Patrick and Louise

FAMILY COURT OF AUSTRALIA

PATRICK & LOUISE

[2007] FamCA 1573

FAMILY LAW – CHILDREN – With whom a child lives – Significant and substantial time – Alcohol addiction of one or both parties – Alleged lack of supervision – Judge interviews child

APPLICANT:

Ms Patrick

FIRST RESPONDENT:

Mr Louise

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

CSC

2007

DATE DELIVERED:

19 December 2007

PLACE DELIVERED:

Hobart

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

4, 5, 6 & 7 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Willis S.C.

SOLICITOR FOR THE APPLICANT:

Vandeleur & Todd solicitors

COUNSEL FOR THE RESPONDENT:

Mrs Benson counsel

SOLICITOR FOR THE FIRST RESPONDENT

Lee & Company

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wright

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Webber

Orders

All previous parenting orders be discharged.
BY CONSENT Ms Patrick (“the mother”) and Mr Louise (“the father”) have equal shared parental responsibility for L born … April 1995 and M born … October 1996 (“the children”).
BY CONSENT the children live with each of their parents during the school holidays and important days as follows:-
(a)with the mother on Mother’s Day (between the hours of 9am and 5pm if they are not already living with the mother).
(b)with the father on Father’s Day (between the hours of 9am and 5pm if they are not already living with the father).
(c)with the mother on the Mother’s birthday provided that if the Mother’s birthday falls on a school day, and the children are not already living with the mother, for 2 hours after school with the mother to nominate the 2 hour period requested (allowing for her work commitments and travelling time). In the event the mother’s birthday falls on a non-school day, the children will live with mother between the hours of 9am and 5pm if they are not already living with the mother.
(d)with the father on the Father’s birthday providing that if the father’s birthday falls on a school day, and the children are not already living with the father, for two hours after school with the father to nominate the 2 hour period requested (allowing for his work commitments and travelling time). In the event the father’s birthday falls on a non-school day, the children will live with father between the hours of 9am and 5pm if they are not already living with the father.
(e)with each parent on the birthday of each of the children in each year for such time as may be agreed between the parties and failing agreement the children will spend time with the parent with whom they are not living with (in that week) for 2 hours on a school day with the visiting parent to nominate the 2 hour period requested, or one half of the day on a non-school day.
(f)with the father for the first half and the mother for the second half of the Christmas and other gazetted school holidays in odd numbered years (e.g. 2007, 2009, etc);
(g)with the mother for the first half and the father for the second half of the Christmas and other gazetted school holidays in even numbered years (e.g. 2008, 2010, etc).
During school term the children live with the mother one week and the father one week subject to the following:-
(a)if the children are with one parent the last week of the preceding school holiday period they shall remain with that parent until the first Friday of the school term and then the time the children live with the other parent for one week and thereafter with each parent shall be week about for the school term period;
(b)the parent with whom the children are to commence living with in a particular school week shall put in place appropriate arrangements for the children to be collected from school on such Friday;
(c)such equal time arrangement during school term shall only arise if the father is living in B in North Queensland.
In the event the father is not living in the B area and continues to live in the D area in North Queensland, then the following shall apply during school term:-
