Oaten and Cairnes and Ors

FAMILY COURT OF AUSTRALIA

OATEN & CAIRNES AND ORS

[2009] FamCA 991

FAMILY LAW – CHILDREN – With whom children should live

Family Law Act 1975 (Cth)

APPLICANT:

Mr Oaten

RESPONDENT:

Ms Cairnes

INTERVENER:

Ms Grober

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYF

2003

DATE DELIVERED:

16 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

7-8 October

REPRESENTATION

APPLICANT:

Mr Oaten

RESPONDENT:

Ms Cairnes

INTERVENER:

Ms Grober

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Macpherson

Orders

The father have sole parental responsibility for the children, C and L (twins) (“the children”) born … June 2000, in relation to the long term care, welfare and development of the children.
The children live with the father.
The father shall refrain from making any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of any of the children and the father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of any of the children.
The mother shall refrain from making any critical or derogatory remarks about the father or members of his family in the presence or within the hearing of any of the children and the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or members of his family in the presence or within the hearing of any of the children.
Each party be entitled to attend all events involving the children, including but not limited to:
(a) Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance or participation; and
(c)School functions and events that allow for parental attendance or participation.
The father shall have sole parental responsibility for making decisions about the children’s day-to-day care, welfare and development during the times the children are living with the father.
The children shall spend time with the mother as follows:
(a) Upon such occasions as the parents agree from time to time; and
(b)Under the supervision of E Children’s Contact Centres, at such times and on such days as directed by that Centre.
The father shall be restrained from allowing either of the children to be left alone with Mr V (the brother of Ms H) and shall do all things reasonably necessary to ensure that no other person allows the children to be left alone with Mr V.
The children spend time with Ms Grober at such times as agreed from time to time between the father and Ms Grober.

IT IS NOTED that publication of this judgment under the pseudonym Oaten and Cairnes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 22 of 2003

MR OATEN

Applicant

And

MS CAIRNES

Respondent

And

MS GROBER

Intervener

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

Before the Court is an application by the father for orders in relation to the parenting of his twin daughters, and to which application the mother is the respondent. The children presently live with the father and his wife.
To those proceedings the maternal grandmother was for a time joined and she was seeking orders that she might have continuing contact with the children. She however filed in the course of the proceedings a Notice of Discontinuance of her application, it being the evidence of the father that he and the maternal grandmother had come to an accord about the children spending some time with her.
Also joined in the proceedings was a Ms Grober, the father’s former partner, who, by common admission, had cared for the children for significant periods of their young lives. She also sought contact with the children.
The mother opposed the orders sought and sought orders initially that the children live with her and that the father and she have joint parental responsibility and that the father have “contact” with the children each alternate weekend from after school Friday to before school Monday during school term and during school holidays for one half thereof. She sought orders in relation to telephone contact with the children and a supervised handover of the children at the commencement and conclusion of contact. She also sought orders that both parties be entitled to attend the children’s school activities.
On the hearing, the mother said she sought an order that the children live with her and have no contact with the father. Inferentially, she presumably sought an order that she might relocate their residence, since she proposed as a possibility at least that she would live in the United States.
The mother, the father and Ms Grober were unrepresented, and the children had the benefit of the appointment of an Independent Children’s Lawyer.
Expert evidence was before the Court in the form of a series of three expert reports prepared by Dr W. Also received into evidence were notes made of the time spent by the children with the mother at a contract centre. To this were added the evidence adduced from subpoenaed documents from the Police, the Department of Children’s Services and the Mental Health Facility of St Vincent’s Hospital in Sydney.
The father and Ms Grober filed affidavits in support of their case. The Independent Children’s Lawyer cross-examined the father. The mother chose not to ask the father or Ms Grober any questions but she did cross examine

Dr W. Ms Grober and the father did not, in the circumstances which arose, cross-examine each other. The mother filed an affidavit in July 2007, but did not update it for the hearing. The Court gave her leave to adduce oral evidence and she gave her evidence in that form.
At the conclusion of the evidence a short minute of order signed by the father, Ms Grober and the Independent Children’s Lawyer was tendered to the Court and the Court was asked to make those orders with the consent of those parties. The mother opposed the orders and sought the orders which she had adumbrated in her evidence.
In substance the task of the Court was to determine which of two proposals put to it would best serve the interests of these children.

