Peters and Marlow and Anor

[2008] FamCA 347

FAMILY COURT OF AUSTRALIA

PETERS & MARLOW AND ANOR [2008] FamCA 347

FAMILY LAW – CHILDREN – where child has lived majority of her life with paternal aunt – where father has long history of heavy drug use, violence and criminality – where mother has history of drug abuse – aunt assumes child’s care when neither parent able to meet even her most rudimentary needs – where aunts children removed by welfare authorities because of her drug, violence and mental health issues – father and mother each makes significant lifestyle changes – risk assessment – mother does not seek child’s full time care - child to live with father and spend time with aunt and mother – although welfare authority declined to intervene judgment and reports to be given

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 61B, 61C(1), 61DA(2), 61DB, 62B, 64A, 65AA, 65DA(2), 65DAA, 91B
Pt VII
Evidence Act 1995 (Cth) ss 140, 140(2)(c)

Bennett & Bennett (1991) FLC 92-191
Lyons & Bosely (1978) FLC 90-423
Goode and Goode (2006) FamCA 136
W and W (Abuse allegations:  unacceptable risk) (2005) FLC 93-235
Johnson and Page [2007] FamCA 1235
M v M (1988) 166 CLR
A v A (1988) FLC 92-800

APPLICANT: MS PETERS

FIRST RESPONDENT: MR MARLOW

SECOND RESPONDENT: MS WILLS

FILE NUMBER: (P)NCC 97 of 2007

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Newcastle

JUDGMENT OF: The Hon. Justice Ryan

HEARING DATE: 4, 5, 6 & 7 March 2008

REPRESENTATION

APPLICANT: In person

FIRST RESPONDENT: In person

SECOND RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms V Hollins

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K Wooi

Orders

1. That all prior parenting orders are discharged.

2. That the child D born … May 2002 (“the child”) shall live with Mr Marlow (“the father”).

3. That Order 2 above is to be given effect by Ms Peters (the child’s aunt) delivering the child to the father outside … Police Station at 1.00 pm on 3 May 2008.

4. That Order 2 is conditional upon the father:

   (a)       Not consuming alcohol whilst the child is in his care.

   (b)       Not using illegal drugs.

   (c)       Continuing his counselling with his counsellor at … (or her nominee) for so long as the counsellor requires it.

5. That the father and Ms Wills (“the mother”) shall have equal shared parental responsibility for the child.

6. Unless it is an emergency and no later than 7 days beforehand the father shall give the child’s aunt written notice of all decisions the parents intend making in relation to:

   (a)       major medical decisions for the child.

   (b)       where the child attends school;  and

   (c)       counselling or other therapeutic interventions the child receives.

7. That Order 6 above expires 18 months from the date of these orders.

8. That the child shall spend time and communicate with the aunt as follows:

   (a)During school term, each fourth weekend, commencing 4.00 pm on Friday and ending 4.00 pm on Sunday.

   (b)From 12.00 noon on the first Wednesday of the end of Terms 1, 2 and 3 school holidays until 3.00 pm the following Saturday.

   (c)For one week during each Christmas school holidays on dates nominated by the father no later than six weeks prior to the Christmas school holidays.

   (d)By telephone twice weekly with the calls to be made by the aunt to a telephone number nominated by the father.

   (e)       At such other times as the parties agree.

9. Upon the child celebrating her eighth birthday, Order 8(a) is varied so that during school term the child shall spend time with the aunt one weekend, being a weekend agreed between the father and the aunt and, failing agreement the sixth weekend after school term commences.

10. Upon the child celebrating her ninth birthday, insofar as these orders make provision for the child to spend time with the aunt during the end of Term 2 school holidays and Christmas school holidays, the relevant orders are discharged.

11. That the child shall spend time and communicate with the mother as follows:

    (a)On the fifth weekend of each school term, commencing at 4.00 pm Friday and finishing at 4.00 pm Sunday.

    (b)During the Terms 1, 2 and 3 school holidays from 12.00 noon on the first Saturday of the holidays until 12.00 noon the following Wednesday.

    (c)For one week during each Christmas school holidays at dates nominated by the father no later than six weeks prior to the commencement of the holidays.

    (d)By telephone at all reasonable times with the calls to be made by the mother to a telephone number nominated by the father.

    (e)       At such other times as the parties agree.

12. Upon Order 10 becoming operative, the mother’s time with the child during the end of Term 2 school holidays shall extend to one week and during the Christmas school holidays shall extend to two weeks.

13. For the purpose of weekend changeovers when the child is spending time with the aunt, the aunt shall collect the child from the father or his nominee outside … Police Station and the father or his nominee shall collect the child at the end of the weekend from outside the … Police Station.

14. For the purpose of weekend changeovers when the child is spending time with the mother, the mother or her nominee shall collect the child from the father or his nominee at … Railway Station and the father or his nominee shall collect the child from the mother outside the ticket office at … Railway Station.

15. In the event the mother is unable to collect the child at the appointed time, she shall give the father no less than 24 hours notice and nominate an alternate time during that weekend when she will collect the child.  Upon notification the father shall deliver the child to the mother in accordance with the above order but at the nominated time.

16. For the purpose of school holiday changeovers involving periods commencing with the mother, the father shall deliver the child to her at … Railway Station. 

17. For the purpose of school holiday changeovers involving the aunt, the mother shall deliver the child to the aunt outside the ticket office at … Railway Station.

18. For the purpose of changeovers during school holidays, the aunt shall return the child to the father outside … Police Station.

19. In the event the mother’s school holiday period ends immediately prior to the child returning to her father, the mother shall return the child to the father at … Railway Station.

20. That all parties are to advise each other within seven days of any change to:

    (a)       their residential address;  and

    (b)       contact telephone numbers.

21. That the parties are restrained from denigrating each other or any member of their household or family in the presence of the child and shall use their best endeavours to prevent any other person from denigrating the other parties or any members of their household or family in the child’s presence.

22. That the Registry Manager shall send a copy of these orders my reasons for decision and the Family Report to the Director for the Department of Community Services.

23. That the Registry Manager shall return any documents produced upon subpoena.

24. That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

25. That any outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: (P)NCC97 of 2007

MS PETERS

Applicant

And

MR MARLOW

First Respondent

And

MS WILLS

Second Respondent

REASONS FOR JUDGMENT

Introduction  

1. This is an application by the aunt for orders that her niece, D, lives with her.  The child, who is nearly six years old, has lived with the aunt since she was about six months.  At that time the child’s mother, Ms Wills, was unable to care for her and she accepted the aunt’s offer that she would care for the child until the mother was able to.  Mr Marlow, who is the child’s father and the aunt’s brother, was then in jail and obviously unable to care for the child.  In the intervening years the child had spasmodic contact with her parents.  The child’s contact with her father increased when he was placed on a home detention order in mid 2005 that required him to live at the aunt’s home.

2. Following an altercation at the end of 2005, the father moved out of his sister’s home.  In October 2006, at the end of a one week prearranged visit, the father refused to return the child to the aunt.  He says that the child’s physical and emotional needs were seriously neglected and that she was at grave risk of continuing exposure to drug and alcohol abuse, with all of the adverse consequences which often flow.  The aunt agrees that she has a long history of abusing drugs and alcohol and that this resulted in the Department of Community Services making all four of her children Wards of the State.  However, she points out that the father has a 15 year history of heroin addiction and until mid 2005, for years was in and out of prison.  Although she agrees that her brother has made important lifestyle changes, the aunt says she has too.  Because the aunt believes the child’s best interests are served living with her, when the father failed to return her she immediately commenced these proceedings. Approximately six weeks later, the Federal Magistrates Court ordered the father to return the child to his sister, with whom she has lived ever since. 

3. When the aunt started these proceedings, she served her application on the mother.  In late 2006 the parties agreed that pending further order the mother would see the child one day each alternate weekend.  The mother saw the child on a handful of occasions between November 2006 and January 2007.  The mother experienced difficulty managing public transport and was often late to the changeover point.  She says the aunt was aggressive with her and by January 2007, she was too disheartened to continue.  Unfortunately she did not tell the aunt and for some months, the aunt and the child waited in vain at their local police station for the mother.  Eventually, the aunt stopped taking the child for changeovers with her mother. 

4. Like the aunt and the father, the mother has a history of illegal drug use, which she says is now a thing of the past.  The mother vacillated between supporting the aunt’s and the father’s applications that the child lives with them and ultimately submitted that the Court should make that decision without her expressing a preference as to with whom the child should live.  The mother wants to re-establish her relationship with the child, a position supported by the aunt and the father. 

5. Because of the difficult issues involved in this proceeding, the Court appointed an Independent Children’s Lawyer. When the matter came before me on 1 June 2007 I ordered a family report and pursuant to s 91B of the Family Law Act 1975 (Cth), invited the Department of Community Services to intervene. By letter dated 20 July 2007[1] the Department surprisingly declined to do so. 

   i)[1] Exhibit “A”

6. Mr C, who is a Family Consultant attached to the Newcastle Registry, prepared the Family Report.  He interviewed the child, the father and members of his family, the aunt and members of her family on 23 August 2007.  Unfortunately the mother did not attend the interviews arranged for her.  Based on these interviews, the information provided in the court file and subpoenaed documents, Mr C recommended that the child lives with her father.  Mr C qualified his recommendation with the proviso that changing the child’s living arrangements is warranted only if the Court is satisfied that the father remained drug free, is not abusing alcohol, engaging in violent or criminal behaviour, and that this situation is likely to continue in the long term.  In the event that the Court is not persuaded that the father has made these lifestyle changes or is unlikely to maintain them, Mr C recommended that the child remain living with the aunt and spend substantial time with her father.  Irrespective of the outcome, Mr C recommended that the Court request that the Department of Community Services provides a monitoring and supportive role to whomever the child lives with.

7. After this hearing started Mr C again interviewed the child.  He gave oral evidence concerning this interview and was then cross-examined.  At the end of his testimony Mr C’s opinion concerning the child’s future care remained the same.  To a considerable extent his observations of the parties accords with my own.  His evidence was thoughtful and showed a good understanding of the issues in this difficult case.  I am satisfied that it warrants significant weight.

