Oconnor and Barker

[2016] FCCA 2000

FEDERAL CIRCUIT COURT OF AUSTRALIA

OCONNOR & BARKER [2016] FCCA 2000

Catchwords:
FAMILY LAW – Parenting dispute – both parents have mental health problems – both have criminal priors – both previously used illegal drugs – ‘good enough’ parent.

Legislation:

Family Law Act 1975, pt.VII

Cases cited:

Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Re: (F Litigants in Person Guidelines) (2001) 161 FLR 189
Collu v Rinaldu [2010] FamCAFC 53

Applicant: MR O'CONNOR

Respondent: MS BARKER

File Number: MLC 4134 of 2014

Judgment of: Judge Curtain

Hearing dates: 29 & 30 June 2016

Date of Last Submission: 30 June 2016

Delivered at: Melbourne

Delivered on: 15 August 2016

REPRESENTATION

Counsel for the Applicant: Mr Sweeney

Solicitors for the Applicant: HBH Legal

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: N/A

Counsel for the Independent Children's Lawyer: Ms Bonney

Solicitors for the Independent Children's Lawyer: Melville Orton & Lewis

ORDERS

THE COURT ORDERS THAT:

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for the children of the relationship X born (omitted) 2009 and Y born (omitted) 2012 (“the children”) but seek the view of the mother before making any final decision.

3. The children live with the father.

4. The children spend time and communicate with the mother as agreed by the father and the mother but failing agreement as follows:

   (a)For two (2) hours each fortnight as supervised by the (omitted) Contact Service, or such other supervision and location as agreed to by the parents;

   (b)By telephone each Monday and Wednesday between 5:00pm and 5:30pm with the mother to initiate such calls to a number nominated by the father;

   (c)By telephone on special occasions such as the children’s Birthday, the mother’s birthday, Mother’s Day, Christmas and Easter at an agreed time with the mother to initiate such calls to a number nominated by the father; and

   (d)For such further and other times as agreed between the father and mother in writing.

5. The mother be responsible for any costs associated with supervised time.

6. The parents keep the other informed of any significant health issues concerning the children.

7. The father do all acts and sign all documents necessary to authorise the school at which the children may attend from time to time to provide to the mother, at the mother’s request and expense, with copies of the following documents in respect of the children:

   (a)All school reports including reports of academic progress and behavioural issues;

   (b)All school notices of functions, parent/teacher interviews and other activities to which the father and mother are invited; and

   (c)School photograph order forms.

8. The father and the mother each shall do all acts and sign all documents necessary to authorise any medical practitioner the children may attend from time to time to provide the mother, at the mother’s request and expense, with copies of any documents in respect of the children and discuss the children’s health.

9. The father and the mother each promptly notify the other of any of the following that may arise when either one or both children is or are in the care of the other party:

   (a)any major illness or injury to a child or children requiring medical treatment;

   (b)any specialist appointments made by the father for a child or children; and

   (c)a child or children being admitted to hospital.

10. Both the father and the mother keep each other informed of their respective current telephone numbers (including landline and mobile) and residential address and email particulars.

11. The father and the mother, their servants and agents be and are hereby restrained from abusing, insulting, rebuking or otherwise denigrating the other parent in the presence or hearing of their child or children, and from permitting any other person to do so in the presence or within the hearing of their child or children.

12. In the event the father and the mother are unable to reach agreement as to the future arrangements for their child or children then the father and the mother shall each do all acts and things necessary to apply to Victoria Legal Aid to enable the father and the mother to participate in Family Dispute Resolution prior to either parent issuing proceedings under the Family Law Act 1975 (Cth).

13. The father and the mother shall be restrained from consuming alcohol to excess or from consuming illicit substances or exposing their child or children to persons adversely affected by alcohol or illicit substances whilst their child is or children are in their respective care.

14. The mother do all things necessary to have her mental health regularly assessed and supervised by her treating doctor or the (omitted) Community Mental Health Service as often as advised by them and promptly take all prescribed medication.

15. The father do all things necessary to have his Post-Traumatic Stress Disorder regularly assessed and supervised by his treating doctor as advised by the doctor and promptly take all prescribed medication.

16. The father shall undertake all courses recommended by the Team Leader at the (omitted) Children's Contact Service.

17. The Further Amended Application of the father and the mother’s Response and Contravention  Application be dismissed.

18. The Order of Judge Curtain dated 9 June 2015 appointing the Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4134 of 2014

MR O'CONNOR

Applicant

And

MS BARKER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a contested parenting dispute where both parents seek the primary care of the two children from their relationship. They cohabited from 2002 or 2003 (with a number of separations) until 2013. Their children are X born (omitted) 2009 (“X”) and Y born (omitted) 2012 (“Y”).

2. A very significant problem is that each of the parents have mental health issues, with the father being diagnosed with Post-Traumatic Stress Syndrome and the mother with Bipolar Disorder, Borderline Personality Disorder and Micro Psychotic Episodes. Both historically also used illicit drugs.