Background Facts

Where in this judgment I make a statement of fact unless otherwise indicated it is my finding of that fact.
In 1945 the maternal grandmother was born.
In 1958 the father’s wife, Ms H, was born.
In 1965 the father was born and is presently aged 44 years.
In 1975 the mother was born and is presently aged 34 years.
In March 1999 the father and the mother commenced a relationship.
In the same month the father and the mother entered into a defacto marriage relationship residing together in the south coast area.
In 2000 the parties moved and lived with the maternal grandmother in the central coast area and the mother opened a business called S Business.
In June 2000 the mother and father’s twin girls, C and L, were born.
In May 2001 the parties moved into a home purchased in the name of the mother in the central coast area.
In January 2002 the parties separated and the father commenced living with Ms Grober.
In January 2002 the children began attending day care.
In July/August 2002 the children commenced staying overnight with their father.
There were subsequent difficulties in relation to the organisation of times for the children to spend with the father and controversy as to the reasons for those difficulties.
In January 2003 the mother made a complaint that the children had been the subject of sexual abuse. The matter was investigated by relevant authorities and action was not taken as a result and the allegations were not pressed before the Court.
In February 2003 the mother asserted to the father that she was going to apply for “full custody”.
In March 2003 the father filed an application and on 20 March 2003 interim orders were made by consent in the Family Court of Australia.
In March 2003 the mother filed a Notice of Abuse.
In April 2003 an Independent Children’s Lawyer was appointed in the matter.
In June 2003 Dr W was appointed as Court expert.
Dr W prepared reports in October and December 2003 for the Court.
In May 2004 the parents and the Independent Children’s Lawyer consented to the making of final orders in the following terms:
1.That the children [C] and [L] both born […] June 2000 shall live with the Father.
2.That during times the children are living with the Father that he shall be granted sole parental responsibility for making decisions about the day to day care, welfare and development of the children.
3.That the children shall have contact with the Mother as follows:
a.Each week from 3.00 pm Tuesday until 10.00 am on the following Friday;
b.Upon the children commencing school – from after school Friday until the commencement of school on the following Monday each alternate weekend;
c.Upon the children commencing school – for one half of all school holidays, being the first half of all school holidays from the conclusion of school breakup for holidays in 2006 and each alternate year thereafter;
d.Upon the children commencing school – for one half of all school holidays, being the second half commencing 2007 and each alternate year thereafter;
e.Reasonable telephone contact;
f.Each Mother’s Day from 10.00 am until 6.00 pm.
4.That to facilitate contact referred to in 3(a) of these Orders, the Mother shall collect the children at the commencement of contact and return the children at the conclusion of contact to the pre-school at which the children may from time to time attend.
5.That the Father notify the Mother in writing addressed to the residence of the Maternal Grandmother, the identity and address of any pre-school at which the children attend from time to time within 48 hours of any such change.
6.That to facilitate contact referred to in 3(b) of these Orders, the Mother shall collect the children at the commencement of contact and return the children at the conclusion of contact to the school at which the children may from time to time attend.
7.That the Father notify the Mother in writing addressed to the residence of the Maternal Grandmother the identity and address of any school at which the children from time to time may attend, within 48 hours of any such change.
8.That to facilitate contact referred to in 3(c) of these Orders, the Mother shall collect the children from school at the commencement of contact and return the children at the conclusion of contact to the residence of the Paternal Grandmother.
9.That to facilitate contact referred to in 3(d) of these Orders, the Mother shall collect the children from the home of the Paternal Grandmother at the commencement of contact and return the children at the conclusion of contact to the school at which the children attend.
10.That the Father shall notify the Mother in writing addressed to the home of the Maternal Grandmother of any change in residential address and/or telephone contact number of the children within 48 hours of any such change.
11.That during times of handover, contact referred to in 3(d); 8; 9 and 15 of these Orders taking place at the home of Paternal Grandmother, the Father shall not be present at the home and shall use his best endeavour to ensure that [Ms Grober] is not present at the home.
12.That during periods of contact the Mother shall have sole parental responsibility for making decisions about the day to day care, welfare and development of the children.
13.That the Mother notify the Children’s Representative of any address at which she may be living during times referred to in Notation A. herein and [sic] contact telephone number and any such change in address and contact telephone number of the Mother during this period.
14.That to facilitate contact referred to in 3(f) of these Orders, the Mother shall collect and return the children at the home of the Paternal Grandmother.
15.That in the event Father’s Day falls upon a contact weekend of the Mother – such contact shall be suspended from 10.00 am Father’s Day and the Mother shall return the children to the home of the Paternal Grandmother at 10.00 am that day.
Notation
A.It is agreed between the parties that the Mother does not intend to exercise contact from 28 May 2004 for a period of three (3) months.
B.It is agreed between the parties that the Maternal Grandmother, [Mrs Cairnes], shall have contact with the children during times referred to in Notation A. each Thursday from 9.00 am until
6.00 pm. The Maternal Grandmother shall collect and return the children to the home of the Father on each occasion.