8. At the commencement of the hearing, counsel for the Independent Children’s Lawyer advised that the Independent Children’s Lawyer sought orders that the child remain living with the aunt and has supervised visits with her parents.  At the end of the hearing, counsel for the Independent Children’s Lawyer submitted that the child should live with her father and spend time with the aunt and her mother unsupervised. In a difficult and finely balanced case, the primary reason for the Independent Children’s Lawyer changed stance centres upon the evidence clearly demonstrating that the child’s physical, educational and psychological needs are largely unmet in the aunt’s care.  Although the child will be upset at leaving her primary carer, the Independent Children’s Lawyer submits that in her father’s care she is more likely to attend school, have access to healthier role models, is less likely to be exposed to drug and alcohol abuse and her day to day needs adequately attended to. 

Short history

1. The aunt was born in June 1964.

2. The father was born in February 1973.

3. The mother was born in April 1978.

4. The father and the mother met in 1997.  Almost immediately the father went to prison. 

5. In late 1999 all of the aunt’s children were made Wards of the State.  The Department of Community Services has had dealings with the aunt regarding the children’s care since 1992.  The children’s removal arose from the aunt and the children’s father, Mr B, drug and alcohol abuse, her episodic drug related mental health episodes and domestic violence.

6. Following the father’s release from prison in mid 2001, he and the mother resumed contact and the mother was quickly pregnant.  Upon learning this the mother moved in with the father, sharing a room at his mother’s home.  Separation occurred seven months later following an argument during which the father hit the mother across the face, blackening her eye.  A few days later, the father returned to prison.

7. When the mother and the father separated, the mother moved into a Women’s Refuge and then shelter style accommodation.

8. The child was born in May 2002.  She is the third of her mother’s four children by four fathers.  The child is her father’s third child to two mothers. 

9. By November 2002, the mother’s lease on her shelter accommodation expired and she had nowhere to live.  The mother asked the aunt to care for the child until she could find appropriate accommodation.  The aunt agreed, partly because of her concerns that the mother was homeless, and also because the mother was using drugs and neglecting the child.

10. In February 2005, the father was convicted of assault occasioning actual bodily harm and malicious damage to property.  He was sentenced to a term of imprisonment and in mid July 2005 released on a home detention order.  This is the father’s most recent charge or conviction.  Upon his release the father commenced home detention at the aunt’s home.  The father lived at the aunt’s home until 21 December 2005. 

11. In late December 2005 the father moved into his brother, Mr S Marlow’s home at T.  For about six months the child came to the father about each alternate weekend.  Generally the brother’s wife, Mrs S Marlow, transported the child between T and M.

12. On 4 October 2006 the aunt agreed the father could have the child for one week at T. During that week the father decided against returning the child to the aunt. 

13. On 8 November 2006 the aunt filed an application at … Local Court for a recovery order.

14. On 10 November 2006, the Local Court transferred the aunt’s application to the Federal Magistrates Court.

15. On 15 November 2006, the Federal Magistrates Court made the following orders:

    Pending further order it is ordered:

    1.That the matter is adjourned to 9.30 am 7 December 2006 for a two hour interim hearing.

    2.The First and Second Respondents are to file and serve a response and affidavit by 1 December 2006.

    3.The solicitors for both Respondents are to file and serve a notice of address for service within three days of today.

    4.Any subpoena are returnable on 7 December 2006.

    5.The child […] born […] May 2002 is to live with the Applicant Aunt […].

    6.The father is to file a birth certificate for the child by 1 December 2006.

    7.The father return the child […] born […] May 2002 to the paternal Aunt […] at 12.00 noon 16 November 2006 at the footpath outside the [T] Police Station neither party to attend the changeover with another adult person.

    8.The mother spend time with the child on Monday, 20 November 2006, Monday 27 November 2006 and Monday, 4 December 2006 from 10.00 am to 5.00 pm with the mother to collect the child from [the aunt] at the office of [M] Railway Station and on 20 November 2006 and 4 December 2006 return the child to [the aunt] at the same place.

    9.The father spend time with the child from 5.00 pm Monday, 27 November 2006 until 5.00 pm Wednesday, 29 November 2006 such time to be implemented by the father collecting the child from the mother’s home at […] and concluded by the father returning the child to [the aunt] at the front footpath of [M] Police Station, neither party to be in the company of another adult.

    10.Leave is granted to the Applicant Paternal Aunt to make application for a recovery order to Federal Magistrate Coakes at 9.30 am 17 November 2007 supplemented by an affidavit of the Paternal Aunt if the child is not delivered to the Paternal Aunt in accordance with the Orders made today.

16. On 14 December 2006 the Federal Magistrates Court made the orders set out below.  These are the operative parenting orders.

    By consent it is ordered:

    1.The child […] born […] May 2002 live with the applicant paternal aunt.

    2.The child spend time with the father as agreed, but failing agreement as follows:

    (a)from midday 22 December 2006 until midday 24 December 2006;

    (b)from midday Christmas Day until 3.00 pm on 1 January 2007;

    (c)from 4.00 pm on 8 January 2007 until 3.00 pm on 15 January 2007;

    (d)from 4.00 pm on 22 January 2007 until 3.00 pm on 29 January 2007;

    (e)upon the child commencing school:

    (i)     each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;

    (ii)    the second half of all school holidays.

    3.The child spend time with the mother as agreed but failing agreement as follows:

    (a)from 9.00 am to 6.00 pm on 19 December 2006;

    (b)from midday on 24 December 2006 to 5.00 pm on 24 December 2006;

    (c)from 9.00 am on 2 January 2007 to 6.00 pm on 2 January 2007;

    (d)from 9.00 am to 4.00 pm on 8 January 2007;

    (e)from 9.00 am to 6.00 pm on 16 January 2007;

    (f)from 9.00 am to 4.00 pm on 22 January 2007;

    (g)once the child commences school:

    (i)     each Saturday from 9.00 am to 6.00 pm to be exercised on the weekend when the father is not spending time with the child.

    4.All parties are restrained from using drugs.

    5.All parties are restrained from being under the influence of alcohol while they are living with or spending time with the child.

    6.All parties are restrained from taking the child or allowing the child to visit any correctional centre.

    7.The child is to sleep alone in her own bed while she is living with or spending time with the parties.

    8.Unless otherwise agreed, all changeovers are to be implemented at the [M] Police Station.

    9.The paternal aunt is restrained from allowing the child to be alone with the paternal grandmother.

    10.Notation:  The mother and father are to attend the child’s first day at school in 2007 at [B] School.

1. On 1 June 2007 the parties and Independent Children’s Lawyer appeared before me on the first day of this Div 12A hearing.   At that hearing I made the following orders:

   1.That the parties, their legal representatives, the Independent Children’s Lawyer and the Child & Family Consultant have leave to inspect all documents produced under subpoena excluding those in relation to which the Department of Community Services claims privilege.

   2.That pursuant to s 91B of the Family Law Act 1975, the Department of Community Services is invited to intervene in these proceedings.

   3.That [the aunt] shall bring the child […] born […] May 2002 to this Court for a joint interview with the Independent Children’s Lawyer and Child & Family Consultant.

   4.That pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child […] attend upon a family consultant nominated by the Manager, Child Dispute Services of the Family Court of Australia on a date/s and at time/s to be advised for the purposes of the preparation of a family report and that such report address the following:

   (a)[The child’s] views concerning her living arrangements and these competing applications;

   (b)the nature of [the child’s] relationships with the parties and any other significant people;

   (c)each party’s capacity to provide for [the child’s] physical, emotional and intellectual needs;

   (d)the extent to which each of the parties is able to provide [the child] with a safe and appropriate home environment;

   (e)whether the parties or people with whom they associate provide an unsatisfactory role model or environment for the child;

   (f)any other matter which in the opinion of the Family Reporter is relevant to [the child’s] welfare;

   5.That pending further order, [the aunt] shall undergo fortnightly drug urine screens, the results of which shall be given to the Independent Children’s Lawyer as soon as they are received.

   6.That within 28 days [the aunt], shall register with an appropriate agency for inclusion in a Perpetrator of Family Violence Program and shall commence the program at the first available opportunity.

   7.That within 28 days [the mother] shall register with an appropriate agency for inclusion in a Victims of Family Violence Program and shall commence the program at the first available opportunity.

   8.Liberty to apply on 48 hours notice.

   9.That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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.

   10.That further consideration of this matter is adjourned to 9.30 am on 23 August 2007.

2. On 15 November 2007 I made the following orders:

   1.Pending further order [the aunt] is required to ensure that [the child] attends school on time every day unless a doctor or other medical professional provides a medical certificate to the effect the child is too unwell to attend school.  [The aunt] is required to provide a copy of any such certificate to the school and to the Independent Children’s Lawyer.

   2.That this matter be listed for final hearing for 3 days commencing 10.00 am on 4 March 2008.

   3.That the parties and Independent Children’s Lawyer shall file and serve any affidavit upon which they propose to rely no later than 42 days prior to the final hearing.

   4.That no later than 7 days prior to the commencement of the final hearing the parties and the Independent Children’s Lawyer shall file with my Associate and serve upon each other the following:

   (a)     A List of Documents relied upon at the hearing.

   (b)     A detailed Chronology.

   (c)     A List of Authorities relied upon at the hearing.

   (d)     If the orders sought are different to those contained in any   current Application or Response, details of the orders now   sought.

   5.I give liberty to the parties and Independent Children’s Lawyer to issue subpoena for the production of documents provided the documents sought relate to relevant matters.

   6.I give leave to the parties and the Independent Children’s Lawyer to relist the matter on 7 days notice.

   The Court notes the issues for final hearing are:

   A.[The child’s] views concerning her living arrangements and these competing applications.

   B.The nature of [the child’s] relationships with the parties and any other significant people.

   C.Each party’s capacity to provide for [the child’s] physical, emotional and intellectual needs.

