Pitman and Bond (No.2) - [2008] FMCAfam 1316

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PITMAN & BOND (No.2)

[2008] FMCAfam 1316

FAMILY LAW – Parenting – father’s propensity to commit acts of family violence in relationships – appropriate time for children aged five and two to spend with father – whether mother should have sole parental responsibility for the children.

Family Law Act 1975, ss.4, 60CC, 61DA

JG & BG (1994)FLC 92-515

Applicant:

MS PITMAN

Respondent:

MR BOND

File Number:

DNC 656 of 2007

Judgment of:

Terry FM

Hearing dates:

13 & 15 August & 12 September 2008

Date of Last Submission:

19 September 2008

Delivered at:

Darwin

Delivered on:

10 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Holtham

Solicitors for the Applicant:

Story & Associates

Counsel for the Respondent:

Ms Morgan

Solicitors for the Respondent:

Maleys

ORDERS

That all previous parenting orders are discharged.
That the mother and father have equal shared parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2006.
That the children live with the mother.
That the children spend time with the father:
(a)for a period of six months from the date of these orders:-
(i)from 9am on Saturday 13 December 2008 until 5pm on Sunday 14 December 2008;
(ii)with X for two non-consecutive weeks during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 until 9am on 3 January 2009 and from 9am on 17 January 2009 until 9am on 24 January 2009;
(iii)with Y for two non-consecutive periods of three days during the Christmas school holidays 2008/9 as agreed between the parties and failing agreement from 9am on 27 December 2008 to 9am on 30 December 2008 and from 9am on 17 January 2009 until 9am on 20 January 2009;
(iv)each alternate weekend during school terms commencing on the first weekend of each school term from 9am on Saturday until 5pm on Sunday;
(v)from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time;
(b)after the conclusion of six months from the date of these orders:
(i)each alternate weekend during school terms from 5pm on Friday until 5pm on Sunday;
(ii)from 5pm on the father’s rostered weekday off until 5pm on the following day during school terms, provided that the father gives the mother seven days notice of his intention to exercise this time.
(c)commencing with the April school holidays 2009 for half of each school holiday period as agreed between the parties and failing agreement for the first half of each holiday period which commences in 2009 and each alternate year thereafter and the second half of each holiday period which commences in 2010 and each alternate year thereafter;
(d)on the Father’s Day weekend each year from 5pm on Friday until 5pm on Sunday if it falls on a weekend when the children are not otherwise with the father;
(e)should the birthdays fall on a day when the children would not otherwise be with the father, from 9am until 1pm on each of the children’s birthdays and the father’s birthday if the birthdays fall on a non-school day and from after school until 6pm if the birthdays fall on a school day;
(f)at such additional or alternate times as may be agreed between the parties.
That if Mother’s Day falls on a weekend when the children would otherwise be with the father, the father shall not spend time with the children on that weekend.
That if the children are otherwise with the father on the mother’s birthday or the children’s birthdays, the children shall spend from 9am until 1pm with the mother on those days if the days fall on a non-school day, and from after school until 6pm if the birthdays fall on a school day.
That the father have telephone communication with the children when they are not in his care at times agreed between the parties and failing agreement each Thursday at 5.30pm, with the father to place the call and the mother to make the children available to receive the call.
That the mother have telephone communication with the children if they are in the father’s care at times agreed between the parties and failing agreement each Thursday at 5.30pm, with the mother to place the call and the father to make the children available to receive the call.
That notwithstanding any other provisions of this order, if the parents are in the same locality on Christmas Day the children shall spend time with the father from 2pm on Christmas Day until 2pm on Boxing Day in 2008 and each alternate year thereafter and from 2pm on Christmas Eve until 2pm on Christmas Day in 2009 and each alternate year thereafter, and shall spend time with the mother from 2pm on Christmas Eve until 2pm on Christmas Day in 2008 and each alternate year thereafter and from 2pm on Christmas Day until 2pm on Boxing Day in 2009 and each alternate year thereafter.
That the father is restrained and an injunction is granted restraining him from using any illegal drugs (including cannabis) while the children are in his care.
That in the event that either of the children are seriously injured or diagnosed as suffering a serious illness the parent who has the care of the children at the time shall notify the other parent as soon as practicable and advise the names of any treating doctors.
That each party keep the other advised of their residential address and mobile and landline telephone numbers and notify the other within 2 days of any change to these details.
That unless otherwise agreed between the parties changeover shall take place at (omitted) Centacare, or if (omitted) Centacare is not open or not able to provide a service at the relevant time, at (omitted) Police Station.
That if either party intends to travel away from their usual residential address with the children for a holiday, they shall provide to the other party not less than seven days prior to departure an itinerary containing details of the dates of departure and return, and the address and telephone number of the place where they will be staying with the children during the holiday.
That the parents communicate in respect of parenting matters:-
(a)in a communication book which will travel with the children and which book shall be used for communication about the care welfare and development of the children only; or
(b)by SMS text message in the event of an emergency.

IT IS NOTED that publication of this judgment under the pseudonym Pitman & Bond (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 656 of 2007

MS PITMAN

Applicant

And

MR BOND

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Pitman and Mr Bond separated in August 2005. They have two children, X, 5 and Y, 2 years and eight months.
In October 2005, consent parenting orders were made in respect of X. The parties agreed that X live with the mother, and spend time with the father each alternate weekend from Friday until Sunday.
Y was born seven months after separation. By agreement between the parties Y spent time with the father, increasing in duration as she grew older. By late 2007 Y had just commenced spending overnight time with the father.
The father’s time with the children came to an abrupt halt in November 2007, when the mother was informed by the father’s then partner Ms W that the father had assaulted her. The mother immediately commenced court proceedings and suspended arrangements for the children to spend time with the father.
The police attended the father’s home in November 2007 following a complaint by Ms W. The father was found in possession of cannabis and amphetamines. The father’s drug use also became an issue.
Prior to the final hearing the father’s time with the children was restored but (apart from some isolated periods of holiday time with X) only to the extent of the father spending time with the children on one day each weekend.