C.It is agreed between the parties that the Maternal Grandmother [Mrs Cairnes] shall have contact with the children on 26 June 2004 from 10.00 am until midday and such contact shall commence and conclude by the Maternal Grandmother collecting and returning the children at the home of the Father.
In 2006 the father was shot in the leg, whilst at a club.
The father was eventually charged by the police for “concealing a serious offence”. The husband was committed to prison for a term but on appeal the sentence was varied to periodic detention.
After the reappointment of the Independent Children’s Lawyer, Federal Magistrate Housego made interim parenting orders on 30 June 2006 which provided for the mother to have defined time with the children. The Orders were made in the following terms:
1That Parenting Orders dated 18 May 2004 are suspended.
2That the children [C] and [L] both born […] June 2000 shall live with the father.
3That the mother and the father are to have equal shared parental responsibility in relation to the major long term issues involving the children about their care, welfare and development of a long term nature to include but not limited to, issues about:
a.children’s education – both current and future
b.children’s religion
c.children’s health
d.changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the mother.
4That the children are to spend time with the mother as follows:
a.During School Term – after the completion of (a) and (b) above – from the conclusion of the children’s school on Friday wherein the mother is to collect the children from their school until the commencement of school on the following Monday morning when the mother shall return the children to their school prior to the commencement of school. Such contact to take place each alternate weekend commencing Friday 21.7.06.
b.[I]n addition to [a] above – for one half of all school holidays commencing end of Term 3 school holidays 2006 as follows:
(i)from break-up day of school 2006 and each alternate year thereafter;
(ii)concluding upon [the] day [the] children return to school for 2007 and each alternate year thereafter.
5That the children have telephone communication with the mother on Tuesday and Thursday of each week between the hours of 6pm and 7pm. Such communication to be facilitated by the mother ringing Mobile Telephone as shall be provided for the children by the mother.
6That the father shall use all reasonable endeavours to ensure the Mobile Telephone as referred to in Order 5 herein is switched on and fully charged and available to the children for their usage with their mother during the periods referred to in Order 5 herein and ensure the children are both available to receive such telephone call.
7That the father shall forthwith notify the mother of the identity and address of the school at which the children attend and keep the mother so notified in the event of any change of school from time to time.
8.That both the mother and the father keep the Children’s Representative informed of each of their residential addresses and notify the Children’s Representative of any such new address within 7 days of any such change in residential address.
9That both the mother and the father keep the Children’s Representative informed of each of their telephone contact number and notify the Children’s Representative of any new telephone contact number within 7 days of any change in telephone contact number.
10That the mother has responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are spending time with her and the father has that same responsibility at all other times.
11That during school holiday times, the time the children spend with the mother shall be suspended and shall not take place in accordance with Order 4[a] of these Orders and for the purposes of ascertaining dates of resumption of such time the children spend with the mother in accordance with Order 4[a] of these Orders following the conclusion of the school holiday periods, such time shall notionally be counted through the school holiday periods.
12That both the mother and the father shall ensure that the other parent, through the Children’s Representative, is kept informed of:
a.any medical problems or illnesses suffered by any of the children whilst in the care of that parent;
b.any medication that has been prescribed for any of the children that is required to be administered during times any of the children are with the other parent
13That each party refrain from making critical or derogatory remarks in relation to the other parent or their partner in the presence of or within the hearing of any of the children and that each parent do all things necessary to ensure that no third party makes any critical comments about the other parent or their partner in the presence of or within the hearing of any of the children.
14That in the event that the parents cannot come to a joint decision about a major long term issue involving the children, the parent will do all things necessary to participate in family dispute resolution with a person authorised under the Family Law Act.
15That within 7 days of these Orders, the father shall do all acts and things and give all irrevocable authorities as is necessary to ensure that whichever school the children may attend from time to time, that school for ward directly to the mother copies of all of each of the children’s School Reports and Merit Cards, any written material pertaining to each of the children’s academic and extracurricular activities upon the mother providing to the school self-addressed and prepaid envelopes.
16The Children’s Representative is restrained from disclosing any address or telephone number of the parties to any other person with the exception of providing those details to either the Family Court or Federal Magistrates Court if required to do so.
NOTATION:
A.The parties agree that the mother may attend the school at which the children attend for school concerts or parent teacher interviews or any other educational/sporting function of the children.
In August 2006 the father was arrested on criminal charges and bailed.
In October 2006, Dr W was asked to prepare a further expert report.
In December 2006 the father was again arrested and held in custody.
On 21 December 2007 the mother collected the children from Ms Grober to spend Christmas holidays with the children until about 10 January 2007, when the children were expected to return. The mother subsequently learned that the father was in custody and did not return the children.

