Nelson & Nelson & Ors

[2017] FamCA 927

FAMILY COURT OF AUSTRALIA

NELSON & NELSON & ORS [2017] FamCA 927

FAMILY LAW – CHILDREN – Best interests – Where the eldest child enjoys a meaningful relationship with the mother, but his relationship with the father has broken down – Where the eldest child’s father disengaged from proceedings prior to the trial – Ordered the eldest child live with the mother and the mother have sole parental responsibility

FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – Where evidence of family violence renders the presumption inapplicable as between the mother and father of the three youngest children – Where the allocation of parental responsibility is tied to the question of the children’s residence – Ordered the father and paternal grandparents have equal shared parental responsibility for the three youngest children

FAMILY LAW – CHILDREN – With whom the children live – Where the children are in need of protection from the physical and psychological harm they may suffer by way of the mother’s neglect of their physical, emotional, and intellectual needs – Ordered the three youngest children live with their father, but in the paternal grandparents’ home for the next two years and the father to permanently abstain from the consumption of alcohol – Ordered the mother shall spend time with the children, with the time increasing after she proves her abstinence from illicit drug use

FAMILY LAW – CHILDREN – Risk of sexual abuse – Where the children are at risk of psychological harm by reason of their potential sexual abuse by the maternal grandfather – Ordered the risk can be satisfactorily contained by an injunction that restrains the mother from causing or permitting the children to be or remain in the unsupervised presence of the maternal grandfather

FAMILY LAW – CHILDREN – Family violence – Where the children are at risk of psychological harm through their exposure to family violence perpetrated by the mother’s partner – Ordered the risk of the children’s harm can be satisfactorily contained by requiring the mother to supervise the children when in his company

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

APPLICANT: Mr Nelson

1st RESPONDENT: Ms Nelson

2nd RESPONDENT: Mr Willis

3rd RESPONDENT: Ms A Nelson & Mr B Nelson

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore, Sharon Moore Solicitor

FILE NUMBER: NCC 318 of 2016

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 16, 17, 18, 19 & 20 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Legal Aid NSW, Newcastle

COUNSEL FOR THE 1ST RESPONDENT: Mrs Kearney

SOLICITOR FOR THE 1ST RESPONDENT: Martin Trisley, Trisley Lawyers

COUNSEL FOR THE 2ND RESPONDENT: Mr Mooney

SOLICITOR FOR THE 2ND RESPONDENT: Harpers Legal

COUNSEL FOR THE 3RD RESPONDENT: Mr Duane

SOLICITOR FOR THE 3RD RESPONDENT: Julia Clarke, Julia Clarke Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ticehurst

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore, Sharon Moore Solicitor

Orders

1. All former orders in respect of the following children are discharged:

   (a)C, born … 2007;

   (b)D, born … 2010;

   (c)E, born … 2011; and

   (d)F, born … 2013.

Orders relating to C

1. The first respondent (“the mother”) shall have sole parental responsibility for C.

2. C shall live with the mother.

Orders relating to D, E, and F

1. The applicant (“the father”) and the third respondents (“the paternal grandparents”) shall have equal shared parental responsibility for the children D, E and F (“the children”).

2. The children shall live with the father.

3. The father shall ensure he and the children live with the paternal grandparents for not less than two years from the date of these orders.

4. The parties shall take all reasonable steps to ensure the children spend time with the mother:

   (a)Until the mother has produced negative drug screens pursuant to Order 10 on three consecutive occasions, each Sunday from 12.00 noon until 5.00 pm.

   (b)Thereafter, subject to compliance with Order 10:

   (i)During school terms, each alternate weekend from 9.00 am Saturday until 6.00 pm Sunday, commencing on the first weekend of each term;

   (ii)For the first half of the Autumn, Winter and Spring school holidays; and

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

5. For the purposes of implementation of Order 7(b), the school holidays are deemed to commence at 6.00 pm on the last day of school term, the holidays are deemed to end at 6.00 pm on the last day preceding the day upon which the children are due to return to school, and the mid-point is noon on the day halfway between those first and last days.

6. Subject to compliance with Order 10, Order 7(b) is suspended during the following periods:

   (a)From Christmas 2018 and each year thereafter, from 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years;

   (b)From 9.00 am on Easter Saturday until 6.00 pm on Easter Monday each year, during which period the children will spend time with the father from 9.00 am on Easter Sunday until 12.00 noon on Easter Sunday and with the mother from 12.00 noon on Easter Sunday until 6.00 pm on Easter Monday in odd numbered years, with the same arrangements in reverse in even numbered years; and

   (c)Between 10.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

7. The mother shall provide to the father, upon his demand, her urinalysis test results for cannabis, opiates, cocaine, amphetamines, and methamphetamines, subject to the following conditions:

   (a)The father’s requests for the mother’s testing shall be made randomly for one year, but not more frequently than at intervals of three weeks and not less frequently than at intervals of five weeks;

   (b)The urinalysis test procedure must be undertaken within 48 hours of the father’s written requests;

   (c)The urinalysis testing shall be conducted by way of chain-of-custody urine drug screens meeting Australian/New Zealand Standard 4308/2008;

   (d)The mother shall notify the father of the pathology service where the tests are conducted;

   (e)The costs of the tests shall be borne by the mother and father equally, for which purpose the father shall reimburse the mother for one-half the cost within 48 hours of her compliance with Order 10(f); and

   (f)The mother shall provide to the father copies of the test results forthwith upon provision of those results to her.

8. In the event of either the mother’s default in compliance with Order 10 or her provision of a urinalysis test revealing a positive result for any of the nominated drugs, then:

   (a)Orders 7(b) and 9 are suspended;

   (b)The one year time limitation under Order 10(a) begins again from the time of her default; and

   (c)The children shall instead spend time with the mother pursuant to Order 7(a) until she has fulfilled the pre-conditions to the operation of Orders 7(b) and 9 on three consecutive occasions.

9. For the purpose of implementing Orders 5, 7, and 9, the parties shall ensure the children are exchanged between them or their nominees at the G restaurant at Suburb H, NSW.

10. The mother is restrained from consuming alcohol whilst ever the children are spending time with her and for the immediately preceding period of 12 hours.

11. The father and paternal grandparents shall authorise and request the principal of any school attended by the children to provide to the mother, at her expense, copies of all school reports and school photograph order forms relating to the children.

Orders in respect of all four children

1. The father is restrained from consuming alcohol at any time.

2. The mother is restrained from causing or allowing the children to be or remain in the physical presence of the maternal grandfather, unless personally supervised by her.

3. The mother is restrained from causing or allowing the children to be or remain in the physical presence of Mr J, unless personally supervised by her.

4. The parties are restrained from causing or permitting the children to be left in the unsupervised care of Mr K Nelson.