The competing proposals of the parties

At the final hearing there was no dispute that the children should continue to live with the mother. The dispute was as to the time the children should spend with the father.
The mother proposed that the father undergo counselling with a qualified psychologist in respect to domestic violence, respectful treatment of women, emotional responsiveness and illegal drug use. The mother proposed that while this counselling was occurring, the father spend time with the children only during the day.
The mother proposed that upon the psychologist providing a report saying that in his or her opinion the children would not be at risk of witnessing “domestic” violence in the father’s household, the children commence spending time with the father overnight on alternate weekends and in due course, for half of the school holidays.
The mother proposed that the father be restrained from using illegal drugs while the children were in his care. She also proposed that she have sole parental responsibility for the children.
The father proposed that after a short introductory period (which he agreed to because of Y’s age) he spend time with the children overnight on alternate weekends and also for block periods during school holidays. The father said that he had already undergone counselling after the events in 2007, and that he had learned from the counselling. He said that he had not re-partnered and that there was no longer any risk of the children being exposed to family violence in his care.
The father agreed that he should be restrained from using illegal drugs while the children were in his care. He sought an order for equal shared parental responsibility.

Documents Relied on

The mother relied on the following documents:
a)her Application filed on 27 November 2007;
b)her Affidavits filed on 4 June 2008 and 11 August 2008;
c)the affidavit of Ms W filed on 24 April 2008;
d)a psychiatric report prepared by Dr J.
The father relied on the following documents:
a)his Amended Response filed on 12 June 2008;
b)his Affidavit filed on 5 August 2008;
c)the Affidavit of Ms C filed on 12 August 2008;
d)the affidavit of Mr M filed on 12 August 2008.
e)a psychiatric report prepared by Dr J.
A Family Report was prepared by Mr S.
The mother, father, Dr J and Ms W were cross-examined. The father was unable to produce Ms C for cross-examination.
After the conclusion of the hearing written submissions were made by the father (17 September 2008) and the mother (19 September 2008) relating to time with the children should spend with each party on Christmas Day.

General History

The mother is 28 and the father 33. They commenced living together in 2001 and finally separated in August 2005.
X and Y are the parties’ only children. The father has a daughter A, 11, from an earlier relationship with Ms C. Ms C and A live in Queensland.
On 11 October 2005, consent parenting orders were made which provided for X, who was then about 22 months of age, to live with the mother and spend time with the father each alternate weekend from 5pm Friday until 5pm Sunday each alternate weekend. The orders also envisaged X spending half the school holidays with the father once he commenced school.
The consent orders provided for the parents to have joint responsibility for making long term decisions concerning X.
The father spent the alternate weekends with X as envisaged by the orders for the next two years. He also spent some additional time with X on his rostered days off, and several short periods of block time with X.
After Y was born, the father spent time with Y as agreed between he and the mother. This time was initially supervised and quite limited, but it increased as Y grew older. Just prior to the November 2007 incident Y had commenced spending overnight time with the father on weekends.
In about April/May 2007 the father commenced a relationship with Ms W. On any view of the evidence there were some violent altercations between the father and Ms W during this relationship.
On 11 November 2007, an altercation occurred between the father and Ms W which marked the end of their relationship. The police took out a Domestic Violence Order against the father on Ms W’s behalf. The police also searched the father’s property and found cannabis and LSD. The father was charged with possessing a trafficable quantity of these drugs.
Not long afterwards, the mother ran into Ms W, who told her about the incident and showed her bruising which Ms W said that the father had caused. As a result, the mother decided that she would no longer allow the children to spend time with the father as they had been doing. The mother filed a court application in which she proposed that the father spend supervised time only with the children.
The father subsequently persuaded the mother to allow him to take X to Queensland for ten days over the Christmas period. The trip allowed X to spend time with his paternal grandparents and other paternal relatives in Queensland, as well as to accompany the father when the father spent time with A.
In January 2008 the father pleaded guilty to the drug charges. The domestic violence restraining order was discharged and the father gave an undertaking in its place.
On 29 January 2008, the mother and father agreed on interim parenting orders which allowed the father to spend time with the children for one day on five consecutive weekends.
On 18 March 2008, interim orders were made after a contested hearing which allowed the children to spend time with the father from 9am until 5pm on one day each weekend.
On 12 June 2008 interim orders were made after a contested hearing which allowed that X to also spend two block periods of three days with the father during the June/July 2008 school holidays.

The mother’s current circumstances

The mother works part time as a (occupation omitted). She lives with X and Y on rural acreage at (omitted), where members of her family also live. (omitted) is about 51 kilometres from (omitted) and an even greater distance from Darwin where the father now lives.
X attends pre-school at (omitted) Primary School. If the mother is working he is either looked after by the paternal grandfather or attends day care. Y attends day care on Wednesday and Friday.
X is due to commence Transition in 2009. Once he commences Transition he will return home on the school bus, to be met either by the mother or the paternal grandfather.

The father’s current circumstances

The father is employed full time as a (occupation omitted) with (employer omitted).
Until recently the father was also living in the rural area, at (omitted). Prior to the hearing the father moved to a two bedroom unit in the northern suburbs of Darwin, although he said that in the longer term he would like to return to the rural area.
The father has taken in a male flatmate, to help him financially. The flatmate regularly works away from Darwin. There is no special reason to be concerned about the flatmate. It was the father’s case and I accept, that if he had the children overnight he would not allow his flatmate to stay at the unit while the children were there.

The Issues

The issues which I particularly need to consider are as follows:
a)the nature and extent of abuse and family violence perpetrated by the father in the past;
b)the likelihood of the father committing acts of family violence in the future;
c)the nature and extent of the father’s drug use in the past;
d)the likelihood of the father using illegal drugs in the future.