In January 2007 the Court granted Ms Grober leave to intervene.
In February 2007 the father collected the children from the school in which they had been enrolled by the mother.
On 23 February 2007 the mother, by agreement with the father, collected the children for a weekend of time with them and the mother failed to return the children to the father and went into hiding. The father obtained a Recovery Order and the Court suspended the time the mother was to have with the children. The maternal grandmother gave the police information to allow the Recovery Order to be enforced and the children were recovered.
In October 2007 consent orders were made for the mother to spend time with the children under supervision at the Interrelate Contact Centre. The orders were not successfully put into effect.
In the same month the maternal grandmother filed an application for orders that she be permitted to spend time with the children.
In February 2008 the father was convicted of criminal offences and appealed to the District Court. His appeal was dismissed and the sentence varied to one of periodic detention.
In May 2008, or thereabouts, the father informed the Court that he had married Ms H.
In August 2008 further orders were made allowing the children to spend some defined time with the mother under supervision and also permitting the maternal grand mother to spend defined time with them.
On 1 December 2008 Dr W completed his expert report.
In February 2009 dates for the hearing of this matter were allocated. Directions were made as to the filing of evidence and any amended applications. The mother did not file any such documents and, when appearing on a compliance check prior to the hearing, was given leave to give oral evidence on the hearing. She on that day confirmed that it was her desire to have the children live with her and live in America or elsewhere, away from the father.