3. As Counsel for the father put it in his closing address, his client would not be a candidate for “Father of the Year”. The sad fact is that neither parent comes to this place with strong parenting skills and it is a matter for the Court to choose the better of two less than ideal parenting proposals.

Background

1. The Applicant father, MR O'CONNOR, was born on (omitted) 1971 and is currently aged 44 years. He is on a Disability Support Pension and probably will never undertake full time employment.  

2. He has secured permanent accommodation through the Department of Housing in (omitted) being a three bedroom home with…“all modern conveniences.”

3. The Respondent mother, MS BARKER, was born on (omitted) 1970 and is currently aged 46 years. She previously resided at (omitted) and only recently moved into the (omitted) area to be closer to the children. She shares a residence with a Mr B, who apparently is a former illicit drug-user with a significant criminal past. He also suffers from Bipolar Disorder. She says that they are co-tenants and are not in any romantic relationship. She further said from the witness box that should she have an order in her favour for the children to live with her, she will locate to another (unknown) residence in (omitted) close to X’s school.

4. The mother also gave evidence that she receives support from the maternal grandmother but neither that person nor Mr B were on Affidavit nor called to give evidence. Their weaknesses and strengths are unknown to the Court and their future roles in relation to the children are undefined and unknown.

5. By way of further background and not surprisingly, the Department of Health and Human Services (“the Department”) has previously been involved with this family. The father alleges that the Department was involved due to the mother’s poor mental health, her frequent verbal abuse and drug use. I also note the father’s admission, against interest, that both he and the mother previously used heroin and that “…I have previously been an occasional user of marijuana”.

6. The father in his Affidavit affirmed 14 May 2014, advised that in 2012 following X’s birth, there was a protection order made in the Victorian Children’s Court placing X in the care of the father. He says that at this time, X was to remain in the care of ‘(omitted) Healthcare’.

7. The father then says that he reconciled with the mother when the protection order was in place and the family was reunited. He says that the Department was “…happy…” and withdrew their involvement. Currently there are no Children’s Court orders in place.

8. This gives me little comfort, as the Department of Health and Human Services only involves itself in families, in my experience, who are in crisis. While this family currently is not in that state, there are serious problems with the parenting skills of these parents that one would have thought the Department could have sought to improve and oversee any improvements before ceasing its role.

9. Following final separation in 2013, the children remained in the primary care of the mother, with the father wanting regular time with the children. Soon after separation the mother refused to provide the children with regular time with their father alleging he was violent and sexually abused their daughter. The father commenced proceedings in May 2014 in this court.

Litigation Background

1. The Initiating Application filed 15 May 2014 by the father sought final and interim orders for the children to live with the mother, equal shared parental responsibility and for the children to spend time with the father. The application was heard by his Honour Judge McGuire on

   
   

   26 June 2014 during the then Warrnambool circuit and his Honour made the following orders:

   1. The solicitors for the respondent mother have leave to withdraw from these proceedings.

   2.  The matter proceed to interim hearing on an undefended basis.

   3. Until further order, the children X born (omitted) 2009 and Y born (omitted) 2012 (“the children”) spend time with the applicant father each Saturday from 10.00 am until 5.00 pm and as far as practicable with a third party in substantial attendance.

   4.  The changeover occur at the McDonald’s Restaurant, (omitted) until arrangements can be made to changeover at the (omitted) Contact Centre.

   5. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children X born (omitted) 2009 and Y born (omitted) 2012 (“the children”) attend upon a family consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry on a date and time or times to be advised for the purposes of the preparation of a family report, such report to be released by 8 October 2014, and:

   (a) The family report to deal with the following matters:

   any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;

   the capacity of each of the parents to attend to the emotional, physical and intellectual needs of the children;

   the willingness and ability of each of the parents to facilitate and encourage the children’s relationship with the other parent;

   the nature of the relationship between the children and the parents;

   any family violence within the definition of the Family Law Act which impacts on the living arrangements and parenting capacity of each of the parents;

   the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   any other matters that the family consultant considers important to the welfare or best interests of the said children.

   (b) The parties send copies of all of their court documents to the family report writer within seven days of being requested to do so by the family report writer.

   (c) The nominated family consultant is permitted to inspect all documents brought to Court under subpoena issued in this matter and previously released for inspection by at least one party.

   6   The application of the father filed 15 May 2014 and the Response of the mother filed 25 June 2014 be adjourned to the sittings of the Federal Circuit Court of Australia at WARRNAMBOOL the week commencing 27 October 2014 at 10.00 for Trial (“the Trial”).

   7.  No later than 21 days prior to the trial the respondent mother file and serve the Trial affidavit setting out with precision:

   (a) Any allegation of abuse, including sexual abuse she relies on at the Trial including the date, time and circumstances of any and all allegations of abuse directed to the children; and

   (b) Any and all facts or circumstances as to why the children should not reside or spend time with the applicant father.

   8.  The applicant file and serve any affidavit he relies on at the Trial no later than seven days prior to the Trial.

   9.  Each party file and serve a Case Summary Document no later than 4.00 pm on 23 October 2014.

   10,    The applicant pay the setting down fee not later than seven days prior to the final hearing.