5. The parties are restrained from causing or permitting the infliction of corporal punishment upon the children.

6. The parties are restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

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

8. The parties shall ensure the children’s attendance at all educational, sporting, cultural, and extra-curricular events in which the children are enrolled or in which the children are due to participate.

9. The parties shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

10. Within seven days hereof the parties shall cause the children to be delivered to the Senior Family Consultant of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Senior Family Consultant (or her delegate), the reasons for such orders.

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

12. Costs are reserved for 28 days.

13. Any and all outstanding applications are dismissed. 

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 318 of 2016

Mr Nelson

Applicant

And

Ms Nelson

First Respondent

And

Mr Willis

Second Respondent

And

Ms A Nelson & Mr B Nelson

Third Respondents

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings involve a dispute under Part VII of the Family Law Act 1975 (Cth) (“the Act”) about all aspects of the care of four children, now aged between nine and four years, born to the first respondent (“the mother”) during two relationships.

2. The applicant (“the father”) is the father of the three youngest children and the third respondents (“the paternal grandparents”) are his parents.

3. The second respondent is the father of the eldest child, but he voluntarily disengaged from the proceedings shortly before the trial in October 2017 and, as a consequence, the dispute over the eldest child abated.

4. In relation to the three youngest children, the proceedings devolved to a contest over their residence between the mother – a struggling parent – and the father – a largely untested parent – with the paternal grandparents waiting in the wings if neither parent was considered suited to the role of primary carer.

Background

1. The mother and second respondent were in a relationship from March 2006 until August 2008. The eldest child was born to that relationship in 2007.

2. Within only weeks of the mother’s separation from the second respondent in August 2008 she began a de facto relationship with the father and they later married in 2010. Their three children were born in 2010, 2011, and 2013.

3. The mother and father separated in September 2015, following a violent incident between them, though they remained living in the same house until October 2015. The father then vacated the home and went to live with the paternal grandparents, with whom he continues to live. The mother and children stayed in the former matrimonial home, where they remain.

4. Very soon after the father’s departure from the former matrimonial home, the mother’s current partner (Mr J) began staying overnight with her and their relationship developed into full-time cohabitation almost imperceptibly. Their child (L) was born in early 2017. Presently, the mother and Mr J live together with L and the four children.

5. These proceedings were commenced by the father in February 2016 and, in March 2016, interim consent orders were made by the Federal Circuit Court between the mother and father in respect of the three youngest children. The orders provided for them to live with the mother and to spend time with the father for two hours each alternate Sunday, under the supervision of a professional supervision service. The orders did not include the eldest child.

6. In July 2016, another series of orders were made by the Federal Circuit Court. The paternal grandparents were joined to the proceedings as respondents and interim orders were made for all four children to spend time with them for three hours each Tuesday in the father’s absence. The orders formerly made in March 2016 continued to regulate the three youngest children’s visits with the father. The proceedings were then transferred to this Court for determination.

7. In October 2016, once the proceedings were before this Court, the parties agreed upon fresh interim orders. All past orders were discharged, though it was agreed the three youngest children would continue to live with the mother. The supervision of their visits with the father was discharged, but the orders still required the children’s overnight visits with him to occur in the company of the paternal grandparents. The children’s visits for the remainder of 2016 comprised each alternate weekend (Friday to Sunday), four hours each Tuesday, four hours each Thursday, and two non-consecutive weeks in the Summer school holidays. In 2017, the alternate weekend visits expanded (Thursday to Sunday) and the Tuesday and Thursday visits remained unchanged, but no separate provision was made for the school holiday periods.

8. Those arrangements remained in place and were the subject of compliance until the trial in October 2017.

Proposals

1. The father abandoned the proposal set out within his Amended Application filed on 10 May 2017 and instead sought the orders set out in the minute of orders he tendered on the final day of trial.[1] Upon his undertakings to live with the paternal grandparents for two years and complete an accredited relapse prevention program, he sought orders for the three youngest children to live with him and for the paternal grandparents and him to have equal shared parental responsibility for them. He proposed the children would spend time with the mother on alternate weekends (Saturday to Sunday), for short periods comprising consecutive days in school holiday periods, and on other special occasions. He furthermore proposed that the three youngest children’s interaction with both Mr J and the maternal grandfather be supervised by another adult.

   [1] Exhibit F14

2. The Response filed by the mother on 14 March 2016 was stale and she instead sought the orders proposed in the minute of orders she filed shortly before the commencement of the trial,[2] subject to later oral amendment of the proposed orders in respect of the eldest child. Her eventual proposal for him was only that he should live with her and she should have sole parental responsibility for him, which was the only reasonable option available. She also sought that the three youngest children live with her and that she have sole parental responsibility for them. Subject to them being in the company of the paternal grandparents when staying overnight with the father and also to the father’s continued abstinence from illicit drugs, she proposed that they spend time with the father on alternate weekends (Thursday to Sunday), for several hours on two afternoons each alternate week, for one-half of the school holidays, and on other special occasions.

   [2] Exhibit M8

3. The paternal grandparents abandoned the Response they filed on 22 July 2016 and instead adopted the proposal made by the Independent Children’s Lawyer, subject to minor modifications.

4. The Independent Children’s Lawyer sought the orders set out in the minute of orders she tendered on the final day of trial.[3] She proposed that there be no orders in respect of the eldest child at all, in which event the mother and second respondent would retain their parental responsibility for him (s 61C), but the prescriptive orders proposed by the mother were the better option. In respect of the three youngest children, she proposed the father and paternal grandparents have equal shared parental responsibility for them and that they live with the father, provided he maintains his residence with the paternal grandparents for the next two years. She proposed that the children spend only supervised time with the mother for the next four months, but thereafter on alternate weekends (Saturday to Sunday), for about one-half of school holiday periods, and on other special occasions, subject to her personal supervision of the children when in the presence of either Mr J or the maternal grandfather.

   [3] Exhibit ICL5

5. Given the second respondent’s withdrawal from the proceedings, his proposal for the eldest child, as set out within his Amended Response filed on 2 June 2017, was ignored. He cannot be heard to complain about the disregard of his proposal if he was unprepared to participate in the trial to argue his case.

Evidence

1. The father relied upon:

   (a)His affidavit filed on 31 August 2017; and

   (b)The affidavit of Ms M, the principal of the school attended by the three eldest children, filed on 31 August 2017.

2. The mother relied upon:

   (a)Her affidavit filed on 14 September 2017; and

   (b)The affidavit of her partner, Mr J, filed on 14 September 2017.

3. The paternal grandparents relied upon their affidavits, both of which were filed on 1 September 2017.

4. The parties and Independent Children’s Lawyer also relied upon:

   (a)The Memorandum dated 23 September 2016;

   (b)The first Family Report, dated 20 January 2017; and

   (c)The second Family Report, dated 28 March 2017.

