to read her affidavit. The court has not had the benefit of any oral evidence therefore from her.
It seems however on the evidence that was before the Court, in particular by reason of her use of alcohol, that her capacity to supervise her children suffers from limitations as demonstrated by the matters raised otherwise. The father indeed concedes that she has had or does have a problem with excessive use of alcohol.
I accept that generally the father and the mother have a capacity, subject to what is set out in these reasons, to meet the needs of the children, although each of them could improve on the exercise of that capacity and hopefully the course that I propose will assist them to do so.
It seems that the mother can better provide for the intellectual needs of the children than the father and he concedes that the children’s educational progress will be better served by her care. However he also, and in no small measure, contributes to his children’s development. As he put it “… [the mother] and I have both involved the children in different activities, with me particularly doing my outside activities.”
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I think that each of these parents has lacked a measure of maturity and insight in the care of their children. Perhaps these proceedings will afford them the insight to recognise the needs of their children. Each parent needs to recognise their failure in promoting the children’s welfare by constant disputation. The boys are young and are yet to gain maturity and self-assurance. Although twins, they are different in their personalities. They need a measure of individual treatment to take account of their differences and I have confidence that the parents can now provide that.
S has now come to puberty and she will need her parents support at this time. I accept that the father has an ability to deal with these issues and the actions of the mother in keeping the child’s progress into this stage of her life from him was not in her interests, nor did it reflect well on the mother’s parenting.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
In this case this is not a relevant factor.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has failed in their responsibilities to their children. The father has been less than vigilant in supervision, and the mother it appears has let her dislike of the father supersede her need to act in a child focussed way.
I trust that those attitudes and behaviours are matters of past history and a new approach and relationship is established, with each of the parents recognising that the ability to communicate effectively involves a measure of dignity, politeness and respect. If they can act in that way and provide an exemplar for their children then their children are more likely, in my view, to exhibit those same qualities.
(j)any family violence involving the child or a member of the child’s family
There have been allegations of violence which I have dealt with above.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There have been proceedings in relation to an AVO, as previously discussed above.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Although it is otherwise hoped, given the past history of the matter I think that these parties, absent a real commitment to their children and placing their own desires in a subservient position to the needs of the children will have difficulty avoiding future conflict.
The orders I make will, I hope, best serve the children’s interests at the present time. However, I can foresee that circumstances will arise requiring them to be changed and in those circumstances I am not confident that these parties will see the undoubted wisdom of avoiding the costs and trauma of further litigation and seek to resolve their differences by agreement or with the help of a mediator.
I hope that I am wrong in that assessment.
(m)any other fact or circumstance that the court thinks is relevant
The decision in this case is not easy. What I have done in the orders I have made is to provide a means whereby contact with the father can continue and the children have the benefit of the things that he can provide for them. I have, I hope, put in place only those restrictions which are presently indicated and I can see that in due course some of them might be able to be changed.
It is my hope that, subject to the improvements that can occur following the completion of the courses outlined, there will be a capacity in the parties to shape their arrangements in the future to the changing needs of the children.
If those processes fall on stony ground and there is no movement towards a child focussed existence, then I can only see misery and misfortune for these children.
In relation to the issues of treatment of the children’s ADHD and ADD there seems to be a possibility of the children falling between the Scylla of drug treatment and the Charybdis of alternative therapy. This is not in their interests and the matter needs to be resolved.
Since the mother has the care of the children primarily during the period for which the drug is primarily prescribed, I propose that there be orders to break any impasse by giving her the power to decide on that issue.
That is not to discourage the father to be fully involved in the treatment of the children and I will make orders for consultation between the father and the children’s prescribing paediatrician.
The mother will have to develop the application and capacity to fully inform the father of any treatment or proposed consultation in relation to the children’s disorders. I do not think that there will be any such failure, as any failure on her part to do so will reflect badly on her parenting capacity and would not be in the children’s best interests.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children. Given the measure of contrition that I have seen and the current good conduct of the father and the injunctive orders I propose, I do not think that this is a case in which I would determine that there should be other than an order for equal shared parental responsibility. I find such an order is in the children’s best interests.
The section further provides in sub-section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests. I determine that as a basis for refocussing the parents on the children rather than themselves rebuilding a proper relationship between them, and on all the evidence otherwise available of the nature of the relationships between the children and each of their parents, that a continuing order for joint parental responsibility is in the interests of these children and that the parents have the capacity to make such an order work.
Section 65DAA
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order I propose to make will not afford the children equal time with each parent. I do not think, particularly having regard to the father’s work roster, and the children’s educational deficits and needs, that such an order is either practicable or in their interests.
The Orders to be made
I therefore propose to make the orders in relation to parenting as set forth above.
It is my view that they will best serve the interest of the children.
They will:
·allow the children to continue in their present living environment and so provide consistency and stability in their lives
·permit the children to live with a parent who has the time and the ability to supervise their education
·afford the father the opportunity to be involved in the children’s school life, albeit to a lesser extent than the mother
·permit the children to continue a meaningful relationship with the father in a way which is safe for them and to have the undoubted advantages of those things that he is best suited to give the children in their progress to attaining their full potential
·afford the mother and the father the opportunity and incentive to learn from the experience of this litigation and recognising the damage that they do to their children by such dispute
·be able to access educational opportunities which can increase their skills and their ability to act in a way as separated parents which is supportive of their children’s interests and non abusive in effect
·reduce the level of dispute in relation to the treatment of the children by providing a means for resolution of disagreement, particularly in relation to the medical treatment of the children’s ADD and ADHD disorders and
·provide a measure of protection for the children and foster their optimal development and their welfare.
I certify that the preceding one-hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 1 December 2009
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Procedural Fairness
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Remedies
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