   11.    Service of these orders are deemed served upon provision of a sealed copy mailed to Ms H of (omitted) Domestic Violence Program – (omitted), Victoria (omitted).

   12.    There be liberty to apply for a Warrant to ensure the attendance of the mother in the event she does not attend for the Trial.

   AND THE COURT NOTES THAT:

   A. The respondent mother despite being served with the Court order of 23 June 2014 has not attended Court this day.

   B. The respondent mother filed and served material at 4.00 pm on Wednesday of the June sittings.  She has been required to file her Trial material well prior to the Trial to ensure that the applications can proceed in the October sittings in a timely and efficient manner.  Consideration will be given to this if she fails to file in accordance with these orders.

   C. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

2. The first family report was released on 26 September 2014 and the matter came back before the court on circuit on 27 October 2014. There was no appearance by or on behalf of the respondent mother and given the father had filed a Contravention Application on 5 August 2014 alleging the mother did not comply with earlier orders made by the court and refused any time with the children by the father, his Honour Judge McGuire had a warrant issued for the arrest of the mother.

3. She was brought before the court on 30 October 2014 when his Honour made the following orders:

   1. The respondent MS BARKER born (omitted) 1970 appeared before Judge McGuire at the Federal Circuit Court at Warrnambool and was granted bail on the condition that she strictly comply with paragraph 3 and 4 of the interim orders of this Court made 26 June 2014 which provide :

   (a) Until further order, the children X born (omitted) 2009 and Y born (omitted) 2012 (“the children”) spend time with the applicant father each Saturday from 10.00 am until 5.00 pm and as far as practicable with a third party in substantial attendance.

   (b) The changeover occur at the McDonald’s Restaurant, (omitted) until arrangements can be made to changeover at the (omitted) Contact Centre.

   2. The matter otherwise be adjourned to the sittings of the Federal Circuit Court of Australia at WARRNAMBOOL on 16 March 2014 at 10.00 am in the duty list.

   AND THE COURT NOTES THAT:

   A. Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

4. The matter was listed before me on circuit on the 16 March 2015 and I heard from the counsel for the father and read the father’s affidavit sworn 11 March 2015 which detailed the mother’s total disregard for the earlier orders made on 30 October 2014. There was no time with being undertaken by the children as the mother totally frustrated and ignored the previous court orders. In the circumstances, I had no choice but to have her arrested again and brought before me. That occurred on 18 March 2015 when I made the following orders:

   1. That the father have leave to make oral application.

   2. That until further Order the children of the relationship X born (omitted) 2009 and Y born (omitted) 2012 live with the father

   3. That until further Order the children spend time with the mother, preferably each Saturday, failing that each alternate Saturday at the (omitted) Children's Contact Centre for a period of up to 6 hours as determined by the management of the said centre.

   4. Until further Order the Father ensure the attendance of the child X at the (omitted) School and the child Y at the (omitted) Community Centre.

   5. The mother, her servants and agents be and are hereby restrained from removing the children from

   (a) The care of the father

   (b) The school and child care the children attend.

   6. The Principal of the (omitted) School and the Manager of the (omitted) Community Centre be served with a copy of this Order.

   7. All extant applications be adjourned to the next sittings of the Federal Circuit Court at Warrnambool commencing on 9 June 2015.

   8. Each party sign all documents requested of them to facilitate the attendance of the mother at the (omitted) Children's Contact Centre and to enable the children to be returned to the fathers care to give effect to paragraph 2 hereof.

   9. The maternal Grandmother deliver care of X to the Father this day, should X be in her care.

5. In my view, the court had little choice but to change the primary carer in the interim pending trial to ensure that there was a relationship between the children and both parents and further to ensure that we could obtain a helpful family report that involved an assessment of all of the parties and all of the children. The matter came back before me on circuit on 9 June 2015 when I made procedural orders for a trial and ordered an updated family report be prepared.

6. The next hearing occurred on 29 October 2015 on circuit when I had the benefit of an Independent Children’s Lawyer appearing on behalf of the children and the parties entered into the following orders by consent, and the matter was adjourned to the June, 2016 sittings:

   1. All previous orders be discharged.

   2. The father and mother have equal shared responsibility for the children of the relationship X born (omitted) 2009 and Y born (omitted) 2012 (“the children”).

   3. The children reside with the father.

   4. Forthwith the father and the mother do all such acts and things to apply to the (omitted) Children's Contact Centre, (omitted) (“(omitted)”) for the Applicant to spend supervised time with the children.

   5. The children spend time and communicate with the mother as agreed by the father and the mother but failing agreement:

   (a) Upon a place becoming available at the (omitted) the Applicant spend time with the children at such times and days as directed by the service in consultation

   (b) with the father and the mother with such time not to exceed once every two (2) weeks.

   (c) By telephone each Monday and Wednesday between 5:00pm and 5:30pm with the mother to initiate such calls to a number nominated by the father.

