Purdy & Gervasis

FAMILY COURT OF AUSTRALIA

PURDY & GERVASIS

[2009] FamCA 388

FAMILY LAW – CHILDREN – With whom children live and spend time – where there are allegations of excessive use of alcohol and illicit drugs by both parties – where allegations of violence have been made by both the mother and the father – where the parties live a considerable distance away from each other – where the behaviour of both parties in the past has been immature and irresponsible – where the father has the support of his family in caring for the children – children to continue to live with the father provided he resides on the same property as his parents – children to spend time with the mother

FAMILY LAW – CHILD ABUSE – where allegations of abuse of the children made against the mother’s partner – abuse or unacceptable risk of abuse of the children not established – mother to supervise time spent by the children with her partner

FAMILY LAW – CHILDREN – parental responsibility – where there is a poor relationship between the parties – not in the best interests of the children for the parties to have equal shared parental responsibility

FAMILY LAW – CHILDREN – orders – where orders provide for conditions with respect to the father’s residence and the supervision of the children’s time with the mother’s partner – in the best interests of the children for the conditions to only apply for five years

Family Law Act 1975 (Cth) ss 60A, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA & 69ZT
Evidence Act 1995 (Cth) s 140

M & M (1988) FLC 91-979
B & B [Suspension of access] (1988) FLC 91-978
Johnson & Page (2007) FLC 93-344
N & S (1996) FLC 92-655

APPLICANT:

Ms Purdy

RESPONDENT:

Mr Gervasis

INDEPENDENT CHILDREN’S LAWYER:

Karen Tydeman

FILE NUMBER:

ADC

306

2007

DATE DELIVERED:

15 May 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

24-31 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Ross

SOLICITOR FOR THE APPLICANT:

Dixon Gallasch Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stewart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

The father have sole parental responsibility for the long term welfare of the children J born on the … August 2002 and A born on the … November 2004.
The children live with the father.
For the next five [5] years the father maintain his principal place of residence within 500 metres of the residence of his parents.
The children spend time with the mother as follows:
(a)during school term time for two [2] consecutive weekends out of every three [3] weekends from 6.00 pm Friday until 6.00 pm Sunday (or to 6.00 pm on the Monday if the Monday is a Public Holiday) commencing Friday 22 May 2009 and resuming on the second weekend in each school term;
(b)for half of all school holidays as agreed between the parties or in the absence of agreement:
(i) for the first portion of all school holidays from 6.00 pm on the last day of school term to 6.00 pm on the middle Saturday of each school holidays in 2009 and each alternate year thereafter;
(ii) for the second half of all school holidays from 6.00 pm on the middle Saturday of the school holidays to 6.00 pm on the last Saturday in the school holidays in 2010 and each alternate year thereafter;
(c)when the mother spends time with the children for the first half of the December/January school holidays the children are to be returned to the father to be with their father from 12 Noon Christmas Eve until 3.00 pm on Christmas Day;
(d)when the children are not spending the first half of the December/January school holidays with the mother the mother shall spend time with the children from 12 Noon on Christmas Eve until 3.00 pm on Christmas Day;
(e)for a period of five [5] years from today the time spent by the mother with the children is on condition that she supervise all time the children spend with Mr O SAVE AND EXCEPT in any emergency;
(f)on other occasions such as the children’s birthdays, the mother’s birthday and Mother’s Day as the parties may agree in writing.
The mother and father shall do all such things to ensure that the children communicate with the mother by telephone each Wednesday evening when they are not in the mother’s care at 7.00 pm for up to twenty [20] minutes PROVIDED THAT the mother shall telephone the landline number provided by the father.
Each party keep the other informed of the said children’s health and any health issue as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency, when the party in whose care the children are is to inform the other party as soon as possible.
The father authorise any medical practitioner or specialist treating the children to provide all information and discuss all matters concerning the children with the mother.
The father authorise the school, kindergarten or child-care centre attended by the children to provide all relevant information to the mother and to discuss all matters concerning the children with the mother.
The mother provide her contact details to the children’s school, kindergarten or child-care centre so that she may be provided school notices, information, newsletters and school reports directly.
The mother is at liberty to attend each and any kindergarten or school function, sporting or other event, information night, parent teacher night and like events.
The father and the mother are hereby restrained by injunction from speaking to the children or to any other persons within the children’s presence or hearing in derogatory terms about the other.
The father and the mother are hereby restrained by injunction from consuming illicit drugs in the presence of the children, at any other time that the children are in their care or within twenty-four [24] hours prior to the children being in that parent’s care.
The father and the mother advise each other of any change in residential address not more than seven [7] days of any change occurring.
The father and mother forthwith inform each other of their current residential landline telephone number and mobile telephone number and immediately keep the other informed upon any change thereof.
All handovers at the commencement and conclusion of each period of the mother’s time with the said children be conducted immediately in front of the M Police Station PROVIDED THAT if the mother moves from her current accommodation at S to an area which is closer to G than S then the handover occur at a place approximately equivalent distant from the father’s residence and the mother’s residence and failing agreement between the parties after mediation has been completed at such place as shall be ordered by this Court.
The appointment of the Independent Children’s Lawyer be discharged one [1] month from today.
All matters are removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 306 of 2007