(a)the children shall live with the mother;
(b)the children shall live with the father every second weekend during school term until 5.00pm Friday until the the commencement of school on the following Monday (or Tuesday if Monday is a public holiday or student free day);
(c)the parents shall share the cost of travelling for the children with the changeover point to be the park at C, that is that each shall arrange for the return and collection of the children during school term to take place at C.
BY CONSENT unless otherwise agreed or required by the terms of these orders, the parties will pay their own cost for the costs of travelling for the children to live with each parent pursuant to these Orders and unless otherwise agreed the parent with whom the children have been living will be responsible for delivering the children to the residence of the other parent at the change over times.
BY CONSENT the parent with whom the children are not living with at any time, may communicate with the children by mail, email and by telephone at reasonable times.
BY CONSENT each party shall notify the other party in writing, within seven days, or any change of address or telephone number providing details of the new residential address and/or telephone number.
Both parties shall sign authorities to enable the other party to receive copies of school reports and other information in respect of each of the children.
Both parties shall be entitled to attend parent teacher interviews with the children and otherwise participate in any other school based activities involving the children.
BY CONSENT both parties shall be entitled to attend and participate in any school or extra curricular activities that the children are involved in (and only as permitted by the school) at the school the children attend, and the parties shall each sign all documents necessary to authorise and will authorise the relevant school to provide to each party copies of any school reports issued in respect of the children and each party shall be solely responsible for the cost of obtaining their own copies of such documents.
Each party is to keep the other informed, within a reasonable period of time, of any medical treatment afforded to the children and any medical or health issues pertaining to the children, a reasonable time should be at least within fourteen days and any such notice should be in writing, by SMS or by email.
Both parties are restrained from abusing, demeaning or belittling the other party or member of the other parties’ family in the presence or hearing of the children.
Neither party be adversely affected by alcohol while the children are living with that party or in that party’s care and for the purposes of this order a party is deemed to be adversely affected by alcohol if the concentration of alcohol on the person’s breath is, or is more than, 0.05g of alcohol in 210L of breath (the general alcohol limit).
Both parties must be of good behaviour towards the other party and must not commit domestic violence to that party.
Both parties are restrained from abusing, belittling or demeaning the other party or members of the other parties’ family in the presence or hearing of the children or either of them.
IT IS NOTED
The parties will do all steps and take all actions to have the domestic violence order expiring on the 20 September 2008 to be discharged.
IT IS FURTHER ORDERED
That both parties attend and complete a parenting after separation course within 10 months from the date of these orders.
Both parties shall at least communicate in relation to specific issues regarding the children by SMS.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents remain on the file for a period of twenty eight days from the date of this order and then at that time be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same after the expiry of twelve months.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules2004 it was reasonable to engage counsel and senior counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: CSC 86 of 2007