   (d) By telephone at any reasonable time on special occasions such as the children’s Birthday, the mother’s birthday, Mother’s Day, Christmas and Easter with the mother to initiate such calls to a number nominated by the father.

   (e) For such further and other times as agreed between the father and mother in writing.

   6. The father be permitted to change the school at which the children are enrolled to a school nominated by the father in the (omitted) area with the children to commence schooling at the school nominated by the father as from the commencement of the school year in 2016.

   7. The mother be responsible for any costs associated with supervised time.

   8. The parents keep the other informed of any significant health issues concerning the child.

   9. The father do all acts and sign all documents necessary to authorise the school at which the children may attend from time to time to provide to the mother, at the mother’s request and expense, with copies of the following documents in respect of the children:

   (a) All school reports including reports of academic progress and behavioural issues;

   (b) All school notices of functions, parent/teacher interviews and other activities to which the father and mother are invited; and

   (c) School photograph order forms.

   10. The father and the mother each do all acts and sign all documents necessary to authorise any medical practitioner the children may attend from time to time to provide the mother, at the mother’s request and expense, with copies of any documents in respect of the children and discuss the children’s health.

   11. The father and the mother each promptly notify the other party of the following that may arise when either one or both children is in the care of that party:

   (a) Any major illness or injury to the child or children requiring medical treatment;

   (b) Any specialist appointments made for the child or children;

   (c) The child or children being diagnosed as suffering from any medical, psychological or psychiatric condition; and,

   (d) The child or children being admitted to hospital.

   12. Both father and the mother keep each other informed of their respective telephone numbers (including landline and mobile) and addresses.

   13. The father and the mother, their servants and agents are hereby restrained by injunction from abusing, insulting, rebuking or otherwise denigrating the other parent in the presence of the child or children, or within the hearing of the child or children, or at all and from permitting any other person to do so in the presence or within the hearing of the child or children.

   14. In the event the father and the mother are unable to reach agreement as to the future arrangements for the child or children then the father and the mother shall each do all acts and things necessary to apply to Victoria Legal Aid for purposes of the father and the mother participating in Family Dispute Resolution prior to either the father or the mother issuing proceedings.

   15. Without admitting the necessity for same, both the father and the mother be restrained from consuming alcohol to excess or from consuming illicit substances or exposing the child or children to persons adversely affected by alcohol or illicit substances whilst the child or children is in their respective care.

   
   NOTATION

   A. The father and the mother note that these Orders do not require (omitted) to provide to the mother to spend supervised or other time with the child or children beyond the usual protocols applied by (omitted) when assisting the father or the mother in facilitating time by the child or children with that child or children’s parent.

   B. I had to order a further family report due to the mother’s non-attendance at the earlier appointments. Her explanation was not acceptable.

The evidence

1. The parties relied on the following documents:

A. Applicant father’s material:

a)Amended Application filed 3 September;

b)Amended Initiating Application filed 27 October 2015;

c)Further Amended Initiating Application filed 28 October 2015;

d)Case Outline of the Applicant Father filed 24 October 2015;

e)Affidavit of Mr O'Connor sworn 7 August 2014 and filed on 11 August 2014;

f)Affidavit of Mr O'Connor sworn 11 March 2015 and filed on 12 March 2015; and

g)Affidavit of Mr O'Connor sworn 23 October 2015 and filed on 27 October 2015.

B. Respondent mother’s material:

h)Application – Contravention filed 13 May 2016;

i)Response to Initiating Application filed on 27 October 2015;

j)Case Summary Document of Respondent Mother filed 27 October 2015;

k)Affidavit of Ms Barker sworn 18 September 2015 and filed on 5 October 2015;

l)Affidavit of Ms Barker sworn 26 October 2015 and filed on 27 October 2015;

m)Affidavit of Ms Barker sworn 8 March 2016 and filed on 14 March 2016; and

n)Affidavit of Ms Barker sworn 5 May 2016 and filed on 13 May 2016.

C. The Independent Children’s Lawyer’s material:

a)Affidavit of Ms M annexing two (omitted) Reports sworn 30 May 2016 and filed on 2 June 2016;

b)Family Report of Ms D dated 26 September 2014;

c)Updated Family Report of Ms D dated 1 October 2015; and

d)Updated Family Report of Ms D dated 24 May 2016.

The applicant’s evidence

1. The father generally answered questions as best he could but I did not always feel he was frank with the Court. For example, last year he left the children unsupervised in an unlocked motor vehicle for twenty minutes near a gambling venue while he said he entered it to “get change for the laundromat”. He was subsequently charged with an offence in relation to his treatment of the children and found guilty in the State Magistrates’ Court. I do not accept the father’s explanation that he was twenty minutes in the casino seeking change for the laundromat. It is more probable he was gambling and left the children unsupervised in the motor vehicle. He was strongly criticised by me for this in the court hearing. The father must understand the children should always be a priority in his life and I make it very clear now that if he fails again to such a degree to promote the children’s welfare, the children could well be removed from his care. He must stop making his needs a priority over the needs of the children.