MS PURDY

Applicant

And

MR GERVASIS

Respondent

REASONS FOR JUDGMENT

Introduction

In January 2007 the mother, Ms Purdy, commenced proceedings. The father Mr Gervasis is the respondent. The proceedings concern parenting orders in relation to the two children of the parties, J born in August 2002 and A born in November 2004. The parties sought different orders in relation to parental responsibility, with whom the children should live and the conditions upon which the children should spend time with the other parent.

Hearing

The trial commenced before me on the 24 March 2009. At the commencement of the hearing I heard evidence and submissions in relation to the Contravention Application which had been filed by the father alleging the mother had contravened the order of the 19 June 2008. I delivered reasons in relation to the Contravention on the 25 March 2009. The trial concerning the children issues proceeded on the 25, 26, 27, 30 and 31 March 2009. On the 31 March 2009 I made interim orders and reserved judgment.
At the hearing the mother was represented by Ms Ross of counsel, the father was represented by Ms Lee of counsel and the Independent Children’s Lawyer was represented by Mr Stewart of counsel.
The mother gave oral evidence was cross-examined by counsel for the father and the Independent Children’s Lawyer. Mr O also gave oral evidence and was cross-examined.
The father gave brief evidence in chief and was cross-examined by counsel for the mother and the Independent Children’s Lawyer. The father’s mother, the paternal grandmother, was cross-examined by counsel for the father and the Independent Children’s Lawyer. Ms C, psychologist, prepared a report in September 2007. She also gave evidence and was cross-examined.
Dr Q, Family Consultant, prepared a further report in November 2008. She was called by the Independent Children’s Lawyer and also cross-examined by counsel for both the mother and father. Following final submissions by the Independent Children’s Lawyer and both counsel for the parties I reserved my judgment on the 31 March 2009.

