PARRISH & SMART

[2015] FCCA 2006

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARRISH & SMART [2015] FCCA 2006

Catchwords:
FAMILY LAW – Parenting – three children already separated – issue of whether three year old be reunited with twelve year old and ten year old siblings in the father’s care – family violence – capacity – children’s views.

Legislation:

Family Law Act 1975

F: Litigants in person Guidelines, Re (Furnari & Furnari) [2001] FamCA 848; (2001) FCC 93-072
Woods & Daniel [2002] FamCA 181

Applicant: MS PARRISH

Respondent: MR SMART

File Number: HBC 893 of 2012

Judgment of: Judge McGuire

Hearing dates: 16 & 17 July 2015

Date of Last Submission: 17 July 2015

Delivered at: Hobart

Delivered on: 8 October 2015

REPRESENTATION

Solicitor for the Applicant: Self-Represented

Counsel for the Respondent: Ms Rofe

Solicitors for the Respondent: Wallace Wilkonson & Webster Lawyers

Counsel for the Independent Children's Lawyer: Ms Mooney

Solicitors for the Independent Children's Lawyer: Kate Mooney

ORDERS

1. That all extant orders in respect of the children X (omitted) 2003, Y (also known as ‘Smart’) born (omitted) 2004 and Z born (omitted) 2011 be discharged.

2. That the respondent father have sole parental responsibility for the children X, Y and Z provided that the father keep the mother informed at all times of relevant educational and medical issues in respect of the children and, where necessary, provide signed authorities to allow the mother access to medical practitioners and school teachers such as is normally available to parents.

3. That X, Y and Z live with the father.

4. That X and Y spend time and communicate with the mother as follows:

   (a)Each alternate Saturday from 10.00am until 5.00pm; and

   (b)At such other times as may be agreed between the parties from time to time in writing.

5. That Z spend time with the mother as follows:

   (a)Each alternate Saturday between 10.00am and 5.00pm;

   (b)Each Tuesday between 10.00am and 5.00pm (or on such other day as agreed between the parties in writing or as recommended by the Independent Children’s Lawyer).

   (c)At such other times as may be agreed between the parties from time to time in writing.

6. That the appointment of the Independent Children’s Lawyer be discharged as from three (3) months from the date of these Orders.

7. That the children X and Y attend counselling/mediation with Dr G (on such other professional directed by the Independent Children’s Lawyer) as directed and for such duration as determined by the professional and that the mother attend such sessions when and if directed by the professional.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

HBC 893 of 2012

MS PARRISH

Applicant

And

MR SMART

Respondent

REASONS FOR JUDGMENT

Background.

1. These parents have three children namely:

   1. X born (omitted) 2003 (aged 12 years);

   2. Y (aka Smart) born (omitted) 2004 (aged 10 years); and

   3. Z born (omitted) 2011 (aged 3 years)

2. The parties commenced their relationship in (omitted) 2002 shortly before the mother’s 16^th birthday. The father was just 16 years old at the time. X was born on (omitted) 2003 and Y in the following year. Z is much younger within the context of this relationship being just three years of age. The parties separated in April 2012.

3. Mr Smart has re-partnered with Ms C. They have a child, A, who was born in (omitted) 2014. Ms C has three boys from a former relationship who are aged eight, six and four years.

4. Mr Smart’s family unit live in (omitted) on (omitted).

5. The mother, Ms Parrish, lives in (omitted) which is also on (omitted) and just a very short distance across a highway from (omitted). She is in a form of relationship with a Mr J. Whereas Ms C provided an affidavit, came to Court, and was cross-examined, I did not hear from or see Mr J. Ms Parrish was, in fact, equivocal as to the nature of her relationship with Mr J and volunteered terms such as “taking it slowly”. I do note, however, that he stays with Ms Parrish some three or four nights each week.

6. There have been previous Family Law proceedings resulting in orders whereby X, Y and Z lived primarily with Ms Parrish and were to spend time with Mr Smart which commenced at a contact centre and after a hiatus in the children seeing their father. Final orders were made by consent on 3 February 2014.

7. Just a week later on 11 February 2014 there occurred events which have become significant in these children’s lives and their relationships and the proceedings now before this Court. X and Y voluntarily left their mother’s home and went into the care of their father (only a few hundred metres away). They say they did so after being assaulted by their mother and/or their maternal grandmother, Ms J. At the very least, this incident appears to represent the overvigorous end of the discipline spectrum and arguably something more culpable. In any event, X and Y have since lived in the household of Mr Smart, Ms C, her three boys and A. Despite the geographical proximity, they have had virtually no direct contact with their mother. Similarly, Z, who remained in the mother’s household, has had little direct contact with the father or her siblings. Attempts at organising supervised times at contact centres have happened on occasion but with a distinct lack of success.

The applications.

1. The mother now concedes that X and Y should remain living with their father. She proposes, however, that a relationship with X and Y be reinstated by way of a regime of time-with.

2. The father concedes that X and Y should have a relationship with their mother but emphasises the difficulty he anticipates in facilitating that relationship due to the events of 11 February 2014. He proposes that Z live primarily with him. This, therefore, was the primary focus of the argument before the Court.

3. For reasons which will be detailed below, there is no presumption as to equal shared parental responsibility for these parents. The sad history of conflict and violence leaves little option other than one or other of the parents to exercise sole parental responsibility in respect of Z and her two older siblings.

The evidence.