MS PATRICK

Applicant

And

MR LOUISE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between Ms Patrick (“the mother”) and Mr Louise (“the father”). The proceedings relate to parenting arrangements with respect to children L (“[L]”) aged 12 and M (“[M]”) aged 11.
On 19 March 2007 an Independent Children’s Lawyer was appointed. These proceedings have been conducted under the provisions of Division 12A of Part VII of the Family Law Act 1975 (“the Act”).
The parties have consented to an order that they have equal shared parental responsibility for the children. Further, they have consented to orders in relation to school holidays, important days and alternate weekends. The parties consent to the orders being structured as live with/live with rather than live with/spend time with. I am satisfied that such orders are in the best interest of the children.
The mother lives at B and works in the nearby area. The father lives at D and works in that area. These towns are relatively geographically distant as they are one hour to one and a half hours apart by motor vehicle.
Both parties submit that if the other was living close to the children the arrangements ought to be that envisaged under s65DAA of the Act, that the children should live equal time with each parent. However to do so, bearing in mind the existing geographic distance, it is not in the best interests of the children. I accept the reality of such submissions. Neither party is prepared to move their residence closer to the other parent, prior to the determination of these proceedings.
A primary issue is whether the children live most of the school week with the mother or father and consequently which school they attend in that area. There is significant underlying conflict between the parties and there are issues about the impact of the use of alcohol by both parties, particularly the mother.
In these reasons any statement of fact is to be treated as a finding of fact, unless the contrary intention is apparent from the context of the statement.
BACKGROUND
The mother is aged 44, she has repartnered and lives in the B area. The father is aged 52 and lives in D, a small community about one hour to one and a half hours away from B by car. The parties commenced living together in about 1993. The child L was born in April 1995 and M was born in October 1996.
The parties separated in late October, early November 2003. The mother asserts separation occurred in October 2003, the father asserts separation occurred in November 2003. The difference in these dates is neither here nor there in terms of this dispute.
There is no issue that the mother was the primary carer of the children until about 9 July 2006 when the father declined to return the children after they spent a weekend with him at D. At that time the father enrolled the children in the D State School where they remain.
The mother was the principal carer of the children up to that date. Without any way derogating from the role of the father his employment was such that during the relationship he was often away from home, for example he worked on an Island from about 1998 for three years where he was away during the week and came home on the weekend. In 2001 the father worked overseas and came home one week every few months.
After separation the father worked overseas for about seven months. The mother resided with the children at a home in the B area from about March 2004 until the present time. The children ceased primarily living with the mother in July 2006, as set out above.
In June 2005 the father moved from the B area to D where he works in the import/export industry.
There was an incident between the parents 2006 and in September 2006 the mother applied for and was granted a domestic family violence order, which order is current until 20 September 2008. Agreement has been reached between the parties, which I accept, that this order ought to be set aside and a consent order made in this Court, without admission, in similar terms. The exiting order had significantly inhibited communication between the parties.
The mother did not commence legal proceedings until 2 February 2007 when she filed an application in the Federal Magistrates Court in Cairns seeking an order that the children return to live with her.
A family report was prepared by Mr P and filed on the 10 August 2007, this was read into evidence and this expert was not cross-examined. A family report was also provided by a family consultant, Ms N, and filed on the 14 November 2007. Her report was admitted into evidence and she was cross-examined. There was no challenge to her qualifications.
At the commencement of the trial the children were interviewed by me. This was done with the express consent of the children and with their knowledge that they were not obliged to talk to me and could leave at any time if they felt uncomfortable. They were also aware that the discussion was being recorded. The discussion took place in an informal setting the Court in the presence of Ms N, the Independent Children’s Lawyer, counsel for the Independent Children’s Lawyer and me.
The relevant legal principles pursuant to the Family Law Act – parenting orders
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];
(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.
[1] Family Law Act 1975 (Cth) s 60B(1).
The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:
[2] Family Law Act 1975 (Cth) s 60B(2).
(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).
Each of the parents of a child have complete but several parental responsibility for such child[3]. This is subject to any Court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 amendments”) and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for that child.
[3] Family Law Act 1975 (Cth) s 61C.
A Court must make a positive order or declaration to grant equal shared parental responsibility under s 61DA of the Act. If the presumption applies and is reasonably practicable[4], then an order must be made in accordance with the section. If not, then the Court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is made in interim proceedings, the Court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s61DA(3). Additionally, if the presumption would not be in the best interests of the child then the Court should make a declaration that the presumption has been rebutted pursuant to a determination made under s 61DA(4) of the Act.
[4] Family Law Act 1975 (Cth) s 65DAA(1).
Once the question of parental responsibility is determined the Court needs to determine the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[5]. In this case there is no issue as to where the children live, the only question is should the children spend time or communicate with the husband.
[5] Family Law Act 1975 (Cth) s 64B(2) sets out the meaning of a parenting order and related terms.
In determining what orders it should make the Court must regard the best interests of the child as the paramount consideration.[6]
[6] Family Law Act 1975 (Cth) s 60CA.
The factors that the Court takes into account in determining what is in the best interests of a child are set out in s 60CC of the Act.
Those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
To give effect to s 60CC(2), the Court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations.
The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
In this case the primary considerations set out in s 60CC(2) of the Act goes to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations was considered by Bennett J in a recent unreported decision[7] where her Honour said;
[7] G & C [2006] FamCA 994.
The primary considerations
65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
66This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship – as a primary consideration.
67 The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account.
68   The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists.
69   While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can. Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[8].
[8] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).
70   The arguments supporting the first possible interpretation include:
(a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;
(b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;
71   The arguments supporting the second possible interpretation include;
Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;
(b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:-
“The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”
The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;
(c)The whole of s.60CC calls for an evaluation of various factors by the court.
(d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear. I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;
(e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child. The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object. It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object.
72   My preference is to adopt the second possible interpretation and I do so. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future.