The Issues

The parties’ capacity to parent (involving a consideration of their relative health and their ability to provide suitably for the emotional, financial and physical needs of these children).
The need to protect the children from possible emotional or other abuse in either their mother or father’s care.
Which parent is likely to provide the most stable environment for the children.
The history of the drug use by the parents and whether it is continuing.
The relative abilities of the parties to encourage a relationship between the child and the other parent.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child'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 child'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 child'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

In most families it is of benefit for a child to have a meaningful relationship with each of their parents and this case is no exception. The children, ideally, should be able to gain from each of their parents the contributions that they can positively make to the attainment by the children of their maximum potential.
The children’s relationship with each of the parents in this case is problematic to different degrees in each case.
The father’s past history of criminal behaviour and his former drug taking initially sound warnings about his continued care of the children.
Equally, the mother’s criminal history and the failure of the mother to obey court orders and attend to spend time with the children on the one hand, and to go into hiding with the children on the other, and her history of drug taking and alcohol abuse also make one cautious.
Her health, it appears, is not good and the expert evidence seems to suggest that she is suffering from mental ill-health and that her lack of insight into her condition makes treatment difficult. It seems, on the evidence, that one could not have confidence in her compliance with any treatment regime.
So each of the parents in this case are not without their problems and the decision that the Court has to make is one which assesses their relative danger for the children in seeking to maintain a relationship which is the circumstances positive and meaningful for the children with each parent.
Dr W noted in his first report, dated 29 October 2003, that he saw:
… the children with their mother on three occasions, only two with any degree of formality. When the mother was emotionally composed, both children seemed to be reasonably settled in her presence although with the passage of time on both occasions, they tended to become somewhat more restless.
Dr W went on to say:
… it is also possible that it reflected a degree of insecurity in the children’s relationship with their mother which in turn was a reflection of less than optimal parenting abilities.
Dr W commented in 2003 that the mother became quite agitated in the children’s presence. The father alleged that this was a feature of the mother’s day-to-day behaviour. The mother gave vent to angry outbursts in Court, which adds verisimilitude to Dr W observations of her behaviour with him then and on the subsequent occasion that he saw them in 2008.
It was Dr W’s view that:
If, as the father alleges, this is a feature of the mother’s day-to-day behaviour, then in my view this would significantly undermine the children’s relationship with her and would lead them to feel that there is a disorganised and insecure aspect to the attachment.
Having said that, Dr W goes on to observe that children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future and that those principles apply in this case. Although Dr W raised concerns about the ability of both parents, in particular the mother, to provide consistent full time care for the children it is he says his view that the children should have an opportunity to maintain a connection with each of their parents.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As dealt with otherwise, these children have been exposed to elements of violence or are or have been in the care of those for whom violence is not a stranger. I have real concerns having regard to the mother’s history, her personality and mental health and her clear determination to remove the children from the father and those that they value that, in her care and control, they might be exposed to neglect and suffer psychological or physical harm.