1. The mother represented herself in the proceedings. She did so in an adequate fashion and was at all times courteous to the father, his partner, the witnesses and the Court. Prior to the taking of evidence the Court provided the mother with copies of the relevant sections of the Family Law Act 1975 (Cth) (“the Act”) and took time to take the mother through the procedure of the Trial with an invitation to seek assistance at any time.[1]

   [1] F: Litigants in person Guidelines, Re (Furnari & Furnari) [2001] FamCA 848; (2001) FCC 93-072

2. Given her own background and the history detailed above, Ms Parrish was understandably, and not surprisingly, overly negative and critical of the father and Ms C in her evidence. Despite their geographical proximity, these two family units have not interacted save and except for the occasional alleged violent episode. Nevertheless, at the suggestion of the Court, and well into the evidence, Ms Parrish agreed to speak to Ms C who, after all, will now be a female role model and carer for X and Y. It seems that, whilst trust issues remain fairly well entrenched, the “ice was broken” between these two significant women in the children’s lives. This can give the Court at least some small cause for optimism of a cooperative and communicative functional relationship between the adults in the future.

3. Ms Parrish gave her evidence from the witness box in a confident and assertive manner and was generally a credible witness.

4. Ms Parrish adduced evidence from her mother, Ms J. She had provided an affidavit on 19 February 2014. Unfortunately, Ms J seemed to view the witness box as a forum for her own residual complaint and issues with Mr Smart. She was aggressive and obtrusive in her responses. Whilst understandably partisan to her daughter’s case, I gleaned little assistance from Ms J’s evidence.

5. Mr Smart gave evidence and was cross-examined. He was an impressive witness given the allegations against him of violent disposition. He was subjected to vigorous cross-examination from Counsel for the Independent Children’s Lawyer (and also at times from the bench). He presented, however, as child focused and objective. He showed no signs of anger and remained calm and considered in his responses. He was able to be objective in his understanding of the need for X and Y to have a relationship with their mother but was also able to articulate the difficulties that had and will confront him in assisting with the re-establishing of those relationships. Unlike the mother and Ms J, he did not show a tendency to be overly critical of the mother or to deflect blame. Whilst Mr Smart has a notable history of prior convictions for matters of dishonesty, violence and anti-social behaviour, he does not appear to have come to the attention of the police for some years. This is consistent with my observations of a young man who may have attained some maturity and responsibility in his life.

6. Mr Smart gave evidence of his working in (omitted) and/or (omitted). This requires him to be away during weekdays but if in (omitted) able to return on Thursday afternoons and back on Monday mornings.

7. Mr Smart adduced evidence from his partner, Ms C. Ms C provided an affidavit. She too was an impressive witness. Ms Parrish had alleged an assault on her at the hands of Ms C. If this is true then Ms C’s demeanour in the witness box suggested that she too has also achieved a degree of maturity and responsibility. She presented as having a quiet demeanour but with a degree of assertiveness and strength of character. She maintains a household of currently five children and two adults. There is no indication of recent interest in that household from the authorities including the Department of Human Services. She was objective and child focused in her responses in cross-examination. She expressed a willingness to liaise and cooperate with Ms Parrish in respect of the children who will ultimately be likely to spend time in both households. In this respect Ms C showed a far more objective, mature and child focused attitude than did Ms Parrish who was notably more reluctant in accepting a suggestion to speak with Ms C.

8. Mr Smart also adduced evidence by affidavit from the school teachers of X and Y being Ms B and Ms A respectively. Both teachers were unavailable to be cross-examined and hence the principal of the (omitted) Primary School, Mr D, adopted the contents of the affidavits and presented for cross-examination by telephone. Mr D was complimentary of Mr Smart and his participation and interest in the children’s education. Generally, both X and Y are thriving in their school environments.

9. There was also evidence brought by the father from Dr S whose affidavit was filed 13 July 2015. Dr S’s evidence comprises of a report of 6 March 2014 being a matter of weeks after the alleged assault on X and the children’s move to their father’s home. That report provides corroborative evidence of X advising the doctor that she was hit by her mother on her thigh with a thong and kicked on the back of her right ankle. X also reported being slapped at the back of her head by her mother. This evidence is contrary to that of Ms Parrish who says she was not physically present at the incident and that this violence was perpetrated by the children’s grandmother, Ms J. Little turns on this issue of disputed fact or credit given it is clear that the children were assaulted by someone and this caused them to move to the father’s care on that day.

10. I also have before me evidence of reports from the (omitted) Children's Contact Centre in respect of the various attempts to have X and Y continue a relationship with their mother and for Z to have a relationship with her father. The reports are unremarkable save and except that visits have not been consistent with the mother being primarily culpable in this respect. Those reports confirm that Ms Parrish was adamant that Z not be brought into contact with A, the child of Mr Smart and Ms C. Ms Parrish remained persistent in this respect through much of the trial before me. Despite the limited contact, the reports give an indication that Z is comfortable with her siblings in Mr Smart’s company and particularly so.

11. The Court had the valuable assistance of an Independent Children’s Lawyer in this matter. Counsel for the Independent Children’s Lawyer provided intrusive cross-examination of the above witnesses and was, of course, of assistance in a matter where the mother was unrepresented and was necessarily limited in her skills of testing the evidence.

The family reports.

1. The complexities and duration of litigation for this family are evidenced by the fact that there have been no less than four family reports dating from May 2013 with the last report being as recent as 7 July 2015. The consistent family reporter has been Dr G who is a forensic and clinical psychologist in private practice. Dr G’s reports and her evidence were professional, informed and comprehensive in their forensic investigations.