I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any ‘benefit to the child’ in having or continuing a relationship and whether such relationship is or will be ‘meaningful’[9]. Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.
[9] G & C [2006] FamCA 994, paragraph 68.
Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court to make such a determination.
EVIDENCE & DISCUSSION
I make no significant criticism of the parties in respect of their evidence. Each endeavoured to give evidence accurately and in a straight forward way, from their respective positions.
The mother acknowledged her alcohol problems. There was some issue as to whether she was frank and open to healthcare providers in respect of her use of alcohol.
I am not satisfied she was always as open in providing that information as she ought to have been. I am satisfied that within the levels of her own embarrassment that she does disclose her drinking to health care providers and I am further satisfied that she is making a genuine effort to manage her addiction to alcohol. The mother acknowledges that the children would have poor memories about her behaviour when her use of alcohol was out of control.
The mother has a full time job at a care facility. The mother says, and I accept, that this job is important to her and it provides job security with annual leave, sick pay and long service leave.
Irrespective of the outcome of these proceedings L will be attending a different school next year, whether that is at high school near B or a high school near D will depend on the orders made by this Court. He will go to the school closer to his mother, by reason of this decision. This will be a significant change for him from a very small school population to a much larger school population and the consequent need for more supervision of him and more insights into his needs.
The mother was cross-examined as to the friends that the child M had in the B area. I am satisfied that the greater number of friends of that child reside in the B area. I accept the mother’s evidence that both the children have friends at B and a number of those friends will be going to the High School near B.
The mother has formed a relationship with Mr K, albeit in an early stage. That relationship is continuing and the children seemed settled with Mr K. The mother has lived in B area for the last twenty years. Mr K’s family live in the B area.
From the evidence of the mother, I find that if I make an order that the children remain in the D area it is more likely than not that she would move to that area. In doing so she would be isolated from the support network which she has relied upon so significantly over the last few years in dealing with her addiction to alcohol. This could have ramifications on her in terms of her management of alcohol addiction and consequent ability to parent the children.
Both parents used alcohol significantly during the relationship. In 2005, perhaps somewhat earlier, the mother’s drinking became a problem and she became addicted to alcohol. Through 2005 and the first half of 2006 the mother would hide wine from the children and the children would hide wine from her. She conceded that on least one occasion she drove her car with the children in it whilst she was drunk. On one occasion, whilst drunk, she threatened L with a plate and agreed that he would have been frightened. The mother says that she would not have hit or physically hurt L, and I accept her evidence in that respect.
The mother denied she did not prepare meals for the children but said on some occasions by the time it came to serve meals she was unable to do so because of the effects of the alcohol. She knew that the children rang the father from time to time and she rarely discussed her drinking with the father but he raised it with her. She said, and I accept, that she was in denial about her alcohol addiction and that she was defensive. The children had been telephoning the father on occasions from mid 2005 until mid 2006 complaining about the mother’s drinking. She was not surprised that the children were taken from her and the children have rung her to say, at that time, that they wanted to live with the father because they were scared. M subsequently changed her mind in that respect.
The mother visited her brother and sister-in-law in Brisbane during the Easter 2006 school holidays. Her sister-in-law found the mother intoxicated and as a result of intervention by her sister-in-law the mother attended a seven day live in alcohol clinic. The mother abstained from alcohol for that time but then went back to consuming alcohol on her return to B. The mother has, since that time, involved herself with Alcoholics Anonymous (albeit she is no longer in that group as a consequence of unwanted advances made by a member of that group) she has taken counselling and has made real endeavours to manage her alcohol intake.
Evidence was given by her counsellor Mrs R about the mother’s involvement with her. There was no issue about the qualifications of Mrs R. She is qualified both academically and in terms of experience. Whilst the mother has, from time to time, not been entirely frank with her counsellor, the mother has adopted a responsible attitude and is managing well with her addition. She is making real efforts to manager her alcohol addiction and although she does relapse from time to time there is progressive recovery of the mother. The mother has systems in place to manage stress at a number of levels including health professional, family and friends and personal abilities. I accept that the mother now is better able to manage stress. I find that a move away from B would diminish that ability to cope.
The mother takes an anti-depressant medication and is in regular contact with her General Practitioner. The mother gave inconsistent evidence about her consumption of alcohol compared to details she had given Mr P, her counsellor and her doctor.
Dr S gave evidence in accordance with his affidavit filed on the 22 of November 2007 and his view of the mother was somewhat “rosier” than the reality although, she keeps in regular contact with him.
Mr K, the mother’s partner, gave evidence in accordance with his affidavit filed on the 12 November 2007. He was working away from the home but has now decided to do less paid work and he is looking for employment in the B area so he can spend more time with the mother.
Two friends of the mother, Mr O and Mrs O gave evidence in accordance with their affidavits filed on the 12 November 2007. They were clearly supportive of the mother and their evidence was of a somewhat partisan nature. I accept their evidence, but it must be seen in partisan light.
The children have been having unsupervised time with the mother three out of four weekends at B. The mother is aware that L joined a social club which is about forty minutes from B.
The father gave evidence in accordance with his affidavit filed on the 15 of November 2007. He was defensive in terms of the concerns raised about L in respect of animals. In fairness the father had only heard about those issues during the course of the trial. I had concerns about the accuracy of his evidence in terms of the level of his drinking and in terms of the reasons why he held the children back from living with the mother in July 2006.
The father had left the primary task of caring for the children to the mother up until July 2006. This does not mean he did not have a good relationship with the children. He was overseas for a significant period of time in 2003 and 2004. He spent significant time away working on an Island. During Christmas 2005/2006 school holidays the children were primarily left with the mother, notwithstanding the father’s then concerns about the mother’s drinking. Even with the June/July 2006 school holidays the father left the children with the mother for most of those holidays and then retained them in the last weekend.
L has had learning difficulties throughout his school career. In his recent affidavit the father seemed to minimise or deny those difficulties[10]. The father acknowledged these difficulties in his oral evidence.
[10] Paragraph 29
When the children were enrolled in D School in mid 2006 the father disclosed himself as a parent but did not disclose the mother as a parent of the children. The emergency numbers he gave were those of his then employer in D and his sister in Brisbane. The father was endeavouring to isolate the children from the mother.
At the time the children commenced living with the father he was employed but on holidays. He made a decision to leave his employment and look after the children. In doing so he separated the children not only from the mother but from all of the areas where they had community ties. The children had been brought up in the B area, attended school in B and their friends and social interaction was in that area. It was possible for the father to move to B in July 2006 and make the transition for the protection of the children far less of a traumatic impact. However the father decided to keep the children at D. In doing so the children’s extra curricular activities essentially came to an end. L, in particular, was left to roam relatively freely after school. It was in the circumstances of L roaming freely with a relatively large serrated clasp knife that that child suffered an injury whilst fishing on or near a large jetty at D. There was evidence that L played in wrecks of motor vehicles and that he was not generally supervised by the father.
I accept the evidence of the family consultant, Ms N, that L was allowed to run free in an almost “Huckleberry Finn” lifestyle and that it is likely that he could get into trouble into the future. The father does not recognise nor acknowledge this.
The father says that he retained the children for protection as a consequence of the mother’s alcoholism. There is some basis for that concern. However it seems more likely that the father took the children because it was “his turn”. The decision to retain them was not child focused and the alcohol use was of secondary concern to the father. He took them to a small community which he describes as basically a retirement village or a holiday place. He took them to a school which has ten children (three of whom are leaving this year including L). There are six or eight families associated with the school. It is apposite to note that the father proposed to the mother that the children live with the mother for six months and then change on that basis each six months[11]. This proposal was subject to the mother rehabilitating herself in respect of her alcohol addiction.
[11] Annexure IYA 2 to husband’s affidavit
When asked about this in evidence the father seemed to think that it would work well, six months in one school and six months in the other. This, notwithstanding L’s learning difficulties. In this regard I find that the father lacks insights into the educational needs of the children, particularly L.
The father was cross-examined in relation to his use of alcohol and prevaricated in relation to some issues. One part of that was in terms that the amount of alcohol he drank with friends. Informatively the father did concede that shortly after the parties had separated he would bring his four wheel motor cycle to visit the children at the mother’s home on many afternoons. He would ride the bike and bring and drink alcohol whilst doing so. He lacked the insight into providing a role model of using a motor vehicle whilst drinking alcohol. Both parents lack insight into the impact of their respect use of alcohol has on the children.
On the day that L was injured with the knife on the jetty the father attended hospital and the doctor noted that the father appeared to have had “a few drinks”; however the father was “in control”. The initial evidence of the father was that he had had one beer before he was informed that L had been injured. It was necessary for him to arrange for care of M and arrange a lift to the hospital as he was concerned about drink driving. He later changed his evidence to say that he had two beers. I am satisfied that he understated the amount of alcohol that he had consumed.
On his evidence it is clear that the father consumes alcohol almost every day at the hotel before he picks the children up and continues drinking into the evening.
The father agreed in evidence that the mother was “doing a good job dealing with her alcohol”. He said he wants the children to remain in D because he seeks the safety of that area. There was also an issue as to L being bitten by an Irukandji jellyfish while swimming in December 2006 or January 2007. On the evidence before me the father had not allowed the children to swim in the water at that time and L accidentally fell into the water.
The father had arranged for the Principal of the school to write a letter[12]. I find that the purpose of having that letter written was to ensure that the mother did not take back the children after the father had retained them in July 2006.