The nature and extent of abuse and family violence perpetrated by the father in the past

The mother’s case was that the father had a propensity to be abusive in relationships and to be physically and sexually violent to women. She said he was guilty of this conduct not only in regard to herself but in regard to his former partners Ms C and Ms W.
The father effectively admitted that he had been violent toward Ms C. He filed an affidavit by Ms C in which she said as follows:
“….there was domestic violence in our relationship….I had a domestic violence order against Mr Bond when A was 3 years old.”[1]
[1] Ms C’s affidavit filed 12 August 2008 paragraph 7
In oral evidence the father admitted that he had been physically violent to Ms C on one occasion.
The court was never able to obtain any amplification or explanation of what Ms C meant when she used the term “domestic violence”. The mother’s counsel requested that Ms C be made available for cross-examination. I made an order allowing Ms C to attend by telephone. However by the time Ms C was reached in the course of the hearing, the father’s counsel was not successful in obtaining Ms C’s attendance.
Ms C was finally required late in the afternoon, and I cannot be satisfied that her failure to attend was due to either Ms C or the father deliberately engineering this outcome. It may equally have been due to Ms C having waited around for a long time and then having been otherwise engaged by the time the court telephoned her. I am not inclined to draw an adverse inference against the father because Ms C failed to make herself available for cross-examination.
The father’s relationship with Ms C ended in about 1999. In January 2001 the father commenced a relationship with the mother, and it was the mother’s case that this was an abusive relationship.
The mother alleged that during the relationship the father regularly yelled and swore at her, subjected her to verbal abuse and forced her to have sex. She said in effect that he was a controlling and intimidating person who tried to isolate her from her friends and family and who emotionally and psychologically abused her.
The mother alleged that the father was cruel to animals. It was her case that cruelty to animals was a mark of someone with a propensity to commit acts of domestic violence
In addition the mother alleged that on two occasions in August 2005, the month the parties separated, the father was physically violent to her. On the first occasion the mother said that she was driving and was trying to prevent the father touching her and accidentally elbowed him in the face. She said that the father retaliated by punching her in the face. On the second occasion the mother said that the father tried to force her to have sex, and that in resisting him she bit his hand. The father retaliated by punching her in the face.
In August 2007 after separation, the mother attended the father’s home for a children’s birthday party. An argument erupted about whether X should stay with the father or go with the mother. The father became angry and deliberately damaged the side door of the mother’s car. X and Y were present during this incident. The father subsequently paid for the car to be repaired.
The father admitted that this incident occurred. He admitted that he struck the mother in August 2005 when she “elbowed” him. He denied that he had been physically violent to the mother on a second occasion.
I am satisfied that the father was physically violent to the mother on two occasions, and that he deliberately damaged her car in a fit of temper in August 2007.
I cannot be satisfied that the mother was the victim of a one-sided controlling and abusive relationship however, rather than a party to a sometimes unhappy relationship in which verbal arguments and yelling occurred from time to time and in which the parties clashed as a result of their different personalities and different views about such things as the use of family funds.
The father’s sexual demands and the mother’s refusal to participate could as easily be a facet of an unhappy relationship as evidence of abuse. The mother never made any complaint of rape to the police, either during or after the relationship, and I am not persuaded that I should find that the father subjected the mother to sexual abuse.

The mother’s domestic violence counsellor in the documents annexed to the mother’s affidavit drew some conclusions with which I cannot agree. I do not accept for example that the father saying to the mother that she should stay in the relationship because the children would otherwise be brought up without the benefit of input from both their parents, is evidence of emotional abuse.
I am not satisfied on the balance of probabilities that the father was deliberately cruel to animals.
The allegation the mother made about the father’s treatment of a puppy was almost entirely based on what the mother said she was told by A, who would then have been about six. The incident happened five years ago, and it would be unsafe for me to conclude that the father mistreated the puppy.
The mother adopted as accurate notes of a domestic violence counsellor about an incident in 2003 concerning the father’s dog, although it appeared that the mother now had no independent recollection of this incident. The notes suggest that the father behaved in a heartless and cruel manner to the dog. However the father denied any wrongdoing and given the second hand way in which this evidence was introduced I am not prepared to make findings adverse to the father about his treatment of this dog or indeed any animals.
I am not able to be comfortably satisfied on the evidence that the mother was, as she asserted, the victim of a one-sided abusive relationship, rather than a relationship with periods of unhappiness in which each party behaved badly. While the parties may have argued, I am not able to find that the mother was a victim of one-sided verbal abuse by the father.
I do accept the mother’s evidence that the father was physically violent to her in August 2005 on two occasions. I accept that in August 2007 the father deliberately damaged the mother’s car in a fit of temper. These actions would have caused the mother to fear for her personal wellbeing or safety. I am satisfied that the father committed acts of family violence in respect of the mother.
The third relevant relationship was the father’s relationship with Ms W, which commenced in April 2007.
Ms W’s evidence was that the father began verbally abusing her about two months after the relationship commenced.
Ms W also alleged that the father was physically violent to her on a number of occasions. She alleged that in September 2007, the father pushed her out of the house and that she lost her balance and fell and subsequently miscarried.
Ms W also alleged that on different occasions the father smashed her car windscreen, deliberately ran into the back of her car, grabbed her by the throat and tried to pull her out of the car window, caused her arm to be cut by a falling mirror, punched her in the cheek, threatened to harm her and damaged her car.
The most serious allegation made by Ms W was that on

11 November 2007 the father violently attacked her, kicked her repeatedly, bit her wrist, and banged her head on the floor. She also alleged that the father sexually assaulted her.
Ms W’s evidence was not entirely reliable. Her oral evidence was at odds with paragraph 25 of her affidavit and it appeared from her oral evidence that paragraphs 25 and 27 of her affidavit actually referred to the same incident, not two separate incidents. Ms W admitted that it was the windscreen of the father’s car, not her car which was damaged, and that she paid for the repairs.
Ms W’s evidence suggests that on at least one occasion the father was attempting to leave the scene of an argument and Ms W physically tried to prevent him from doing so. Ms W also gave evidence that on one occasion the father punched her after she slapped his face. It did not seem to occur to Ms W that she also perpetrated family violence during this incident.
The father denied most of Ms W’s allegations. He admitted one occasion when he grabbed Ms W and pushed her out the door and down the steps. He alleged that Ms W had provoked him by behaving in a sexually inappropriate way in front of the children.
I cannot be satisfied that all the events Ms W described occurred, nor can I be satisfied about the extent to which Ms W was herself the perpetrator of out of control and violent behaviour while with the father. I certainly cannot find that the father’s actions caused Ms W to have a miscarriage.
I do accept however that the mother observed bruising on Ms W soon after 11 September 2009, and I consider it highly likely that the father’s physical violence to Ms W on that final day was much greater than he is now willing to admit.
I finally note that while the father made some admissions to having committed acts of family violence, and voluntarily commenced domestic violence counselling after separation from Ms W, during his evidence the father on many occasions placed blame for what had occurred on the relevant female partner, who he alleged had acted in a provocative or offensive manner or had been physically violent to him first.
I do not accept that the father’s past family violence was ever justified. I am satisfied that the father is minimising the extent of the past family violence he has committed, and that he has not yet reached a point of fully accepting responsibility for his actions.
Dr J conducted a psychiatric examination of the father. He said that in his opinion the father was not suffering from any psychiatric illness. Dr J said that the father was somewhat cut off from his emotions, but not to such an extent that Dr J would consider a diagnosis of antisocial personality disorder.
Dr J’s opinion was that the family violence perpetrated by the father was likely the result of the father failing to deal with his emotions and lacking a range of strategies to deal with conflict.