Orders Sought

At the commencement of the hearing the mother sought the following orders:
1.That the children live with the mother and that she have sole parental responsibility for their long term care, welfare and development.
2.That the children spend time with the father on each alternate weekend from Friday after school until Sunday, for half school holidays and on special occasions such as Christmas and Birthdays at times to be agreed between the parties.
3.That the parents be restrained and injunctions be granted restraining each of them from consuming alcohol or illicit substances during any period when the children are in their respective care.
4.That the order restraining the mother from bringing the children into contact with Mr [O] be forthwith discharged.
At the commencement of the hearing the father sought the following orders:
1.That the children [J] born […] August 2002 and [A] born […] November 2004 do live with the father who shall have sole parental responsibility for the day to day care, welfare and development of the children.
2.That the applicant mother spend time with the said children as Ordered by this Honourable Court with such contact to be supervised by her grandparents Mr and Mrs [Purdy].
3.That both parties be restrained and an injunction be granted restraining each of them from consuming alcohol or ingesting any non prescription drugs during the period the children are in their care or 12 hours prior to the children coming into their care.
4.That the mother submit to random supervised urinalysis drug tests on no more than two occasions per month with the father’s solicitors request to be made in writing and sent to the other party’s solicitors office and to be complied with by the testing party within 36 hours of the request being made and the test results made available to the requesting solicitor as soon as they become available.
5.That the mother’s time with the children by this Honourable Court be suspended if she returns a positive test result for any non prescription drug until such time as she presents to the father’s solicitors two consecutive clear tests taken no less than two weeks apart.
6.That an injunction be granted restraining the mother from leaving the said children in the care of any other relative save and except for Mr and Mrs [Purdy].
7.That the parties are restrained and an injunction is granted restraining each of them from relocating the children’s residential address to outside of the [G] Municipal District without the written consent of the other party.
8.That the mother do pay the father’s costs of and incidental to the within application.
At the conclusion of the hearing the Independent Children’s Lawyer’s counsel submitted the following proposed orders:
1.That the father and the mother have joint parental responsibility for the children [J] born […] August 2002 and [A] born […] November 2004.
2. That the said children do reside with the father.
3.That the said children spend time with the mother as follows:
i.Two consecutive weekends out of every three weekends from 6.00 pm Friday night to 6.00 pm Sunday night commencing Friday 3 April 2009 and Friday 10 April 2009, save and except for between 6.00 pm on the evening preceding Father’s Day and 6.00 pm on Father’s Day each year where that day falls on a weekend that the children are to spend time with the mother;
ii.via telephone each Wednesday evening at 7.00 pm for up to thirty (30) minutes by telephoning the land line telephone of the father;
iii.half of all school holidays as agreed by the parties, or in the absence of agreement, for the first portion of all school holidays from 6.00 pm on the last day of the school term to 6.00 pm on the middle day of each school holiday;
iv.from 12.00 noon on Christmas Eve 2009 until 12.00 noon Christmas Day 2009 and each alternate year;
v.from 12.00 noon Christmas Day 2010 until noon 26 December 2010 and each alternate year, and
vi.from 6.00 pm on the evening preceding Mother’s Day to 6.00 pm Mother’s Day each year.
4.That each party will keep the other informed of the said children’s health and any health issue as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency, when the party in whose care the children are is to inform the other party as soon as possible.
5.That the parties will forthwith notify each other of the primary treating general practitioner for the children and provide any and all authorities necessary for those doctors to confer with each other.
6.That each party will inform each other with at least fourteen (14) days notice if they intend to take the children outside of South Australia.
7.That the mother is to provide her contact details to the children’s school or kindergarten forthwith so that she may be provided with school notices, information, newsletters and school reports directly.
8.That the mother be at liberty to attend each and any kindergarten or school function, sporting or other event, information night, parent teacher night and like events.
9.That the father and the mother are hereby restrained by injunction from speaking to the children or to any other persons within the children’s presence or hearing in derogatory terms about the other.
10.That the father and the mother are hereby restrained by injunction from verbally or physically abusing each other.
11.That the father and the mother are hereby restrained by injunction from consuming illicit drugs in the presence of the children, at any other time that the children are within their care or within forty-eight (48) hours prior to the children being in that parent’s care.
12.That the father and the mother are hereby restrained by inunction from consuming alcohol to excess in the presence of the children or whilst the children are in that parent’s care.
13.That the mother is restrained by inunction from failing to supervise [Mr O] at all times that [Mr O] is in the presence of the said children.
14.That the father and the mother are to do all things necessary to enrol the said children in the General Practitioners (GP) Mental Health Plan or such other scheme or initiative as will allow assessment and/or treatment of the alleged sexual behaviour of the children.
15.That the father and the mother will use a communication book to assist communication between the parties in relation to matters concerning the day to day welfare and education of the children and the operation of these orders.
16.That the father will do all things necessary to enrol in the “Kids Are First” programme at the first available opportunity.
17.That the father and the mother are to forthwith advise each other of their residential address and are to advise each other at least four (4) weeks prior to any change in residential address.
18.That the father and mother are to forthwith (sic) each other of their current residential landline telephone number and mobile telephone number and immediately upon any change thereof.
19.That the father and the mother consider mediation before any type of complaint or notification or application for further orders from this Honourable Court.
At the conclusion of the hearing counsel for the mother submitted that the mother sought orders that the children live with her and that the father spend time with the children on three out of four weekends and half the school holidays.
At the conclusion of the hearing counsel for the father submitted that the children should live with him and spend two out of three weekends with the mother on condition that the mother supervised all of the time in which the children are in the company of the mother’s partner, Mr O.