[12] Exhibit M1
The mother had endeavoured to engage with the principal at the school at D but had received a cold reception. I find that the father had undermined the mother’s position in respect to the children at school in D.
Evidence was provided in the father’s case from Ms E and Ms H in accordance with their affidavits filed on the 15 November 2007. These witnesses were not called and their evidence was admitted unchallenged. I have had regard to that evidence.
Evidence was given by Mr Y in accordance with his affidavit filed on the 15 November 2007. He was cross-examined by the Independent Children’s Lawyer in relation to the father’s drinking. What is of concern in his affidavit is paragraph 4 and 5 where he says:-
4.“I own a 35 foot boat on which I often take […] and the children to sea on fishing trips. The children enjoy themselves notwithstanding that [M] has, on a couple of occasions, when it has gotten a bit rough become sick. She is very stoic about it and realises once she has thrown up the first time she gets over it and enjoys herself.
5.She actually seemed to enjoy the sea sickness part of it as something to be gotten over but she makes light of it”.
The father believes it is healthy for a child who is sea sick to be taken often out on the boat to experience the delights of that illness!
There is no issue that the children can live and should live with each of the parties in an unsupervised way. It is where they are living which is the principal concern, having regard to the use of alcohol by each party and their broader ability to parent the children and meet the reasonable needs of the children. On balance I find that the mother has better skills and insights in the broader needs of both children.
It is likely that the father will move closer to the children if they are primarily living in B and it is likely that the mother will move closer to D if the children are left in D.
This is a matter where the time the children spend with each parent should either be equal if that is geographically possible or significant or substantial if it is not geographically possible.
There were two incidents regarding L which caused concern to the family consultant. The father gave evidence that the first he heard about the allegations of cruelty to animals by L, both with regard to the recent disclosure about Plover eggs and the earlier issue, was during the course of the trial. He was not contacted by the school. The issue of L’s animal cruelty to animals only arose out of the interview with the children. M described an incident where L was damaging Plover bird eggs in the nest. This caused the family consultant in evidence to reflect upon some material in the material on subpoena from the Child Safety authorities in respect of an earlier issue of animal cruelty, which caused this expert to have concerns about L.
The family consultant had read documents produced by the Department of Child Safety [13] in which the Department had been notified:-
“Son advised mother that he had been mutilating animals over the weekend – normally an animal lover. Unusual behaviour for him. Child said they’re only minor birds, who gives a stuff. Drowning birds in crab pot and setting them alight. Father is not aware of it”.
[13] Exhibit ICL1
This was alleged to have occurred in about August 2006 (about six or so weeks after the children had moved to D). There is some evidence that the school may have been informed of the circumstance but there is no evidence that the father was informed of this circumstance.
The family consultant was concerned that this is continuing evidence of the child acting cruelly towards animals and in circumstances where it needs to be treated consistently and effectively over a period of time. I was concerned about the father’s reaction to this in the witness box where he endeavoured to either minimise or suggest it may be an example of L exaggerating. Whether or not it is an exaggeration there is some evidence of this continuing animal cruelty by L which needs to be dealt with. This must also be seen in the context of the father being advised to have counselling for M in the second half of 2006 where she had expressed a desire to end her life. The father’s response was that this was the behaviour of all the children in the school and counselling was declined.
The family consultant said that with the children it is possible they could be hyper vigilant and fearful of their mother drinking to excess and that they may remain close to monitor her behaviour.
In the report of Mr P (“[P] report”) filed the 10 August 2007 he recommends that M attend upon a suitably qualified and experienced counsellor to provide independent and confidential forum to assist her with adjustment issues[14]. The father was cross-examined as to what steps he had taken in respect of this issue. He prevaricated and talked about some general endeavours he had made at school. He does not take this issue seriously.
[14] paragraphs 148 & 149 of P’s report
In relation to the counselling in 2006 this must be seen in the circumstances of the father being concerned that M would want to be returned to the mother and in circumstances where he had initially prevented M from significant time with the mother and had on one occasion come between M and the mother when M saw the mother. On that evidence I infer the father’s refusal to allow M counselling in 2006 was in an endeavour to ensure that she remained living with him.
The family consultant gave evidence in accordance with her report filed the 14 November 2007 (“the family report”). In that report she concluded that the best option was for one parent to relocate to the area where the other parent is residing and to share the care of the children. On the evidence before me I agree that that is the better outcome.
In her report there was some discussion about L attending boarding school, however, that option was beyond the means of the parties. The family reporter expressed concern about the lack of supervision of L. The family consultant expressed a view, which I accept, that L’s behaviour with regard to harm to animals needs to be dealt with in a firm and long term consistent manner. This will involve significant supervision of him which seems more likely to occur if he is primarily in the care of the mother if the parties do not live close to each other. The mother’s evidence was that she contacted the school counsellor and asked them to raise this with the father. She did not raise it directly with the father.