2. Dr G recommends that Z remain living with the mother with emphasis on her being Z’s primary attachment. When challenged in cross-examination, however, Dr G noted the benefit to the siblings in being reunited as a supportive unit and consistent with her observation of the three siblings at the most recent interviews in her rooms where there was clear recognition and mutual support and affection.

3. Dr G recommends mediation to re-establish the relationship between X and her mother. She says that she would be content to undertake that role. Dr G’s reports show a current assertive and unequivocal preference in the older two children to remain living with their father and are indicative of good personal relationships between X and Y with both the father and Ms C, notably consistent throughout the reports.

4. All four reports are highlighted by the extraordinary high level of conflict between the adults. Dr G reached clinical conclusions in respect of the parents generally as follows:[2]

   It was my clinical conclusion that Mr Smart and Ms Parrish both have anti-social personalities and engage in physically and verbally aggressive behaviour at times. It is my instruction that they have both been raised in violent homes, and violence has been somewhat normalised for them. Both parties have extensive anti-social record of criminality and drug use. In was my opinion that there remained a risk of the children’s exposure to violence in the homes of both parents, as they are volatile and they each have long histories of same.

   [2] Family Report, 9 September 2014, paragraph 9

5. Dr G had the advantage of observing Z with the mother and noted the following:[3]

   With respect to observations of Z, she initially appeared shy and was snuggling into Ms Parrish. Ms R (a maternal aunt) escorted her to the other office to see her brother and sister. The contact between the children was overwhelmingly emotional. They instantly hugged each other with delight and intensity, and giggled in play the entire visit. Z presented as a confident and articulate three year old, and it was clear she thoroughly enjoyed being with her siblings. Y constantly attended to his little sister – hugging her, holding hands with her, playing games with her, and telling her that he wished he could see her every day. X was nurturing and motherly with Z, and it was clear that she was thrilled to spend time with Z.

   [3] Family Report, 7 July 2015 at paragraph 21.

6. The extent of the children’s involvement in and exposure to adult family violence, violence inflicted on them, and other inappropriate behaviour in the households is evidenced throughout Dr G’s reports. The children speak of witnessing acts of sexual intimacy in their mother’s home. They have historically made complaints of physical corporal punishment against both the mother and the father and other family members. The children’s confused sense of loyalty can be seen in the historical reports where they have made conflicting allegations against each parent and show preferences to live with a particular parent dependent on their circumstance at a particular time. The inevitable conclusion, however, is that X and Y are of such ages that they have embedded memories of higher level conflict between their parents, physical violence and other anti-social behaviour.

The issues.

1. Although the background of this matter is sad and complex for these three children, the primary issue is whether Z should continue to live with the mother or move to live with the father. Dr G, the psychologist/family reporter, recommends that Z remain living with the mother but have an ongoing relationship with the father. The emphasis of Dr G’s recommendations appears to be on the attachment that Z has with the mother and any potential distress for her being removed from the mother. Conversely, Ms Mooney of Counsel for the Independent Children’s Lawyer recommends that Z move to live with the father. Her emphasis is on the benefit of Z being reunited with and having a relationship with her siblings. Counsel for the Independent Children’s Lawyer argues also that the mother’s parenting capacity suffers relative to that of the father and his family unit with Ms C and that the mother remains more entrenched and dwelling on the conflict whereas Mr Smart may have moved on.

2. In the main, however, and in respect of Z, the major arguments, each of which is meritorious, is a balance between the effect on Z of being removed from her primary carer and attachment as against the advantages of Z in being reunited with and living with her siblings.

Relevant law.

1. In determining the parenting and living arrangements for X, Y and Z the paramount consideration for the Court is children’s best interests.[4] Those best interests are determined by referencing the parties’ proposals and the probative evidence to the mandatory considerations set out in ss.60CC(2) and(3) of the Act.

   [4] S60CA of the Act.

2. The framework for this consideration is provided in s.60B which sets out the objects and principles of the legislation.

3. Section 60B states:

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

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

   (c)  ensuring that 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 children.

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)  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; and

   (b)  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); and

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

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

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

4. Section 61DA of the Act provides a presumption that it is in a child’s best interest for the parents to have equal shared parental responsibility for the child. That presumption does not apply when the Court is satisfied that there has been family violence within the broad definition in the Act. Alternatively the presumption may be rebutted if contrary to the child’s best interests. Matters of parental responsibility are usually manifested in the long term decisions in respect of children and in such issues as education, medical procedure, religion and the like.

1. If the presumption applies and is not rebutted then the Court must enter into a statutory and intellectual course of consideration. Firstly, the Court must consider whether the children spending equal time between the parents is both in their best interests and reasonably practicable. If the answer to either of those questions is in the negative then the Court moves to consider whether the children spending “substantial and significant time” with each parent is both in their best interests and reasonably practicable. “Substantial and significant time” involves the children spending both weekend and weekdays with a parent and enjoying activities together normally enjoyed by children and parents.

2. In the matter now before me and at this early stage, there is such a documented history of family violence that it is not difficult to conclude that the presumption does not apply. It remains open, however, to determine whether an order for equal shared parental responsibility is in the children’s best interests.

Determination of the children’s best interests/section 60CC factors.