Main Issues

Both parties called into question the parenting capacity of the other parent because of allegations of excessive use of alcohol and consumption of illicit drugs.
The mother maintained that the father was an unsuitable custodian due to his violent behaviour, including violence towards her during the relationship, violence towards his mother and father whilst they were residing with them and rape and assault of the mother by the father in January 2007. The father denied the allegations of rape and violence towards the mother.
As a result of a complaint by the mother the father was charged with offences including rape, endangering life and assault.
The criminal proceedings were not concluded until February 2009 when at the commencement of the criminal trial the prosecution did not proceed.

Comments made by the children J and A and observations made by the father and a grandmother raised the issue of inappropriate sexual touching of the children by the mother’s current partner, Mr O.
Following the allegations of sexual abuse by Mr O the file was referred to the Magellan list. When the matter came on for directions in June 2008 the mother indicated that she was no longer in a relationship with Mr O who had moved to Western Australia. Consent Orders were made on the 19 June 2008 which included an order that the mother be restrained from allowing either of the children to have any contact whatsoever with Mr O. The matter was then removed from the Magellan list.

The mother and father both gave evidence about being unwilling to move closer to the other’s home.
This prevents the children spending significant time with each parent. The father wished to continue living on his parents’ property with the children. The mother said she would not consider moving to the G area because of her concern about being in the area in which the father lived.

The mother relied upon the allegation that she was and had been until recently the primary caregiver for the children and that the father had played a minimal role in their care until recently. The question of the mother’s capacity to provide for the children’s upbringing raised issues concerning her immaturity and stability as the children’s care giver.

Background and Chronology

The father was born in April 1984 and is now aged 25. The mother was born in August 1985 and is now aged 23. The mother and father commenced living together in December 2001 when the mother was 16 and the father 17.