   D.The extent to which each of the parties is able to provide [the child] with a safe and appropriate home environment.

   E.Whether the parties or people with whom they associate provide an unsatisfactory role model setting for the child.

   F.Any other matter which in the opinion of the Family Reporter is relevant to [the child’s] welfare.

3. This final stage of the hearing commenced on 4 March 2008.  None of the parties was legally represented.  None of the parties complied with the trial directions and no affidavits were filed after December 2006.  I was not asked and did not make a s 69T(3) ruling.  Although listed for three days, this phase of the hearing required a fourth day.  Given the paucity of affidavit evidence, considerable time was required for the parties to give evidence in chief.  In a situation such as this, the role of the Independent Children’s Lawyer, in effect as counsel assisting a Royal Commission is invaluable.  See Bennett & Bennett (1991) FLC 92-191; Lyons & Bosely (1978) FLC 90-423. Counsel and the Independent Children’s Lawyer saw their role in a different light and it fell to me to take the parties through evidence in chief and reality check various propositions with them. The fact finding process would have been aided by the Independent Children’s Lawyer and her counsel presenting a more neutral stance and ensuring that they played a stronger role in teasing out the facts. In the end however, doing the best that I could with the situation, I was satisfied that I had a reasonably clear, if in some instances uncorroborated, picture of the parties and the child’s circumstances.

The father’s circumstances

1. The father with his partner, Ms M and her daughter H at W.  H was born in June 2002.  She is Ms M’s only child.  H’s father is Mr P.  Ms M lived with Mr P for approximately 12 months and separated from him in mid 2003.  Mr P no longer contacts H, with Ms M explaining that he seems to have lost interest in their daughter.

2. Ms M is 22 years old and has lived with the father since June/July 2007.  They met in about October through Ms M’s mother, with whom the father worked and have been in a relationship ever since.  Presently Ms M does not have paid employment.  She last worked doing casual work as a landscaper in late 2007.  This casual work was a condition of receiving Newstart payments.  Within a few months Ms M hopes that she will be able to resume similar part-time work.  Whatever work she accepts will be structured around her need to care for H outside school hours and, if the father is successful, also the child subject of this judgment.  Ms M’s parents and four brothers live in W.  Hers is a close knit family.  Ms M has tried, but not used at all for the last two years, marijuana and has never abused alcohol.  She does not have a criminal record, albeit a minor offence was proved when she was a teenager, and the types of difficulties which have beset the parties in these proceedings are foreign to her and her family.  I was impressed by Ms M and am satisfied that, provided her relationship with the father endures, she will be a good role model for the child.

3. This child is the father’s only child by the mother.  He has two other children, M who is about 13 years old and J who is about 14 years old.  These children live with their mother Ms D at ….  The father has not seen or spoken with M or J for about seven years.  He explains that he understands the children are settled with their mother and well cared for.  At some future stage he plans to attempt to re-establish a relationship with his two older children.

4. The father is the youngest of his parents’ four children.  His siblings are J Marlow, who is about 44 years old, S Marlow who is 42 and the aunt.  The father’s parents separated when he was young and he was primarily raised in his mother’s home.  He describes an abusive childhood, with little attention paid to his needs. He moved frequently with the families itinerant lifestyle denying him the opportunity to acquire a reasonable education.  J Marlow appears to be a career criminal with his criminality arising from drug abuse.  S Marlow is the only sibling who has not used drugs or been involved in crime.  The father and S Marlow are close and estranged from their mother and sister.  Essentially, the father and S Marlow accuse their mother of relentless abuse and neglect. The aunt is strongly aligned with her mother and regards their mother’s parenting difficulties as arising from their father’s spousal and family violence.  When the father’s mother gave evidence, it was immediately apparent that her antipathy towards S Marlow and the father is as profound as theirs is towards her.  The family rift is deep and reconciliation is highly unlikely.  I am unaware of J Marlow’s relationship, if any, with his siblings and mother. 

5. By the time the father was 14, he was spending most of his time away from his mother’s home, primarily using it as a base.  By then he was enmeshed with an unsavoury group of teenagers and on the way to significant drug abuse and crime.  At 14 he stopped attending school.  Between leaving school in Year 8 and 2006, when not in custody, the father was unemployed. 

6. The father’s criminal history[2] is 20 pages long and starts when he was 16 years old.  He was charged with his first offence on 5 February 1989 and the last offence on 27 April 2005.  The father confirmed that his criminal record appears accurate.  It comprises many dishonesty offences, driving offences, self administering drugs, malicious damage, driving under the influence of alcohol or drugs and armed robbery.  Whilst in prison the father completed further studies, acquired basic living skills and eventually the motivation to stop using heroin.  He says prison saved him and gave him the skills needed to start a new life.

   ii)[2] Exhibit “L”

7. In early 2005 the father was bailed to a drug rehabilitation clinic at C.  Although the father initially absconded, he eventually completed three months drug rehabilitation and moved into a halfway house at E.  Whilst at the half way house the father committed further offences in relation to which his bail was revoked and he returned to prison.  As earlier mentioned in July 2005 the father was released from custody.  He was released from Probation and Parole supervision on 13 October 2006.

8. Upon moving to T, the father stopped using cannabis.  He says, and I accept, that he has not used illegal drugs since.  The father is actively involved with his local Police Youth & Citizens anti drug campaign.  As part of a community drug education program, the PY&C conducts school and community programs, which the father addresses.  His most recent address was given about four weeks ago at … High School.  It is highly unlikely that if police suspected that the father continued using drugs or abusing alcohol that they would invite his participation in their anti drug campaign.

9. In early 2006 the father obtained fulltime work at a food processing outlet at ….  Essentially, he has been in fulltime employment ever since. 

10. Since January 2007 the father has worked for a food processing company, P Company.  His roster requires that he works four 10 hour days each week.  He actually works five 10 hours days, with the fifth day being voluntary overtime.  The father has incurred considerable legal expenses in these proceedings and has been doing extra work so as to pay his debts.  Every three months he accrues one week recreation leave.  If the child lives with him, the father says that at least initially he will reduce his hours to four days a week.  Although he is motivated to spend as much time with the child as his financial situation permits, the probability is that within a relatively short time he may need to resume work five days a week.  On work days, the father leaves home at about 4.30 am and returns about 5.30 pm.  This means that on his work days, he will have left home before the child rises.  He will only have four weeks recreation leave which he can spend with the child.  The father and Ms M rent a two bedroom home, which has a sleep out off the kitchen.  The sleep out is enclosed and would become the child’s bedroom.  There is a large enclosed yard where the father keeps his pet dog. The home is adequately furnished and is sufficient for the child’s accommodation needs. Their home is a two minute walk from W Public School, where H attends.  This is where the father wants the child to go to school.  The aunt is concerned that the father has moved three times since he moved to T and suggests that he is unlikely to provide the child with sufficiently stable living arrangements.  While this is a possibility, I am satisfied that the father and his partner are able to afford their rental home and are keen to stay put.  Its location suits their lifestyle and the children’s circumstances.  Thus while I accept that the father’s future accommodation is less certain than the mother’s, his is nonetheless adequate.  

11. The father attends a counsellor at T Hospital.  Initially, the focus of this counselling was his history of drug and alcohol abuse.  The father perceives that the counsellor’s focus is shifting away from substance abuse in favour of issues arising from his childhood.  This is a valuable therapeutic relationship which, irrespective of the outcome of these proceedings, the father should and is likely to continue. 

12. Notwithstanding his genuine concerns about the aunt’s environment, the father agrees that if the child lives with him, she needs to visit his sister.  He emphasised that he encourages the child to maintain contact with the mother and says that the only outcome which will provide the child with a reasonable opportunity to enjoy continuing relationships with each of her parents is if the child lives with him.

The mother’s circumstances

1. The mother lives with two of her children in a rented home at R. S, her eldest child is a Ward of the State.  S’s father is Mr Y.  The mother was 16 years old when S was born.  S was three and a half years old when she was removed from the mother’s care.  It appears likely that S’s removal related to her mother’s drug use.  Centacare has placed S with a long term foster family with whom the child is apparently settled.  By arrangement with the Department of Community Services, the mother sees S four times a year. 

2. The mother’s next child is N, who was born in April 2001.  N does not have any contact with his father, Mr E.  N is in Year 1 at R Primary School. 

3. This child is the mother’s third child. 

4. Her fourth child is Y born in March 2005.  Y’s father is Mr T.  The mother lived with Mr T at least during her pregnancy with their son.  Mr T was violent with the mother and at about the time of Y’s birth, she moved into a women’s refuge.  Y does not see his father and as far as the mother knows, Mr T does not know where she lives.  In accordance with my order that she attends a program for victims of domestic violence, the mother attends counselling with Ms L.  This counselling is paid for by the Victim’s Compensation Commission.  There is no doubt that this counselling is contributing to the mother’s developing self esteem. 

5. Y attends playgroup each Tuesday and Thursday and pre-school on Monday and Friday.  Whilst Y is at pre-school the mother performs volunteer work at a local church.  The mother regards her volunteer work as an important part of reintegrating with her community.  She hopes that eventually she may acquire sufficient skills to obtain part-time paid employment. The mother’s sole experience in the paid work force was as a teenager working part-time in a chip shop. 

6. The mother has a close relationship with Mr Y, who lives near Newcastle.  Mr Y relates well to Y and N.  He is in paid employment and provides the mother with practical support.  Presently, the mother has no plans to cohabit with Mr Y.  Her only disagreement with him arises from his use of corporal punishment upon the children.  There is no suggestion that his use of corporal punishment has gone so far that it could be regarded as abusive. This issue has now resolved in favour of him using verbal instruction rather than physical discipline.

7. The mother admits that she has abused drugs.  From at least the time when the Department of Community Services removed S and until she discovered she as pregnant with N, the mother used amphetamines and cannabis.  She did not use drugs while pregnant with this child but resumed not long after her daughter’s birth. This is consistent with the aunt’s and Mr O’s evidence that when the aunt assumed the child’s care the mother was using amphetamines. The mother says that in the last two and a half years she has been drug free. This roughly coincides with her falling pregnant with N.

8. I accept that the mother never intended to permanently relinquish the child’s care.  This was a stopgap measure because she realised that as a consequence of her drug use and homelessness, she was unable to care for the child.  The probability is that she was also unable to adequately parent N.  However no one offered to assist the mother with N’s care.  After the child went to live with the aunt, the mother and N moved between friends and family homes in the Newcastle area.  In the six months following the child leaving her care, the mother saw her at least monthly, sometimes more often.  These visits usually happened at the aunt’s home.  By 2004, the mother says the aunt and her mother’s attitude towards these visits was increasingly unpleasant.  The child’s grandmother in particular made it plain that she did not want the mother visiting.  Both the grandmother and the aunt were insulting and abusive to the mother and created an atmosphere in which she was uncomfortable and which she eventually found unendurable.  By the end of 2004 her visits with the child had dropped off. 

9. In 2005 the aunt and the grandmother moved without telling the mother.  The mother unsuccessfully attempted to locate them.  At Christmas 2005, by chance, the mother found herself at a Christmas party arranged by the Good Samaritans at which the mother, the grandmother and other members of the family were present.  The mother told the aunt that she wanted the child back.  She asked for contact telephone number and the address where the child was living, which information the aunt refused to give.  Although the mother provided her address and telephone number and the aunt said that she would telephone within a couple of days to arrange a visit with the child, the aunt did not call.  At that stage the mother was isolated and lacked the confidence to pursue this issue any further.  She was and is not a match for the aunt or the grandmother.  The next contact occurred when the aunt and the grandmother visited the mother on 28 October 2006, seeking her support in having the child returned by her father.  They left unanswered her question about why they had not facilitated contact between her and the child.  This simple incident tidily demonstrates the aunt’s general lack of regard for the child’s relationship with her mother. 

1. Once these proceedings started, the mother applied for legal aid, which was initially rejected.  Nonetheless, the mother attended court on each occasion and eventually received a limited grant of legal aid.  By agreement, contact with the child resumed on 20 November 2006. This continued weekly and arrangements were made for the child to have Christmas Eve with her mother and brothers.  Contrary to the agreement, the mother kept the child.  It was raining and she spoke with the aunt, saying that if she wanted the child returned, she needed to make arrangements to collect her.  Alarmed by these events, the aunt contacted the father and asked him to find the child and bring her home.  Eventually the father, the aunt and the grandmother and others located the mother and went to her home.  Alarmed by the crowd arriving at her home the mother telephoned police, who promptly arrived.  The police spoke with the child, who had been asleep, and then, as the aunt did not have a sealed copy of her orders available, asked everybody to leave.  In further discussion the mother agreed to return the child to the father outside Newcastle Police Station at 12.00 noon the following day.  When the mother did not arrive, the father walked to the mother’s suburb, meeting the mother and the children along the way. 

2. The mother last saw the child in January 2007.  After the Christmas 2006 events, the mother says she found it increasingly difficult to deal with the aunt.  She was travelling between R in Newcastle and M outside Newcastle by public transport and twice missed the bus.  Changeovers were continually unpleasant with belittling remarks directed to the mother.  The mother basically gave up but failed to tell the aunt that she had abandoned the arrangements for spending time with the child.  For approximately two to three months after the mother stopped attending at the changeover point, the aunt continued taking the child to it.  This suggests that at least while subject to a court’s scrutiny the aunt is willing to comply with orders that she facilitates contact between the child and other family members. I have no difficulty accepting the aunt’s assertion that the mother’s failure to attend was interpreted by the child as her mother’s lack of interest in her.  The combination of the Christmas and these events demonstrates a significant lack of insight by the mother into the child’s emotional needs.

3. These events also reveal that making arrangements for the child to spend significant amounts of time with her mother is likely to result in the mother failing to meet the child’s expectations about seeing her and her half brothers, which the child is likely to interpret as her mother’s continued disinterest.  As the consequences for the child’s self esteem are concerning, a better approach is to make orders which facilitate contact between the mother and the child with a frequency the mother is likely to manage.

4. The mother vacillated between wanting to spend time with the child each alternate weekend and half school holidays and one weekend monthly, with some contact during the school holidays.  When the hearing commenced, the mother said she has more confidence that the father will facilitate her relationship with the child than she has in the aunt doing so.  When the child has been with her father the father has facilitated telephone contact with the mother, which arrangement the child and the mother have enjoyed and which the aunt has never encouraged. During the hearing, the aunt said she would facilitate contact between the child and the mother and the mother explained that during this hearing the aunt spoke civilly to her, factors which she hopes suggest a softening in the aunt’s attitude towards her.  Provided the aunt is not required to run the risk of dealing with the grandmother in order to have contact with the child, the mother said she may in the future be able to cope with the aunt in a way she has not previously managed.  This appears to be a triumph of hope over experience and probability.

5. The mother does not own a car and is reliant upon public transport.  Irrespective of whether the child lives in the M area with the aunt or at W with the father, she says she is able to arrange collection and return reliant upon public transport.  The mother’s history suggests that this is unlikely and whoever has the child’s care will need to take on a primary role in facilitating the child’s visits to her mother.

The aunt’s circumstances

1. The aunt lives in a four bedroom home at B not far east of M, which she rents from the Department of Housing.  The child and the aunt’s youngest child, L live with her.  The aunt receives a carer’s pension as her mother’s carer.  By virtue of earlier orders, while she has the child in her care, the aunt is restrained from having her mother (the grandmother) living with her.  The aunt and the grandmother say they have complied with this restraint.  However, when the grandmother was asked to provide her residential address she was unable to do so.  It was only with prompting from the aunt across the court room that the grandmother was able to tell me where she lives.  The grandmother’s evidence on this point was most unsatisfactory and I am persuaded that she continues to live with the aunt. 

2. The reason for the restraint is that the father’s brother S Marlow says that the grandmother sexually abused him when he was a child.  The father and S’s wife believe S.  The aunt does not and accepts her mother’s denials.  S Marlow, although swearing an affidavit containing this allegation, did not attend for cross examination and his affidavit was rejected.  The remaining evidence is insufficient for me to conclude that the grandmother presents an unacceptable risk to the child by virtue of S Marlow’s allegations.  It is revealing, however, that before the allegations were considered here the aunt ignored the protections put in place for the child’s safety. 

3. The aunt has four children by her former partner, Mr B.  They are an older daughter born in November 1987, a middle daughter born in January 1989, a son born in February 1990 and a youngest daughter, L, born in October 1991.  As I have earlier found, the Department of Community Services removed all four children in 1999.  From 1992, the Department received numerous child at risk notifications which, after a series of temporary care arrangements, ultimately resulted in the children being removed permanently. 

4. The aunt and Mr B were both drug addicts and Mr B involved in crime.  By about late 2001, one by one the children returned to their mother.  The Department of Community Services describes the process as the children “self restoring”.  The restoration reports suggest that departmental officers saw some improvement in the aunt’s parenting.  Their assessments are superficial and primarily based upon interviews and a prearranged home visit with the aunt.  The thrust of the reports indicates that the officers felt powerless to stop the children living with their mother and adopted an approach which lessened the risks of the children becoming runaways.  By this stage, the aunt was living with her then partner, Mr O north of Newcastle.  The aunt and Mr O told the departmental officers that neither of them were using drugs or abusing alcohol.  This was untrue.  When cross examined, Mr O explained that he stopped using drugs only recently.  The aunt called her son to give evidence about the father.  However, during cross examination, the aunt’s son not only retracted some of his allegations but proudly explained that since leaving his mother’s home in December 2007, he has stopped using drugs and alcohol.  He freely admitted regularly using cannabis with his mother during his teenage years and until he left her home.  This is consistent with Mrs S Marlow’s evidence that when she visited the aunt’s home during 2006 she saw bowls of marijuana and bongs in open view at the home, including at times when the child and other young people were about.

5. On 1 June 2007, the aunt was ordered to undergo fortnightly urine screening which tested for illegal drug use.  She failed to provide any drug screens.  She says this is because she did not know how to arrange them.  I do not accept her evidence.  The aunt has had years of involvement with health, justice and child welfare agencies.  Had she been uncertain about how to proceed I am satisfied that the aunt could have asked the Independent Children’s Lawyer or any one of the myriad of agencies with whom she has previously dealt.   I am satisfied that the reason she failed to provide urine screens is that she knew that the results would show her continued significant cannabis use.

6. The Department of Community Services was basically powerless to stop the aunt’s children returning to her.  I do not accept the Independent Children’s Lawyer’s initial premise that I should take comfort from the aunt’s children returning to her.  The mere fact of the children’s restoration does not mean that the aunt’s parenting deficits were resolved or that thereafter she provided the children with an appropriate environment or mode of living.

7. The aunt says she no longer abuses alcohol.  Documents produced by the New South Wales Police Department reveal an incident in late 2006.  As was her habit, the aunt had been at a local RSL club playing darts.  At the RSL she drank seven full strength Victoria Bitter beers, which she denies made her inebriated.  Having won a meat tray the aunt went home.  Along the way she walked past her then 16 year old son’s 38 year old girlfriend’s home.  The aunt disapproved of her son’s sexual relationship with this woman and she approached the house yelling out abuse at the woman.  The woman’s children flew to their mother’s defence and a violent altercation ensued.  During the incident, the aunt was attacked with a baseball bat.  The police were called and took the aunt to hospital. 

8. This incident is revealing in a number of respects.  Firstly, the aunt regards the consumption of seven beers as unremarkable and insufficient to describe her as being drunk. Obviously, the aunt perceives that she has the capacity to consume a large quantity of beer before she is inebriated.  Whilst she may be correct about her level of sobriety, this level of tolerance demonstrates that she has, over a long period of time, consumed a large quantity of alcohol.  Even when she does not feel drunk, the aunt is capable of unprovoked aggression and risk taking behaviour.  I am far from satisfied that the aunt’s drug and alcohol abuse are in the past and the evidence suggests strongly that drugs and alcohol remain a part of her life.