The respondent’s evidence

1. The respondent mother appeared in person in this dispute and over a period of two days displayed some irrational and inexplicable behaviour. I can only put this down to the fact that her emotional and mental disorders are still negatively impacting on her, notwithstanding she alleges she is well medicated for her disorders. Her thinking process seemed too rigid and sometimes illogical, with her rambling long-questions in cross-examination indicating to me that she was still a lady troubled by mental health issues. Moreover, her evidence and comments in court disclosed a clear dislike of the father and I could not be confident that if the children were to reside with her that she would promote the relationship with the father. I was more confident that the father had the capacity and willingness to promote the relationship between the children and the mother.

2. She appeared in person and I advised her as best I could pursuant to the decision in Re F: Litigants in Person Guidelines (2001) FLC 93-072.

The Family Reports

1. A Family Consultant attached to the Melbourne Registry, Ms D, wrote three reports in these proceedings dated 26 September 2014, 1 October 2015 and 24 May 2016. The mother only participated in the latter report with the first two detailing the expert’s contact with and assessment of the children and/or the father. The mother gave the Court explanations for her missing the earlier appointments but to me it simply underlined her unavailability from time to time.

2. I will be referring to these reports further in my judgment particularly the latter given it provides a helpful assessment of both parties as well as the children.

Contravention

1. The Respondent mother filed a Contravention Application on 13 May 2016. I shall deal with this before I deal with the primary Application. In that Contravention Application, the mother alleged that Order 4 made 18 March 2015 and Order 6 made 29 October 2015 were breached by the father. Those two orders are as follows, respectively:

   “THE COURT ORDERS THAT:

2. Until further Order the Father ensure the attendance of the child X at the (omitted) School and the child Y at the (omitted) Community Centre.”

   “UNTIL FURTHER ORDER, IT IS ORDERED THAT:

3. The father be permitted to change the school at which the children are enrolled to a school nominated by the father in the (omitted) area with the children to commence schooling at the school nominated by the father as from the commencement of the school year in 2016.”

4. The father pleaded not guilty to these alleged breaches and I took evidence from both parties about these allegations. They relate to the father moving the children from their school and day care in (omitted) to (omitted) some weeks earlier than they were due to move. He moved them in late 2015 when they were supposed to start their new school and day care in the New Year. He said that with him living in (omitted) and the school and day care in (omitted), he was finding it financially difficult to continue to pay for the costs of taking them to and from their facilities; he is on a fixed government disability benefit. He therefore decided without seeking to vary the orders or consulting the mother, to transfer the children to the new school and day care some weeks earlier than the orders provided for. In those circumstances he asserted he had a reasonable excuse given his low level of funds and the need to preserve those funds for that forthcoming Christmas period to provide the children with presents and financial support.

5. I am aware that the government benefit is very small and accept it is difficult to fully support an adult and two children on these payments. In those circumstances I accept that while he breached the order, he has a reasonable excuse in trying to preserve the monies for the benefit of the children and family unit. Therefore, I do not find that he has contravened the earlier orders as alleged by the mother. However, he should have brought proceedings to change the orders before he acted in breach of them.

Relevant Legal Principles

1. Section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the children are met by:

   a)ensuring that the children has the benefit of both their parents having a meaningful involvement in their life to the maximum extent consistent with the best interests of the children; and

   b)protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their child.

2. Section 60B(2) of the Act sets out the principles underlying those objects They are that (except when it is or would be contrary to a children’s best interests):

   a)The children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together;

   b)the children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)parents should agree about the future parenting of their children; and

   e)the children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the children are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the children’s best interests.

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) and s.60CC(2A) of the Act. They are:

(a) the benefit to the children of having a meaningful relationship with both of   the children's parents; and

(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

1. I shall consider the primary considerations after the relevant S.60CC(3) factors, (see Collu v Rinaldo [2010] Fam CAFC 53 at paragraph 335).

Additional considerations are:

1. As to sub-section 60CC(3) of the Act:

(a)  any views expressed by the children and any factors (such as the                 children's maturity or level of understanding) that the court thinks are      relevant to the weight it should give to the children's views;

1. X is seven and Y is aged four years. The mother did not produce the children for the first family report but they were available for the other two reports. The report dated 1 October 2015, being the second report says the following:

   “12. X is six years of age (born (omitted) 2009). Y is three years of age (born (omitted) 2012). The children were described as healthy and achieving normal developmental milestones for their chronological ages.  The children were well presented on the day of the interviews with Mr O'Connor making appropriate preparations for them.  Both impressed as friendly and well behaved children. They were willing to engage in various play activities in the presence of their father in the consulting room.  X was willing to spend some individual time with the Report Writer on the day.

   13. X impressed as a thoughtful little girl, able to express some of her thoughts and feelings.  She acknowledged that time is spent with her mother at the (omitted) Children's Contact Centre. She commented that she ‘plays with mum, it is good to see her, sometimes I miss her’.  X commented that she ‘loved living with dad, it feels like home, Y and I like it’.  X described an enjoyment of attending school adding that she has friends there. She stated that she likes her teacher. X described her mother ‘yelling, this is all I can remember, I used to call her Ms Barker and mum, she said call me anything you like’.  X stated that it would be her preference to live with her father ‘one thousand years’.” 