When the mother and father were living at the home of his parents the mother alleges that she saw the father kick and punch his mother and assault his father.
J was born in August 2002.
The mother and father moved out of the father’s parents’ home about early 2003 and lived in another home nearby owned by the father’s parents in the G area until separation occurred in early January 2007.
A was born in November 2004.
During the period of the relationship there were occasions when the parties separated and subsequently reconciled. There are allegations of abuse of alcohol and illicit drugs.
On the evening of the 8 January 2007 the mother, father and children were at their home in the G area. A friend of the mother’s, W, was also at the home. The mother and W left the home and were gone for a considerable period of time in the late night/early morning of the 9 January 2007.
The mother alleges that on her return in the early morning of the 9 January 2007 she was raped and assaulted by the father. The father denies this allegation. On the morning of the 9 January 2007 the mother left the home. The father and children remained at the home.
That morning the father’s mother saw the mother walking by the road and gave her a lift to her grandparents.
The mother subsequently made a report to the police. On the 11 January 2007 the father was charged with endangering the mother’s life and rape.The bail conditions placed upon the father prevented the father and mother having contact with each other.
The children remained living with the father.
On the 19 January 2007 the mother filed an application in the Family Court of Australia seeking orders that the children live with her, that she have parental responsibility for the children’s day to day and long term care, welfare and development, that she have parental responsibility for major long term issues, and that the father “see and spend time with the infant children at times and places to be agreed provided the respondent does not consume alcohol or use marijuana whilst the children are in his care”.
At the same time the mother sought interim orders including that the children be delivered up to her and that there be a recovery order directed to the police to take possession of the children.
On the 12 February 2007, Judicial Registrar Forbes ordered that the father deliver the children to the mother at 11.30 am that day at the W Police Station. The father was restrained from removing the children from the mother and the matter adjourned to the 27 February 2007.
On the 27 February 2007 the matter was adjourned to the 23 April 2007. An order was made appointing an Independent Children’s Lawyer for the children and during the period of adjournment it was ordered that the children live with the parties as follows:
“2. That the said children live with the parties as follows:
(a)with their father from 5.00pm Friday until 5.00pm Sunday each week;
(b)that on the occasion of the father’s birthday ([…] April 2007) the children live with their father from 5.00pm Saturday until 5.00pm Monday of that weekend only provided that the father ensure the child [J] attend kindergarten on the Monday;
(c)with their mother at all other times.”
The other orders provided:
“3.That handovers be effected with the paternal grandfather collecting the children at the commencement of the father’s time from the home of the maternal great grandparents and the maternal great grandparents to return the children to the residence of the maternal grandparents at the conclusion of the father’s time.
4.That it be a condition of each parent’s time with the children that:
(a)each of them be restrained and injunctions granted restraining each of them from:
(i)consuming alcohol during and 12 hours prior to periods when the children are in their care;
(ii)consuming any illegal substance during and 12 hours prior to periods when the children are in their care;
(b)the father spend all overnight time at the home of his parents [the paternal grandparents] or with them, at the paternal grandparents friends house boat at […].
(c)The mother spend all overnight time at the home of her grandparents.
5.That each party submit to random supervised urinalysis drug tests on no more than 2 occasions with such request to be made in writing and sent to the other party’s solicitors office and to be complied with by the testing party within 36 hours of the request being made and the test results made available to the requesting solicitors as soon as they become available together with evidence of the testing procedure and that the parties pay their own costs for such tests.”
It was part of the order of the 27 February 2007 that the mother spend all overnight time when the children were in her care at the home of her grandparents at G. Notwithstanding this order in March 2007, the mother moved from her grandparents’ home to the Adelaide area. She had various addresses until taking up her present accommodation in S in September 2008.
On the 23 April 2007 orders were made by consent of the mother, father and Independent Children’s Lawyer. These orders provided that the children live with the father from 5.00 pm Friday to 5.00 pm Sunday each week and with the mother at all other times. The orders also provided as follows:
“3.That handovers be effected by the mother’s aunty [Ms Y] or such other person nominated by the mother delivering the said children to the home of the paternal grandparents at the commencement of time with the father and collecting the said children from the home of the paternal grandparents at the conclusion of time with the father.
4.That it be a condition of the parties [sic] time with the said children that:
4.1 each of them be restrained and injunctions be granted restraining each of them from:
4.1.1consuming alcohol during and for 12 hours prior to periods when the children are in their care;
4.1.2consuming any illegal substance during or for 12 hours prior to periods when the children are in their care;
5.That each party submit to random supervised urinalysis drug tests on such occasions as may be required by the Independent Children’s Lawyer with such requests to be made in writing and sent to the parties solicitors[sic] offices and to be complied with by the testing party within 36 hours of the request being made and the test results made available to the Independent Children’s Lawyer and the other party’s solicitors as they become available, together with evidence of the testing procedure and that the parties pay their own costs for such tests.
6.That a Family Assessment be prepared by a child psychologist nominated by the Independent Children’s Lawyer at the joint expense of the parties.”
The parties were given liberty to apply to re-list the matter on receipt of the family assessment.
Notwithstanding the bail conditions, the mother attended at the father’s home on the 24 February 2007. There is dispute about the conversation which took place on that occasion. The mother suggested to the father that they reconcile. The father’s mother confirms that there was an occasion in early 2007 when she spoke to the mother on the telephone telling her that she must leave the father’s home as they were both in breach of his bail conditions.
The mother also admitted that on occasions between January 2007 and August 2007 she had climbed over the back fence of the father’s home in order to visit him without being seen by anyone.
The father stayed at the mother’s home in Adelaide on the 31 July 2007. The mother stayed at the father’s home in G, at her request, on several occasions (being from Friday 3 August to Monday 6 August 2007, 10 August to Monday 13 August 2007 and from the 17 September to 18 September 2007).
The parties resumed a sexual relationship on the occasions that the mother stayed at the father’s home.
The mother telephoned the father from time to time and in particular in July 2007 sent sexually explicit photographs of herself to the father’s telephone.
The mother also provided the father with time with the children for periods beyond the time of the Court orders. On occasions she would not collect the children on time. The mother arranged for the father to spend extended time with the children. In late September/October 2007 the children remained in the care of the father from the 28 September 2007 until 10 October 2007. She travelled to Darwin with a friend.
The mother has at all times denied that Mr O was living with her and the children but her evidence indicated that he spent most nights at her home, returning to his father’s home at P nearby to have some meals and to do his washing.