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

1. This, together with s60CC(2)(b) is a “primary” consideration for the Court. It is, however, not determinative of the matter.[5]

   [5] Champness v Hanson [2009] FamCAFC 96

2. Dr G places some real weight in her recommendations on the fact that Z has a primary attachment to her mother. This is unsurprising given that Z is just three years of age and has spent relatively little time with the father. The Act does not offer a definition of “meaningful”. Attempts by various Judges to provide synonyms suggest that there must be a consideration as to the quality of such a relationship.

3. Further, on a presumption that a meaningful relationship with a parent will be a benefit to a child, the Court is obliged to look at the willingness and ability of each parent to facilitate and encourage such a relationship with the other parent. The irresistible conclusion is that Z, at just three years of age, not having seen her father since late 2014 would not currently have a meaningful relationship with him.

4. Similarly, X and Y are estranged from their mother. X, in particular, is reluctant to resurrect a regular contact relationship with Ms Parrish. Direct contact has been limited despite geographical proximity. The relationship between the two older children and their mother could not currently be seen in any sense to be “meaningful”.

5. An obvious starting point to establish or resurrect these relationships for the three children is for there to be regularity and frequency of actual direct contact. There must be an accompanying understanding by the parents that it is prima facie in the children’s best interests to have these types of relationships. At such a basic level, the evidence suggests that Ms Parrish is the more culpable here in her failure to accept the pre-trial assistance given her thus far.

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. Matters of family violence and conflict permeate and highlight this matter.

2. The mother relied on two affidavits which were prepared by solicitors then acting for her. Each document presents as little more than a litany of and chronology of her allegations of family violence at the hands of Mr Smart. There is a relatively high degree of particularisation of those allegations. Paragraph five of Ms Parrish’s affidavit affirmed 11 October 2012 summarises the thrust of the relationship, thus:

   The relationship has been characterised by severe physical violence perpetrated by the father, as well as verbal abuse, threats and intimidation.

3. Ms Parrish also makes a particular allegation against the father’s partner, Ms C.

4. Dr G notes in respect of Ms Parrish at [6] of her report of 14 May 2013:

   It is also noted from the subpoenaed Police documents that Ms Parrish has a history of perpetrating physically and verbally aggressive behaviour towards multiple complainants, including Police Officers. She is noted to be non-cooperative despite making complaints to the Police, which is consistent with the reported behaviour of her mother who is also noted as aggressively anti-Police and volatile. Ms Parrish has numerous criminal convictions including offences against Police, common assaults, dishonesty, destroying property, trespass, stealing and traffic offences.

5. I have had the advantage of seeing both Ms Parrish and her mother give their evidence. It is not difficult to conclude that both remain anti-social to a high degree. Ms Parrish remains imbued and reactionary in respect of her previous conflictual relationship with Mr Smart. It is clear that the children have been exposed to conflict.

6. Nevertheless, the Court can glean some optimism from the fact that there has more recently been a lack of interest by the Tasmanian Police and the Department of Human Services in Ms Parrish. Mr Smart admits the volatile and violent relationship between he and Ms Parrish. He says that it was “two-way”.

7. If even a part of Ms Parrish’s litany of allegations against Mr Smart have factual basis then his behaviour as an adolescent, young adult and young father has been deplorable.

8. Dr G at [13] of her report of 14 May 2013 notes in respect of Mr Smart :

   … he had been raised in a violent neighbourhood, and was somewhat used to violence being present in everyday life. He expressed his view that this is quite normal and to be expected.

9. Mr Smart also has an unenviable criminal record and convictions for verbal and physical violence, property damage, breach of restraint/family violence orders and disorderly conduct.

10. Dr G found no signs in either Ms Parrish or Mr Smart of major mental illness or mental disability. She observed, however, a psychological profile in each consistent with anti-social personality disorder.

11. Again, however, there is a relative lack of Police interest in Mr Smart over the last couple of years.

12. Observations of Mr Smart and Ms C in the witness box were that they were less enmeshed in the previous conflict than Ms Parrish. They presented with much calmer demeanours than Ms Parrish and her mother. I have no evidence before me of any culture of violence in the household of Mr Smart and Ms C (save and except Ms Parrish’s allegation of being punched at her front door by Ms C which is denied). The school teacher’s affidavits do not disclose any issues of the children being subjected to violence or exposed to violence in Mr Smart’s household, although it is reasonable to assume that X and Y retain strong memories of their parents’ conflict and mutual violence.

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

1. Prior to the incident in February 2014 and the children’s move from their mother to their father, their preferences were to remain living with Ms Parrish. X and Y now express a clear preference to live with their father. Z is not of an age where she would be able to rationalise or articulate any preference.

2. The older two children’s views in respect of their mother are best evidenced by them refusing to see her at the most recent interviews with Dr G.

3. One of the saddest parts of this tragic case was the revelation by the older two children to Dr G that they did not believe that their mother loved them. There followed an even sadder volunteered statement by the mother in the witness box that she was not a person “who hugged or showed affection to others”. Against this background, the evidence suggests that the children are not closed to a relationship with their mother as evidenced by X’s statement to Dr G reported at [45] of the report of 9 September 2014:

   X stated “when I’m ready I will talk to mum again…but I won’t be told when that will be. I might start seeing her at the Contact Centre and go from there”.

4. The impact of the past on the children’s views is evidenced by Y’s comment to Dr G in the same report at [48]:

   With respect to contact with his mother now, Y stated “I don’t want to see her… and that won’t change. Dad said it is up to us.” Y went on to state “I think Mum is going to come and smash Dad’s house up…we see her at the shops and she calls us traitors… we keep walking… sometimes she tells us to fuck off” Y stated “I have bad dreams about mum killing me… I wake up and tell Dad… he makes it better.”