The likelihood of the father committing acts of family violence in the future

The mother’s case was that there was no evidence that he had benefited from the 15-20 sessions of domestic violence counselling he attended. The father failed to call his counsellor, Ms D to give evidence. He had not fully and frankly admitted to the court the extent of the violence he had perpetrated in the past, and he was unlikely to have been frank with Ms D. In those circumstances there was little likelihood that the father had in fact benefited from counselling.
It was the mother’s case that in view of the father’s history and his personality, there was a significant risk that he would commit acts of family violence against female partners in the future.
The father’s case was that some comfort could be drawn from the fact that not all his past relationships involved violence. He said that between August 2005 and April/May 2007, he had been in relationships which did not involve violence. Certainly the mother herself heard nothing which concerned her during this period.
The father said that he was not in a relationship at present, and that it would be a long time before he introduced the children to a new female partner. The father was adamant that he had learned from the counselling. He did not accept that there was a risk that he might commit acts of violence in future relationships.
Given the history of the father committing acts of violence in three past relationships, and Dr J’s evidence about his personality, I certainly cannot be satisfied that there is no risk whatsoever of the father committing acts of family violence in the future in a new relationship. This is not a case where one bad relationship brought out the worst in a person not normally prone to violence.
I do take into account however that there have been no further incidents of violence since November 2007, and that the father has not re-partnered. Mr S pointed out that “the current litigation is likely to have instilled in [the father] a stronger awareness of the mother’s unwillingness to tolerate the children’s exposure to such violence and provided him with a warning about the serious implications that this may have for his contact with his children in the future.”[2] The father is squarely on notice that if he transgresses again his time with his children, to whom on any view of the evidence he is devoted, could be jeopardised.
[2] Family Report paragraph 48
While Ms D was not called to give evidence, Mr S spoke to Ms D in the course of preparing his report. Mr S recorded Ms D as speaking positively about the father’s progress.
The father voluntarily attended counselling after his separation from Ms W. He has received a wake up call as a result of the commencement of these proceedings, and he does not want to lose his children. In my view there is reason to be cautiously optimistic that the father will do everything in his power to ensure that his children are not exposed to him perpetrating family violence in the future.

The nature and extent of the father’s past drug use

Both the mother and father used cannabis and amphetamines during the early part of their relationship. I accept that the mother has now given up the use of illegal drugs.
The father said that he last used amphetamines in May 2007. However when the police searched the father’s property in November 2007 they found both cannabis and amphetamines.
The father told Mr S during the report interviews in April 2008 that he had been a heavy cannabis user in the past. The father told Mr S that he had ceased using cannabis in November 2007, but then admitted that he had used it once with a workmate shortly prior to the family report interviews.
Ms W, who lived with the father between April 2007 and November 2007 and who gave evidence about his use of cannabis and ecstasy which was not inherently unbelievable given the father’s own admissions, did not allege that the father’s capacity to care for the children was ever impaired by use of drugs save for one occasions when she said he became violently ill after eating a marijuana cookie.
The father denied that this incident even occurred. Ms W’s evidence was not wholly reliable and I cannot prefer her evidence to that of the father. I cannot be satisfied that the incident with the marijuana cookie occurred, but the relevant point is that Ms W, who had nothing good to say about the father, alleged nothing else.

The risk of the father again using illegal drugs in the future

The father’s use of illegal drugs is a concern. I do not accept that it has completely ceased.
The father proposed an order that he not use illegal drugs if the children were in his care. If the father abides by this order, it protects the children to an extent. It ensures that the father will not set a bad example to the children by engaging in an illegal activity when they are with him, and it goes some way to ensuring that the father’s capacity to care for the children is not impaired when they are with him.