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

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

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

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

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

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. The eldest child enjoys a meaningful relationship with the mother, from which he derives benefit. It was not contended otherwise. In the absence of the second respondent’s participation in the proceedings, the other parties and Independent Children’s Lawyer tacitly acknowledged the eldest child should continue to live with the mother and she should exercise parental responsibility for him.

2. The eldest child’s relationship with the second respondent has broken down. The eldest child was re-introduced to the second respondent in 2014, after which the level of their interaction gradually increased, but they have now been estranged since July 2017, which presumably induced the second respondent’s withdrawal from these proceedings.

3. It was common ground the three youngest children each enjoy meaningful relationships with the mother and father, from which they derive benefit. The argument was really confined to whether the benefit they derive from those relationships needs to yield to more important considerations about their physical or psychological safety (s 60CC(2A)).

Section 60CC(2)(b)

1. The parties adduced a volume of evidence intended to address the asserted need for the children’s protection from physical or psychological harm by reason of their subjection or exposure to family violence, abuse, or neglect.

   Family violence

2. There is no doubt some family violence occurred during the currency of the relationship between the mother and father. The dispute was over its extent and the attribution of blame.

3. The mother and father separated in September 2015 following their physical confrontation. Although the spouses’ versions of the event differ, the father was prosecuted for various offences, including his assault of the mother and the destruction of their property. The father entered pleas of guilty to the charges, following which he was convicted and sentenced.[4] It would be foolhardy to try and make findings of fact on the civil standard of proof in these proceedings about the circumstances of that incident when such facts were settled beyond reasonable doubt by the statement of facts which must have been tendered at the father’s sentence hearing before the State court. The parties did not tender that statement of facts as an exhibit in these proceedings. In any event, proof of the conviction is enough for present purposes.

   [4] Father’s affidavit, paras 24-25; Mother’s affidavit, paras 87-91; Exhibit A, pages 123, 124

4. The mother deposed there were other prior incidents of violence between her and the father in 2009[5] and 2010,[6] but he denied it. Factual findings in respect of that evidence are unnecessary because there was ample evidence of other past family violence. The father’s protestation of “no other incidents of family violence” was wrong,[7] though conceivably he was referring only to physical assaults. However, the concept of “family violence” is broadly defined under the Act (s 4AB) – certainly wide enough to encompass the father “yell[ing] a lot during [their] relationship” and venting his anger by smashing pieces of timber together, as he conceded.[8] Given those and other admissions he made to both the Family Consultant[9] and in cross-examination about how he was occasionally aggressive and argumentative during the marriage, there was “horrible verbal arguing” between him and the mother, and the mother and children would all have been scared of him sometimes because of his hostile behaviour, his perpetration of family violence during the marriage is an inescapable conclusion.

   [5] Mother’s affidavit, paras 66-74

   [6] Mother’s affidavit, paras 78-86

   [7] Father’s affidavit, para 28

   [8] Father’s affidavit, paras 53-55

   [9] Second Family Report, para 5

5. Despite the incident of family violence and the marital separation in September 2015, the spouses maintained a common household until October 2015. The mother admitted in cross-examination that, during that period, she allowed the children to interact normally with the father and she occasionally left them in his care while she was out. The incident in September 2015 did not, therefore, cause her to act differently as a parent.

6. The mother and father possessed firearms, which they sometimes lawfully used together recreationally because they both held shooting licences. In October 2015, the mother found the father at home holding a firearm. She was not unduly alarmed, but she apprehensively asked him what he was doing. He told her he had thought about “blowing his brains out”, inferentially because he despaired the breakdown of their marriage. There was no threat to the mother’s safety, but the implied threat of his suicide was nonetheless another incident of family violence. It was the catalyst for the mother’s report to the police which resulted in the father’s prosecution for the offences he committed the month before and a further firearm offence.

7. Notwithstanding past indiscretions, in all probability, there has been no family violence between the father and mother since October 2015, when they began to live separately. The father said in cross-examination, without contradiction by the mother, that since their separation he had only ever seen the mother from a distance and he has never once even spoken to her. He is bound by an apprehended violence order made by the Local Court of NSW in October 2015,[10] which the father contended he had faithfully observed. Although the mother alleged he had been closer to her than 100 metres on occasions, there was no evidence of the police ever being so satisfied. He has certainly not been prosecuted for any breach of the apprehended violence order. Given there has been no family violence between the mother and father for more than two years since their separation, the prospect of future violent confrontations between them is relatively modest and the risk continues to recede as time passes without incident.

   [10] Father’s affidavit, para 29

8. The issue of family violence was not, however, contained to the spouses. Unfortunately, there have been numerous unpleasant confrontations between Mr J and the paternal grandfather over the past two years, but their personal animosity is only tangentially relevant to the future exchanges of the children between the mother and father.

9. There is also some concern about the children’s possible continued exposure to Mr J’s anger and violence. The evidence suggested the children saw him assault the mother, but such hearsay evidence carried very little probative value.[11] There is no direct evidence of him ever physically assaulting the mother, but his behaviour is nevertheless ordinarily characterised by hostility and disaffection. The mother denied any family violence between them,[12] but her denial was not convincing because she is keen to maintain her current relationship with him, about which she has been deceitful in the past.[13] She did admit in cross-examination he “gets angry at home”. In addition, Mr J is restrained by an apprehended violence order protecting members of the paternal family from him, which order was made by the Local Court of NSW in November 2016.[14] He also intimidated the children’s school principal because she warned him off the school premises due to his aggressive behaviour, for which conduct he was charged by police.[15] Although he repudiates the criminal charges for those offences,[16] on the balance of probabilities, I find the incidents involving him at the children’s school occurred as the school principal alleged and I reject his contrary evidence. Her evidence was much more credible than his. Mr J’s behaviour in the Court precincts was also troubling. The paternal grandfather alleged Mr J intimidated him outside the Court room on one occasion during the trial and his demeanour in the public gallery at times was intriguing. He was noticeably unsettled and, to the mother’s obvious annoyance, he often approached her to try and speak with her while she was seated behind her lawyers.

   [11] Exhibit A, page 126; Second Family Report, para 58

   [12] Mother’s affidavit, para 273

   [13] Mother’s affidavit, paras 281-283

   [14] Paternal grandfather’s affidavit, para 188

   [15] Ms M’s affidavit, paras 22-27

   [16] Mr J’s affidavit, paras 73-81

   Physical abuse

10. The mother adduced evidence about the father’s past abuse of the eldest child.[17] During his cross-examination, the father admitted there were two past occasions on which he was “nasty” to the eldest child. He admitted he was affected by alcohol at the time and he was moved to later apologise to the child, so he must have afterwards recognised his behaviour towards the child was abusive. He also admitted there were other occasions on which he argued with the eldest child and swore at the children generally.