9. The aunt’s former partner, Mr O spoke in glowing terms about her parenting capacity.  He strongly supports the child remaining with the aunt and explained that he has no concerns for the child in her aunt’s care.  While his loyalty to the aunt is pleasing, in my view his judgment on this issue appears lacking and his opinion carries little weight.

General law in parenting applications

1. Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exists reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.

2. Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.

   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).

   3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)      to maintain a connection with that culture;  and

   (b)      to have the support, opportunity and encouragement   necessary:

   (i)       to explore the full extent of that culture, consistent                 with the child’s age and developmental level and the                child’s views; and

   (ii)      to develop a positive appreciation of that culture.

3. In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.

4. Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.

5. The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order: Goode and Goode (2006) FamCA 136. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:

   (1)The time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays;  and

   (ii)days that do not fall on weekends or holidays;  and

   (2)the time the child spends with the parent allows the parent to be involved in:

   (i)the child’s daily routine;  and

   (ii)occasions and events that are of particular significance to the     child;  and

   (3)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

6. The child’s best interests remain the overriding consideration.

7. Where neither concept delivers an outcome which promotes the child’s best interests the Court then determines the parenting applications as outlined above. Similarly where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.

8. The applicable standard of proof is the civil standard. If the Court is asked to make a positive finding that abuse has happened it does so by reference to s 140(2)(c) Evidence Act 1995 (Cth) and on the basis that the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235. If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 Evidence Act,  in all the circumstances there is an unacceptable risk of it.  This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.  The components which go to make up that conclusion need not each be established on the balance of probabilities.  The Court may determine that the constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard:  Johnson and Page [2007] FamCA 1235. These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92 800.

9. The findings made in the assessment of risk addresses part of the Court’s responsibilities.  Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors:  see M v M (1988) 166 CLR.

1. If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events.  See A v A (1988) FLC 92-800.

Applying the law to the facts

1. The parties all say they wish to have a meaningful relationship with the child and, notwithstanding their concerns about each other, she needs a meaningful relationship with each of them. There is no definition of the term “meaningful relationship” in s 60CC(2)(a). The words do not define the amount of time a child spends with a parent. As the notation to the provisions reveals, one of the purposes of the provisions is to promote the importance of s 60B objects. The words are qualitative and indicate different formulations for different situations will constitute meaningful relationships. In this sense the words are both contextual and directive. In essence, these words identify that a court must give real weight and prioritise the benefit to a child of having both of his or her parents involved in their lives.

2. Unless the Court intervenes, the child is unlikely to have a continuing relationship with either parent.  Left to arrange these themselves, the aunt and the mother are unlikely to agree on arrangements for the child to see her mother.  For so long as she is subject to the Court’s scrutiny, the aunt has shown a willingness to comply with orders to facilitate the child’s visits with her mother.  Absent this scrutiny, however, the aunt shows a long history of failing to facilitate the mother’s desire to communicate and spend time with her daughter.  Knowing the mother as well as she does, it was unreasonable of the aunt to interpret the mother’s unreliability as evidence of abandoning her relationship with the child.  The mother lacks self esteem and is a person who has found routine and order difficult to achieve.  Expecting the mother to pursue contact when the aunt moved house and changed telephone numbers without giving her new details, exposing the mother to abuse when she did visit and belittling her when she was late, indicates that the aunt has little interest in promoting the child’s relationship with her mother. 

3. By addressing her drug addiction and commencing therapy, the mother is in a better position to establish an appropriate relationship with the child.  The mother does not ever see herself assuming the child’s fulltime care because, as she sees it, this would involve taking the child away from the people to whom she is most strongly attached.  In terms of promoting the child’s relationship with her mother, it is important to balance the mother and child’s desire for a relationship with the mother’s inability to manage too many demands on her time.  The pleasure the child would feel from the opportunity of regular contact with her mother and half siblings, will quickly disappear if the child’s expectations of contact with her mother are unfilled. The father appreciates this issue more obviously than the aunt. When the child is with him he has initiated telephone contact between her and her mother and is clear in his commitment to helping out with transporting the child so as to enable her to spend time with her mother.  As between the aunt and the father, I have more confidence that the father will enable the child to have a relationship with her mother.

4. When Mr C interviewed the child on 13 June 2007 she spoke positively about her weekends with her father, his partner and H.  This was in the context of the father spending time with the child on each and every occasion from December 2006 to June 2007 provided for in the orders.  By the time Mr C saw the child on 23 August 2007, the child’s routine of regular contact with her father had ruptured.  He was unable to spend time with her during the June school holidays and in the interregnum had spent one full and one part weekend with the child since June 2007.  The combination of work commitments and his lack of driver’s licence had meant that the father was reliant on others, including his sister-in-law Mrs S Marlow to help him collect and return the child.  As Mrs S Marlow was no longer able to collect the child, the frequency of the visits had fallen away.  It is not surprising, therefore, that when the child saw her father on 23 August 2007 she was variously cold and disinterested in him, his partner and H, whilst at other times nervous and uncomfortable.  With patience, the father explained his inability to regularly collect the child and that he was trying to have her returned to him.  Mr C reports that:  “[the father] reminded [the child] that they had discussed these things before and [the child] nodded agreeably and seemed to be comforted by [the father’s] gentle reassurances”.  After further explanation, Mr C observed: “[The child] then warmly accepted [the father’s] offer of a cuddle and for [the child] to sit on his lap.  [The child] was now much more relaxed and sat with her arm around [the father’s] neck and spoke warmly and freely with [the father] and [his partner]”.  The observation session continued in this warm vein with the child talking happily with her father, his partner and H. 

5. The child’s positive regard for her father, Ms M and H was reaffirmed during Mr C’s March 2008 interview with her.  Because the child’s relationship with her father has predominantly developed after his criminal behaviour and heavy drug use ceased, she has little, if any, understanding of that destructive aspect of his personality.  Had the child been exposed to the type of behaviour reflected in his long criminal history, it is most unlikely that the positive interactions observed by Mr C would have dominated and in all probability, this child would have shown signs of fear and distrust in her father.  That these are lacking is evidence that the aunt and those living with her, have not actively sought to blacken the child’s father to her.  At this stage, it appears the father is capable of having a meaningful relationship with the child.  There is a real issue, however, concerning the nature of the relationship. This issue is intrinsically linked to the violence and abuse allegations. 

6. The same issues arise with the aunt.  The child calls the aunt “mum”.  The child has lived with the aunt for the vast majority of her life and is the person who she sees as providing her with consistent love and attention.  When the child became upset during the 23 August 2007 interviews with Mr C, she sought solace from the aunt.  The child explained that she would miss the aunt if separated from her for any length of time and suggested a structure of orders which had her predominantly living with the aunt whilst spending substantial time with her father.  The child is unaware that in the aunt’s care, her physical, emotional and educational needs have been neglected. The drugs, alcohol, verbal and physical violence which are part of the aunt’s household have not intruded into the child’s affection for her aunt.  This issue is relevant, however, to other factors which the Court must consider.

7. Section 60CC(2)(b) constitutes one of the pivotal issues in the case. I must consider the need to protect the child from physical and psychological harm and being subjected to and exposed to abuse, neglect and family violence. My findings pursuant to this sub-section carry significant weight. Because the child has lived with the aunt, it is somewhat easier to consider the extent to which she has been exposed to abuse, neglect and violence and the risk of future harm. In saying this, I have not overlooked that the aunt assumed the child’s care because neither of her parents was then capable of providing even rudimentary care for her.

8. So that it is clear, there is no evidence that in the aunt’s care the child has been abused. The s 60CC(2)(b) concerns primarily arise from exposure to family violence and risks arising from neglect. Mr C commented:

   A factor that may impinge on [the aunt’s] ability to parent is her propensity for aggression and violence that appears to be exacerbated by her misuse of alcohol.  [The aunt’s] recent behaviour to threaten and assault people because [the aunt] had thought that these people had threatened one of her children provides an appalling role model for the children in her household including [the child].

   A factor that may impinge on [the child’s] well being should [the child] remain living with [the aunt] is the often chaotic and violent environment in which [the aunt] lives.  While they have been living with [the aunt] and [the child], [the aunt’s] two younger children were frequently in considerable trouble at school for poor attendance including truanting and other behavioural problems including bullying and other violent behaviour.  The behaviour of [the aunt] and her children in this regard sets a very poor role model for [the child] and [the child] is at considerable risk of long term harm as a result. 

9. While the aunt agrees that Mr C’s conclusions in relation to her home environment may once have been appropriate, she says the situation in the home improved while the child was living there.  She pointed out that she has good relationships with each of her four children and as I have earlier found, called her son to give evidence.  At the end of her son’s evidence an argument developed between him and his mother.  It seems that the aunt understood that her son’s evidence harmed rather than helped her case.  He agreed with the proposition that the gravamen of his evidence concerning drug and alcohol abuse was that had he remained in his mother’s home, it was unlikely that he would have ceased substance abuse.  In essence, he said he had used drugs and alcohol with his mother at home throughout his teenage years.  Now that his girlfriend is pregnant, the aunt’s son realised that he needed to behave more responsibly and stop substance abuse. As his mother’s home was not conducive to this lifestyle change, he moved out. The aunt put to her son that he did not move out rather that she threw him out.  He rejected her suggestion and claimed that he left because he could not stand living in her home any longer.  By way of further detail the aunt put to her son that she ordered him out after, when during an argument with her, he ripped a door from the back of the house. The aunt’s son denied doing so. What then unfolded was unseemly accusation and counter accusation across the court room between mother and son. 

10. The aunt’s son spoke offensively about the mother. He presented as a psychologically damaged young man who may unfortunately find that he pays a high price for his decision to self restore into a family so troubled by drugs and criminality.  The grandmother commented that she is “seeking to break the cycle of drugs and criminality in my grandchildren’s lives”.  Whatever her strategy has been, at least in relation to the aunt’s care of her son, she has been unsuccessful.