Section 60CC(3)(b) – the nature of the relationship of the children with each of their parents and any other persons (including grandparents or other relative of the children).

1. The material before me suggests that the relationships for X and Y with their mother were ones where discipline was inflicted by way of a high degree of corporal punishment. There appears to have been a relative lack of parental affection. I can only assume that Z experiences a similar parent-child relationship with Ms Parrish.

2. The older two children’s reports to Dr G paint an altogether different picture of their relationship with their father. Y’s comments to Dr G at [48] suggests a more supportive and affectionate relationship emanating from the father.

3. At [46] of that same report Y says to Dr G:

   Y stated “it’s good at Dad’s…everyone looks after each other.’ His self-report was consistent with his Police interview. He stated “Mum kept hurting us…we got sick of it and left.” Y recounted the same incidents that he told the Police.

4. The older children have a mutually supportive relationship as shown at [44] of Dr G’s same report where X says:

   X expressed some concern for her little brother Y stating “we have good days and bad days at school… he gets bullied… he has nightmares.” She stated that she gets into trouble at school sometimes because she becomes verbally abusive “when people mouth off, little things get to me…I get sent to the principal”.

5. X also appears comfortable and supported in her father’s household. At [42] she tells Dr G:

   X reported that she “gets on well” with everyone at her father’s house, and that she really likes Ms C now.

6. A highlight of the evidence were the observations of Z with her siblings, X and Y, as limited as they have been. It is clear that the older children are extremely supportive of Z. Surprisingly, Z is familiar with and comfortable with her older siblings. Both X and Y have been anxious to see Z in the interviews with Dr G. At [21] of her final report of 7 July 2015 Dr G notes:

   The contact between the children was overwhelmingly emotional. They instantly hugged each other with delight and intensity, and giggled in play the entire visit. Z presented as a confident and articulate three year old, and it was clear she thoroughly enjoyed being with her siblings. Y constantly attended to his little sister – hugged her, holding hands with her, playing games with her, and telling her that he wished he could see her every day. X was nurturing and motherly with Z, and it was clear that she was thrilled to spend time with Z.

7. The father’s case is, of course, argued in part but strongly, on the issue of “separation of siblings”. Strictly speaking, this is not a matter where there needs to be consideration of the separation of siblings but rather, whether the best interests of Z (and X and Y) are to be served by the reuniting of the siblings. [6]

Section 60CC(3)(c) – the extent that children’s parents has taken or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time with the children and to communicate with the children.

[6] Woods & Daniel [2002] FamCA 181 at [19]

1. The household of Mr Smart and Ms Parrish together with X and Y (and then more lately, Z) appears to have been dysfunctional in the extreme. It was characterised by violence and anti-social behaviour. Considered and informed decision making was never a priority.

2. There does, however, appear on the evidence to have been a quantum leap in Mr Smart’s understanding of these responsibilities. The evidence of the older children’s principal was impressive in showing the involvement of Mr Smart in the children’s education. Significantly that involvement appears to be voluntary.

3. The conflict, however, remains and, at least in Ms Parrish’s part, is entrenched. Her bitterness and her capacity to criticise and blame in her affidavits and the witness box was palpable and matched by that of her own mother, Ms J.

Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances including the likely effect on the children of any separation from either of the parents, or any other child, or other person (including any grandparent or other relative of the children) with whom he or she has been living.

1. The Independent Children’s Lawyer’s proposal would have Z being separated from her mother, at least as primary parent. Ms Parrish has been her consistent, primary and virtually only carer, leaving aside any of the findings of the quality of that care. It is reasonable to assume that Z has a strong attachment and dependence on her mother. At just three years of age there would inevitably be adjustment issues for Z if removed from her mother’s primary care. Indeed, this appears to ground the recommendation of Dr G.

2. Further, in a practical sense, Z would be removed from a home where effectively she is the only child into one with Mr Smart where there are two adults and six other children. Ms C would be a virtual stranger to Z as would A and Ms C’s three other children. The dynamics of such a household would be foreign to Z and at a polar opposite to that experienced with her mother.

3. Accepting, as I do, that there would be adjustment difficulties and perhaps separation-anxiety experienced by Z if she were to move to her father’s household, the Court must look at the ability and insight of Mr Smart, Ms C and the other children in the house to assist Z to assimilate if such a move was to be made. The above comments in respect of the relationship and unity between Z and her two older siblings is cause for optimism. Dr G herself in cross-examination was eloquent in describing her observations in Z meeting with X and Y and the interview. She said:

   There was an overwhelming intensity of emotions between the three children. There was a warmth. It was as if they hadn’t been apart.

4. Further, as mentioned above, Ms C impressed as a mature, skillful and child focused young mother. I have already commented on the apparent gaining of maturity and insight by Mr Smart.

5. It is inherent in any such consideration that, in any event, Z would be maintaining a regular and frequent relationship with her mother.

6. Taking all of these matters into account, and whilst it is accepted that Z would inevitably experience adjustment difficulties, the Court can have some confidence that Mr Smart’s household would have the understanding and willingness to assist Z’s assimilation. From my observations of Mr Smart and Ms C in the witness box, I can also be confident that they would be attentive to any manifested adjustment difficulties in Z.