    [17] Mother’s affidavit, paras 146-159

11. More significantly, the mother alleged to the Family Consultant the father may have physically abused the children while they spent time with him this year,[18] though the father was not challenged with that particular allegation in cross-examination, as he should have been if the allegation was to be maintained as a salient issue. Curiously, despite the mother raising the issue of the children’s abuse, she did not eventually propose that any order be made to deal with it. Ultimately, only the father and the Independent Children’s Lawyer proposed an injunction be made restraining the parties from causing or allowing the children to be administered with corporal punishment. An order to that effect is made, which is sufficient to address the issue of the risk of the children’s harm by reason of their subjection to physical abuse.

    [18] Second Family Report, para 30

    Sexual abuse

12. The mother alleged during the course of these proceedings that the children behaved and made statements to her, from about December 2016, which she imputed to mean they were sexually abused by the father.[19] It seems uncontroversial the children sometimes did act in a sexualised manner, because it was also observed by both the maternal and paternal grandparents.[20] Nonetheless, the Family Consultant was suspicious about the veracity of the sexual abuse allegations because they were not corroborated by either Mr J or the children during their interviews.[21] The two youngest children were not interviewed by the NSW Joint Investigation Response Team until August 2017. The mother deposed she was acting protectively by belatedly reporting the allegations to authorities,[22] perhaps because she was aware of the Family Consultant’s surprise she had not done so earlier,[23] but no allegations were made by the children against the father when they were interviewed.

    [19] Second Family Report, paras 31-34

    [20] Second Family Report, paras 46, 47, 58

    [21] Second Family Report, paras 43, 75, 79, 100

    [22] Mother’s affidavit, para 440

    [23] Second Family Report, para 100

13. The mother deposed how, in retrospect, she now understood there may be innocent explanations for the children’s past behaviour and disclosures. She found they were more relaxed and comfortable after she started following the advice given to her by authorities about how to deal with them.[24] In furtherance of that concession, at the commencement of the trial, the mother expressly abandoned any contention that the father posed an unacceptable risk of harm to the children on account of his subjection of them to sexual abuse and so the issue dissolved.

    [24] Mother’s affidavit, paras 438-439, 442; Paternal grandmother’s affidavit, para 188

14. There was, however, another aspect of the evidence which caused some disquiet about the children’s safety from sexual abuse. It related to the maternal grandfather, who was formerly convicted of committing aggravated acts of indecency upon the mother’s older sister when she was a child, which resulted in his registration as a sex offender until 2008.[25] The mother was rather indifferent about the danger posed to the children by the maternal grandfather, but she at least acknowledged “other parties may feel concern”,[26] about which she was right.

    [25] First Family Report, para 8; Second Family Report, para 52

    [26] Mother’s affidavit, para 170

    Neglect

15. The children’s physical, medical, and educational needs have undoubtedly been grossly neglected from well before the mother and father separated in September 2015. The father should share the blame for that, but the mother insisted she was always “the primary caregiver of the children”,[27] so the responsibility largely rests with her. She implied her impaired parenting performance during the marriage was due to her unhappiness in the marriage,[28] but significantly, when the marriage broke down and she had free and unfettered care of the children, her parenting performance did not noticeably improve. Despite asserting her much greater effort, there was no tangible improvement in the children’s conditions. In fact, the Family Consultant considered the problem might even have worsened after separation,[29] and he was not challenged about the accuracy of that observation.

    [27] Mother’s affidavit, para103

    [28] Mother’s affidavit, para 105

    [29] Memorandum, para 94

16. The children were either entirely or partially absent from school during 2015 and 2016 on many dozens of occasions, despite letters from the school to the mother alerting her to the problem.[30] The mother deposed she was “working hard” to resolve the problem and the situation had “improved considerably”, particularly in 2017,[31] and she alleged the eldest child’s school attendance was now “satisfactory”.[32] In fact, there has not been much improvement in 2017 at all, as the mother was impelled to concede in cross-examination, in which event her increased effort made no difference. In only the first three school terms of 2017, the three eldest children have all still had dozens of both full and partial unexplained absences on school days. When shown the school records for comment, the mother said “I didn’t realise there were so many”. Although the evidence suggested the children’s academic performance during 2017 has been sound,[33] the frequency of their absences is liable to retard their academic achievement and their socialisation with peers, particularly as they mature.

    [30] First Family Report, paras 83, 85; Second Family Report, paras

    [31] Mother’s affidavit, paras 208, 461

    [32] Mother’s affidavit, para 224

    [33] Exhibit A, pages 127-138

17. The children’s school teachers were also concerned about them being sent to school in an unclean and dishevelled state, smelling of faeces and urine, sometimes in ill-fitting clothes and shoes and often with insufficient and/or unhealthy food. The paternal grandparents tendered some photographs of the decrepit and ill-fitting shoes.[34] The mother admitted there had been “problems” about the lunches the children took to school,[35] but otherwise refuted the suggestions of neglect. The school principal told the Family Consultant the children’s hygiene was “absolutely appalling”.[36] Even though the evidence suggested there had been some perceptible improvement in the condition of the children’s physical presentation at school during 2017,[37] adverse notes were still being made by school staff as late as in June, August and September 2017.[38] The school principal’s concern was still so elevated she made a report to the child welfare authority about the risk of harm to the children in July 2017 and took the highly unusual step of giving evidence at trial in October 2017, notwithstanding her knowledge of departmental policy which recommended against it. This was only the second time she had done so in her teaching career of 37 years, of which she has been a primary school principal for 17 years, because she was so concerned for the children’s welfare. She said the children were teased and ostracised because of their lack of hygiene and body odour, which caused at least the second child’s embarrassment and his tendency to socially withdraw by hiding under a table.

    [34] Exhibits R1, R2

    [35] Mother’s affidavit, para 190

    [36] Second Family Report, para 88

    [37] Second Family Report, para 98; Exhibit A, pages 71-88

    [38] Exhibit A, pages 57, 79, 85, 87, 88

18. The school principal’s evidence is accepted because it was measured and assured. I reject as fallacious the mother’s attack upon her integrity and impartiality. Her corroboration of facts favourable to the case conducted by the father and paternal grandparents did not prove any bias against the mother. The mother attempted to minimise the problem surrounding the children’s hygiene, asserting her knowledge of only very few past mephitic incidents and trying to blame the father for it, alleging he sabotaged her washing machine.[39] Her contention the problem was now resolved was incorrect.[40] When shown school records during her cross-examination, she admitted school staff had recorded concern about the children’s malodour in 2017. She also conceded the third child, who is now nearly six years of age, sometimes defecated in his pants and failed to wipe his anus properly, which is a problem she must feel powerless to prevent. She told the Family Consultant the two youngest children had informed her that the father authorised them to defecate in their pants.[41] Even if the children did tell her that, she seemed not to appreciate it was probably untrue.