The evidence of the paternal grandmother is ‘just before Christmas 2007 [J] mentioned that [Mr O] was touching [A]. We did not think much of it at the time so did not take it further”. (Affidavit of the paternal grandmother filed on the 14 May 2008 – paragraph 2).
The paternal grandmother’s affidavit filed in May 2008 and the affidavit filed on the 22 September 2008 referred to the disclosures made by A and J to the paternal grandmother and the steps taken to report these.
When the matter came before the Court on the 19 June 2008 the mother informed the Court and the parties that she was no longer in a relationship with Mr O. Further interim orders were made by consent which provided that “until further order the mother is restrained and an injunction is granted restraining her from allowing either of the children to have any contact whatsoever with [Mr O]”. The mother was present and represented by counsel. The matter was removed from the Magellan list.
The mother began a relationship with Mr O in August 2007. In about May 2008 Mr O had travelled to Western Australia. At one time it was thought possible that he might reside there permanently, however he did not stay long.
Mr O returned to Adelaide in late June 2008. By July 2008 the mother and Mr O resumed their relationship. He spent most nights and days at the home of the mother. He was frequently in the company of the children.
A further listing of the final orders application was adjourned to await the outcome of the father’s criminal proceedings. The children remained living with the mother and spending time with the father.
In September 2008 the father had become aware that the children had been in the company of Mr O. He had been seen attending at or near handovers and the children had spoken of him.
On the 14 September 2008 the father did not return the children to the mother.
The father brought further proceedings on the 22 September 2008. He had not returned the children after the period of time spent with him and sought urgent orders that the children live with him. At the same time he filed a Contravention Application alleging that the mother had contravened the order in relation to the children coming into contact with Mr O.
On the 9 October 2008, orders were made returning the matter to the Magellan Directions List. The order also provided for the children to live with the father during the period of the adjournment and spend time with the mother on certain conditions, including supervision provided a suitable supervisor could be agreed.
Further directions were made in the Magellan Directions List, including an order for the preparation of a Family Consultant’s report.
Exhibit 3 is a letter dated 13 October 2008 from Families SA to the Project Magellan Registrar of the Family Court of Australia, Adelaide Registry. The letter refers to 14 notifications relating to the family since 2003. These included three notifications involving allegations of sexual abuse made in December 2007, March 2008 and September 2008.
No investigation was carried out.
Families SA declined to become a party to the proceedings.
On the 21 October 2008 orders were made that during the period of the adjournment the children live with the father and spend time with the mother each Sunday between 10.00 am and 4.00 pm on condition that her time was supervised at all times by Mr R.
Following the order for supervised time the mother spent time with the children on one occasion supervised by Mr R. Thereafter she was not able to make arrangements for a suitable supervisor. She did not see the children until the 12 February 2009, except on Christmas Day 2008 when the paternal grandparents made arrangements for the mother to spend time with the children in their company.
During the period 30 November 2008 to the 15 February 2009 neither party made any attempt to arrange for the children to speak to their mother by telephone.
On the 2 December 2008 His Honour Justice Burr made orders in the Magellan Directions List as follows:
“1.Further consideration of the proceedings be adjourned to 11.30 am on Monday 2 March 2009 before the Honourable Justice Burr, with liberty to the parties and the Independent Children’s Lawyer to relist the matter in the event that the outcome of the criminal proceedings is known at an earlier date or in the event that the mother wishes to promote to the Court further or other supervisors of her time to be spent with the children.
2.The father and the mother do enroll in and complete a Kids Are First programme conducted by Anglicare or some similar or other programme identified as appropriate by the Independent Children’s Lawyer.
3.The children [J] born […] August 2002 and [A] born […] November 2004 attend the Child Sexualised Behaviours Unit at the Women’s & Children’s Hospital.
4.A copy of the Family Report dated 25 November 2008 be released to the Child Sexualised Behaviours Unit in advance of the children’s first attendance at same.
AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-
5.[The children] live with the father UPON CONDITION that he remain resident with his parents.
6.[The children] spend time with the mother between the hours of 10.00 am and 4.00 pm each Sunday UPON CONDITION THAT such time is supervised at all times by Mr [R] AND UPON FURTHER CONDITION THAT in the event that Mr [R] becomes concerned as to the mother’s care of the said children or concerned as to any inappropriate conversation or conduct by the mother or that the mother permits any communication or contact between the said children and Mr [O], that he forthwith terminate the period of time and return the said children immediately to the father.
7.All handovers at the commencement and conclusion of each period of the mother’s time with the said children be conducted at the number 64 bus stop at [M].
8.The mother is restrained and an injunction is hereby granted restraining her from permitting the said children to have any contact or any communication with Mr [O] and from permitting any other person to do so.
9.The mother spend time with [the children] from 12 noon until 3.00 pm on 25 December 2008 UPON CONDITION that Mr [O] not be present during any period of that time AND UPON NOTING that the delivery of the children to and from a handover point at [S] will be conducted by the paternal grandmother.
10.The parties are restrained and an injunction is hereby granted restraining each of them from discussing these proceedings or the alleged role of Mr [O] in these proceedings with the children or within the children’s hearing and from permitting any other person to do so including, but not limited to, the paternal grandparents.”
The children were not able to attend the Child Sexualised Behaviours Unit at the Women’s & Children’s Hospital because they did not reside within what is described as “the catchment” area.
When the matter came on before Justice Burr in early March 2009 the criminal proceedings against the father had been withdrawn. An order was made that continued the arrangement that the children live with the father upon condition that he remains resident with his parents. The injunction preventing the children from having any contact with Mr O was continued and by consent an order was made that the mother spend time with the children each alternate weekend from 6.00 pm Friday to 4.00 pm Sunday.
Directions were made for the matter to be prepared for final hearing. The matter was then listed for hearing and the final hearing came on for trial before me on the 24 March 2009 when I heard the evidence in relation to the Contravention Application and commenced the trial in relation to the general parenting orders to be made.
The father has continued to reside with his parents since May 2008. He is not currently employed. His parents are both in full time employment, but assist him in transporting and caring for the children. In particular his mother assists him in making arrangements for the transport of J to school and A to the day care children’s centre.
J is currently enrolled in G Primary School where he has attended since term three of 2008. A attends the G kindergarten programme two and a half days a week.
Prior to the children going to live with the father at G, J had attended both the F Primary School and the P Primary School.
The mother has been living in a Red Shield Salvation Army rental accommodation for approximately six months. She proposes that J return to the P Primary School and that A attend the kindergarten at P.