11. The father and Mrs S Marlow gave evidence concerning the aunt’s household.  Mrs Marlow was an impressive witness.  She spoke well, was clean and appeared motivated by a genuine desire to help the child.  She spoke of visits to the aunt’s home during which she observed: “There would be washing lying around and dirty dishes in the sink.  On the occasions when the child would take me to her bedroom I could barely see the floor or her bed for all the clothes and toys which were spread all over the room.”  The Department of Community Services reports reveal a prior history of poor personal hygiene and household cleanliness.  Attached to the aunt’s affidavit are photographs of her home.  They show a clean and well ordered home.  This evidence would have been more compelling if it was corroborated by a neutral third party who indicated that this was the home’s usual state. Unfortunately the photographic evidence can carry little weight as it does no more than reveal that when wishing to do so the aunt is capable of presenting her home appropriately.    

12. When the child stayed with her father in late 2006, Mrs Marlow recalls that: 

    [The child’s] hair was infested with head lice (nits).  He scalp had sores all over it.  We went through a three week process of combing out the nits.  This would take about one hour every day.  Hundreds of nits were coming out of her hair every day.  I did this initially and then when [the father] reduced his hours at work he took over treating [the child’s] hair.  We were cleaning [the child’s] hair with a product called ‘Move’.  I remember on an occasion when I was treating [the child’s] hair she said words, or similar words, ‘this doesn’t sting like the kero did’.  We were at the little kitchen table next to the kitchen.  It took about three weeks before there was no further evidence of any nits in [the child’s] hair and for the sores to heal.

13. The child was not yet at school.  Even if she had been, the severity of her infestation coupled with her scalp sores, demonstrates that whatever the source of contagion, this was a long standing problem poorly managed.  In mid 2007 when the child saw Mr C, she again had head lice.  Although the aunt denied using kerosene on the child or that her infestation was as serious as described above I prefer Mrs Marlow’s evidence.  This evidence suggests that there are poor hygiene issues in the aunt’s home.

14. The father and Mrs Marlow expressed concern about the child’s weight and believe she is obese.  When the father lived with the aunt, he observed that the child lacked routine.  By and large her evening meal consisted of takeaway food and she had no clear bedtime.  The child was allowed to stay up until she fell asleep at which point she was carried to bed.  Quite frequently this was as late as 10.30 pm.  Mrs Marlow corroborates the father’s evidence to the extent that when she visited she usually saw the aunt and others in the home eating takeaway food.  Photographs tendered of the child show that she is a big child, who the aunt says is the largest child in her class, and who is likely to be teased because of her physical presentation.  Neither the father nor the aunt is large and it is feasible the child’s physical size may be related to diet and perhaps lack of exercise.  While the child was with her father in late 2005 she lost weight, a factor which seems attributable to dietary changes.

15. The child started school at B Public School in January 2007.  The child’s semester 2 report shows that she was absent 28 days.  Her school attendance records for that year reveal 50 unjustified absences and two sick days.  On 15 November 2007 I ordered that the aunt ensures the child attends school and that any absences must be supported by medical certificates to the school and the Independent Children’s Lawyer.  Notwithstanding my order, the child failed to attend school on 12 December, 13 December and 14 December 2007.  None of her 50 absences are supported by a medical certificate.  This hearing commenced a few weeks after school resumed in 2008.  In those few weeks the child attended school every day.  No comfort can be taken from this.  The extent of the child’s absences from school in 2007 are so severe, that I am satisfied that her few weeks of good attendance immediately preceding this hearing have little significance.  Against a background whereby the Department of Community Services document the aunt’s children’s poor school attendance, it would be naive to conclude that the aunt will ensure the child regularly attends school. The sad reality is that here is clear evidence of history repeating itself.  I am strongly satisfied that in the aunt’s care, the child’s education will be neglected.  There is a real risk that the harm so evident in the aunt’s son lays ahead for this child.  I infer that the child’s school was sufficiently concerned about her lack of literacy and overall progress that they are responsible for arranging for her to have a district support teacher.  With this support, by the end of 2007, the child was beginning to read simple text.  Her school report emphasises the importance of daily reading, writing and practice as well as regular school attendance.  Of 20 identified knowledge areas, the child rates at average for nine and below average for 11.  There are no areas where the child is graded as being above average.  These factors carry significant weight and weigh heavily against the child continuing to live with the aunt.

16. There are signs already that, in the aunt’s care, the child has learned behaviour which is socially unacceptable and psychologically damaging.  When walking down a street with Ms M and H, the child shouted at strangers:  “What the fuck are you looking at?”  To Ms M’s aged female neighbour, the child bared her bottom.  The child gave Mr C a detailed description of a bong and how it is used.  She told Mr C she had seen two bongs at the father’s home.  She made no mention of ever seeing the father use a bong or seeing him with marijuana.  The aunt’s son’s and Mrs Marlow’s evidence makes it clear that bongs and cannabis leaf are on open display at the aunt’s home. On balance, I am satisfied that the child’s knowledge of bongs and their use arises from seeing them frequently used in the aunt’s home. The child’s foul language to a stranger is consistent with the abusive language the aunt used on her way home from the RSL Club.  The child’s foul behaviour towards Ms M’s neighbour is consistent with the aunt’s unprovoked verbal attack on her way home from the RSL Club and the aggressive interchange I observed between her and her son.

17. I am strongly satisfied that in the aunt’s care the child has been and is highly likely to continue to be exposed to drug use, alcohol use, educational neglect, criminality and violence. 

18. If my risk assessment for the child with her mother was taking place before the mother stopped using drugs, my findings concerning the chld’s future would be similar (excluding bad language and anti-social behaviour) to those made concerning the aunt.  Each time the mother appeared before me she was clean and appropriately presented. There was nothing about her physical presentation which caused me to doubt her evidence that she no longer abuses drugs.  Neither the father nor the aunt asserts that in their dealings with the mother since these proceedings began, have there been any signs that she continues to abuse drugs. 

19. The mother is learning the importance of protecting herself and her children from exposure to family violence. At least two of her children’s four fathers have been violent towards her. Although the child has not been exposed to violence in her mother’s care, from the child’s perspective this is good fortune rather than good parenting.  It is difficult to anticipate how the mother may in the future deal with the situation if she finds herself in a relationship with a potentially violent partner.  Presently she is motivated against doing so and that which has previously been a high risk has somewhat lessened.  Now that she appears drug free, the risk issues arising from the mother’s former drug use have greatly reduced. While it could not be said that spending time with the mother equates to no risk of exposure to neglect and family violence, given the amount of time the mother seeks to spend with the child, these risks are not unacceptable. 

20. If the father was still using drugs and abusing alcohol, I have little doubt that in his care the child’s life would involve at least the same risks that living with the aunt entails.  As I have earlier found, prior to the child’s birth, the father assaulted the mother during which he blackened her eyes.  In about October 2005, the father had a verbal altercation with his mother concerning the child’s bedtime.  Although the father denies doing so, I am satisfied he punched a bookshelf next to which the grandmother was standing.  The bookshelf fell onto the grandmother.  As the situation in the house deteriorated, the father, the aunt’s daughter L and the aunt continued the melee on the front lawn.  Mr O stood with the child at the lounge room windows watching the father push and shove the aunt and her daughter.  Although the father’s criminal convictions are predominantly dishonesty and driving offences, he has been involved in violent criminal behaviour.  He correctly assumed that when the aunt asked him to retrieve the child from the mother at Christmas 2006, she wanted him to use whatever force was necessary.  The father agreed with my proposition that in order to survive so many prison terms, he became physically strong and comfortable with his ability to protect himself from the threat of harm from other prisoners.  The father has worked doing hard physical labour for about the last two years.  He is physically strong and I have no doubt that if he wished it, the father is capable of inflicting serious physical harm. 

1. Mrs S Marlow says that when living with her, the father worked hard and there were no signs of verbal or physical misbehaviour.  Ms M’s evidence is to the same effect.  Until this hearing, the mother’s evidence was to the effect that since the father moved to T, his dealings with her have been civil and in her opinion, he appeared to have acquired a new set of appropriate social behaviours.  For the most part, the father’s behaviour throughout this hearing was been appropriate.  The only instance of inappropriate behaviour occurred after, during cross-examination, the mother asked the father if he thought his relationship with the child maybe enhanced if he completed a “Hey Dads” program.  As the father walked past her following an adjournment, he swore at the mother using the foulest language. The mother was distressed by his behaviour, which distress caused the father no concern.  This incident shows that the father still has the capacity for aggressive reaction when provoked.  It suggests that if provoked, there is a continuing significant risk that, if the child is present, she will witness at least verbally and possibly also physically, aggressive behaviour. 

2. I have no difficulty accepting Mr C’s evidence that exposure to violence is psychologically and emotionally damaging for a child.  As time passes, however, and the father remains drug free, working, is in a settled relationship and no involved with others from a drug or criminal milieu, the risk of violent outbursts (including physical attacks) by him, is diminishing.  Although I am persuaded that irrespective of the outcome of this hearing the father will continue counselling, I will attach a condition to any parenting order in his favour that he does so.  There is reason for cautious optimism that the totality of the father’s circumstances support his desire to leave past behaviours behind.  The father can have been in no doubt that if he reverts to past behaviours, his relationship with Ms M will almost certainly end and the support he receives from his brother and his brother’s wife is likely to disappear.  Combined with his strong desire to improve the child’s circumstances and ensure her childhood is not marred by violence in the same way that his was, and compared to the risk of exposure to violence and anti social behaviour in the aunt’s household, the risk of exposure to family violence in the father’s household is not so high as to disqualify him from the child’s future care. 

3. The father has never been responsible for ensuring a child attends school.  Ms M, however, has H’s fulltime care and there is no reason to doubt her evidence that H regularly attends school where she is doing well.  While the father lives with Ms M, I am satisfied the child will attend school regularly and her educational needs will be attended to.  Whilst in prison the father says he learned the importance of education and is committed to ensuring that the child has the educational opportunities that were denied him.  He values education in a way the aunt does not.  This suggests that provided he remains drug and alcohol free, the father may deliver better educational outcomes for the child than the aunt. 