X and Y’s best interests

In deciding whether to make particular parenting orders about X and Y, I must regard X and Y’s best interests as the paramount consideration.
Sections 60CC(2) and (3) of the Family Law Act set out the primary and additional considerations to which I must have regard in order to determine X and Y’s best interests.
The primary considerations are contained in s.60CC(2) and are as follows:
“a) The benefit to the children having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.”
The children have a meaningful relationship with their mother. I accept that the children will benefit from having a meaningful relationship with the father. He has forged a strong bond with his children and is committed to being part of their lives. For all his faults, has much to offer them.
Orders which allow the father to spend overnight and holiday time with the children are more likely to ensure that the father has a meaningful relationship with his children in the future than orders which restrict his time to periods during the day only. Overnight time will allow the father to take part in a range of ordinary caring activities such as night time routines. The father may be able to take X and later Y as well to school on occasions.
Block holiday time will give the father the opportunity to take the children away on a holiday which will allow them to spend time with their sister A and with the father’s extended family interstate.
Exposure to family violence however is invariably detrimental to children. If allowing the children to spend overnight time and holiday time with the father created an unacceptable risk of their being exposed to family violence, this would not be in the children’s best interests.
Although the risk of the father committing acts of family violence against partners in the future is not completely removed, I am satisfied that even absent the father attending further counselling, there is reason to be cautiously optimistic that the father will do all in his power to ensure that the children are not exposed to family violence in the future.
I am not satisfied that there is any evidence that the children have been in the past or are likely in the future to be directly abused or neglected by the father.
The children are not likely to be exposed to abuse, neglect or family violence in the care of the mother.
I turn now to the additional considerations in s.60CC(3).
X and Y are not expressing a view about parenting arrangements generally. The father’s evidence was that X had asked more than once to be allowed to sleep over at his house. The mother agreed that X had made such requests. Mr S commented that during the report interviews X was heard to inquire on several occasions when he would be able to see his father again.
There is foundation for Mr S’s opinion that X craves more time with his father than is provided in the current orders for day periods with his father only.
I must consider the nature of X and Y’s relationship with their parents and any other significant persons.
The mother has been the children’s primary carer, and she is their primary attachment figure. The father to his credit said that “The children have a good relationship with their Mum. Ms Pitman is a good mother to the children and looks after them well.”[3]
[3] Father’s affidavit filed 12 June 2008 paragraph 20
The father said that he had an “awesome” relationship with the children.
This was born out by Mr S’s observations. He said that:
“The children responded in a very positive manner to their father. They had no difficulty in separating from their mother and in making the transition to his care. They played with him in an enthusiastic and happy manner and they were clearly delighted to have this time with him. He responded to them in an active, involved manner and appeared very comfortable in his parenting role.”[4]
[4] Family Report paragraph 41
I must consider the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother does not support the children spending overnight and holiday time with the father at present. She has reservations about the desirability of the children having a close and continuing relationship with the person she believes the father to be.
It was the father’s case that the mother, perhaps because of some psychological issues of her own or perhaps simply because she was overprotective, was unjustifiably attempting to restrict his time with the children and to marginalise him in the children’s lives.
I do not accept that this is so. Insofar as the mother does not wholeheartedly support the children having a relationship with the father, it is because she reasonably fears that the children might be exposed to family violence and illegal drug use in the father’s care.
The father would do well to bear in mind the opinion expressed by Mr S, as follows:
“Although Ms Pitman’s willingness to take a stand on safety and parenting issues has perhaps prompted the current litigation, and caused considerable stress to each parent, it is my opinion that her stance is likely to promote an improved level of care for the children and an awareness of how vulnerable children are when exposed to the failings of adults. In my opinion Mr Bond would do well to acknowledge the legitimacy of the mother’s concerns and to respect her right to speak up in advocating for the safety and protection of their children.”[5]
[5] Family Report paragraph 52
The father does have the willingness and ability to facilitate and encourage a close and continuing relationship between the mother and the children. He respects the mother as a parent and acknowledges the strength of her relationship with the children. There was no evidence that he denigrated the mother to the children.
I must consider the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
either of their parents; or
any other child, or other person (including any grandparent or other relative of the child) with whom they have been living.
The mother proposed that the father spend day time only with the children until he obtained a report from a psychologist which certified that there was no risk of him committing acts of domestic (not family) violence in the future. She did not propose any holiday time in the meantime, save for an extension by one day of the father’s time with the children during school holidays. It was the mother’s case that any change prior to that, giving the father more extensive time with the children, would result in the an unacceptable risk of the children again being exposed to family violence.
I am however satisfied that there is reason to be cautiously optimistic that the father will ensure that the children are not exposed to family violence in the future.
If the children are not exposed to family violence or use of illegal drugs, then the children spending overnight and holiday time with the father is likely to be a beneficial change for the children.
It will allow the father to take part in a wider range of both caring and fun activities with the children. It will better ensure that Y develops a meaningful bond with her father. It will accord with X’s wishes. It will allow the father to take the children interstate for short periods for holidays, and enable the children to spend time with the father’s extended family and with A.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with a parent on a regular basis.
The mother and children live at (omitted), about 51 kilometres by road from (omitted), where the contact service the parties have been using is located. (omitted) is an even greater distance from Darwin where the father now lives.
X attends school at (omitted) Primary School, the closest public primary school to the mother’s home. This school is also located a considerable distance from Darwin.
The distance the parties live apart does create difficulty and expense for the parties in terms of changing the children over between them.
The parties did not use a contact changeover service until these proceedings commenced, but the mother now proposes that changeover occur only at a changeover centre or a police station.
The closest changeover centre is at (omitted) and to use it the mother faces travel of at least 25 minutes each way, as well as the cost of travel.
This difficulty and expense makes it preferable that the children both spend the same time with the father. If Y spends day periods and X overnights, the mother will be required to make two additional return trips each contact period.
I must consider the capacity of each of the parents to meet the needs of the children, including their emotional and intellectual needs.

I accept that the mother has the capacity to meet the needs of the children, including their emotional and intellectual needs. I accept that the mother commenced these proceedings out of concern for the children. While it is unlikely that the mother’s worries about the father will diminish in the immediate future, I am satisfied that she will abide by any orders made by the court concerning the children spending time with the father.
It was the mother’s case that her capacity to parent the children may be affected if the father is given more time with the children than she is comfortable with. There was no evidence however to support a finding that, even if the mother does worry about the children while they are with their father, that worry will affect her capacity to care for the children when they return to her.
The mother made a number of complaints about the father’s parenting capacity generally, including that he drove too fast and that he had called Y a little bitch on one occasion (which the father denied).
I am satisfied that, absent the issues of domestic violence and drug use, the father has the capacity to meet the children’s needs. The children’s close and loving relationship with their father rather suggests that he has provided good quality day to day care for the children in the past.
I do not accept the father has given up the use of cannabis. This is unsatisfactory. However there was no evidence that the children had been exposed to any cannabis use or other illegal drug use by the father in the last twelve months, and no evidence that the father’s care of the children had been compromised in the past as a result of drug use. In those circumstances a restraint on the father using illegal drugs while the children are in his care will protect the children.
The father’s capacity to care for the children is impaired by his propensity to commit acts of family violence while in relationships. However I am satisfied that the risk of this occurring again in the immediate future is low.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
I am satisfied that the mother has a good attitude to the duties and responsibilities of parenthood.
In some respects the father also has a good attitude to the duties and responsibilities of parenthood. He has spent time regularly with X since separation, and has spent as much time with Y since her birth as the mother would agree to.
In failing to end his troubled relationship with Ms W however, and in committing acts of family violence within that relationship, the father showed a poor attitude to the duties and responsibilities of parenthood.
The mother complained that the father was currently behind with child support. This problem appears to be a flow on effect from the father being required to deal with charges in respect of the drug offences, deal with court proceedings in respect of Ms W’s application for a domestic violence order and deal with the mother’s application for parenting orders. The father is however the author of his own misfortune. His partial non-payment of child support this year has caused hardship for the mother and for the children. In allowing this situation to come about the father has shown a poor attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the children or a member of the children’s family.
I accept that the father committed acts of family violence in respect of Ms C, the mother and Ms W. The violence against Ms W involved the children, as they were present in the home on at least one occasion when it occurred. The children witnessed the father losing his temper and damaging the mother’s car.
There can be no doubt that it is highly detrimental for children to be exposed to family violence. It is highly detrimental for children to spend time in a household in which family violence is a regular occurrence, even if the children do not witness the actual violence.