The Law

Part VII of the Family Law Act1975 (Cth) relates to children. The sections commence at s 60A. This part contains 235 sections many with a considerable number of sub-sections.
The most significant of the sections for this matter are as follows:
Section 60B
(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
Section 60CA states:
… in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC states:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)    the nature of the relationship of the child with:
(i)   each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(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;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)   either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(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;
(h)     if the child is an Aboriginal child or a Torres Strait Islander child:
(i)   the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)   the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)    any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)     has taken, or failed to take, the opportunity:
(i)   to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)   participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Section 60CG states:
Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61DA states:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 65DAA states:
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 child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
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 spend 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 would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)   days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)   the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) 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.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)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 (paragraph 60CC(3)(c));
(b the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Generally in proceedings before a superior federal court section 140 of the Evidence Act 1995 (Cth) applies to civil proceedings:
“Evidence Act 1995 – Sect 140
Civil proceedings; standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
The Court is also bound by the provisions of sub-division D of Division 12A headed “Matters relating to evidence”. Section 69ZT provides:

“FAMILY LAW ACT 1975 - SECT 69ZT

Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;

Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).

(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)       the importance of the evidence in the proceedings; and
(ii)      the nature of the subject matter of the proceedings; and
(iii)     the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.

(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.

(5)      Subsection (1) does not revive the operation of:
(a)      a rule of common law; or
(b)      a law of a State or a Territory;

that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.”

The High Court of Australia considered the role of the Court in cases where sexual abuse is alleged in the decisions of M & M (1988) FLC 91-979 and B & B [Suspension of access] (1988) FLC 91-978.
The Full Court of the Family Court of Australia considered these matters in some detail in the matter of Johnson & Page (2007) FLC 93-344. Under the heading “Relevant Legal Principles” the Full Court sets out the authorities commencing at paragraph 62. In paragraph 66 the Full Court quoted at length from His Honour Justice Fogarty’s decision in N & S (1996) FLC 92-655 and gave emphasis to the following passages:
“ there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture …”
and
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.”