2. The third report dated 24 May 2016 titled “Updated Family Report” says at paragraphs 21 and 22 the following:

   “21. X is six years and nine months of age (born (omitted) 2009). Y (known as Y) O'Connor is three years and eleven months of age (born (omitted) 2012). No concerns were observed with the presentation of the children on the day. Both impressed as friendly and active children, keen to engage in various play activities in the consulting room.  X was willing to spend some individual time with the Report Writer on the day. Y interacted with the report writer in a limited manner, preferring attention from both parents.

   22. X at times lacked focus and concentration on the day of the interviews. She was aware of her mother’s presence in the waiting room. At times she required encouragement from her father to listen and follow requests made of her. X made limited comment in respect to her family circumstances. She was able to express that she ‘felt excited’ seeing her mother on the day, adding ‘it is nice, I am going to give her a hug, and I like to see her’. X expressed an enjoyment of her new school commenting ‘it is good, I like my teacher’. X reflected that it was ‘different mum coming to our house’ adding that although she enjoyed this opportunity it was felt ‘a bit crazy and bonkers’.”

3. It is my finding that the children are too young for the court to put any significant weight on their views but they appear settled in their father’s care.

(b)  the nature of the relationship of the children with:

(i)  each of the children's parents;

The mother:

1. I note in the third report dated 24 May 2016 at paragraph 23, the author undertakes an observation between the children and the mother. She noted the affection that was openly exchanged between the children and mother with the children keen and excited to spend playtime with her. X was reported to say “…she would like to see you every day”. It went on to say that the mother was calm and focused on the children during the observation period and Y was reported to say “…he felt sad, I want to see grandma and mum”. The evidence suggests that the mother and children and have a close and loving relationship.

The father:

1. Although there is no observation reported in the third updated family report, the evidence disclosed that he also has a close and loving relationship with his children, however I note that the second report at paragraph 16 makes the following comment:

   “16. Telephone contact was made with Ms A, Family Support Worker.  Ms A confirmed that she has provided practical family support services to Mr O'Connor.  She described the frequency as ‘spasmodic’.  She stated that Mr O'Connor has been offered parenting programs such as the 1-2-3 Program, this being declined by him. She indicated a continuing availability to Mr O'Connor if required.”

2. The father clearly has to improve his parenting skills and I would expect if a family support worker suggested he should undertake a parenting program or course, the father should do so without any undue delay.

   (ii)  other persons (including any grandparent or other relative of the children);

3. There was no evidence led on this topic and therefore I cannot comment on it.

(c)  the extent to which each of the children's parents has taken, or failed             to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the children; and

(ii)  to spend time with the children; and

  (iii)  to communicate with the children;

1. The parents appear to have taken the opportunity to be involved in these issues, subject to their mental health and the primary carer’s willingness to promote the other parent’s role.

(ca)  the extent to which each of the children's parents has fulfilled, or   failed to fulfil, the parent's obligations to maintain the children;

1. Both parents have chronic mental health issues. They have and probably will continue to be dependent on government benefits. This in turn means they get a very low income, however I am satisfied they do their best on this low income to support the children to the best of their capacity.

(d)  the likely effect of any changes in the children's circumstances,   including the likely effect on the children of any separation from:

(i)  either of his or her parents; or

1. It is my view that these children must not be separated from either of their parents. It is clear that they dearly love both parents and each parent must support the children having a meaningful relationship with the other.

   (ii)  any other children, or other person (including any grandparent or other relative of the children), with whom he or she has been living;

2. There was no evidence led on this topic.

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

(f)  the capacity of:

(i)  each of the children's parents; and

1. I have real doubts about the stability of the mother’s mental health and her capacity at this stage to provide for the children’s emotional and intellectual needs. I was troubled by her presentation at court and at the (omitted) Children's Contact Service, where the third Family report says:

   “27. The recent report prepared by the (omitted) Children's Contact Service is acknowledged. Note is made that a continuing service is being compromised by current maternal allegations and behaviours. Ms M, Team Leader, reported on the parties attending on a regular and consistent basis since October 2015. Observations were made of the children’s behaviour at the Service, this being some cause for concern. Significant concern was raised by the Service in respect to Ms Barker’s behaviour of ‘intensive questioning of the children; warnings given to her in respect of implicating the Service in false statements and the Service being used in attempt to verify allegations of abuse of the children’.”

2. The father’s capacity to promote the children’s emotional and intellectual needs is also compromised. He should have been far more proactive in seeking support from family services and undertaking courses that would only strengthen his capacity as a parent (see paragraph 24 of the Updated Family Report dated 24 May 2016).

   (ii)  any other person (including any grandparent or other relative of the children);

   to provide for the needs of the children, including emotional and intellectual needs;

3. Again, no evidence was led on this topic and I therefore cannot comment on it.

(g)  the maturity, sex, lifestyle and background (including lifestyle,                   culture and traditions) of the children and of either of the children's                 parents, and any other characteristics of the children that the court              thinks are relevant;

1. The parents’ use of illegal drugs and their fragile mental health are relevant and is commented upon elsewhere in this judgment.