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

Dr W reports that in his interview in 2008 he made some open-ended enquiries with both girls about their wishes. He observed that only L really seemed to want to take up the issue and in her case she provided a very non-specific response indicating that she would be happy to live with anybody.
In the view of Dr W, this unhelpful response suggested that the children have probably been rather buffeted by the events that they can recall over the last five or six years with wrongful retention, abrupt changes, breakdown in relationships associated with changes in career, and often a great deal of hostility between the protagonists.
(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)
The children, Dr W observed in his 2008 report:
… seemed to be quite contented with their father. They were spontaneously affectionate with him on both occasions that I saw them with him. (which includes when he brought them to the second appointment so that they could see their mother).
He observed that the children related well to their stepmother and that probably reflected that they spend more time in activities suitable to girls with her than they do with their father.
Dr W also observed a very warm relationship with Ms Grober whom they referred to as “Mum” although they were careful not to do so in the presence of the mother. He said that he formed the view that when they were living with Ms Grober and their father she was their primary carer and that their primary relationship was with her.
At the time of Dr W’s last report the girls had only just been reintroduced to their mother after not seeing her for nearly two years. He reported that the renewal of the relationship is going reasonably well, under quite constrained circumstances.
The girls, he said, have a legacy of recollection of the relationship with their mother. He said that the children were more settled with her than in 2003 when he saw them together. He observed that the children were affectionate toward her but did not demonstrate that same level of intensity to their warmth for her as there was with the other parties. His conclusion about this relationship was, however, that it was positive but that it would need to be complemented by evidence of satisfactory parenting abilities.
Although not in issue at the time of the hearing, the observation Dr W made of the maternal grandmother may be instructive in relation to the relationship of the children with the mother and the father, namely:
They were very happy to be with their grandmother and seemed to have a very warm relationship with her. She had probably been their primary carer for almost the first four years of their life and had probably been the most consistent figure on the maternal side of their family when their mother was spending time with them since the May 2004 orders.
The children, Dr W observed, have a very good relationship with each other and they confide in each other. That mutual support has been important in helping them maintain their emotional wellbeing since he last saw them in 2003.
(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
It is clear from the orders that the mother seeks that she does not consider, nor will she consider, that it might be in the best interests of these children to maintain some relationship with their father. She has no insight into the possible effects of such a separation from their father, and shrugged off questions on this subject with the self-oriented comment that they would miss him no more than they missed her. I have no doubt given her past history of abduction and going into hiding with the children, the evidence of her lack of insight and her total aversion to the concept of the children having any relationship with their father in the future, that she has no willingness and no ability to facilitate and encourage a close and continuing relationship between the children and their father.
The father at least has put his name to orders which will allow of the possibility of a continuing relationship between the children and their mother, although under supervised circumstances. He, however, before the Court, said that he did not know what he would do if the children said that they did not want to go, but overall demonstrated willingness to facilitate and encourage the relationship with the mother, so far as he could.
It seems that one of the important parenting capacities is to be able to procure compliance by the children with orders of the Court and their failure to comply, although possibly the result of many factors, might be demonstrative of a lack of such capacity.
Hopefully the issue will not arise. As between the two parents, however, I have greater faith in the father complying with orders and procuring compliance with them than the mother so doing. She has made observations to the effect that the process is excremental and represents a destruction of her life by men in the process. With such a view being maintained, one could not have great confidence in her compliance with orders.
(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 living
Dr W has referred to the changes which have taken place in the children’s lives and the need to have stability and security for them. The maintenance of their relationships which are of value to them is also important.