    [39] Mother’s affidavit, paras 173-187

    [40] Mother’s affidavit, paras 188-189

    [41] Second Family Report, para 34

19. The mother is distrustful of the school staff because she believes they have sided with the paternal grandparents against her, but adverse comments about the children’s hygiene were not confined to those made by the school staff. Such records were also made by the children’s pre-school staff,[42] and the child welfare authority, even as recently as in August and September 2017.[43]

    [42] Exhibit A, page 1

    [43] Exhibit A, pages 8, 108-110; Exhibit F13

20. Other aspects of the evidence also implied the mother’s difficulty meeting the children’s needs. Throughout 2016 at least, she failed to diligently attend to the children’s need for corrective dental work and speech therapy, for which the Family Consultant observed, not unfairly, the mother’s excuses lacked credibility.[44] She also failed to comply with an interim order requiring her to undertake a post-separation parenting course.[45]

    [44] Memorandum, paras 34, 43

    [45] Memorandum, para 45

1. The mother did apply for some school counselling to be provided to the second child,[46] but the eldest child seems to be suffering from the most emotional torment at the moment. In June 2016, he expressed an intention to kill himself, which threat was taken seriously by the mother and school staff.[47] In April 2017, he told the mother he wished he was dead.[48] Notwithstanding the juvenile mental health counselling services which were offered to the mother for the eldest child’s benefit, he has still not seen a therapist. The mother knows he needs the therapy, but all she was able to do in cross-examination was offer unconvincing excuses for why she has not yet been able to ensure his receipt of it. Even as recently as in September 2017, she failed to respond to telephone messages left for her and a letter sent to her by the health service about appointments for the eldest child.[49] She eventually conceded she failed her parental duty to the eldest child, at least in that respect. The eldest child’s need for immediate therapeutic treatment is patent, though the reason for his acute emotional disturbance remains the subject of only conjecture.

   [46] Exhibit A, page 141

   [47] Exhibit A, pages 63-64

   [48] Mother’s affidavit, para 235

   [49] Exhibit A, pages 26, 28, 35, 36, 37

2. The mother conceded she was not proactive and did not take the initiative with regard to the children’s proper care and she said she had become “reliant on outside services”,[50] but that was hardly correct either. Her engagement with the children’s school and other agencies has been lamentable. In May 2016, she was summoned to the children’s school to discuss the children’s attendance, punctuality, hygiene, and neglect, but she failed to attend the scheduled meeting without notice or excuse.[51] She confirmed in cross-examination she was avoidant of the school staff because she feels her questions of them go unanswered. As already noted, she was lax in following up the eldest child’s need for counselling throughout 2016 and 2017. Furthermore, she failed to respond to the telephone calls of the children’s pre-school in November 2015,[52] the telephone calls of various external service providers in December 2015,[53] April 2016,[54] and September 2016,[55] and the telephone calls of the child welfare authority in January and August 2017.[56]

   [50] Mother’s affidavit, para 241

   [51] First Family Report, para 83

   [52] Exhibits F8, F9, f10

   [53] Exhibit F5

   [54] Exhibit F7

   [55] Exhibit F4

   [56] Exhibits F3, F12 (second page); Second Family Report, para 27

3. Following the mother’s separation from the father in late 2015, she admitted she only engaged intermittently and transiently with the service provider known as “N Group”.[57] In 2016, the child welfare authority intervened in the mother’s life and referred her to the service provider known as “O Group”,[58] which referral she admitted in cross-examination she did not want to accept. She no longer consults that service. In September 2017, the child welfare authority introduced her to the service provider known as “P Group”,[59] but she could not provide much information in cross-examination about the nature and duration of the help she expects to receive from that service, though she is waiting for that particular service to arrange the counselling for the eldest child he has still not yet had.

   [57] Mother’s affidavit, paras 317, 319,320, 321, 324

   [58] Mother’s affidavit, paras 322, 323

   [59] Mother’s affidavit, para 336

4. It is unnecessary to make any firm findings about the reason (or permutation of reasons) for the children’s neglect within the mother’s household, because it does not really ultimately matter. The objectively proven fact of their continuing neglect whilst in her primary care is the influential finding. Most importantly though, the evidence did not reasonably permit an inference there would be any material improvement in their conditions if they continue to live with her. The mother has not been able to prove any significant or lasting improvement, even after her participation in various parenting courses[60] and the help of external service providers over the last two years.

   [60] Mother’s affidavit, paras 298-300

   Conclusions

5. The evidence fails to demonstrate that the children require protection from harm they could suffer by reason of their subjection or exposure to family violence or abuse perpetrated by the father.

6. Unfortunately, the children are in need of protection from the physical and psychological harm they may suffer by virtue of their continuing subjection to the mother’s neglect of their physical, emotional, and intellectual needs. Any improvement she has been able to muster in her parenting performance has only been marginal, even with the motivation of being on notice of the urgent need for her to demonstrate material change whilst under the scrutiny of the Court and other litigants in these proceedings. Given there is little, if any, room for confidence that the situation would improve if the three youngest children remain resident with the mother, the evidence recommended change of their residence. Of course, there are countervailing considerations, but they are addressed under s 60CC(3) of the Act.

7. Regardless of where the children live, the evidence demonstrated they are at risk of psychological harm by reason of their potential sexual abuse by the maternal grandfather. The risk is not so pronounced that they must never see him. Rather, the risk can be satisfactorily contained by an injunction that restrains the mother from causing or allowing any of the children to be in his presence unless personally supervised by her, to which form of order the mother was willing to submit.[61]

   [61] Mother’s affidavit, paras 170-171

8. The evidence also demonstrated the children are at some risk of psychological harm by reason of their exposure to family violence perpetrated by Mr J. His general irascibility and excitable temper means he is prone to act in ways that might amount to family violence, as that concept is widely defined in the Act. It is not feasible to prohibit his interaction with the children altogether, because he and the mother will cohabit for the foreseeable future. A more moderate solution is available, as the father, paternal grandparents, and Independent Children’s Lawyer all submitted. The risk of the children’s exposure to Mr J’s hostility can be satisfactorily contained by requiring the mother to supervise him when with the children. Most likely, she would remove them from the situation if she could not control Mr J’s behaviour.

Children’s best interests – additional considerations

1. The overarching issue in these proceedings was the parenting capacity of the mother and father respectively, largely for reasons already discussed as “primary considerations” under s 60CC(2) of the Act, but not only for those reasons. Contrary allegations were made that they each had an impaired capacity to meet the children’s physical, emotional, and intellectual needs for a variety of reasons.

2. In respect of the mother, the Family Consultant reported in September 2016 that there were “very serious” allegations about her ongoing neglect of the children’s hygiene, nutrition, medical care, and educational needs, her discouragement of the children’s meaningful relationships with their biological fathers, and her involvement of the children in the parental conflict.[62] The father and Independent Children’s Lawyer contended that such deficiencies in her parenting performance could be exacerbated by her drug and alcohol abuse. The issue of neglect has already been addressed under s 60CC(2)(b), so only the evidence related to the mother’s alleged lack of insight needs to be discussed under s 60CC(3) of the Act.

   [62] Memorandum, paras 18, 34, 43, 46

3. In respect of the father, the Family Consultant reported there were “very serious” allegations about his chronic substance abuse, his perpetration of family violence upon the mother, and his physical abuse of the children, particularly the eldest child.[63] The issues of family violence and abuse have already been addressed under s 60CC(2)(b) of the Act, so it is only now necessary to deal with the issue of his past chronic substance abuse, which he admitted, and the success of his rehabilitation, which was controversial.

   [63] Memorandum, para 18

4. Given the mother was historically the children’s primary carer and she wishes to retain that role, it is worthwhile examining her parenting capacity first.

5. It should initially be noted the mother has faithfully complied with the interim parenting orders made in October 2016, so her adherence to orders is well established. Rather, the father and the paternal grandparents were dissatisfied with her overall support of the children’s relationships with them. Their worry arose from numerous features of the evidence: she withdrew the children from pre-school in late 2015 to avoid them being visited by the paternal grandparents;[64] she entreated the children to call Mr J, rather than the father, by the affectionate term “Dad” and told the Family Consultant the children voluntarily asked her, in about December 2015, whether they could do so;[65] she referred to the eldest child’s father as a “sperm donor” in the eldest child’s presence; she cajoled the children to adopt her new partners rather than their biological fathers as the paternal figures in their lives;[66] she involved the children in the adult conflict,[67] including by taking them to the police to make statements about the father’s alleged breach of an apprehended violence order; she told the Family Consultant the children were “not coping well” with spending time with the father;[68] and she resisted the father’s requests to expand the children’s visits with him in 2017 to include school holidays.[69]

   [64] Mother’s affidavit, paras 113-116

   [65] First Family Report, para 10

   [66] First Family Report, para 82

   [67] Memorandum, para 46

   [68] Second Family Report, para 29

   [69] Exhibit F11

6. In such circumstances, the worry expressed by the father and paternal grandparents was understandable, though another aspect of the evidence should have restored their confidence to some degree. Aside from compliance with the interim orders, the plain fact is the three youngest children dearly love the father and paternal grandparents. It is unlikely they could have sustained such loving relationships with the father and paternal grandparents if the mother was genuinely intent on the destruction of those relationships. The relationships have not suffered by the children’s continued residence with the mother. The mother conceded the children loved the father and, at the very least, should spend substantial amounts of time with him into the future. On the whole, the mother understands the importance of the father in the children’s lives and is unlikely to undermine it, though she obviously experiences trouble always acting in a consistent way.

7. The remaining aspect of the mother’s parenting capacity that needs attention is the suspicion about her continuing illicit drug use. Since March 2016, interim orders have existed requiring both the mother and father to submit to random drug (urinalysis) and alcohol (CDT) tests.[70] The mother’s drug tests were positive in April, June and October 2016 and she failed to provide any tests results when demanded in July, August and September 2017.[71] Her failure, without any reasonable excuse, to provide test results over the last few months invites an inference she does not wish to reveal her continued use of illicit drugs. The mother has used methamphetamine since 2009. Her evidence she has not used any illicit drugs since April 2015 was false, given the multiple positive test results in 2016 and her nonsense excuses for those positive test results.[72]

   [70] Orders 1.9 - 1.16 made on 15 March 2016

   [71] Exhibit ICL4

   [72] Mother’s affidavit, paras 122-136

8. In April 2016, the mother refused to allow O Group staff entry into her home and, contemporaneously, Mr J’s employment was terminated.[73] Those events coincided with the mother’s positive drug tests in March and June 2016, implying the use of illicit drugs was causing grave disruption in their daily lives around that time. In May 2016, the mother told N Group staff she and Mr J still associated with drug users. Her denial of personal drug use at that time was false,[74] given her positive test results in March and June 2016. When she later tested positive in October 2016, she was pregnant with L.[75] If she could not resist illicit drug use even when heavily pregnant, her dependency might even be greater than anticipated. Her failure to provide drug screens over recent months only heightens concern.

   [73] First Family Report, paras 19-20; Exhibit ICL3

   [74] First Family Report, para 24

   [75] Second Family Report, para 24

9. If, as is suspected, the mother is still using illicit drugs recreationally, she will lack the capacity to properly care for the children while stupefied. Given Mr J’s admission in cross-examination of past illicit drug use, it is likely he would join in any drug use and not remain sober to care for the children while the mother intoxicated herself alone, in which event there could well be five young children unsupervised in their household on those occasions. Apart from their abject lack of supervision, as the children grow, they would develop an awareness of the illicit drug use in their household, so the mother would be modelling illegal and irresponsible behaviour.

10. The only feasible way to guard against the mother’s intoxication when she is in charge of the children is to require proof of her sobriety, which could be achieved in only one of two ways: professional supervision of the children while in the mother’s care, or alternatively, unsupervised visits with her being made conditional upon her provision of negative drug screens.

11. For the sake of clarity, no adverse inference is drawn about the mother’s use of prescriptive medication. She has various medical conditions, for which she has been prescribed painkilling and sedative medication over many years. There is no evidence she misused that medication. Nor was there any reasonable basis upon which to conclude she misuses alcohol.[76]

    [76] Mother’s affidavit, paras 137-138; Exhibit ICL4

12. The father’s past history of illicit drug use and alcohol misuse was far worse than the mother’s, but it need not be traversed, because he admitted the fact. Suffice to adopt the Family Consultant’s summary that he has a “very long history of polysubstance abuse”,[77] which accurately summarised many source records.[78] His use of alcohol and illicit drugs began in his teenage years[79] and therefore extends back over some 20 years.

    [77] Memorandum, para 35

    [78] Exhibits M1, M2

    [79] First Family Report, paras 58-59

13. As a much younger man, in about 2004 and 2005, the father completed a residential rehabilitation course at “Q Clinic” over a period of about 10 months. His rehabilitation was initially successful, but he later relapsed. The mother contended in these proceedings that his relapse years ago proved the danger of his relapse now, but that was hyperbole. As the father candidly said in cross-examination, he “just wasn’t ready” to permanently rehabilitate at that age. He was not sufficiently mature to accept the harshness of the remedy for his alcoholism and addiction.

14. The father needed both more maturity and an epiphany to realise the depth of his despair and the urgent need for his reformation. The acquisition of maturity was a gradual process, but the epiphany arrived abruptly in October 2015. He assaulted the mother whilst heavily drunk in September 2015, which caused their marital separation, but then a month later, in October 2015, he seriously contemplated shooting himself dead. He told the Family Consultant he ceased all use of illicit drugs and alcohol in October 2015 and has been abstinent ever since.[80] There was not a jot of evidence to contradict him. His random drug and alcohol tests have all been negative.[81]

    [80] First Family Report, para 61

    [81] Exhibit ICL4

15. His rehabilitation has not been easy and the recognition of his alcoholism means he still needs to work hard every day to resist temptation and avoid relapse. His endeavours are solidly supported by his family, friends, and volunteer colleagues.[82] He has also successfully completed numerous relapse prevention programs and still participates in such programs to help others.[83] The father’s evidence in cross-examination only served to emphasise the strength of his commitment to abstinence. He admitted he was an alcoholic and, although he could not give an absolute assurance against relapse, said he would gladly submit to both an injunction permanently restraining him from the consumption of alcohol and his future testing to prove his abstinence.

    [82] First Family Report, paras 61, 75; Second Family Report, para 105

    [83] Father’s affidavit, paras 56-84

16. The father foolishly deposed his past intoxication did not adversely affect his parenting capacity,[84] but he sensibly conceded it did in cross-examination. The mother contended the evidence proved the father’s lack of insight and the failure to accept responsibility for his lurid past, which impaired the prospects of his rehabilitation, but the submission is rejected. More likely, it was just a hollow bluster, easily revealed as such. The mother properly recognised the father had “come a long way” and, while her apprehension about the durability of his rehabilitation is understandable,[85] the father’s convincing progress over the last two years provides sufficient foundation for confidence about his future. By comparison, the father’s acceptance of responsibility for his past drug and alcohol misuse and family violence was much more convincing than the mother’s acceptance of responsibility for her neglect of the children’s basic needs. She denied having had any trouble coping with the care of five children in the face of overwhelming evidence.

    [84] Father’s affidavit, para 45

    [85] Mother’s affidavit, para 341

17. While such reasonable confidence about the father’s continuing abstinence removes any concern about his cognitive capacity to care for the children, the fact remains he is an untested parent. He left the primary care of the children to the mother while they cohabited and, since separation, he has only cared for the children for short periods of time. Even then, he was often assisted by the paternal grandparents. As the Family Consultant correctly observed in cross-examination, the father has not lived independently of the paternal grandparents in a sober state and it would be a big challenge for him to care for the three youngest children alone while trying to maintain his sobriety. For that reason, the father was willing to submit to an order that required him and the three youngest children to reside with the paternal grandparents for the next two years, to which they were agreeable. The paternal grandfather is retired and is available on a full-time basis to assist the father’s care of the children.

18. Although there was some evidence of the eldest child occasionally assaulting the younger children, it was common ground the children love each other and they each have strong relationships with L. The removal of the three youngest children from the mother’s primary care to live with the father would mean separating them from the eldest child and L, both of whom will certainly remain in the mother’s care. The parties recognised any decision about the siblings’ residential separation should be approached cautiously, though they had different views about the solution.

19. The mother contended the siblings’ separation would be such an emotional wrench for them it should be avoided at almost any cost. She contended that feature of the evidence outweighed the effect of any marginal difference in the spouses’ respective parenting capacities. Conversely, the father, paternal grandparents, and Independent Children’s Lawyer all submitted the children could not fulfil their potential when their various needs continue to be neglected in the mother’s care. They asserted the three youngest children’s best interests required their change of residence and, while not ideal, they would still spend sufficient amounts of time with both the eldest child and L to preserve the importance of their sibling relationships.

1. The Family Consultant agreed the possible separation of the siblings was the “key question” for the Court to decide and, while it is possible the children might not cope emotionally with such a change, that risk must be weighed against the continuing risk the three youngest children will suffer harm if they remain living with the mother. Ultimately, the Family Consultant adhered to the view he expressed in January 2017: provided the three youngest children are not at unacceptable risk of harm in the father’s care (which finding is made), then they should live with him and the paternal grandparents rather than with the mother.[86]

   [86] First Family Report, para 105

2. The evidence demonstrated the mother has struggled to financially provide for the children,[87] but it was not contended her penury affected the decision about the children’s residence and so is disregarded.

   [87] First Family Report, para 96; Mother’s affidavit, paras 289-292

Conclusions and orders

1. The presumption of equal shared parental responsibility applies in respect of the eldest child but, in light of the second respondent’s withdrawal from the proceedings, the presumption is rebutted (s 61DA(4)). It could not be in the eldest child’s best interests for the mother to be forced to confer with the second respondent about the eldest child when his whereabouts are not known and he is apparently disinterested. The mother will have sole parental responsibility for the eldest child and he shall live with her.

2. The presumption of equal shared parental responsibility does not apply in respect of the three youngest children because of the evidence of past family violence between the mother and father (s 61DA(2)). The relationship between the mother and father is poor,[88] so there is little chance of them being able to confer, share their views dispassionately, and reach consensus over important issues relating to the children, as the law would require of them if responsibility was shared (s 65DAC). The allocation of parental responsibility must logically be tied to the question of the children’s residence.

   [88] Memorandum, para 39

3. The Family Consultant recommended that the three youngest children should live with the father, provided he posed no real risk of harm to them and that they also live with the paternal grandparents. That recommendation ultimately informed the collective proposal of the father, paternal grandparents, and the Independent Children’s Lawyer. The orders provide for the three youngest children to live with the father, but on condition that they live with the paternal grandparents for the next two years and that the father permanently abstains from the consumption of alcohol. In combination, those pre-conditions provide sufficient insurance for the children’s safety. The mother is re-assured by the paternal grandparents’ surveillance of the children in the father’s care,[89] so orders to that effect should satisfy her, even though she would have preferred to remain the children’s primary carer.

   [89] Mother’s affidavit, paras 442, 467

4. Although the paternal grandparents are confident about the father’s recovery, they acknowledge he still has “a long way to go”.[90] After another two years, the father expects to have been abstinent for four years in total, by which time the proof of his abstinence will be as comprehensive as could be imagined. The paternal grandparents gave the clear impression they would carefully monitor the father’s continuing sobriety and not negligently disregard any relapse. They will likely prioritise the children’s needs above the father’s and would not expose the children to any risk of harm he poses. The father and paternal grandparents sensibly agreed to share parental responsibility for the three youngest children.

   [90] First Family Report, para 75

5. The residential separation of the three youngest children from the eldest child and L is not a decision taken lightly. The Family Consultant conceded the children may not cope well with the transition, but the distinction between transitory distress and longer term maladjustment needs to be emphasised. The Family Consultant’s evidence in cross-examination should not be construed as any concession the children will probably remain maladjusted in the long-term. Most probably, all four children will overcome their initial distress at the change in circumstances and adjust emotionally. That conclusion is founded on two aspects of the evidence: first, the three youngest children will be emotionally supported by the joint effort of the father and paternal grandparents in their residential transition to their household, and second, the mother conceded in cross-examination that the three youngest children are happy when in the father’s care. She even conceded the eldest child knew the second and third children “are happier when with the father”, about which she was also glad. The eldest child might have more difficulty adjusting to the separation than his three younger siblings, but at least his residence will remain unchanged and his emotional support is within the exclusive control of the mother. She thinks she is capable of meeting his emotional needs.

6. Turning then to the question of future interaction between the three youngest children and the mother (together with the eldest child and L), two issues must be addressed: first, the need to abbreviate the children’s visits with the mother while she proves her abstinence, and second, the amount of time the children should spend with her once she has done so.

7. Presently, the mother has not satisfactorily demonstrated her abstinence from illicit drugs. The orders therefore require her to undertake urinalysis for a further year. Until she proves her abstinence by drug screens for three consecutive occasions over a period of about three months, the children may only see her on Sunday afternoons. The Family Consultant recommended in cross-examination that shorter visits were preferable to longer visits in circumstances where the children’s neglect in the mother’s household had been a problem. The risk of the children’s neglect would be particularly acute while the mother is still using illicit drugs around the times of their visits with her.

8. Once she has been abstinent for about three consecutive months, the children’s visits expand to alternate weekends and weekly rotations in school holidays. Assuming the mother can abstain from the use of illicit drugs, her standard of care for the children will likely be sufficiently sound to justify visits of that duration with that level of frequency. If she relapses, then the regime returns to Sunday afternoons only, at least until she again proves her abstinence with three consecutive tests.

9. The mother could have no complaint about the children’s visits with her being conditional upon proof of her abstinence by the provision of continuing drug screens, because she proposed it herself if the children live with her.[91] She proposed both she and the father submit to urinalysis, on a permanent basis, and the children’s visits with the father would be temporarily suspended if his results were positive. The orders make such provision in reverse. The orders do not require the father’s submission to urinalysis because he will be the residential carer for the three youngest children and he will be monitored closely by the paternal grandparents. In any event, urinalysis only reveals illicit drug use. The father’s enduring problem has been alcohol misuse, not the use of illicit drugs, so continuing urinalysis is inapposite for him.

   [91] Exhibit M8, Orders 28-31

10. The requirement for the mother’s ongoing random urinalysis is capped at 12 months, unless the cycle starts again because of any breach by her. For that finite period, it is not unreasonable to expect the mother and father to share the cost of the testing equally.

11. The mother denied any current misuse of alcohol, so she will not be prejudiced by an order which restrains her use of alcohol during the children’s visits with her and for the period of 12 hours immediately preceding such visits. Orders to that effect were reasonably sought by the father, paternal grandparents, and Independent Children’s Lawyer.

12. The three youngest children’s alternate weekend visits with the mother are confined to Saturdays and Sundays. The mother said she was unable to collect them from school on Fridays or return them to school on Mondays, since that would clash with her collections and returns of the eldest child from and to his school on Friday afternoons and Monday mornings. Accordingly, Sunday night returns were the only option. While her Friday evening collections of the three youngest children were still possible, the father, paternal grandparents, and Independent Children’s Lawyer were all against it and the mother did not engage the argument on that issue. There is not too much difference between exchanges on Friday evening and Saturday morning.

13. There is no need for the mother’s supervision when the three youngest children spend time with her, either for an initial short period as the Independent Children’s Lawyer proposed, or for any longer period. The mother will be unhappy about the orders requiring the three youngest children to live with the father (and with the paternal grandparents for the next two years), but the evidence did not permit any finding that she would work to actively undermine the integrity of the orders, so that is not a valid reason for supervision. The safety of the three youngest children when in her care can be satisfactorily achieved by her submission to random drug screening to ensure her sobriety and by confinement of the visits to relatively short periods. She is unlikely to neglect the children’s needs for relatively short periods, particularly if she is sober. Moreover, the imposition of supervision would be too financially onerous for the mother and, if made permanent, would likely impinge upon the quality of the children’s relationships with her.

14. The parties and Independent Children’s Lawyer all proposed special arrangements for the three youngest children on their birthdays, but the orders make no such provision. The special arrangements are confined to Christmas, Easter, Mother’s Day, and Father’s Day. The children are exchanged frequently enough to do without an extra exception to the regime on birthdays.

15. The mother said in cross-examination the eldest child had been assaulting the second child, apparently because he knew the second child enjoyed spending time with the father. Most probably, the eldest child feels excluded from arrangements between his siblings and their paternal family and was venting his frustration.[92] The mother said in cross-examination she told the eldest child it is up to him whether he sees the father and paternal grandparents. To a point that is true, but the child is still only nine years of age. Most likely he still looks to the mother for guidance and would prefer to know he has her emotional permission to enjoy the loving relationships he previously experienced with the father and paternal grandparents. It would be better that she told him plainly it would be advantageous for him to visit the father and paternal grandparents, who love him and wish to see him, and not leave it up to him to decide. Without her express permission to maintain his relationships with members of the youngest children’s paternal family, he may feel constrained to reject them as a demonstration of loyalty to her.

    [92] Second Family Report, para 84

16. Given exchanges of the three youngest children between the parties cannot occur at their school, a neutral and mutually accessible public venue was desirable for the exchanges. The mother proposed the McDonalds restaurant at Suburb R, but the others uniformly suggested the G restaurant at Suburb H. No evidence was adduced and no submission was made to recommend one over the other so the latter is chosen simply because it had the most support. Both venues are relatively close. There should not be much difference.

17. As earlier explained, an injunction binds the mother with respect to the children’s interaction with Mr J. The orders do not go further and preclude Mr J’s attendance at changeovers with the mother, as the Independent Children’s Lawyer and paternal grandparents proposed, because such an order would be an over-reaction to the evidence and an undue imposition upon the mother.

18. The mother proposed an order restraining the father from approaching within 100 metres of her,[93] but no such order is made. It would be an unreasonable fetter upon the father’s capacity to exchange the children between them at a public venue. The mother has had the protection of an apprehended violence order against the father for the past two years and there was no satisfactory evidence of its breach, which suggests the father is well aware of the need to respect the mother and her apprehension of him.

    [93] Exhibit M8, Order 23.2

19. The injunction concerning the paternal uncle (Mr K Nelson) was the subject of agreement between the parties.

20. The orders require the children to be produced to the Family Consultant for an explanation of the orders and, if considered appropriate, the reasons for the orders. The paternal grandparents sensibly proposed such an order. Given the three youngest children’s residence will be separated from the residence of the eldest child and L, it is best they be given an independent explanation of that change.

21. The orders set out at the commencement of these reasons are, according to the evidence, those that reflect the children’s best interests.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 November 2017.

Associate: 

Date:  13 November 2017