(h)  if the children are Aboriginal children or a Torres Strait Islander children:

(i)  the children's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)  the attitude to the children, and to the responsibilities of parenthood,             demonstrated by each of the children's parents;

1. The father has referred to the children “flourishing in his care” in his Affidavit sworn 23 Oct 2015. This is clearly an overstatement as the children have been left unsupervised in October 2105 in a motor vehicle for some twenty minutes whilst he went into a gambling venue to “get change”. There are other examples of his poor parenting such as Y attending the supervised time with soiled underwear, something the father should have checked and been aware of earlier.

2. The father is barely an adequate parent: he has to “lift his game”. I do note at paragraph 28 of the third report dated 24 May 2016 it says the following:

   Mr O'Connor continues to impresses as father who is trying to the best of his ability to provide stability and a loving home environment to X and Y. The children appear to receive a basic but appropriate level of care from Mr O'Connor. It is noted that there are no formal identified child protection concerns or investigations in respect to paternal care at this time. Mr O'Connor demonstrated some lack of judgement in October 2015, leaving the children unattended in the car, this resulting in protective and police involvement. Mr O'Connor impresses as a parent who would benefit from on-going involvement with a family support agency in order to maintain and enhance a satisfactory level of parental care. It is noted that no concerns have been expressed by the primary school attended by X in respect to her attendance, presentation and progress.

1. The mother’s parenting ability is sadly worse than the father’s. Her mental health and presentation is very troubling as I have commented on earlier. I note the author of the third Family Report dated 24 May 2016 says at page 12, paragraph 29, the following:

   Ms Barker impresses as an emotionally vulnerable woman who is determined to achieve a return of the children to her primary care. Her responses at the (omitted) Children's Contact Service and during the Family Report interview are cause for concern. It is considered that Ms Barker would benefit from regular engagement in mental health counselling.  Whilst it is acknowledged that Ms Barker loves X and Y, she appears to experience some personal difficulty accepting responsibility for the current circumstances of the children and resultant legal responses. Ms Barker impresses as set and convinced in her views and belief that the children are subject to abusive paternal care. 

2. Given the same report at paragraph 26 also refers to the children as being vulnerable, it is imperative that both parents focus on the children’s welfare and makes that a priority rather than their own needs or the weaknesses of the other parent.

(j)  any family violence involving the children or a member of the children's family;

1. The mother’s Affidavit sworn 25 June 2014 details some very troubling family violence and history of the parties’ involvement in Intervention Orders. I shall deal with the latter under the next sub-heading. In relation to family violence, the mother alleges and the father conceded during the running on the trial that he was found guilty of assaulting the mother in the Wodonga Magistrates’ Court on or about August 2010.

2. She also details the circumstances of an event in December 2013 where the father attempted to force his way into the residence of the mother and the children. She alleges he damaged doors in the attempt.

3. More concerning, is her allegation suggesting that X had been a victim of the sexual abuse at the hands of the father. She alleges that X said amongst other things “Daddy touched my wee wee and my hole bum, Daddy hopped into my bed and kissed me on the lips and Daddy stuck his fingers in my wee wee and is hurt.” The mother quite appropriately made a complaint to the (omitted) sexual offences and Child Abuse Unit as well as the Department of Health and Human Services. The evidence discloses that there was an investigation into these serious allegations and disclosures that allegedly X made. The evidence discloses further that after a full investigation by the relevant bodies and no charges were laid against the father and the matter did not proceed further. Notwithstanding this outcome, the mother is convinced that X has been sexually abused by the father and appears to be looking for further evidence to further her case. There is no evidence to suggest that the father is an unacceptable risk to the children. This was not at all suggested by the Independent Children’s Lawyer and his major role was to consider this very serious allegation.

(k)  if a family violence order applies, or has applied, to the children or a            member of the children's family--any relevant inferences that can be           drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. In relation to family violence orders, the material filed by the parties comments on the following:

   a)The mother obtained an Intervention Order in her favour against the father from the Wodonga Magistrates’ Court on 8 August 2010 being an interim order for around 15 months;

   b)She obtained a further Intervention Order against the father on 28 June 2012 for 12 months from the Warrnambool Magistrates’ Court; and

   c)On 24 May 2013 again from the Warrnambool Magistrates’ Court, the parties both obtained mutual Intervention Orders for a period of 12 months and the mother alleges that on 31 October 2014 she sought an intervention Order in the Warrnambool Magistrates’ Court but I could not locate any copy of the order or any further details about this alleged application.

2. I do not have the full details of these orders to effectively answer all the sub-paragraphs in this sub-section but I can say that there has obviously been a history of serious violence between these parents and the children have suffered from this if not in a physical way, then in an emotional way. Their behaviour has historically not promoted the psychological or emotional wellbeing of these children and they must stop harassing and threatening the other.