In that regard, he commented particularly on the relationship of the father with the children as being close and loving but also said that there was a warm relationship with Ms Grober who was, whilst they were living with her and their father, the children’ primary carer. It is beneficial for the girls, Dr W suggested, for this relationship to continue.
The children have an affectionate relationship with their mother although of less intensity than with the other parties. Nevertheless, he regarded the relationship as positive.
(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
There is no evidence of significant difficulty in arranging contact through a contact centre and each of Dr W and the Independent Children’s Lawyer have pledged to use their best endeavours to ensure that that facility remains available to the children so that they might continue to have contact with their mother in a supervised environment.
(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
These children are nine years old. They are, it appears, remarkably resilient although not emotionally impregnable. They have in their short lives suffered considerable disruption and change; change in residence, change in carer and change in the frequency with which they see those important to them. The mother was absent from their lives in a meaningful way for significant periods of time. Hopefully that will change but the fragility which has been caused by those changes sounds alarms for the need to provide, as far as is possible, calm and consistent care with a continuing association with those whom the children can see as being part of their lives. This includes the mother, father, Ms Grober, the father’s wife and the children’s maternal grandmother. It appeared that the father and the maternal grandmother have come to arrangements to continue the relationship between her and the children and that a friendly arrangement and relationship now exists between Ms Grober and the father and his wife and the children and arrangements are proposed for that to continue. Although achieving stability, having regard to the history of the parents, is likely difficult, the continuation of the present arrangements with the additional supports for the children, in my view, provides the best opportunity for these children to develop without harm. The children are progressing well at the school that they attend. The last thing that these children need at this time is a disruption to the settled routine which would undoubtedly occur if the mother’s proposals to take them away and cut them off from all their supports were acceded to. Dr W, on the other hand, described the father of probably capable of intense family loyalty and that his behaviour over the years and his attention to a care-giving stepparent might be consistent with this.
(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
The expert, Dr W, reports that C is a quieter child who is interested in creative activities and that L is a more assertive, outgoing, robust child who prefers physical outlets. It seems that the disruptions which have occurred to their lives including when they were abducted by their mother and taken into hiding and when the relationship between Ms Grober and the father broke down, indicates that the children appear to have been exposed to a lot of conflict. C was of more concern at this time, she having shown signs of anxiety and insecurity at home as well as at school. The expert also observed that the children supported each other and they were able to pass through, if not completely weather, this emotional storm.
There are no particular traditions which need to be taken into account. The father seems to be mature and controlled.
I refer elsewhere to the mother’s state of health. She presently resides with a friend in premises, she is unemployed and receiving the Commonwealth Newstart Allowance. She has previously operated some businesses but, given her present state of health and financial situation, it seems likely that in the short term at least that it might not be possible for her to readily do that. She has had an admitted problem with alcohol. She appeared in need, on the evidence, of treatment for her ill-health.
(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
This is not applicable
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father is reported by Dr W to be relying on the assistance of others in the care of the children, including his present wife and, before that, Ms Grober. It seems on all accounts that even if this be so, the arrangements he has made for their care have been satisfactory and it is noted that the relationship of the children to each of these persons is appropriate and was positively reported by Dr W. In these circumstances, the assertion that the father does not have much to do with the children’s day-to-day care would, in my view, reflect the situation in many households and I find it in this case unremarkable. The father expresses not only in words but in deeds his affection for his children, and I am sure that he would regard his responsibilities to them as of a high priority for his attention.