7. An anticipated change for X and Y is that they would resurrect their relationship with their mother. This may not be easy given the events of 11 February 2014 and a view expressed that their mother may not love them or has rejected them. Dr G suggests a form of counselling or therapy for Ms Parrish and X (and probably Y as well).

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

1. On the face of it there should be no practical difficulties given that the parties live only a few hundred metres apart. Nevertheless, given the culture of conflict and violence, there are high hurdles placed for these children to enjoy any prospect of moving freely and easily between their parents.

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

1. Ms Parrish is compromised in her ability to attend to the children’s emotional needs. She, herself, says she is not a person who shows affection. It is not surprising that X and Y feel unloved. Discipline has been applied in a heavy-handed, rudimentary and corporal way. I am not confident, having seen and heard her in the witness box, that Ms Parrish has any other options in her repertoire. The Court does, however, have some sympathy for Ms Parrish in this regard. Her background is tragic. She was raised by her grandmother and it seems that the hierarchy of the relationship between her and her own mother was never firmly established. My observations of Ms J in the witness box suggest that Ms Parrish’s limited insight and basic capacity may be either genetically or empirically explained, or a combination of each.

2. Likewise, Mr Smart did also not have many advantages in his childhood and upbringing. There resulted his behaviour and anti-social attitude in his adolescence and early adulthood. He, however, has made some advances. He has obtained employment. He is in what appears to be a stable relationship and one that does not attract the attention of the authorities. His efforts in respect of schooling for X and Y are admirable and insightful. The comments of the children to the family reporter are indicative of a father who is sympathetic and attentive to his children’s needs.

3. Mr Smart currently pursues his employment in (omitted) and/or (omitted). This obliges him to be away from home for weekdays being five days if in (omitted) and four days if in (omitted). His unchallenged evidence is that he hopes that his employer obtains contracts in (omitted) within the next few months but that he would otherwise consider relinquishing his employment. By way of comment, he might be urged to reconsider leaving his employment. By reason of his employment, and as seen against the background of both of these parents, he presents as an excellent and perhaps novel role model for his children. He has the support of Ms C who also impresses in her parenting capacity.

4. In summary, therefore, Ms Parrish presents as being able to only provide the most basic standard of care for the children in each of the physical, intellectual and emotional senses. Mr Smart has made impressive progress in his personal and parenting capacities. He also has positive support in his role as a parent whereas the evidence before me suggests otherwise unfortunately for Ms Parrish.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of the children’s parents, and any other characteristics of the children that the court thinks are relevant.

1. Both Mr Smart and Ms Parrish are products of their culture. They have lived virtually their entire lives in their current suburbs or nearby. Their extended families continue to live nearby. Their lives have been characterised by a dangerous culture of violence, and anti-social behaviour accompanied by relationship breakdowns. These families are perhaps the results of ill-informed social engineering projects in the later decades of the 20^th century? Whereas Ms Parrish remains entrenched in that culture and lifestyle with little hope, prospects, or perhaps willingness to escape, Mr Smart can offer some alternative for his children. Again, his apparent interest in their education might be seen as unusual but certainly encouraging within this environment.  His employment is a positive as is the apparent stability of his relationship with Ms C.

2. Z is still very young and I have addressed above the concerns for the Court and the family reporter as to the removal of Z from her primary carer.  Undoubtedly there would be some adjustment issues for Z.  This is one to be balanced against other factors including but not limited to the concerns in respect of the mother’s parenting capacity and a consideration of the ability of the father and others to address Z’s assimilation.

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

1. Ms Parrish’s attitude to parenting is possessive, basic and without any long term perspective. She has adamantly refused to introduce Z to A despite the fact that they are siblings and of relatively similar age. In cross-examination Ms Parrish was simply unable to understand that there could be any benefit whatsoever in Z having a relationship with or even meeting A. She was candid but completely unemotional when volunteering to the Court that she herself does not display affection. Interestingly, Ms Parrish, herself, in her affidavit material volunteered that they were brought up in a house without affection. There is, however, a contrariness to Ms Parrish and her attitude to parenting. Despite the above, she is willing each fortnight to drive (because he doesn’t have a license) Mr J from (omitted) to (omitted) for the purposes of Mr J spending time with his own children. This adventure habitually involves Z and comprises of approximately eight hours of travel over a weekend. This is despite Ms Parrish denying any committed relationship with Mr J. At the same time, Ms Parrish is unable to have Z attend at a contact centre in (omitted) to visit her father and her siblings because of Ms Parrish apparently having priority commitments such as an arrangement with her grandmother or having to take a cat to the vet. Given the views of the children of their mother, it is difficult to see how X and Y can properly re-establish a relationship with her until she attends to her own priorities.

2. Ms Parrish’s attitude generally to the issues before this Court remains conflictual, negative and reluctant. She did accede to the Court’s suggestion that she might speak informally to Ms C during a break in the evidence. When asked whether that situation might continue, Ms Parrish was simply unable to be positive or committed. To the contrary, Ms C gave every indication of being able and willing to communicate with Ms Parrish about the children and despite their previous difficulties.

3. Similarly, Mr Smart now displays a positive attitude and understanding to the responsibilities of parenthood. I am confident that he would assist the children in continuing any relationship with their mother if he was to be their primary carer.

4. There is one other aspect of the evidence which highlights the mother’s attitude to parenting responsibilities generally. The children have disclosed that they have variously witnessed the mother engaged in sexual activity with a partner. The particularisation and the children’s knowledge of such activities suggests that there is substance to these revelations. These matters were put to the mother in cross-examination. My observation of her was that she was simply unable to understand the importance and delicacy of children not being exposed to such activity at young ages. Whilst denying any knowledge of the children witnessing her sexual activities, she was quick to volunteer that she had indeed conducted her sexual adventures on the children’s trampoline and on the bonnet of her car.