The family reporter also gave evidence of her concerns about an arm injury suffered by L when he was fishing. In that instance the father was unable to drive L to hospital as he was intoxicated and when at hospital the father was observed to be intoxicated.
Whilst the focus of the proceedings have been in relation to the mother’s alcohol addiction, I am satisfied that the father is also dependent on alcohol. His ability to manage whilst intoxicated is far better than that of the mother but it has a significant detrimental impact on his ability to parent.
The family reporter observed of the father, in paragraph 84 of the family report the following:-
“84. Both parties reported drinking behaviour when they were a couple which could be described as heavy. [The father] reporting he now consumes four or five beers a night (sometimes more or less). It may benefit the court to obtain a full assessment by a suitably qualified drug and alcohol counsellor. The writer remains unsure as to the full implications of this level of alcohol consumption since it does not fall within the writer’s area of expertise”.
L is struggling at school and this difficulty he has is exacerbated by the poor communication between the parents and may, in the long term, according to the family reporter, impact on his ability to communicate as he grows to and achieves maturity. Both children appear happy in the care of the father although M is anxious to return to her mother and spend more time with her. Neither of the children wished to be put in a position where they have to make a choice. They both care deeply for their parents and both of their parents care deeply for them. The children appear happy and L has said he has a preference to remain in D although not necessarily with the father.
The move to D in July last year has meant that the children’s structured activities outside the home have all but ceased. M’s friends are said to be in the B area and the evidence is that she does not have as many friends in D. Her primary activity at the present time seems to be the construction of a tree house at the house in D.
The concern of the family consultant is whether the mother has her alcohol addiction under control as the children were fearful of their mother prior to July 2006 as she had passed out on a number of occasions, did not serve meals and on at least one occasion drove the children in the car whilst she was intoxicated.
During the course of interviewing the children I gave them an opportunity to express their views on a number of occasions and they declined to do so.
The family consultant reflected on L’s need for educational support between 2003 and 2007 and notes that he still has learning difficulties.
The family consultant observed at paragraph 85 of the report the difficulties between the parties in terms of communication and I have dealt with this earlier in these reasons.
The description given by L as to the mother’s drinking is set out in paragraph 59 of the report and the family consultant said it was given as a matter of fact and not a sign of anger.
I noted and had regard to the summary and recommendations made by the family consultant and by Mr P. Mr P noted at paragraph 152 and 153 of the report that the mother was in a new relationship and expressed some hope that this would assist in the mother’s ability to deal with this addiction. He did, however, note that it was only a short relationship at that time (vis, August 2007) and care would need to be taken as to whether this was a long term relationship.
The mother’s affidavit filed the 12 November 2007 was read into evidence.
I will now discuss in general terms the considerations under s60CC. In doing so I will not recite all of the evidence, findings and agreed facts set out earlier, however I take them into account both specifically in respect of each factor and as a whole.
Section 60CC(2)(a)
(a)the benefit to the child of having a meaningful relationship with both of the child's parents
The children have a close and loving relationship with both of their parents. In whatever order I make they will have the benefit of meaningful relationship with both parents. The move back to B will enable both parent to fully participate in parenting with equal time should they so chose.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The mother’s alcoholism exposed the children to risk of psychological harm and at some level physical harm. The mother acknowledges and has taken positive steps to deal with her alcohol addiction. I find that the mother has taken significant steps and has her intake of alcohol reasonably under control. The children will no doubt be sensitive to the mother’s intake of alcohol but the mother, particularly if she should remain in the B area, has significant social and community and family structures to help her manage this addiction.
The father’s supervision of the children is a concern and more involvement of the mother will provide a better level of supervision. The father uses alcohol extensively and it is a significant part of his lifestyle. His lack of supervision may amount to the child L being neglected from time to time.
Section 60CC(3)
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Neither of the children has expressed any direct views. On the evidence before me including that of the family reporter and the P report I am satisfied that M wants to spend more time with the mother. In addition at this time of life the mother asserts that M needs closer ties with her. I accept that submission bearing in mind the evidence that has been put before me.
L enjoys living with his father, no doubt the freedom he enjoys is of value and he enjoys living at D. L is going to face a significant challenge to his emotional well-being with going from a school of ten children to a school of up to one thousand children at the commencement of school term 2008.
On balance I find L has a slight preference to be with his father but it is not strongly expressed.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children have a strong and loving relationship with both of their parents. M wants them to live together and misses her mother more than L does. Each has problems in parenting as set out earlier in these reasons. Both parents are capable of caring for the children, subject to the qualifications considered in these reasons.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
This is one of the problematic aspects of this case. A domestic violence order was put in place in September 2006 which has impacted significantly upon the communication between the parties[15].
[15] Exhibit F2
The parties have agreed to have that domestic violence order set aside on the basis that protection orders are being made, by consent, in this Court. That will aid communication. Hopefully then the parties will continue to develop their post separation communication. Both express willingness for the other parent to have significant, if not equal time with the other. In 2006 the father was not willing to encourage the children’s relationship with the mother and endeavoured to keep the mother out of their lives. This situation eased with the passing of time.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
In terms of M she needs to be closer to the mother and needs to have more time with the mother. Whilst L is happy in D there is concern about the level of his supervision in that town. He has friends in B and will join those friends at High School near that town. Irrespective of the determination I make the children will continue to have concerns about the mother’s drinking, and possibly their fathers drinking. On balance, however, it I find that it would be the change for both children to going back to the B area will have not have any significant adverse effects and will have some significant positive effects. This will particularly be the case in terms of M. Neither party will be separated from the children and both will have either equal time or significant time.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties currently live about an hour to an hour and a half away from each other. Changeovers occur half way. The real challenge for these parents is to work out their circumstances where they can accommodate the real needs of the children to have a significant if not equal time and relationship with them both. At present both parents are not prepared to move although it is likely that the father will move to the B area in light of these orders.
If they do not then there is practical difficulty in the time the children spend with one or other parent. It is not significant in terms of an hour to an hour and a half but it is of concern.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has had alcohol problems but is managing those. She has the capacity to meet the needs of the children including the emotional and intellectual needs. The mother’s alcohol addiction will continue to prove a problem with the children however the mother has been their primary carer for most of their lives. M’s continuing unhappiness following the changeover in July 2006 has the prospect of becoming far from significant if she is returned to the B area. The mother has the capacity to deal with that. Hopefully the mother also has the determination and capacity to deal with L’s learning difficulties (as she has done this significantly in the past). [16] The father is less concerned about these aspects of the children’s developments. L will also require significant supervision with regard to his harmful behaviour towards animals. This seems more likely to occur if he is in primarily in the care of the mother, if the parties do not live close to one another. The mother’s evidence was that she had contacted the school counsellor and asked them to raise this with the father. The father was defensive in terms of the concerns raised about L’s cruelty to animals.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
[16] See exhibit ICL2 from Department of Education
It is necessary that these children remain together and be part of a community. Steps will need to be taken to continue to deal with L’s learning difficulties and this can occur particularly in the B area and particularly if the father moves closer to that area and adopts the role of equal parenting.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The attitude of the father in terms of the significant change to D in July 2006 partly reflected upon his concerns for the children but also reflected upon his desire that it was “his turn”. There were other options available to him which he did not take. The best of those was of course to care for the children but in the B area. His expression that the children could live six months in one area and six months in the other area shows lack of insight into the needs of the children, particularly L with his learning difficulties.
The father’s attitude to counselling of M and reaction to her concerns about being isolated from the mother are concerning. Equally concerning is the lifestyle that he has allowed L to enter into. L runs free in his “Huckleberry Finn” lifestyle which at some levels is fine but may expose him to risks, as outline by the family consultant, into the future. Some of that is already on display in terms of the question of animal cruelty to which the father is in denial.
The mother has adopted a sound approach in relation to her alcoholism and although she may relapse from time to time both parties will certainly watch over the other in terms of their care.
(j) any family violence involving the child or a member of the child’s family;
There were allegations of physical violence prior to separation and these allegations were denied. I need not make findings in relation to family violence bearing in mind the proposals of either party. I am satisfied that the parties are generally not at risk to each other although as a caution I have made orders, by consent, as requested by the parties.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I refer to the earlier comments made in these reasons.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The orders that I provide will, hopefully, prevent further proceedings between the parties. The parties had managed to deal with the issues of parenting until at least July 2006 without the need of court. The orders I propose, I believe, will put in place a structure upon which the parties can build.
(m)any other fact or circumstance that the court thinks is relevant.
I refer to earlier comments made in these reasons.
Section 60CC(4) of the Act
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)    has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)    to spend time with the child; and
(iii) to communicate with the child; and
(b)    has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)    spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to the factors set out under s60CC(4) and (4A) and whilst not particularly referring to each fact or circumstance I have considered those aspects in the light of the whole of the judgment. Having regard to all of the material before me and all of the findings of fact I determine that in my view the best interests of these children are served by the orders set out at the commencement of these reasons.

I certify that the preceding 112 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate

Date: 19 December 2007

[2007] FamCA 1573

19 December 2007

Key Legal Topics

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Family Law

Legal Concepts

Consent

Costs

Procedural Fairness