(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 children;

1. I shall draft orders that I believe would be least likely to lead to further proceedings however I cannot make orders that will change these people; it is up to them. They have to locate and make full use of government and non-government support services in the (omitted) community to sure their mental, emotional and other weaknesses are overcome and that their parenting skills are improved.

(m) any other fact or circumstance that the court thinks is relevant.

1. All the relevant facts and circumstances have been dealt with under the above sub-headings.

Equal Shared Parental Responsibility

1. The Independent Children’s Lawyer’s proposed orders suggested there should be an order for equal shared parental responsibility. The updated Family Report dated 24 May 2016 makes no recommendation on this topic.

2. Having read the parties’ martial and observed them for two days in the Court, it is clear to me they each hold a very negative view of the other. Further, their communication is very poor and very basic.

3. I am aware of their history of drug use, violence and mental dysfunction. That history along with their poor communication and very negative view of each other combine to discourage the court from making an order for equal shared parental responsibility. In my view, if such an order was made, it would ultimately lead to further confrontation and the probability of further litigation. Therefore to ensure these parties to do not come back to this place and being mindful of Section 60CC(3)(l), it is my finding that the father should in the circumstances have sole parental responsibility conditional upon him at first conferring with the mother to discover her view on the issues that arise from time to time before he makes any final decision.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship””.

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).

6. The prospective approach, which I will apply in this case, was set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”

7. Currently the children have a meaningful relationship with both parents and this will be maintained in the current Orders subject to their mental health.  In my view, a meaningful relationship is not simply determined by the hours or days spent by a child with a parent.

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

1. I have detailed in the assessment of Section 60CC(3) the history of family violence and abuse and neglect. I have already discussed the mental health of the parties, their prior drug use and general dysfunction, and believe the orders I will make will protect the children in the future as long as my orders are fully complied with.

2. There is no doubt that these children needed and still do need to be protected from physical or psychological harm and it is up to the parents to ensure that their past bad behaviour discussed above in this judgement is not repeated.

Conclusion

1. This court is seeing more and more cases with these type of problems. These are issues in our community that are more of a social problem and less of a legal problem. It requires the involvement of social workers, psychologists, psychiatrists and general practitioners to assist the parents where there is a combination of mental ill-health, illicit drug abuse and violence.

2. Historically the mother was the primary carer until recently when she disclosed, by her behaviour and attitude, that she could not promote a relationship between the father and the children. The Court had little choice but to change that arrangement in the interim to see if the children could have a relationship with both parents and the father could promote their welfare.

3. I note the recommendation by Ms D in her third, updated report dated 24 May 2016 at page 14, that X and Y should remain in the care of Mr O'Connor. I also note that this is supported by the Independent Children’s Lawyer.

4. At page 13 of that report, the author says the following:

   “X and Y require stability and predictability in their living circumstances. They are young children who have been impacted by a high level of parental conflict, a history and concern in respect of poor parenting and maternal behaviours that are affected at times by mental health issues. Their behavioural responses as observed by the (omitted) Contact Service are noted. It is considered both children need consistent, clear, constructive and attentive parental responses in order to calm their behavioural responses. It is further considered not in their best interests to continue to be aware of parental differences of opinion and being actively involved in questioning in respect of paternal care. X as the eldest, in particular appears to have an acute awareness of the parental conflict with a tendency to be drawn into parental issues.

   Whilst there are untrusting and critical attitudes held by each parent in respect to the other, Mr O'Connor appears the most willing to facilitate and accept the need for the children to maintain a relationship with their mother. The children have now resided in paternal care since March 2015. It is considered that it remains in their best interests given the current circumstances to continue this primary care arrangement, There is a history of concerns identified in respect to maternal responses and behaviour in this matter, these issues being of a continuing nature. Therefore the maternal proposal for the children to reside in the primary care of the mother is not supported at this time. It is acknowledged that X and Y love their mother, miss her and want to spend planned time with her.”

5. After making those comments the author of the Report makes the following recommendations:

   “That X and Y remain in the care of Mr O'Connor.

   That X and Y continue to have the on-gong opportunity to spend fortnightly planned time with their mother at the (omitted) Children's Contact Service.  If this service is unavailable, the alternate options appear limited. Consideration to be given to the children spending time once a fortnight during the daytime with changeovers facilitated by the (omitted) Contact Service if available.

   That Mr O'Connor engage in available family support and parenting services available to him through agencies such as Centacare or Bethany, this considered of benefit in order to provide consistency and enhancement of his parenting responses.

   That consideration be given to Ms Barker engaging in an independent psychiatric assessment.  Ms Barker to engage in mental health counselling as recommended by the (omitted) Adult Mental Health Services.”

6. As I indicated earlier this is wholly supported by the Independent Children’s Lawyer and in the circumstances of this unusual case as presented by the parties and their material and the experts’ recommendations, it is my finding that it is in the best interests of these children that they remain in the primary care of the father but have ongoing time with their mother, which at this stage, requires supervision given her current poor mental health.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date:  15 August 2016