4. The father and Ms M were clean and appropriately attired on each occasion they attended court.  Both appear to have a good understanding of a healthy diet and the importance of hygiene.  The issues which appear to have troubled the aunt on this front do not appear to be difficult issues for them to manage.  In the father’s care, combined with Ms M’s assistance, I am satisfied that for the foreseeable future, the child’s physical needs will be adequately met.

Additional considerations

1. By s 60CC(3)(a) where a child has expressed views about its welfare, the child’s views must be considered along with any factors the Court feels are relevant to the weight to be given to the child’s views. Mr C explored the child’s views about the outcome of these proceedings with her. He reports:

   When asked if she ([the child]) would like to spend more time with [the father], [the child] stated that she would not because she would miss [the aunt], [the grandmother], [the aunt’s daughter L] and [the aunt’s son] too much.  [The child] added that she would like to see [the father] every weekend and see [the mother] weekdays.  When asked if she would like to see her other mum ([the mother]) more, [the child] stated that this would be okay but that she doesn’t see her much and that she doesn’t miss her.  [The child] added that she misses seeing [the father].  When asked if there was anything that [the child] wanted the Judge to know, [the child] stated that she would like to see [the father] most weekends, only three nights sleeping with [the father], and school holidays.

2. Mr C said that it was difficult for him to discern whether the child’s views are her own or whether the aunt, or someone associated with her, had influenced her to express them.  Because the aunt has been so substantially responsible for the child’s care, it would come as no surprise that the child wants to live with her.  What is surprising is the precision with which this child set out a living structure.  The child’s poor school results suggests it is unlikely that she has the maturity to devise a theoretical living arrangement with this level of precision.  Whilst the child’s approach suggests outside influences, the probability that she genuinely desires to live with the aunt and have regular and significant contact with her father is high. This is consistent with her observed behaviours reported upon by Mr C and her circumstances to date.  On balance I am satisfied that the child genuinely prefers to continue living with the aunt and that permanent separation from the aunt will be upsetting, at least in the short term.  Permanent separation from the mother or the father is likely to be less upsetting, at least in the short term. However, irrespective of the child’s views, the risk and role model issues in this case are far more significant matters. The child’s views carry very little weight.

3. By s 60CC(3)(b) I am required to consider the nature of the child’s relationship with each of her parents, grandparents and other significant people. Because the mother failed to keep her appointment with Mr C, he was unable to assess the child’s relationship with her mother. The child knows that the mother is her mother and if the mother puts in the effort, the child is likely to establish a pleasant relationship with her and her half siblings.

4. The child has her strongest relationships with the aunt, the grandmother and probably also the aunt’s children.  While her relationships with the aunt and the grandmother are affectionate and strong, because of the situation in the household, questions arise concerning their health. During this hearing I saw flashes of good humour from the aunt and aspects of her personality which the child will have found enjoyable and nurturing.  Disrupting this relationship is one of the most difficult issues in this case.  Similar issues arise with the grandmother, who is clearly devoted to her granddaughter.  Creating a situation which causes the child to lose these peoples close involvement in her life will be upsetting and as I have alluded weighs heavily on me.

5. The child’s relationship with her father really only began in 2005 when he moved into the aunt’s home.  As Mr C’s report demonstrates the child wants to have a good relationship with her father but is unsure of his commitment to her.  She is open to enjoying his company and clearly wants to be able to repose her trust in him.  The father appears capable of building a healthy relationship with his daughter and by doing so, over time her attachment to the aunt and the grandmother will lessen in intensity as theirs grows. 

6. The child has virtually no relationship with any of her half siblings.  It is likely that she will develop an appropriate relationship with the mother’s children under her aegis. It is entirely speculative whether the father will establish contact with his other children and from the child’s perspective, whomever she lives with is unlikely to establish relationships with these half siblings.

7. By s 60CC(3)(c) I am required to consider 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.

8. The mother supports the child’s relationship with the aunt and the father.  Her acceptance of the importance to the child of these relationships is apparent from her approach in these proceedings and the child’s prior care.  Although she would prefer that the child identifies with her alone as “mum”, she understands the reasons why the child needed to call the aunt “mum”. 

9. I have already made findings concerning the aunt’s willingness to encourage the child’s relationships with her parents and do not restate them.  In one sense, it is easy to understand how, having been primarily responsible for the child’s care for so long and, in the face of the parents’ inability to focus on their daughter’s needs for such a significant part of her childhood, why it is that the aunt now finds difficulty promoting her relationship with them.  However it has come about it is highly likely that even if orders are in place, the aunt’s willingness to facilitate future contact between the child and her parents will fade.  On a number of occasions during the hearing she rhetorically asked why, when the child’s parents do not contribute to her financial support, she should be put to expense and effort for their benefit.  If the importance of the child’s relationships with her parents had the aunt’s attention, the answer to her question is obvious. 

10. The aunt’s son spoke in poisonous terms about the mother.  I was left gravely concerned that his approach to the mother is symptomatic of an attitude in the aunt’s household towards the child’s mother.  The probability is that this is the case.  Not only is this approach psychologically and emotionally damaging for the child, but it strengthens further my concerns about the aunt’s willingness to promote the child’s relationship with her mother into the future.

11. I do not have the same concerns about the father’s willingness to promote the child’s relationship with her mother.  He appreciates the importance to the child in an identity and emotional sense of doing so.  Although he too is critical of the manner in which the mother has stepped in and out of the child’s life, he is better able than the aunt to put the past behind him and focus on building a better relationship for the child with her mother in the future. 

12. I agree with the aunt’s submission that when the father retained the child in late 2005 he showed scant regard for the child’s relationship with the aunt, the grandmother and other members of their household.  Since then, however, after he was ordered to return the child to the aunt, the father has not again failed to do so. I was left unclear about the reason why telephone communication between the aunt and the child when the child has been with her father has been problematic. The aunt says she has regularly telephoned the father but unable to make contact.  The father says the aunt does not telephone.  This issue could have been easily resolved through the production of telephone records.  I am unable to resolve this factual dispute and comment only that future telephone communication between the child and important people in her life shall be facilitated by orders. 

13. The evidence does not suggest that while the child is with her father she is subject to frequent negative comments about the aunt.  The father has had at least one inappropriate discussion with the child, concerning calling the aunt “mum”.  Standing back from the deep antipathy he holds for his sister and mother, the father is able to at least understand the aunt’s importance to the child.  With this connection maintained the child will maintain contact with her grandmother and cousins.  I have a stronger degree of satisfaction that the father will, into the future, comply with orders in the aunt’s and the mother’s favour than I have concerning the aunt’s future compliance. 

14. Section 60CC(3)(d) is one of the pivotal issues in the proceedings. There is a strong connection between this and the risk factors which the Court must consider. In this regard it is worth repeating Mr C’s opinion:

    The advantages of [the child] remaining with [the aunt] appear to be that she is familiar with and settled in the area including at school (as far as is known) and [the aunt’s] housing is stable.  Another advantage is that [the child] is in the company of familiar extended family.  The disadvantages appear to be [the aunt’s] propensity to both verbal and physical violence, including recent behaviour, the relatively chaotic lifestyle as the result of [the aunt’s] alcohol use, and the negative influence of [the aunt’s daughter L] and [the aunt’s son] in regards to violence, aggressive and otherwise inappropriate behaviour and poor attitude to schooling.

    The advantages of [the child] going to live with [the father] appear to be that she would have the opportunity to live with a biological parent who is free from the negative impact of illicit drugs and excessive alcohol use, who has steady income from regular paid employment, and who is in a household that is free from chaos resulting from violent and aggressive behaviour.  It appears that another potential advantage is that [the father] is much more likely than [the aunt] to successfully foster a positive relationship between [the child] and [the mother].  The disadvantages appear to be that [the father] and Ms [M] are untested in terms of their ability to care for [the child], [the child] would be uprooted into a strange environment and living with (and being cared for by) a non relative adult and same age child who are both relatively unknown to her.  It is noted that [the father’s] current drug free status, employment, domestic relationship and accommodation are all very recent and come on the back of a an extremely long history of substance abuse, violence and crime.  If [the father] was able to maintain his state of positive lifestyle for a much longer time frame, there could be much more confidence in [the child’s] best interests being met by her living predominantly with her father.

15. In these paragraphs, Mr C correctly highlights issues concerning changing the child’s circumstances, including the consequences of separating her from the aunt and the extended family where she has been living.  The key advantage of the aunt’s proposals is that these involve few changes to the child’s lifestyle.  From the child’s perspective life will continue in the manner to which she is accustomed.  Most relevantly she will have her aunt and grandmother, whom she loves, as part of daily life.  In the short term she will continue to enjoy relationships she values and need not face the genuine sadness involved in moving away from family and friends to whom she is attached.  In the long term, however, the consequences for the child of staying with her aunt educationally, emotionally and in terms of behavioural norms are almost certainly catastrophic.  The risks to which I have made reference of the child by remaining in the aunt’s primary care greatly outweigh the benefits of allowing her present living arrangements to continue.

16. If the child lives with her father she will move to the T/W area.  This involves changing schools and social networks.  The aunt points out that since moving to the T area the father has changed residence three times and his proposals concerning the child’s education have changed as frequently.  While this is correct, a point which should not be overlooked is that he has been able to make changes to his living arrangements without disrupting the child.  With the child in his care and now that H is settled in her school, the father and Ms M plan to remain where they presently live well into the future.  If the child lives with her father and Ms M, for the first time in her life she will be living with a similarly aged child.  H likes the child and thus far the two children have related happily to each other when the child has spent time with her father.  Living together on a fulltime basis is a much more intense scenario and it is likely that difficulties between the two children will arise.  In the short term it can be expected that both children will seek to assert their position in the home and may attempt to play the father and Ms M off against each other.  The adults appear alive to the probability that relationship issues between the children will probably arise when the child joins their household.  Ms M, in particular, seemed quite able to help the children through this transition period without long term difficulties.  Although she is young, Ms M appears to have the necessary personal maturity and motivation to competently care for the child while the child’s father is at work and to play an important role in helping this child cope with changes to her circumstances. 

17. I have no difficulty understanding Mr C’s caution about the untested nature of Ms M and the father’s relationship.  However, Mr C last saw them in August 2007 and in the period since their relationship has continued to strengthen.  The father and Ms M impressed me as committed to each other and it seems likely that their relationship will continue in the foreseeable future.  If it falters and ultimately fails, the child will endure future change, in the sense that Ms M and H will probably fade from her life.  The risk of losing relationships (other than with her parents) does not arise in the aunt’s home.  However, for the reasons I have already given, when balanced against the risks to the child’s overall wellbeing if she continues in the aunt’s care outweigh those which I have just addressed.

18. Section 60CC(3)(e) concerns the practical difficulties experienced of a child spending time with and communicating with a parent. The distance between the aunt’s and the father’s homes is approximately 220 klms and is about a two hour forty minutes drive. The aunt has never held a driver’s license and relies on public transport or other people driving her. Until late last year she relied particularly on the grandmother. Unfortunately, the grandmother’s car was destroyed and the grandmother is without transport. The father is disqualified from driving until September 2008. As soon as his disqualification has lapsed the father plans to obtain a driver’s license and motor vehicle. The aunt lives about 45 to 60 minutes by car from the mother. The mother does not have a driver’s license and has no plans to obtain one. She is reliant upon public transport.

19. Rail transport between Newcastle and M is relatively infrequent, with buses running more often but still comparatively infrequently.  Rail transport between Newcastle/M and T is available daily, albeit less frequently.  I infer that the aunt and the mother are eligible for subsidised travel passes.  The aunt has the time, unconstrained by significant child care or work commitments, which effectively make her best able to travel to deliver and collect the child for changeovers.  The mother’s child care commitments significantly impede her ability to travel long distances, at least during the school week, for changeovers.  The father’s ability to do so is limited by his work commitments.  It is of the utmost importance that the father continues paid employment.  It is important for his continued rehabilitation and for the child to have this role model in her life.  Nor do I think it practicable that at the end of a 10 hour work day the father travels any distance to deliver or retrieve the child.  Such a scenario, particularly if it involves long distance country driving, is simply dangerous.  With these factors in mind during school term, the aunt and the mother will be responsible for Friday travel.  The father’s contribution to travel will centre upon weekends or times when it is not reasonably anticipated that he will be working. 

1. The distances and difficulties involved in moving the child between the three households impacts upon the frequency with which weekend arrangements can be implemented.  Alternate weekend arrangements would probably quickly fail and the less frequent approach suggested by Mr C strikes a balance between reality, enabling the child to settle into a new home whilst simultaneously maintaining appropriate relationships with the people who are important to her.

2. Section 60CC(3)(f) focuses upon the parties parenting capacity. I have earlier made numerous findings which reveal that with Ms M’s support, the father is in a better position to provide the child’s needs in the short to medium term and possibly longer into the future. These matters do not require restating.

3. There are no s 60CC(3)(g) factors which require further consideration.

4. Aboriginal and Torres Straight Islander issues do not arise.

5. I have already considered violence and parental attitudes earlier in these reasons. There are no current family violence orders or matter under ss60CC(3)(i),(j) and (k) which requires consideration.

6. As far as possible the Court should make orders least likely to lead to further litigation.  As this case demonstrates litigation is stressful for all concerned.  The aunt is highly unlikely to comply with orders requiring that she not use drugs, conditions requiring that the child regularly attends school or facilitate ongoing relationships with her parents.  Future proceedings are almost certain.  The types of conditions that need to be attached to any order concerning the child’s living arrangements are more compatible with the father’s circumstances than either the aunt or the mother.  Although it is far from certain that the gains he has made in changing his lifestyle will be maintained, in the circumstances of this case the indicia for probable success is sufficiently strong to warrant changing the child’s living arrangements.  There is a possibility that the father will revert to past behaviours which will necessitate further litigation, if not in this Court then by child welfare agencies.  I take this possibility into account.  In this case the risk of future proceedings is a factor which does not warrant significant weight.  To the greatest extent possible I have tried to construct orders which address future circumstances so that the parties have a long term frame work within which the child will be cared for.  This is designed to relieve them of the need to try and negotiate future arrangements, a situation which is fraught with risk and to also provide them with clear guidance about the matters they need to attend to in order to maximise the child’s future wellbeing.  

7. There is considerable overlap between s 60CC(3) and s 60CC(4). The mother has been keen to participate in decisions about the child’s care, which the aunt has denied her. Whilst this may have been reasonable in the early years the child was with the aunt, in the latter period it was inappropriate. The father abandoned his parental responsibilities for years in pursuit of his own interests. In recent years however the aunt and the father’s inability to communicate has made his desire for inclusion in decision making impossible and there is little prospect of improvement. There appears no obvious framework which could guide them to a situation where they could focus on the child’s wellbeing and rationally discuss her future. Although their communication is limited, I am more positive about the mother and the father’s ability to communicate about the child.

8. There is no doubt that the mother and the father grossly failed to maintain a relationship with the child and placed their needs ahead of hers for her early years. 

9. It is important to acknowledge that the aunt has supported the child from Centrelink benefits without financial contribution by the child’s mother or father.  She has maintained the child in very difficult financial circumstances and has done her best by the child financially. The mother’s difficult financial circumstances, arising by virtue of her income being sourced from Centrelink benefits and having the care of children has made it impossible for her to pay child support.  Since his release from prison and obtaining paid employment, the father has not paid child support.  Whilst I understand the urgency with which he needed to re-establish his life he had a clear obligation to make a contribution, albeit small, to the child’s financial needs. 

Conclusion

1. This is a sad and difficult case.  The child loves the aunt and her father and would enjoy a relationship with her mother.  Life has not been easy for any of the three parties and all have faltered under the stressors that have come their way.  If the aunt had not stepped in and taken the child into her home, the child’s situation was terrifying.  The mother and the father are forever in the aunt’s debt for the efforts she put into their daughter.  Notwithstanding the difficulties to which I have repeatedly referred, the aunt did her best by the child in a situation where neither parent could provide her with even the most basic of her needs.  The situation now, however, is that both parents’ position is improved and the father is now better placed to care for the child into the future.  Whilst his situation is not without risk, the probability that he will provide an appropriate level of care for the child is higher than if she stays with the aunt.

2. By reference to my findings concerning family violence, the statutory presumption does not apply. The parties agree that an equal time arrangement is unworkable and none supports a substantial and significant time arrangement.  Even if this was solely an issue of distance, I agree these arrangements are unavailable. 

3. For the reasons already discussed, I am strongly satisfied that the child’s living arrangements must change and that hereafter she will live with her father.  The father and the aunt’s inability to communicate about the child, or at all, makes it impracticable to give them equal shared parental responsibility.  Such an order is only likely to hold the child to ransom in circumstances when major long term decisions need to be made but are not because of the adult’s hostility.  Although the child’s mother has had little involvement with her, the mother is able to communicate with the father and in my view she should be involved in major long term decisions.  This sends an important message to the child that her mother is a person to be valued who is interested in her wellbeing.  The father will be obliged to communicate important decisions to the aunt for the next two years.  If she has information which the child’s parents need to know in order to make the most appropriate decision, my expectation is that the aunt will let at least one of the parents know.

4. Because of difficulties in communication there are a suite of orders aimed at ensuring that the parties have important information concerning the child and the information they need in order to communicate with her.  For obvious reasons the parties need to know where each other lives. 

5. Ordering the child’s time with the aunt and the mother is complicated.  As far as the child’s time with the aunt is concerned, a key issue is maintaining a relationship which is valuable to the child without exposing her to too great an extent to the risk issues I have identified.  The time frames ordered are particularly structured with this issue in mind.  I agree with the approach suggested by Mr C, subject only to the gradual changeover.  The parties are unable to manage a gradual transition and the only viable option is a fairly prompt change to the child’s living arrangements.  I have delayed changeover by approximately one week so that the child can have the opportunity to say her farewells at school and in her neighbourhood. 

6. The periods of time the child spends with the aunt will gradually decrease as the child’s attachments to her father, Ms M, H and the area in which she will in the future live strengthen. Initially the child will have less time with her mother than with the aunt. The main reason for this is that the child’s relationship with the aunt is stronger than her relationship with her mother. As the child’s relationship with the aunt changes, the amount of time she has during school holidays with her mother will slightly increase.  Thus not only does the child have the opportunity to develop her relationship with her mother but also with her half siblings.

7. Face to face arrangements will be supplemented by regular telephone communication.  There is no good reason why the child cannot enjoy free and easy contact with her mother, half siblings and within reasonable limits her aunt and members of her aunt’s family.  Rather than nominate specific times, which usually only causes friction, I will make provision for regular but, as far as the aunt is concerned constrained telephone contact.  The limitation is to avoid unsettling the child and ensure that the transition between homes works smoothly.  The party placing the call will be responsible for its costs.

8. The travel arrangements are carefully constructed so that all parties must go to some effort to ensure the child spends time with each of them, but without making the effort involved so crippling that the child’s visits peter out.  Clearly because of the difficulties in the father’s and aunt’s family relationships, I have taken the unusual step of ordering changeovers which involve them to occur outside a police station.  As an outbreak of hostilities is possible, prompt police intervention will be to hand.  Unfortunately the parties circumstances are not amenable to the few contact changeover facilities available in the area.  Similar issues do not arise with the mother and changeovers involving her will be at a railway station.

9. Finally, attached to the father’s orders are a series of injunctions which maximise his chances of maintaining the lifestyle changes he is keen to imbed. 

10. I was disappointed that the Department of Community Services declined the Court’s invitation to intervene in these proceedings.  My orders, Mr C’s report and these Reasons are to be provided to the Department of Community Services in the hope that if difficulties arise for the child, for her sake they will respond positively. 

11. For these reasons I am satisfied that the orders set out at the beginning of this judgment are in the child’s best interests.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan

Associate: 

Date:  24 April 2008