Mr S gave evidence that children who are exposed to family violence can be affected in a variety of ways, for example by becoming withdrawn, acting out the violence with other children, suffering sleep problems and becoming insecure and fearful.
The effects on children of exposure to family violence do not end with the end of childhood, nor do they end because the children are removed from the situation.
I acknowledge the seriousness of children being exposed to family violence. I acknowledge that several of the father’s partners have suffered in the past as a result of his actions. However it is not a function of these proceedings to punish the father for his past actions.
I am required to determine, in the knowledge that the father has committed acts of family violence in the past, what time he should spend with his children in the future.
In JG & BG[6], His Honour Justice Chisholm observed as follows:
“Violence may take many forms and have a quite different significance in different cases. It might be, for example, a single outburst, out of character, caused by a stressful situation, for which the violent person feels immediately regretful and apologetic. It might be the result of mental instability or disease. It might stem from a person's inability to control his or her temper. It might represent a deliberate pattern of conduct through which the violent person exercises a position of dominance and power over the other. It might be associated with a particular situation, and be unlikely to be repeated in different situations, or it might be a recurrent pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify it, or alternatively might accept responsibility for it and be willing to take appropriate measures to prevent it happening again.
These and many other aspects of violence may be highly relevant to the court in its task of attempting to determine the relevance of the violence to the children's welfare. The court's ability to make this determination will of course depend on the evidence available to it. Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child's welfare requires, and it will be more important in some cases than in others. “
[6] JG & BG (1994)FLC 92-515
In the case before me, when the evidence of the mother and Ms W together with evidence of Dr J is considered, the father’s past violence is consistent with the father being a person who is unable to control his temper on occasions. While there is reason to be concerned about how the father may behave in the future, there is also reason to be cautiously optimistic that as a result of all that has happened over the last twelve months, the father will do his best to ensure that the children are not exposed to family violence in the future.
There is no family violence order affecting involving the children or a member of the children’s family.
I must consider whether it is preferable to make orders which are least likely to lead to further proceedings.
Any orders I make in this case could lead to further proceedings. If I restrict the father’s time with the children as the mother proposed, and in particular if I do not give him any school holiday time with the children, and he finds it impossible to jump the hurdle the mother proposed to set in front of him, he may in due course apply to the court again about the issue of his time with the children. If I make the orders the father proposed, the mother will apply to the court in the future if the father does perpetrate violence in another domestic relationship or if his drug use becomes an overt problem.

Parental Responsibility

I am required by section 61DA to apply a presumption that it is in X and Y’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to find that one of the parents has engaged in abuse of the children or family violence.
The father has committed acts of family violence toward the mother, and the presumption does not apply.
I must therefore consider which order for parental responsibility would be in X and Y’s best interests. Even though the presumption does not apply, it is still open to the court to make an order for equal shared parental responsibility.
The mother sought an order for sole parental responsibility. The father proposed equal shared parental responsibility.
The mother’s argument was effectively that she and the father could not co-operate and communicate, that the father overbore her will and that she should not be required to deal with him when it came to making decisions about the children.
I accept that the relationship between the parents is currently poor.

I accept that the father was at fault in August 2007 when he lost his temper and damaged the mother’s car during an argument about whether X should stay with him. I also consider however that the tensions and uncertainties associated with these proceedings have very likely made it more difficult than usual for the parties to deal with each other about small matters in the last twelve months..
These parents have at times in the past been able to reach agreement about parenting matters. They agreed on consent parenting orders for X in 2005. They agreed on arrangements for the father to spend time with Y after her birth. They negotiated about and agreed on the father taking X to Queensland in late 2007.
On more than one occasion since separation the mother has made major decisions about the children and the father has meekly gone along with those decisions. The mother decided which school X would attend. The time the father spent with Y between her birth and November 2007 was determined by the mother, not the father. The evidence supports a finding of the father trying to be conciliatory rather than controlling when it came to some of the important decisions about the children.
Whatever his limitations and shortcomings, the father is committed to his children and has a good relationship with them. He wants to fulfil his role as a parent.
Major decisions about children can include decisions about religion, relocation, the children’s names and the schools the children attend. Major decisions are not required every day but when they are required, they potentially involve matters of long term significance for the children.
The mother and father come from similar backgrounds and do not have radically different hopes and aspirations for their children. The father has gone along in the past with the choices the mother made about major issues such as X’s school, making it more rather than less likely that the parents will quickly be able to reach agreement if major issues arise. The father loves his children and he knows his children. His children will benefit from having his views taken into account if he chooses to given them when major decisions are required.
I also place weight on Mr S’s opinion that the parents should have equal shared parental responsibility for the children.
I accept that the mother may chafe at the prospect of having to deal with the father if major decisions are required, but services such as family dispute resolution, or even the short term use of lawyers or the courts, are available to assist if agreement cannot be reached about a major issue.
I am not satisfied that it is in the best interests of these children to make an order for sole parental responsibility, and I intend to order that the parents have equal shared parental responsibility for the children.

The family report writer’ recommendations about the father’s time with the children

Mr S interviewed the parties and the children. He canvassed with the father the allegations of family violence and extracted from him admissions to acts of family violence against the mother and Ms W.
Mr S canvassed with the father the issue of his drug use, and extracted from the father an admission that he had been a heavy user of cannabis prior to November 2007. The father told Mr S that he had since abstained from using cannabis, save that he admitted using it with a work colleague a week prior to the report interviews.
Mr S observed the children with the father, and noted the happy and enthusiastic manner in which they related to the father. Mr S also spoke to Ms D, the counsellor the father had been seeing in relation to domestic violence issues.
Mr S accepted that the mother was genuinely concerned about her children’s safety when with their father, particularly as a result of her concern about the issues of violence toward women and his drug use.
Mr S’s view was that the instigation of the current proceedings was likely to have instilled in the father an awareness that the mother was unwilling to tolerate the children being exposed to either drug use or family violence, and an awareness that his time with his children in the future would be at risk if he did not deal with these issues.
Mr S did not support the mother’s proposal that the children spend time with the father during the day only until he completed further counselling or courses. He suggested a resumption of overnight time for X, and commencement of overnight time for Y six months from the making of the orders. He proposed that after a further six months the father spend time with the children from Friday until Sunday on two out of three weekends and overnight in the third week if this was practical.
Mr S is a very experienced psychologist and family report writer. His conclusions were carefully reasoned. No events have taken place since the report was written in April 2008 which might call Mr S’s recommendations into question. I place weight on his recommendations.

Discussion

As I have found that the parents should have equal shared parental responsibility for the children, I am required by section 65DAA of the Family Law Act to consider whether X and Y spending equal time with each of their parents or alternatively substantial and significant time with each of their parents is in their best interests and reasonably practicable.
Neither the father nor the mother proposed equal time, and while the court is not bound by the proposals of the parties, there is in my view no value in the court considering options which neither parent supports.
The mother proposed that the father have a single day each weekend only with the children until he had complied with the following:-
“3. That the father forthwith make arrangements to obtain counselling from a qualified psychologist in relation to the following matters and advise the mother of the psychologist’s name:
Domestic violence (including physical, emotional and sexual) and associated matters such as respectful communication and relationships with women
Handling emotional responses; and
Illicit drug use.
7. That upon the treating psychologist providing to the father a report to the effect that in the opinion of the psychologist the children would not be at risk of witnessing domestic violence within the father’s household, the father shall forthwith provide a copy to the mother.”
The mother proposed that upon receipt of the satisfactory report, the father commence spending time with the children which would include some overnights, although she did not propose any holiday time occur until Y started pre-school. The mother was content at that stage for the issue of the father’s use of illegal drugs to be dealt with by an order that he be restrained from using them.
In support of the mother’s proposal, the mother’s counsel submitted that the father was a confirmed perpetrator of family violence, and indeed, domestic violence insofar as the mother’s counsel used that term in a manner which encompassed behaviour beyond that coming within the definition of family violence.
The mother said that the father might get into another relationship at any time and that there was a high risk that if he did the children would be exposed to family (or indeed domestic) violence if they spent time with the father.
The mother recognised the positive nature of the children’s relationship with their father. However her case was that until the father was given a “clean bill of health” by a psychologist who was prepared to say that the children were not at risk at all of exposure to domestic violence in the father’s care, the court should limit the potential risk to the children of exposure to domestic violence and disrespectful conduct to women by keeping the father’s time with the children short and during the day only.
If I were minded to make the orders the mother proposed, I would need to carefully consider whether the father must be certified free only of a propensity to commit acts of family violence, or whether the father should be required to be certified free of a propensity to commit acts of domestic violence. I would need to carefully consider what the term domestic violence was intended to mean before using it in an order. However I am not minded to make the orders the mother proposed.
In my view the proposal by the mother that the father obtain a report from a psychologist before having any overnight time or holiday time with the children sets the bar impossibly high.
In my view, the greatest weight should be given to the children’s strong relationship with their father, and the fact that the father uneventfully spent day periods of time with the children for at least eight months prior to the final hearing, and also uneventfully spent some block periods of time with X during this period. In my view, the benefit to the children of being able to spend meaningful time with a father who, with his failings, as serious as they may be, is devoted to them, and with whom they in turn have a good relationship is the most important factor.
There is of the father having behaved in a directly harsh or punitive way to the children. Further, the father does not denigrate the mother to the children. In his evidence, while he did not give her the credit she deserved for seeking to protect her children from exposure to family violence, he openly agreed that she was a good mother.
There cannot be a guarantee that the father will never transgress again insofar as family violence or illegal drug use while the children are with him is concerned. However he loves his children and is powerfully motivated to ensure that he does not transgress again, because if he may well find that he has had his last chance.
There is little logic in any event, if the objective is to protect the children from exposure to family violence, in restricting the father’s time to day periods only. The violent incident with Ms W in November 2007 happened during the day.
If the father then is to be given a chance to demonstrate that he is to be trusted for the future, what orders should be made?
Mr S recommended that for a period of six months, X spend from 4pm Saturday until 6.00pm Sunday with the father and also spend time with the father overnight if the father had a rostered day off.
Mr S recommended that for the first six months Y spend time with the father during the day only, and that after six months she commence spending the same time with the father as X. After another six months Mr S recommended that the children commence spending time with the father on two out of three weekends from Friday until Sunday, and also an overnight midweek if practicable.