The mother was a person about whom Dr W had great concern. He reported in 2003 in the following terms:
I have great concern about the mother. Her conduct on this occasion was consistent with that in the past. She showed indications of a highly temperamental nature and I note that the pattern of extending contact to the father in much the same way and she had done in 2002 … I formed the view that this is likely to be characteristic of her attitude towards parenting. That is, with some exceptions, her interests and needs are placed significantly higher than those of the children, which brings a great deal of irregularity into their lives. In my view this has probably been an important contributing factor to the girls’ pattern of insecure attachment to her, and to [C’s] more established pattern of general insecurity.
He later observes:
It is my view that she [the mother] has a highly volatile temperament, and that she is quite self absorbed.
Dr W’s observations gained additional support from the mother’s outburst in Court and her concentration on her perception that the result might be unfair to her. She did not, in her submissions or oral evidence, put before the Court what she could do for the children and how they might benefit from her care. When asked, for example, where she proposed that they might live, she was vague and then suggested that they might live in the two rooms she said that she shared with a seventy year old man. She was vague about arrangements for their future care and education and in all did not give the impression that she had thought much about how she might in particular, rather than in general, discharge her responsibilities to her children.
Dr W’s observations as to the mother’s personality were the subject of further evidence which he gave orally having considered documents produced on subpoena and referred to above. He said in his oral evidence that he believed the mother to be mentally ill. He was uncertain as to the origin of her illness. He said she might be experiencing the effects of early drug use in her life or responding with psychotic episodes to her more recent abuse of drugs or alcohol.
The mother gave oral evidence that she had been referred for rehabilitation but had not undertaken any such course. It was the view of the mother that she had no illness requiring treatment of any sort.
The documents subpoenaed from the Mental Health Facility of the St Vincents Hospital record their observations, diagnosis and treatment of the mother for a period from April to May 2009.
She was admitted by the Acute Care Team at the hospital following concerns for her deteriorating mental state. She reported hearing voices of various Hollywood actors who gave her instructions. She also stated that she had been receiving messages from the internet and believed that she was under surveillance. She said that she had had thoughts of dressing up as the Mother Mary and obtaining a gun to shoot the people causing these voices. She was assessed as a risk to herself and others.
She was, on admission, intoxicated and it was observed that she had been drinking increasing amounts in recent times. Her blood alcohol level was 0.13. She was aggressive and required sedation.
The report of those treating her at hospital is that she was insightless in relation to her previously experienced symptoms and any possibility of any current presence of mental illness.
Having considered the Hospital notes, Dr W referred to the fact that the mother had spoken to him about American Intelligence when the mother saw him in 2008. She was, he said, disorganised and impulsive and volatile. During her interview with him she stormed out. Having had the advantage of seeing her over a span of six years, Dr W said that throughout that period she has had a severe behavioural disturbance. This has been characterised by impulsiveness, delusion and anger and inappropriate behaviour. She has also had active delusions and lacks insight, which poses problems for treatment. He observed that at minimum such behaviour and delusion would be unhelpful were it to occur in the presence of the children.
Having said that however, there was, he said, a reasonable expectation that the mother could improve. If the cause was current drug-taking then if that ceased the problems it has caused would dissipate, at least in part. He observed that if the mother were to undertake long term treatments, including taking perhaps sustained release antipsychotic drugs, she might settle down considerably more. However, to achieve that, she would need to be compliant with treatment regimes and in the absence of insight into her condition compliance was problematic. The mother has a firm view that the father in these proceedings is the cause of all her problems. If that were to be conveyed to the children, he said, it would upset them.
However, Dr W offered the opinion that on balance, providing contact took place in a Contact Centre where the mother could be supervised professionally with the children and an intervention undertaken in the event of difficulty, that contact between the children and their mother in those circumstances could benefit the children by maintaining a relationship with her.
He observed that he thought that it would be unlikely for the mother to be physically violent to the children and certainly not in a contact centre.
Dr W said of the mother’s condition that these outbursts of delusional and aggressive behaviour come after a build up period which could be readily detected he said at a Contract Centre who then could provide timely intervention.
(j)any family violence involving the child or a member of the child’s family
Both the mother and the father have experienced violence either as a perpetrator or a victim. The mother assaulted her own mother. Most recently, in July of this year, she was charged with assaulting an officer in the execution of duty and agreed to accept probation service supervision for as long as considered necessary and undertook to obey all reasonable directions for counselling, educational development of drug and alcohol rehabilitation. The father has also been convicted of drug-related offences but has not been convicted since February 2008.
(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
It is not possible on the state of the evidence to give a full and accurate account under this heading. So far as the father is concerned, he appears to have had no assault convictions for some considerable time. The mother has had more recent convictions but the state of the evidence is such that, other than general information as to nature of offence and result of proceedings, particular offences are not detailed.
(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
It is trite to suggest that litigation about children does not by assist in providing them with stability and certainty. The order that I have made will be a final order to provide the possibility of some certainty and stability.
That it is such an order is no guarantee in this case that further litigation might not occur.
The order is in part made because of what I find to be the illness of the mother and the inability of the mother to provide proper accommodation and care for the children.
It may be that subject to her gaining insight, being rehabilitated, and treated for her illness and no longer demonstrating the symptoms of ill-health that she has and does have, and upon her demonstrating that she had proper arrangements for the care of the children, that she may well be in a position to seek validly and properly a variation of the order I make. A Court in those changed circumstances would need to consider the matter again.
(m)any other fact or circumstance that the court thinks is relevant
The father’s wife has a brother who has been the subject of report to the Department of Community Services. If the report is accurate (and it has not been made the subject of criminal prosecution and conviction and it is asserted the allegation is the subject of certain defamation proceedings) there is a possibility of some risk to the children being left in his presence unsupervised. Accordingly, it is my intention to agree to the proposal put by the Independent Children’s Lawyer, the father and Ms Grober that there be a restraint on him coming into the presence of the children without appropriate supervision.

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 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.
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.
In this case there is reason for the presumption not to apply and in coming to that conclusion I rely on the matters set out above and the whole of the evidence before me. I accordingly find that it is not in the children’s best interests for the presumption to apply.

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.
I do not so propose and accordingly will not need to consider this matter.

The Orders to be made

I therefore propose to make the orders in relation to parenting as set forth in the minutes of consent order filed herein and signed by the father and the Independent Children’s Lawyer and Ms Grober and which orders I find best serve the interests of the children.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 16 October 2009

[2009] FamCA 991

16 October 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction