Plummer & Plummer - [2007] FMCAfam 1010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PLUMMER & PLUMMER

[2007] FMCAfam 1010

FAMILY LAW – Parenting orders.

Family Law Act1975, ss.60B, 60CA, 60CC, 60CC(3), 60CC(3)(a)(b)(d)(f),(g),(i), 4, 4A, 60CG, 61DA, 61DA(1), 64B, 65D, 65DAA, 65DAB

Applicant:

MR PLUMMER

Respondent:

MS PLUMMER

File number:

BRC 5599 of 2007

Judgment of:

Purdon-Sully FM

Hearing date:

2 November 2007

Delivered at:

Brisbane

Delivered on:

23 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr Burridge

Solicitors for the Applicant:

Carswell & Company

Counsel for the Respondent:

Mr James

Solicitors for the Respondent:

John C Joyce, Solicitor

ORDERS

Parenting orders

That all previous orders be discharged.
That except as otherwise stated, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of M born in 1999 and S born in 2002.
That the parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree;
(c)they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That save as otherwise ordered, the children are to live with the Father.

Time with the other parent

That the children are to spend time with their Mother as agreed between the parents and if they fail to agree then as follows:
(a)From 9.00am to 1.00pm in [H] such time to be supervised by a person to be nominated by the Father (but not the Father or his wife), on Saturday 1 December 2008 and Saturday 8 December 2008 with the Father to inform the Mother in writing of the name and contact details of the person supervising at least 48 hours prior thereto.
(b)Each alternate weekend during school term from 4.30pm Friday until 4.30pm Sunday (or 4.30pm Monday if Monday is not a school day) to continue fortnightly thereafter commencing the weekend of 1 February 2008 until the commencement of any school holiday period with the changeover arrangements to be that the parents or their nominee shall meet at a place to be agreed on Friday afternoon and Sunday (or Monday if Monday is not a school day) and failing agreement at [T] (other than outside the [T] Police Station).
(c)Order 6 (b) shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted;
(d)for one half of all school holiday periods:
(i)being the first half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years; and
(ii)the second half of the Easter, June/July, September/October and Christmas school holidays in even numbered years;
(e)for the purposes of these Orders, the school holiday time shall commence:
(i)if the Mother’s time falls in the first half of the holidays from 4.30om on the day the school term finishes and conclude at 4.30pm on the day calculated to be half of the holidays;
(ii)if the Mother’s time falls in the second half of the holidays from 9.00am on the day calculated to represent half of the holidays with her time to end at 4.30pm on the day before the school term commences;
(iii)school holidays shall be deemed to commence at 4.30pm on the day the school term finishes and conclude at 4.30pm on the day before the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Mother shall retain the additional night.
(f)on the birthday of each child (including every child) with the Mother at her election to either telephone the child between 6.00pm and 7.00pm or if a non-school day the Mother or her nominee to collect the children from and return the children to the Father’s residence, from 1.00pm until 6.00pm;
(g)on the Mother’s Day weekend (if a week-end when the Mother does not spend time with the children), from 4.30pm Friday to 4.30pm Sunday with the changeover arrangements to be that the parents or their nominee shall meet at a place to be agreed and failing agreement at [T] (other than outside the [T] Police Station).
(h)on the telephone at such times as a child reasonably requests but otherwise between 6.00pm and 7.00pm each Tuesday and Friday and on Christmas Day when the children are not otherwise in the Mother’s care and in relation to such communication the Father shall:
(i)ensure that the children are available to receive the telephone call;
(ii)arrange for the children to telephone the Mother on the following night if, for any unforeseen circumstance, the children miss the telephone call from the Mother;
(iii)ensure that the children have privacy during the conversation.

Specific time for the Father

That the Father shall also spend time with the children as follows:
(a)In the event that the children are in the care of the Mother on Father’s Day, any of the birthdays of the children, or Christmas Day then the Mother shall:
(i)forgo the Father’s Day weekend if her weekend time under these orders;
(ii)allow the children to telephone or spend time with the Father, at his election, on the birthday of each of the child, including all of the children, on the same terms as the Mother under the terms of these Orders, save that should the Father choose to spend time with the child (including all the children) then changeover shall be at the Mother’s residence.
(iii)Allow the Father to telephone the children between 6.00pm and 7.00pm on Christmas Day.
(b)On the telephone time at such times as a child reasonably requests but otherwise between 6.00pm and 7.00pm each Tuesday and Friday when the children are not otherwise in the Father’s care and in relation to such communication the Mother shall:
(i)ensure that the children are available to receive the telephone call;
(ii)arrange for the children to telephone the Father on the following night if, for any unforeseen circumstance, the children miss the telephone call from the Father;
(iii)ensure that the children have privacy during the conversation.

Change of name

That each party shall be restrained and an injunction issue restraining either party from changing the name the children without the written consent of the other parent and the children shall be known as M “Plummer” and S “Plummer” respectively and that either parent shall be at liberty to notify all treating medical practitioners and educational institutions of the name of the children and have the records corrected to show the children’s surname as “Plummer”.
That in the event that the birth certificates of the children do not reflect the surname of the children as “Plummer” then the Mother shall:
(a)
within 28 days (28) days of the date of service upon her of these Orders write to the Queensland Registry of Births, Deaths and Marriages, enclosing a copy of the original birth certificate of the children M “Plummer” and S “Plummer” and request, where necessary, a correction to the registration of the children’s birth particulars to ensure that their names are recorded in accordance with these Orders and that the children’s father is shown as

Mr Plummer;
(b)provide copies of any correspondence between her and the Queensland Registry of Births, Deaths and Marriages to the Father.

E “Johnson”

That the child E Johnson born in 1997 spend time with the Father as follows:
(a)From 9.00am Saturday 1 December 2007 to 4.30pm Sunday 2 December 2007 and from 9.00am Saturday 8 December 2007 to 4.30pm Sunday 8 December 2007 with the changeover arrangements to be that the Father collect E from the Mother on the Saturday in [H] and on the Sunday the parents or their nominee shall meet at a place to be agreed and failing agreement at [T] (other than outside the [T] Police Station).
(b)From 4.30pm Friday until 4.30pm Sunday and each alternate weekend thereafter commencing 8 February 2008;
(c)For one half of the school holiday period:
(i)being the first half of the Easter, June/July, September/October and Christmas school holidays in even numbered years; and
(ii)the second half of the Easter, June/July, September/October and Christmas school holidays in odd numbered years;
(d)for the purposes of these Orders, the school holiday time shall commence and conclude as detailed in Order 6(e)(iii) herein;
(e)For the Father’s Day weekend from 4.30pm Friday to 4.30pm Sunday where it does not coincide with the Father’s usual weekend with E pusuant to Order 10(b) provided that if the Father’s usual weekend with E coincides with the Mother’s Day weekend then the Father shall forgo spending time with E that weekend;
(f)On the telephone at such times as E reasonably requests but otherwise when E is not in the Father’s care between 6.00pm and 7.00pm on each Tuesday and Friday, on the Father’s birthday, on E’s birthday and on Christmas day and in relation to such communication the Mother shall:
(i)ensure that E is available to receive the telephone call;
(ii)arrange for E to telephone the Father on the following night if, for any unforeseen circumstance, she misses the telephone call from the Father;
(iii)ensure that E has privacy during the conversation.

Specific Issues

That save for Orders 13 and 14 these specific issues orders apply to all the children the subject of these Orders.
That the Mother and Father shall:
(a)keep the other parent informed at all times of their residential address and landline and mobile contact telephone numbers and notify the other parent within 48 hours of any changes to their contact details;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children and;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner, specialist or hospital to release the children’s medical information to the other parent.
That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
That the parents authorise, by this Order, the schools attended by the children the subject of these Orders to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in Order 27.

Use of Drugs

That each party be restrained and an injunction issue restraining either party from using illicit drugs or from allowing the children to remain in the presence of any other person using illicit drugs.

Drug Testing

That for a period of 3 months from the date of this Order the Mother do all things necessary to provide a qualified medical practitioner or his/her nominee with a sample of her urine for analysis to determine the level, if any, of cannabis ingested by her and to test for the use of any illegal substances or non-prescription drugs on one occasion in each week and that the Mother provide to the Father photostat copies of all certificates in the previous week pertaining to such testing (as soon as practicable).
That the results of such urine analysis be provided to the solicitors for the Father.
That the Father be at liberty to re-list this matter for further hearing if such testing evidences the presence of any illegal substance or non-prescription drugs.

Post Orders Programmes

That the parties, within seven (7) days of the date of service upon them of these Orders, contact the Parenting Orders Programme Co-ordinator (or his nominee) for intake into the programme.
That the parties shall comply with any reasonable direction of the Programme Co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme;
(b)advise the Programme Co-ordinator of their contact telephone number and advise the Programme Co-ordinator of any change in that number;
(c)attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the Programme Co-ordinator (provided that either party may refuse at their election to participate in joint sessions).
That for the purposes of the programme:
(a)a copy of these orders will be sent to the Programme Co-ordinator; and
(b)the parties are at liberty to supply to the Programme Co-ordinator of the programme a copy of the report of Ms De Campo prepared in the course of these proceedings.
That the Mother shall enrol in a drug rehabilitation programme and inform the Father’s lawyer in writing of the details of such programme and the Mother shall attend and participate in such programme including attending any referrals to treating health professionals as recommended by the Programme Co-ordinator.
That for the purposes of the Mother’s attendance at the drug rehabilitation programme the Mother shall:
(a)Provide a copy of these orders to the Programme Co-ordinator and
(b)Provide the Programme Co-ordinator with a copy of the report of Ms De Campo prepared in the course of these proceedings.
That on or before 1 February 2008 the Mother shall attend a Positive Parenting Programme conducted by Relationships Australia.

Dispute Resolution

That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a)They shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made.
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.
(d)The Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list.
(e)If the Mother fails to choose then the Father may choose.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 5599 of 2007

MR PLUMMER

Applicant

And

MS PLUMMER

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the parents have asked the court to decide the future parenting arrangements for M, born in 1999 and S, born in 2002 (“the children”).
The parents agree that they should share equal parental responsibility for the children.
The applicant father seeks that the children live with him. He also seeks an order that he spend time with E “Johnson”, born in 1997. E is the mother’s eldest child but not the father’s biological child.
On one view this is a sad case. The mother who has been the primary carer of four children, three the subject of these proceedings, experienced a difficult, if not tragic, childhood. Her understanding of the dynamics of her relationship with the father of the children, her attitude to parenting, her understanding of her children’s needs and the impact of her drug use on the wellbeing of her children and her ability to honestly assess her conduct and her contribution to the situation in which she finds herself is limited. That probably reflects in no small part her dysfunctional upbringing.
Notwithstanding some sympathy for her given her unfortunate family background, I am required to decide what is in the best interests of M, S and E. I must make that decision based on the evidence that is presented to me and the legal principles that I am required to apply to the facts of the case.
I remain hopeful however that with appropriate information, counselling and inward reflection, in time the mother may gain some insight and take the steps that she needs to take to make necessary change in her and her children’s interests.

Father’s proposal

The Orders sought by the father are set out in Part A Final Orders of his Case Outline filed on 26 October 2007.
If the court were to make those orders the children would live with the father and spend time with the mother:
a)each alternate weekend with handover to be effected on a Friday;
b)for one half of the school holidays;
c)on special occasions.
The father would spend time with E each alternate weekend from Friday to Sunday and for one half of the school holidays and on some special occasions.
The applicant father also seeks an order that:
a)The mother be restrained from changing the children’s surname from “Plummer”; and
b)the Family Report dated 1 October 2007 prepared by Ms Susan De Campo (“the Family Report”) be released to the Department of Child Safety.

Mother’s proposal

The Orders sought by the mother are set out in the Final Orders of her Case Outline filed by leave on 25 October 2007.
If the court were to make those orders the children would live with the mother and the father would, in short compass, spend time with the children:
a)Each alternate weekend from Friday to Sunday;
b)For one half of the school holidays;
c)On special occasions.
The mother also seeks an order in relation to the parties’ consumption of alcohol and illicit drugs, the establishment of a Communication Book and a non-relocation order.
She opposes an order that E spend time with the father.

Issues requiring determination

The issues that remain in dispute and which require determination by the court are:
a)Whether M and S should live with the father or the mother;
b)Whether the father should spend time with E;
c)The mother and father’s capacity to care for the children given that the mother says that the father was violent during their relationship, used illicit drugs and drank to excess and the father says that the mother continues to use illicit drugs;
d)What further specific issues and/or other orders should be made in the children’s best interests.

Background

The mother is aged 30 years having been born in 1977. Save for a longstanding addiction to marijuana she enjoys good health. She does not work outside of the home. She supports the family from Centrelink and child support payments.
The father is aged 36 years having been born in 1971. He enjoys good health. Until recently he was employed in a [X] business however he is now self employed. He starts work at about 8.00am and finishes at about 4.00pm. He says his business is going well and he is confident about its future success. He is now paying child support for his children as assessed by the Child Support Agency.
The parties met in 1998 and shortly thereafter commenced a relationship. They married in 2001 and separated in about August/September 2002. They were divorced in early 2007. Their relationship was on all accounts dysfunctional and conflicted. The mother says that the father drank to excess, was controlling, financially irresponsible, a drug user and violent.
The father accepts that during the relationship he drank to excess and used illicit drugs. He says that he did so because of a feeling of being “trapped” in an unhappy relationship. He denies that he engaged in the level of violence attributed to him by the mother. He says that they were both argumentative and any family violence was fuelled by alcohol. He says he no longer uses illicit drugs and that he is now a social drinker only.
The father re-partnered in August 2006. He re-married on 5 May 2007. He resides with his wife, Ms P, in a home which he and his wife recently purchased at [P]. This home is undergoing renovations, shortly to be completed, to accommodate the needs of their family.
Ms P works in the field of Social Work. She works 38 hours a week. She and the father appear to have a committed relationship. She has four children from a previous relationship, three girls and a boy aged 10 to 15 years. The biological father of these children resides in South Australia however the children maintain an ongoing relationship with him which is supported by their mother.
It is clear from the evidence before me that whereas following the father’s first marriage breakdown he led an itinerant lifestyle with often no fixed address and variable work, his life is now settled and he appears to have a life focus and goals centred on his wife and family.
The mother has resided in a rented three bedroom home in [G] for over four years. She does not work outside of the home but wishes to complete a TAFE course when her youngest child, B, is older.
She has four children, E aged 10 years, M aged 8 years, S aged 5 years and B, aged 18 months. E and B have different biological fathers.
The mother’s relationships with each of the fathers of her children were formed quickly and of short duration. The father says that he stayed in the relationship because of the children and his affection for E, even though he says that the relationship was dysfunctional from the beginning.
E has had no relationship with her biological father. She was 8 months old when her mother formed a relationship with the father in these proceedings. The mother acknowledged to the Family Report writer, Ms De Campo, that the father was devoted to E during their relationship and that he “showed E a lot of attention and affection – E was fatherless”.[1] I find that he became E’s father figure. The evidence is they enjoyed a close relationship and that he remains devoted to her.
[1] Family Report, page 3, paragraph 3.1
The mother’s youngest child, B, now aged 18 months, similarly has no ongoing relationship with her biological father.
The mother recounted to Ms De Campo an upbringing which involved ongoing sexual abuse, domestic violence, a lack of parental support and protection, family law litigation between her parents and early exposure to illicit drugs and alcohol. Ms De Campo opines that the mother was a woman who “suffered considerable abuse throughout her life. She has coped with this via indiscriminate, mostly sexually based, relationships and illicit drug use.”[2]
[2] Family Report, page 13, paragraph 8.3
Notwithstanding the mother’s evidence in these proceedings that she was introduced to drugs by the father when they commenced their relationship[3], her evidence under cross examination was that she had used marijuana since she was 9 years of age. She admits to significant use of the drug thereafter. She grew marijuana for her personal use and did so at the home where she resided with the children. She regularly smoked up to 7 cones daily starting first thing in the morning. She said that she did so to relax. She has three drug convictions, the most recent being in February 2007 for production and possession of dangerous drugs.[4]
[3] Mother’s Affidavit filed 6 June 2007, paragraph 28
[4] Exhibit 1, Criminal History of Ms Plummer printed 23/10/2007
At trial the mother gave evidence that she no longer used marijuana and that she intended to engage in drug rehabilitation. Her evidence was that she was to attend upon a counsellor on 25 October 2007 (before trial) to assist her with her drug dependency and stress.[5] No evidence was placed before me of the outcome of that counselling or likely future prognosis.
[5] Mother’s Affidavit filed 25 October 2007, paragraph 4
The mother informed Ms De Campo that the children were experiencing a variety of behavioural problems, describing S as being “angry and has a lot of violence”, the boys fighting “an awful lot”, M sticking “his head through a window” and E “lying and stealing”.[6] She said that the children “need to learn how to be normal” [7]and that she had been trying to “see a counsellor or child psychologist” [8] to address their problems. The mother annexed a statement to her affidavit filed on 11 October 2007 evidencing her seeking some counselling assistance after October 2006, including assistance for “erratic and disruptive behaviour” on the part of her children. [9]At the date of trial however the children had not undergone any therapeutic intervention for these problems.
[6] Family Report, page 11, paragraph 6.10
[7] Family Report, page 10, paragraph 6.8
[8] Family Report, page 10, paragraph 6.8
[9] Annexure E

Court proceedings

The father instituted these proceedings on 8 May 2007 seeking orders on a final and interim basis. The mother filed a Response on 6 June 2007.
On 26 June 2007 this Court made orders that the father spend time with the children each alternate weekend and half of the school holidays. Changeovers were to be effected at [T], half way between the parties’ residences and about a 90 minute drive each way for each parent.
A Family Report, released on 8 October 2007, recommended that the children live with the father.[10] Ms De Campo was sufficiently concerned, as a result of mother’s presentation at the report interview on 30 July 2007, to telephone the father’s lawyer, Ms Grainger, on

2 October 2007
. She informed her of her concerns about the “safety of the children” on the release of the report, given what she viewed as the mother’s “fragility”.[11] She recommended that the children, then in the care of the father, not be returned to the mother. The father’s lawyer then wrote to the husband’s lawyers to this effect on 4 October 2007.[12]
[10] Family Report, page 15, paragraph 8.7
[11] paragraph 4, Affidavit of Kellie Anne Grainger filed 5 October 2007
[12] Exhibit KAG-1 to Affidavit of Kellie Anne Grainger filed 5 October 2007
On 5 October 2007 the father brought an application on an urgent basis seeking an order that the children reside with him pending trial. On the return date of that application on 17 October 2007, the matter was listed for trial commencing 2 November 2007.

Parenting arrangements

From the date of separation in 2002 until October 2007 the children lived with the mother. From about April 2001 some of the children also attended home day care with Ms S in [G]. Whilst it unclear from the totality of the evidence how often the children stayed with Ms S it appears that the children, including E, spent initially 3 days a week in her care and by 2007 the children and possibly E were spending at least one overnight each week with Ms S.[13]
[13] paragraph 4, Affidavit of Ms S filed 11 October 2007
Following separation and until about 2004 the father spent some time with the children, sometimes at the mother’s home. His time with them was spasmodic and usually of short duration largely because his work meant that he was often away and he had no fixed address and later, he was living and working on an island. During this period the parties maintained an occasional sexual relationship notwithstanding their separation. Save for these short visits and some phone time the father was not actively involved in the children’s lives.
By 2004 however the father had settled in [H]. From that time until about July 2006 he continued to seek time with the children and spent time, including overnight weekend time with the children, including E. The mother facilitated this including on one occasion transporting the children as the father did not then have a vehicle, however the father says there were difficulties with the mother making unilateral changes to their arrangements.
There are factual disputes between the parties however I am satisfied that by July 2006, at the latest, the father was seeking to spend regular time with the children including E, with varying degrees of success. I am further satisfied that from about October 2006 onwards the mother made it difficult for the father to spend time with the children including refusing to allow him to see E on the basis that she was not his biological child notwithstanding that the father had spent time with E since their separation.
The mother also refused to allow the father to see the children until a Legal Aid Conference was conducted to discuss parenting. She also refused to allow him to spend time with the children over the Christmas 2006 holiday period.
I am further satisfied that the mother did not, over this period, offer any reasonable explanation for her refusal to allow the children to spend time with the father. In the case of E her explanation was and remains that the father was not E’s biological father.
On 11 January 2007 the parties attended a Legal Aid Conference to try and resolve differences over parenting arrangements. The mother was legally represented at that conference. The parties reached an agreement which was then recorded in the form of Terms of Settlement that both parties signed that day.[14]
[14] Annexure “AMP1” to Affidavit of Father filed 26 October 2007
The Terms of Settlement provided that the children live with the mother and the father spend time with the children in a graduated regime of time leading up to alternate weekend time and half the school holidays.
Relevantly, the first period of time which the father was to spend with the children was on 14 January 2007, some 3 days after the Terms of Settlement were signed. Notwithstanding that the agreement was not then formalised I find that the parties contemplated by virtue of the commencement times specified in the agreement that the parenting arrangement would be implemented immediately.
It was a term of their agreement that the parties not consume alcohol or illicit drugs whilst the children were in their care.[15] The father says that the reason this clause was included in the agreement was that he had concerns about the mother’s drug use. Those concerns proved well founded. Only a matter of weeks after the mother had signed the Terms of Settlement she was convicted of two drug offences following the police attending at her home on 8 February 2007.[16]
[15] Paragraph 6, Terms of Settlement executed 11 January 2007
[16] Exhibit 1
The father did not sign an Application to formalise the Terms of Settlement. He says that he became increasingly concerned about the mother and her care of the children. He says that he had received legal advice about proceeding with the formalisation of their agreement given his concerns. He says that he felt that the parenting arrangement that provided for the children to live with the mother was no longer appropriate and that he had sought legal aid, later granted, to institute parenting proceedings. His solicitors communicated that to the mother’s solicitors by letter dated 13 April 2007.[17]
[17] Annexure C, Mother’s affidavit filed on 11 October 2007.
I find his refusal to proceed with formalisation of the agreement reasonable in the circumstances. However it became a source of angst for the mother leading to a crescendo of further disputes, all detailed in the parties affidavit material. The mother obtained a Protection Order against the father on 24 April 2007, which order included E as a protected person.[18] The mother also contacted the police to have S removed from the father’s care after agreeing to allow S to spend some extended time with the father.
[18] Unmarked Annexure, Mother’s affidavit filed on 6 June 2007
I do not propose to provide a chapter and verse recitation of these and other events save to say that from 4 February 2007, in M’s case, and from 6 February 2007 in S’s case, until after the matter went to court on 26 June 2007 the father did not spend time with the children. It was clear on the evidence before me that the mother was unable to understand that the boys need to spend time with their father was more important than the need to formalise the parenting arrangement.
Further there was no evidence before me to suggest that there was any basis for E to be included as a protected person in the Protection Order.
A change in the children’s residential arrangements was effected on 28 September 2008. Since that time M and S have been living with their father. They attend the [S] Primary School. They are predominately cared for by the father with some assistance from his wife. The boys share a bedroom in their father’s home.

Children’s Personality, intellect and development level of the children.

Ms De Campo describes M and S as “sweet boys” who spoke freely of their family circumstances.[19] They told her amongst other things that “mum sleeps a lot” and that there was constant yelling in their house.[20] S said he had to get his own breakfast in the morning because his mother was asleep. M said that he missed a lot of school.[21]
[19] Family Report, page 12 paragraph 7.1
[20] Family Report, page 12 paragraph 7.2
[21] Family Report, page 12 paragraph 7.2
The boys had nothing negative to say about the time they spent in their father’s household.[22]
[22] Family Report, page 12 paragraph 7.2
In support of his application that the children live with him, the father raises a concern about the children’s school attendance and academic performance. The children’s records from the [G] State School and [M] State School were subpoenaed, these being the schools attended by the children whilst in the mother’s care.[23]
[23] Exhibits 2 to 6 inclusive
Those records reveal that under the care of the mother, the children have had significant unexplained school absenteeism, problematic academic performance, that they have attended at school without school requisites and that there has been a lack of reasonable response or follow up by the mother to contact from the school.
M, whilst in Grade 1, was referred to a Special Needs Committee of his school in August 2006. This was in the school documents noted to be because he was constantly late to class (arriving between 10.00am and 11.00am). There was also concern for his nutrition and the food he brought with him to school (described as “inconsistent”) and a lack of preparation. Notes had been sent home to the mother which were not replied to and there was a notation on his referral form that “Mum… does not appear to be coping”.[24] M, for example, missed a total of 80 school days from October 2005 to September 2007. He was required to repeat Grade 1.
[24] Exhibit 6
Of concern is the fact that the children were reported as attending school on a number of occasions, including in 2007, without adequate food. The mother provided an explanation for this. I have also considered the evidence of Ms S on this matter.[25] I find the mother’s explanation unconvincing. However given the other evidence before me on matters to do with the mother’s capacity to respond appropriately to the children’s educational needs it is unnecessary for me to make a finding on this point.
[25] paragraph 12 of Affidavit of Ms S filed 11 October 2007
I find that the children, whilst in the mother’s care, were not attending school as they should. I find that the mother did not offer a reasonable explanation for their absenteeism. I find that the mother has not demonstrated an appropriate concern for and understanding of the children’s educational needs and that she does not have an ability to presently address those needs.
Since the children have been in the care of the father they have attended school regularly. They are involved in extra curricular activities.
I find that the father has demonstrated an appropriate concern for and understanding of the children’s educational needs and is otherwise addressing their educational needs.
In relation to E, Ms De Campo described her as a little nervous at the interview but like her brothers, happy to share stories about general matters but a little reticent about her home life. She said that E said that she “really likes” Ms P’s children and that she would like to spend time with the father.[26]
[26] Family Report, page 12 paragraph 7.3

Legal Principles

The principles governing the court’s determination in this matter are set out in the Family Law Act 1975 (“the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the court power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the child as my paramount consideration.
In determining what is in the best interests of the child I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, family neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance.
The Court must also take into account insofar as they are relevant the “additional considerations” set out in s.60CC(3) and must also consider the extent to which each parent has fulfilled his or her parenting responsibilities and has facilitated the other parent in fulfilling their parenting responsibilities (subsections 4 and 4A).
I must ensure that any order that I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.

Evidence relied upon by the parties

The father gave evidence and he called his wife, Ms P as a witness.
The mother in her case gave evidence and she relied upon affidavits filed by:
a)Ms S
b)Ms M
c)Ms G.
Ms De Campo gave evidence. I accept that Ms De Campo has expressed her views and that those views were genuinely held by her. I also accept that in giving her opinion she relied upon the information and facts as set out in her report.
There are a number of factual disputes between the parties, some relevant and others not. I do not propose to make any general comments about the credibility of either of the parties or their witnesses. In so far as I need to make findings of fact I will do so in the body of this judgment and in the course of my discussion about the matters relevant to my considerations.

Further whilst I intend to provide detailed reasons for my decision, I do not propose to deal with every submission made by Counsel for the parties. The fact that I do not do so should not be construed as my not having carefully considered those submissions. In reaching my decision on the orders I should make in this case I have carefully considered all of the submissions made to me, all of the filed material that I have been asked to consider and the evidence given by the parties and their witnesses in court.
I must now consider the application of the legal principles in the circumstances of this case and how they apply in determining what parenting orders are most likely to promote the children’s and E’s best interests.

Primary considerations

Turning first to the application of primary considerations namely:
a)the benefit to the child of having a meaningful relationship with both parents
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
My conclusions as to these primary considerations are that:
a)It is important and in the best interests of the children that they have a meaningful relationship with their mother and father. It is also important that E enjoy a continuation of her relationship with the father, notwithstanding that he is not her biological father.
b)There is a need to protect the children and E from physical and psychological harm from being subjected exposed to abuse and neglect.
My reasons for reaching these conclusions are as follows.
I am satisfied on the evidence before me that whilst the mother loves the children she has limited insight into their needs including E’s need to maintain a meaningful relationship with the father. As a consequence she has been unable to promote the children’s relationship with the father. Ms De Campo’s view was that the mother was unlikely to ever facilitate the father spending time with the children.[27]
[27] Family Report, page 15 paragraph 8.8
The body of evidence before me is that the mother is unable or unwilling to recognise that notwithstanding her failed relationship with the father and her perception of the father’s failings that he loves the children and E and they him and that he has much to offer them.
Further the evidence before me is clear that in the mother’s home the children have been and will continue to be at risk. Her household is in crisis and she has been at times neglectful in her care of the children. The children are not attending school regularly. The children are exhibiting behavioural problems that need to be addressed in a consistent considered way. There is also evidence that the mother is inappropriately involving the children in the parental dispute on their living arrangements and undermining their relationship with their father. This includes her videoing their changeovers with their father in view of the children, on one occasion.
There is evidence that E is seeking a relationship with the father and that this being thwarted by the mother.
Importantly and of particular concern is the mother’s historical dependency on cannabis and her understanding of and acceptance of the impact of that on her capacity to parent the children and respond appropriately to the children’s needs.
I am satisfied on the evidence before me that the mother has limited coping skills either because of or exacerbated by her drug use. I find that her drug use has affected her capacity to care for the children. Her drug use is serious and it requires urgent therapeutic intervention.
The mother’s evidence was that she tried to give up her drug use at about the time of her last drug conviction after her plant had been removed by the police from her home, however she was unsuccessful.
The mother gave evidence that on reading the Family Report in August 2007 she resolved to stop using cannabis. She says that she has not used the drug since that time. However a urinalysis test undertaken by the mother on 10 August 2007 revealed the presence of cannabinoids in her system.[28] There was no expert or other evidence presented by the mother to explain this reading and it is the only evidence before me of current usage. Having seen the mother in witness box I remain concerned about her evidence of abstinence and commitment to rehabilitation. Under cross examination by Mr Burridge, the father’s counsel, the mother said that she did not believe that cannabis affected her parenting capacity. The body of evidence including the Exhibit material, marked 2 to 6 inclusive, before me clearly suggests the contrary.
[28] Annexure A to affidavit of mother filed on 25 October 2007
The mother presented no expert evidence at trial with respect to the rehabilitative treatment she said that she proposed to undertake. Given that this was an issue between the parties at the time they signed the Terms of Settlement, her failure to engage in any rehabilitative treatment well before trial and adduce any meaningful evidence on this sounds against her.
From time to time following separation the mother raised issues of family violence involving the father including when responding to school complaint and enquiry about the children’s school absenteeism and lack of food whilst at school. I am satisfied that she did this to deflect attention from her own inattention to the children’s needs rather than because she had any real concern about family violence issues.
I accept that during the parties relationship there was significant family violence and that the father drank to excess and consumed illicit drugs. I find that the father minimised the level of violence in the relationship and his role in that. Having seen the father give his evidence I accept Ms De Campo’s explanation for the minimisation of his conduct in the relationship. I accept that he finds the dysfunction in his relationship with the mother difficult to talk about and that he is probably ashamed of his past actions.
I do not find that the father presents a risk of family violence to the children or the mother notwithstanding the existence of the Protection Order in favour of the mother and E. The issues of family violence before the court were largely historical. I concur with Ms De Campo’s observations of the father as now presenting as settled and motivated by his children’s best interests.[29] He has remarried, has a supportive partner, has bought a house, has started a business and appears to be family focussed.
[29] Family Report, page 14, paragraph 8.5
I am satisfied on the evidence that there is no present or likely future risk to the children from the father misusing alcohol or illicit drug use. I find however that the mother’s use of illicit drugs and the impact of that on her ability to function as a parent does pose a significant risk to the children.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of the children and the orders I propose to make in relation to E.

Additional considerations

In this matter I consider the additional considerations that are relevant to be as follows.

The child’s views:

This consideration is set out in s60CC(3)(a) as follows:
“Any views expressed by the child and any factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views”.
Ms De Campo’s evidence is that E was keen to see the father and his step-children during her interviews. She was overheard to tell one of these children that she wanted to see her but that her mother would not let her.[30] She informed Ms De Campo that she liked Ms P’s children and that if she was permitted to do so she would “like to see [Mr Plummer]”.[31] The mother annexes to her affidavit material notes from one of Ms P’s children to E indicating that this child also wished to form a friendship with E.[32]
[30] Family Report, page 3, paragraph 3.1
[31] Family Report, page 12, paragraph 7.3
[32] Annexure C, Mother’s affidavit filed 11 October 2007
E expressed this wish notwithstanding that she was aware of her mother’s objections to her spending time with the father. Given E’s age and presentation to Ms De Campo, I give weight to her views.
Ms De Campo reports that both M and S during their interviews spoke positively about Ms P and her children.[33]
[33] Family Report, page 12, paragraph 7.2

Child’s relationship with significant persons

This consideration is set out in s60CC(3)(b) as follows:
(b)The nature of the relationship with:
(i)Each of the child’s parents
(ii)Other parents (including any grandparent or other relative of the child)
I find that:
a)M and S are attached to their mother who has been their primary carer. I also find that they are attached to their father.
b)E, M, S and B are attached to each other.
c)M and S have developed a positive relationship with Ms P and her children which whilst not a primary attachment, appears to be an appropriate developing relationship.[34]
d)E is also seeking to establish a relationship with Ms P’s children.
[34] Family Report, page 12, paragraph 7.4
Whilst M and S’s relationship with E and B is important it must be weighed against all other relevant considerations, including but not limited to the primary consideration of the need to protect the children, the subject of these proceedings, from psychological harm from abuse and neglect.
I am satisfied that the children’s ongoing relationship with E and B can be accommodated in any parenting orders I make.

Parenting and discharge of parenting responsibilities

In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s.60CC and also s.4 and s.4(a). I consider under this heading the following paragraphs of s.60CC(3):
(c)the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
(i)the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Notwithstanding the mother’s role as primary carer her drug use and lack of insight affect her capacity to continue a primary carer role at this time.
I also have some significant concerns about the mother’s:
a)ability and preparedness to understand and accept responsibility for her part in family relationship dynamics;
b)attitude to parenting and her understanding of the needs of her children and how to best respond to those needs;
c)her understanding of the children’s need to form meaningful relationships with both parents and how she can best promote that;
d)her ability to focus on the children’s needs rather than her own.
I find that the mother would benefit from participating in a parenting course.
I find that the father has shown an appropriate commitment to parenting and I am satisfied based on the evidence presented that he rather than the mother has the present capacity to provide for the day to day physical, emotional and intellectual needs of the children.
I find that of the two parents the father is more likely to promote the children’s relationship with their mother whereas based on the evidence the mother is presently unlikely to promote the children’s relationship with the father. Neither E nor B spend any time with their biological fathers.
I have otherwise considered and made findings about the mother’s parenting and discharge of her parenting responsibilities in my consideration of the primary issues and additional considerations in relation to the children’s education and other needs and therefore I do not propose to consider this again.

Effect of any changes in the child’s circumstances

Section 60CC (3)(d) of the act requires the court to consider:
d)The likely effect of any changes in the child’s circumstances including the likely affect on the child of any separation from:
(i)either of his or her parents;
(ii)any other child or other person (including any grandparent or any relative of the child) with whom he or she has been living.
I accept that M has experienced some separation anxiety from his mother since he has resided in the father’s household. The father and his wife are aware of this having raised it in their own material.[35]

Ms De Campo gave evidence that this is to be expected given the recent changes to the residential arrangements. Further the father has said that he proposes that the children engage in counselling to deal with this. I am satisfied that this is an appropriate response.
[35] paragraph 82 of Father’s Affidavit filed on 26 October 2007
I accept that the siblings in the mother’s household will be separated based on the father’s proposal and that they are likely to miss each other’s company. I do not regard this as an insignificant consideration. However I must weigh this when considering all of the factors I am required to take into account, including the continued significant risk to the children if they remain in the mother’s household.

Family violence

I have already considered and made findings about family violence in my consideration of the primary issues and therefore it is unnecessary to consider this issue again.
There is no evidence that the family violence that existed during the relationship has impacted upon the children. I have doubts based on the mother’s evidence of the genuineness of her concerns in this regard.
I am satisfied after considering the Protection Order that any order I make in relation to the father spending time with E will not be inconsistent with the terms of that Order. On the evidence before me there is no risk posed to E in spending time with the father.

Orders that are least likely to result in further litigation

It is important that any orders made by this court provide the parties with a comprehensive parenting framework.
Neither party can afford to come back to court. The mother’s immediate focus should be on drug rehabilitation and engaging in such other counselling as may be needed to enable her to respond to her drug problem and lack of parental functioning.

Parental responsibility

The parties seek an order that they have equal joint responsibility for M and S. When making that order I am required under s.61DA(1) to apply a presumption that it is in the best interests of M and S for their parents to have equal shared parental responsibility. That presumption relates solely to the allocation of parental responsibility for them and not the amount of time that they spend with their parents.
I propose to make that order which is sought by both parents. Notwithstanding my concerns about the mother and her care of the children on balance I am satisfied that it is in the best interests of the children that both parents share in the responsibility for decision making relating to their children.
Having made that order I am then required by s.65DAA(1) and (2) to consider whether to make orders that M and S spend equal time and if not equal time then substantial or significant time with each parent. The section provides:
Equal time
(1)If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child the court must:
(a)consider whether the children spending equal time with each of the parents would be in the best interests of the child/children;
(b)consider whether spending equal time with each of the parents is reasonably practical; and
(c)if it is, consider an order to provide (or including a provision in the order) for the child/children to spend equal time with each of the parents.
Substantial and significant time
(2)If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to have equal time with each of the parents; and
the court must
(c)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(d)if it is, consider making an order to provide (or include a provision in the order) for the child to spend substantial and significant time with each of the parents.

Equal time

In determining for the purposes of subsections (1) and (2) of s.65DAA whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
There are practical difficulties with the children spending time with their parents as the parents do not live in close proximity to each other. For that reason alone equal time would not be appropriate. However for the reasons that I have already outlined, even if the parents did live closer to each other I am not satisfied that equal or substantial time in the mother’s household is presently in the children’s best interests.

Specific orders

The father also seeks orders restraining the mother from changing the children’s surname from “Plummer”. He says that she has changed their surname to “Johnson”. There is evidence before me that both M and S use the surname “Johnson” and in M’s case, also the surname “Plummer”, at schools they have attended.[36]
[36] Exhibits 2 to 6
The mother also gave evidence that during the parties relationship M, S and E used the surname “Plummer”. She said that after the relationship broke down she changed the children’s surname to “Johnson”. She also said that S’s surname on his birth certificate is “Johnson”, not “Plummer”. The subpoenaed material evidences that both surnames are used in the school records.
There is no dispute between the parties that M and S are the biological children of the father.
Any decision to change a child’s surname should normally be a decision of both parents.
I am satisfied that it is in the children’s interests that they use the surname of Plummer and that both boys use the surname of their father. No evidence was presented by the mother to the contrary.
I find that it is in S’s best interests to have his father’s name recorded on his birth certificate.
The father also seeks an order that a copy of the Family Report be released to the Queensland Department of Child Safety. In all the circumstances of this matter I do not propose to make that Order. I do not believe that it is appropriate in the circumstances. Neither counsel addressed me on this matter.
I am not prepared to order that changeovers be effected outside of a police station. I regard that as generally an inappropriate venue where there are other reasonable alternatives.
Further I am not prepared to order that the parties communicate by way of a Communication Book. On the evidence before me this has previously caused dispute. It is in the interests of the children and E that the parents start communicating directly on issues relating to their wellbeing. If for any reason this cannot be done directly then the parties are free to do so in writing or with the assistance of some form of facilitated communication, using the dispute resolution process ordered.

Summary

The conclusions and findings that I have made in relation to the primary and additional considerations form the basis of my considerations about the parenting orders I intend to make.
Ultimately in this matter I conclude that it is in the best interests of the children and E to make the orders set out at the commencement of this judgment which include an order that the children live with their father and spend time with their mother as particularised and an order that E spend time with the father.
A summary of my reasons for reaching this conclusion are as follows and in reaching the conclusion I have considered whether it is in the interests of the children to spend equal time or substantial time with their parents and in E’s case whether it is in her interests to spend time with the father.
a)The mother is a significant habitual drug user. Her use has been prolific on a daily basis starting when she gets up in the morning.
b)There is no reliable evidence before me to suggest that she has made appropriate changes to deal with her drug use. She is yet to undergo ongoing therapeutic intervention and her commitment to rehabilitation and likely prognosis of treatment is unclear.
c)Until September 2007 the mother was the children’s historical primary carer. She has been unable to demonstrate a capacity to care for the children whilst in her care.
d)The children are at risk in the mother’s household because her drug use has significantly and negatively curtailed her ability to care for the children. The mother’s drug use has exposed the children to an unacceptable risk of abuse, neglect and psychological harm.
e)It is a fundamental right of the children that they attend school regularly and be supported in their educational pursuits. The mother is unable to provide and support the children’s educational needs.
f)The father has evidenced a current understanding of the children’s needs, an appropriate attitude to parenting and to the responsibilities of parenthood and he has a demonstrated capacity to meet the children’s needs, including E’s needs. The weight of evidence before me suggests that the mother does not.
g)The mother has not evidenced an understanding of the children’s need for a relationship with their father or E’s needs to spend time with the father.
h)The father is more likely to promote the children’s relationship with the mother if the children were to live with him. The mother is unlikely to promote the children’s relationship with the father if they lived with her.
i)During the parties’ relationship E enjoyed a close relationship with the father and he was her only father figure. E wishes to maintain a relationship with the father.
j)E wishes to spend time with Ms P’s children.
k)E is of an age where her views should be accorded appropriate weight.
l)The children enjoy a close relationship with both parents.
m)The children enjoy a close relationship with their half siblings, including E.
n)
The children are developing an appropriate relationship with

Ms P and her children.
o)Ms De Campo identified the balancing factors that she took into account in making her recommendations. Her recommendations accord with the evidence and are consistent with the presentation of the witnesses under cross- examination.
p)It is in the best interests of M and S to use the surname of “Plummer”.
q)The further orders made will promote the children’s interests and provide an appropriate parenting framework for both parents.
I consider that the orders I have made are in the best interests of the children and E.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Purdon-Sully FM

Associate: Claire Lasslett

Date: 23 November 2007