For the following reasons I consider that it would be appropriate to order that the father’s overnight with X for the first six months be from 9am on Saturday until 5pm on Sunday. I consider that it would be appropriate after six months for X’s time to be from 5pm on Friday until 5pm on Sunday. I also intend to order that Y spend the same time with the father as X.
Mr S’s reason for proposing different regime for Y was her “age and dependence on her mother.” He proposed that Y spend “day time only with the father until her language skills had further developed and she is less dependent on her mother.” He considered thought that overnight time should commence in “approximately six months.” However, the report was written when Y was two years and one month old. Y is now two years and eight months old.
An order which provides for X to have overnight time while Y only has time only during the day will impose a considerable burden on the mother in terms of picking up and dropping off the children. The mother was strongly opposed to being required to do this extra travel.
More than six months has passed since the report was written. When this is taken together with the mother’s difficulties with travel, I consider that the appropriate course would be to order that Y and X spend the same time with the father.
Mr S recommended that the time initially be 4pm Saturday until 5pm Sunday. The children are both however now seven months older than when the report was written. X has previously spent the entire weekend with the father, and Y will have X’s company during her time with the father. I consider it appropriate to order that the children’s time with the father be from 9am on Saturday until 5pm on Sunday for the first six months, and thereafter from 5pm on Friday until 5pm on Sunday.
Mr S effectively proposed that twelve months after overnight time was restored, the children should commence spending two out of three weekends with the father, as well as an overnight in the other week if this was practicable.
The mother strongly opposed such an outcome, which would limit her weekend time with the children. X is about to start school, making the weekend time precious, and the mother already works part time during the week.
Mr S’s thinking may have been that the father’s relationship with the children warranted them spending greater time with him than alternate weekends and overnights on the father’s rostered day off. Alternate weekend time and an overnight on the rostered days off barely comes within the definition of substantial and significant time. Given the distance the parties live apart, and the fact that the father works and X is about to start school, it is not practicable to order that the father have more time with the children during the week. The only practical option if the father is to have more time is to give him more weekend time..
However, giving the father the majority of the weekend time limits the weekend time the mother can spend with the children. The children also have a strong relationship with their mother and it is in their interests that they be able to spend regular weekend time with her.
It would be ideal if the parties lived closer together, and it were feasible for the father to spend some weekday overnight time with the children even if he was working, and take them to school or crèche in the morning. However the distance the parties live apart make that impractical. Giving the father more of the weekends is one solution to the problem of how to give the father more time when regular weekday time is impractical. However, in my view the best outcome for the children would be for the parents to share the weekends equally. I intend to make orders to that effect.
I also intend to order that the father spend time with the children overnight on his rostered day off if he is able to do so.
The father proposed that if he had weekday time with the children he pick up and drop off the children at school. However in my view this will not be practicable until Y commences school in two or three year’s time. If I order such an arrangement now, the mother or someone on her behalf will have to take Y from the school when the father drops X off or take her to school in the afternoon when the father collects X. This forces the mother to do a handover direct with the father, which she does not want, or puts the burden on her of finding someone else to do the handover. This is not a fair imposition on the mother.
I propose to order that changeover take place at Centacare (omitted). The father (and Mr S) nominated Centacare (omitted). The father said that the (omitted) centre was larger, had better car parking arrangements and was more flexible. However, if I order that changeover take place at (omitted) the mother will have to travel that much further, whilst the father’s travel will be less. I do not consider that I should require the mother to do the extra travel when Centacare (omitted) is satisfactory and I intend to order that this be the default handover location.
There is in my view some prospect that once this litigation ends and parenting arrangements settle down, the parties may be able to agree on changeover at other locations rather than Centacare.
The mother opposed any order being made for holiday time until the father obtained a satisfactory psychologists report. Provided that this was obtained and once Y commenced pre-school, which will not be until 2010, the mother proposed that the father have half the school holidays with the children.
The father proposed that the children spend time with him for half of each school holiday period. Mr S did not address the issue of holiday time.
There are many benefits to the children in spending school holiday time with the father. During school holidays the children can do different activities with their father. The father’s family is in Queensland, as is A, who is these children’s sibling. School holiday time will permit the father to take the children interstate to visit family.
In my view if the father is to spend overnight time with the children, he should also be able to spend holiday time with them, subject only to regard being had to the fact that Y is still young and is not used to being separated from her mother for lengthy periods. There is no justification in my view for preventing the father having holiday time with X until Y commences pre-school.
I intend to order that during the forthcoming school holidays the father have two non-consecutive week blocks with X two non-consecutive blocks of three days with Y. I acknowledge that these periods will represent the longest periods Y has spent away from her mother, and will occur before the alternate weekends commence next term. However I am satisfied that the father has the capacity to care for the children during these periods, and Y will have the comfort of X’s presence during these visits.
In regard to Christmas Day, the mother proposed that the parents each spend time with the children on Christmas Day. The father proposed effectively that Christmas Day be alternated.
The father submitted that changeovers on Christmas Day were disruptive. However the primary reason for his proposal was that the father’s family live interstate, and the father wants to be able to take the children interstate during the first half of the holidays if that is his time, without having to worry about a Christmas Day changeover.
I intend to order that the parents share Christmas Day if they are both in the same area. This will give each party the opportunity to take the children away in their period of holiday time, but if they do not, then both parents can spend time with the children on Christmas Day. The father can of course forgo time with the children on Christmas Day 2008 if he chooses.
The parties each sought additional orders in relation to specific issues. The mother sought orders that the father not contact her or communicate with her except in the event of an emergency. I am not satisfied that such an order is required. The parties’ relationship is currently poor, but the mother herself acknowledged that there were periods after separation when the parties got on well. I am not satisfied that the father has stalked the mother, and there is no evidence of the father attempting to frequently communicate with the mother in an harassing manner. In my view once these proceedings are over there is no reason for the mother to be fearful of the father needlessly contacting her.
The mother sought an order that the father attend further counselling and courses. The father also proposed in his “orders sought” that he do this. I do not however intend to make orders to that effect. The father did some 15-20 hours counselling with Ms D. Although he proposed orders that he attend further counselling, it was clear during oral evidence that his heart was not in it. I am not persuaded that it is essential that the father do further counselling before he spends overnight or holiday time with the children, and I do not want to make orders which are set up to fail. I certainly hope that the father will attend further counselling and courses if he feels that they would assist him, and he is on notice that if transgresses again in regard to family violence or drug use his future time with the children will be in jeopardy.
There is no justification for an order that the mother attend counselling.
The father sought an order that the mother be restrained from bringing the children into contact with Ms W. I do not intend to make this order. The mother is very protective of her children and I am satisfied that her judgment about this issue can be trusted.
For all these reasons the orders of the court will be set out at the commencement of this judgment.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate:

Date: 10 December 2008