Section 60CC(3)(j)and (k) – issues of family violence including the children or their family and family violence orders.

1. These matters are well documented above. I can be satisfied on the evidence that these children have previously been raised in a culture of family violence. I am satisfied that violence was perpetrated mutually between these parents. I am gladdened, however, that there appears to have been a significant decline in this behaviour in recent years in respect of both parents. Nevertheless, the incident of 11 February 2014, and whether perpetrated by the mother or the grandmother, shows a continuing improper use and attraction to violence as a method of discipline and dispute resolution.

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

1. It is the aim of litigation in these Courts to provide children and their parents with a framework in which to operate and move forward in their living and parenting arrangements. Judges of this Court are not so presumptuous to seek to impose perfect or ideal regimes or to preach to or educate parents. Rather, Judges are presented with evidence and make orders which they believe to be, on balance, in the best interests of children given the imperfect recipe of facts presented. The obligation of the parents then is to move forward armed with the assistance of the Court orders and not to view litigation as some default mechanism.

Findings.

1. I am satisfied that each of the parents have been violent to the other and that the children have experienced a culture of family violence within their young lives. As such, the presumption of equal shared parental responsibility does not apply.

2. I am satisfied that each of the parents has made progress in dealing with their deplorable histories of family violence. In this respect I am satisfied that Mr Smart has made far more progress than has Ms Parrish.

3. I am satisfied and find that X and Y have a strongly attached, bonded and meaningful relationship with their father. I am satisfied that the relationship for these two children and their mother is fractured, untrusting and one where the children feel unloved.

4. I am satisfied that Z’s primary attachment is to her mother and that her attachments, if any, to her father and Ms C are tenuous at best.

5. The evidence, somewhat surprisingly, demonstrates a continuing strong attachment for Z with X and Y.

6. I am satisfied that Ms Parrish has not prioritised any continuing relationship between Z with her siblings or for Z with her father and that she remains reluctant in these respects.

7. I am satisfied that Mr Smart shows a high degree of insight and objectivity and that he would assist and encourage the relationships for all three children with their mother and with each other and would do so even in the face of the probable negativity of Ms Parrish.

8. I am satisfied that Mr Smart has positive support in Ms C and that she presents as a skilled and insightful parent herself.

9. I cannot be satisfied that Ms Parrish has any proper or objective support network. Her mother was an unimpressive witness who presented solely in a critical and negative fashion. I did not have the advantage of seeing or hearing from Mr J. I am satisfied, nevertheless, that Ms Parrish is a young mother who suffers difficulties in her parenting capacities and style and would benefit from positive support networks.

10. I find that Mr Smart has adequate capacity to attend to the children’s physical and emotional needs. He has demonstrated an admirable interest in their schooling. He presents as a positive role model for his children. He is in an established family unit with proper hierarchical divisions.

11. I am not persuaded that Ms Parrish has a demonstrated capacity to properly care for her children. She provides the basics for physical subsistence. I have no evidence of any active interest by her in their education. Her disciplinary methods are violent and archaic. She does not and unfortunately seems unable to attach emotionally to her children.

12. I am satisfied that Mr Smart possesses a superior attitude and understanding of parenthood responsibilities than does Ms Parrish.

13. I am satisfied that, on the evidence of Dr G and given Z’s age and her circumstances as an only child in her mother’s household, that she would endure some adjustment difficulties if removed primarily from her mother.

Conclusion.

1. There is no issue between these parents now that X and Y should remain living with their father. It is for the Court to determine if and how they best be re-established in a relationship with their mother. To this end, some interim orders were imposed for short periods of time for the children and their mother during the time that this Judgment is reserved. I am persuaded by the evidence of Dr G, supported by the Independent Children’s Lawyer that there be some therapy and/or mediation for X and/or Y to assist in re-establishing a relationship with their mother. I am not able to make specific or detailed orders in this regard and will therefore direct that the appointment of the Independent Children’s Lawyer continue for three months to assist and ensure this process commences.

2. The issue of Z’s primary residence involves a weighing of two prime considerations given the findings of fact above. Dr G urges that Z remain living primarily with the mother despite her indisputable inadequacies as a parent. Dr G says that Z’s primary attachment is important and the implication is that Z would suffer some stress if that situation was changed. Z has effectively been kept from her father and her siblings by the actions of Ms Parrish. The irony in the destructive results of Ms Parrish’s actions here and the difficulties in rectifying them are not lost on this Court. Nevertheless, I accept that the assimilation into Mr Smart’s care and home would present some difficulties and that Z would miss and perhaps fret for her mother.

3. The contrary argument is that Z’s best interests would be served by being reunited with her father and siblings. As mentioned at the beginning of these reasons, the considerations of the Court are different in such an argument than they would be if there was a proposed separation of siblings. The sad fact is that they have already been separated. Put simply, Z is not familiar with living with anyone other than her mother. There should, therefore, in my view, be some clear and positive benefits to Z in reuniting her with her siblings and her father if such orders are contemplated.  I am able to find a number of such benefits including but not limited to:

   ·The overwhelming (Dr G’s wording) intensity and closeness of the relationship between the three children;

   ·The ease, comfort and familiarity that Z shows in the company of her siblings;

   ·The repeated desire of X and Y to live with their sister;

   ·The benefits generally to children of being united against a breakdown of their parents’ relationship and particularly so in the demise of a relationship of the type here; and

   ·My findings as to the parenting skills, insight and maturity of Mr Smart and Ms C in being able to attend to any negative responses from Z and sympathetically being able to assimilate her into their household.

4. I find the mother’s attitude, lack of insight and numerous parenting incapacities to be persuasive here of Z’s future living arrangements. She has simply not made the same progress as a socially adjusted adult and parent as has Mr Smart. If Z is to remain with her mother then I cannot be confident that Ms Parrish would understand the importance of Z’s relationship with her siblings and father or that she would assist in the same. She shows no traits of being a communicative or cooperative parent and, as mentioned above, she parents by reason of possession. I am not persuaded that Ms Parrish would acknowledge or rectify the deficiencies in her parenting style and practices.

5. Considering the evidence generally and as set out above, I am satisfied, on balance, that Z’s best interests are served by living with her father.

6. Issues of time for Z with the mother remain problematic. Certainly, a regime of equal time or even substantial and significant time, in my view, would not be appropriate. There is no communication between these parties. The mother has shown little or no inclination to cooperatively parent. It is important that Z be kept from any or any potential conflict. Further, any block periods of time for Z with the mother will simply revisit upon the child and perpetuate the problems set out above. In addition, Z needs time assimilate into her father’s home without the confusion of living in two homes and with what I find to be two different parenting styles and the likely negative responses of both Ms Parrish and Ms Parrish. Further still, it is anticipated that Z would suffer some difficulties in leaving her mother and may fret for her. As such, an immediate regime of frequent but short visits may be in the child’s best interests at this stage and at least until Z becomes settled into her father’s household.

7. There are, however, some positives to lend assistance. Undoubtedly Z is bonded with her mother. She should be able to endure any gaps in direct contact. All of these considerations must be weighed and balanced.  The mother’s evidence is that she is no longer in employment. She does, however, have a commitment with Mr J and his children in (omitted) each second weekend. Z currently attends childcare on two or three days per week and more recently attended on four days per week. The Court can be confident therefore, that there is some degree of socialisation for this child and that she has been able to transit from her mother to the childcare workers.

8. The Independent Children’s Lawyer proposes that Z spend time with her mother each alternate Saturday from 10.00am until 5.00pm “or such other times as agreed between the parties”. Whilst I am not confident that the personalities here lend to any orders implying flexibility, I am persuaded that Ms Mooney’s proposal would give some initiative to parent cooperatively and in a child-focused fashion in the future.

9. Taking all of the above limitations into account but understanding the desirability for frequency and regularity of contact for young children with a parent, I propose to order more time than that proposed by the Independent Children’s Lawyer. I will order that Z spend time with the mother as follows:

   i. Each alternate Saturday from 10.00am until 5.00pm; and

   ii. On each Tuesday (or such other day as recommended by the Independent Children’s Lawyer or agreed between the parties in writing) between 10.00am and 5.00pm.

10. The above will give three full days per fortnight for Z with her mother. I am confident that this would maintain their relationship. It might also give some weekday respite to Ms C who has six other children in her household. It will allow three weekend days per fortnight with the father who works on weekdays. I do not consider, in all of the circumstances, that overnight time for Z with the mother to be in her best interests.

11. The final issue remains in respect of time for X and Y with the mother. At this stage both children remain reluctant although I am satisfied that there is evidence of a general desire for a relationship with their mother. The Independent Children’s Lawyer proposes as follows:[7]

    That X and Y spend time with the Mother as may be agreed between the parties from time to time AND should either child express a wish to spend time with or communicate with the Mother (then) the Father shall make all reasonable efforts to facilitate this.

    [7] Independent Children’s Lawyer’s outline of case filed 13 July 2015 at pg 2 paragraph 9

12. Again, I do not have confidence that the parties would be able to communicate so as to cause time between these two children and the mother to occur. The past eight months are sufficient testament to this failing which is one for which I am content that the mother is primarily culpable. Secondly, I do not think it is fair to these children to be left as the authors of their own destiny and there should not be orders for them seeing their mother “according to their wishes.” These children have endured an ordeal between their parents. It would not be surprising if they have established loyalties. They have expressed a variety of preferences in respect of their parents over the duration of numerous family reports. They have made allegations with respect to each of their parents. I am not satisfied that they would be capable of maturely and rationally determining the form of their relationships.

13. Dr G recommends that mediation be undertaken between X and her mother in order to re-establish their relationship. She volunteers to undertake that role and I understand that a referral for a number of visits might be available without cost to the mother. I am satisfied that there is merit in this idea. However, I am of the view that time for X and Y and the mother should continue in any event and that the mediation run concurrent with actual time-with. My interim orders currently anticipate time between the two children and their mother and I expect that this would have continued during the course of the reserved judgment.

14. Given the difficulties endured by Ms Parrish as a parent and the need to take “slow steps” with the reinstatement of the children’s relationship with her, I propose that X and Y spend time with their mother, together with Z, on every second Saturday from 10.00am and 5.00pm. This will allow Ms Parrish the benefit of all her three children together. She will then have the necessary one-on-one time with Z on the Tuesdays.

15. Given my findings generally and the proposed order for Z to live with Mr Smart, I am satisfied that it is in the interests of all three children that he exercise sole parental responsibility for them but with the mother to be kept appraised of relevant decisions and issues.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  8 October 2015