Discussion of evidence and findings on significant issues

The parties’ consumption of alcohol and illicit drugs
Both parties accuse the other of excessive alcohol consumption and the use of illicit drugs. Both parties have admitted occasions when they had been badly affected by excess consumption of alcohol in the past, but did not admit all of the allegations made by the other party.
The mother admitted taking “Speed” when she knew she was pregnant expecting her first child J. The mother also admitted to selling marijuana at High School when she was aged 13. In her evidence-in-chief the mother admitted having been brought home on two occasions by the police because of her inebriated state.
During cross-examination the mother admitted that she had consumed “Ecstasy” and occasionally used marijuana.
In an earlier affidavit the father had denied he had a serious drinking problem and referred to himself as “only a social drinker”. This was inconsistent with his later evidence and in particular his evidence in cross-examination when he admitted that he had at one time had a serious drinking problem. The father admitted that shortly after his brother’s suicide his consumption of alcohol was excessive and affected his behaviour. He confirmed that he was admitted to hospital. His evidence that this was primarily due to his psychological and emotional difficulties as a result of his brother’s death was given in a manner which appeared to minimise his drinking problem at the time.
The father said that he had had a few beers when he jumped off a roof in 2006 but was not drunk at the time. He admitted this was stupid activity but denied it arose from a drinking problem. The father admitted in the past having consumed marijuana and used methamphetamine. He said the marijuana plant which resulted in the police charge was a plant that belonged to both him and the mother at the time. The father’s evidence was that he last consumed methamphetamine or Ecstasy in 2004 or 2005. His consumption of alcohol was now reduced to having a drink at his friend’s homes when the children are residing with the mother.
The father’s mother gave evidence that she had not seen the father drunk since the parties separated in January 2007.
In the mother’s affidavit of evidence-in-chief filed on the 20 March 2009 she refers to the father’s addiction to alcohol and marijuana. She refers to occasions when she and the father have both drunk to excess. Paragraph 26 of her affidavit says:
“I have occasionally smoked marijuana and I often drank alcohol on weekends if the children were spending time with the respondent’s parents. I am a social drinker. I am not a regular user of marijuana. I usually drink on weekends to please the respondent.”
In paragraph 48 of the mother’s affidavit she say:
“I resent any inference by the father that I use or abuse substances or alcohol. It is the respondent that uses alcohol and drugs regularly. I admit that I have consumed amphetamines on rare occasions. The amphetamines have been provided to me by the respondent who has also consumed the amphetamines.”
The mother admitted that during her pregnancy with J she consumed “Speed” knowing that she was pregnant. She says:
“At the time I was staying at […’s] place. I regret my actions and see that it was an immature decision. I did understand the effect it could have on my pregnancy. I was going through a very difficult time emotionally which is why I was staying at […’s] place.”
During examination-in-chief by her counsel the mother was asked about paragraph 64 of the father’s affidavit which alleged that during the second half of 2007 he was concerned about her lifestyle because she had admitted to him that ‘she frequents Nightclubs each weekend and uses Speed and Ecstasy”. (Paragraph 64.1 of the father’s affidavit filed on the 17 March 2009).
In reply to the questions by her counsel the mother admitted that she did go to Nightclubs and take Ecstasy at that time saying that she did so occasionally, “not every weekend”, “perhaps once in a month”. She denied telling the father that she had smoked “Ice”.
The mother admitted in evidence-in-chief that she did not undergo the drug test as required in accordance with the orders of the Family Court. She said she did not do so because she could not make arrangements at her doctors and had only just found out about a place where this could be undertaken for no cost.
When asked during cross-examination by the father’s counsel about her consumption of marijuana and illicit drugs, the mother’s evidence was hesitant and confused. She was asked if she smoked marijuana and she replied that she had never really smoked it and then said “once in a blue moon” and then referred to every two months. She then said that she did not really like it at all and suggested that she smoked it once every six months. When asked about her consumption of “Speed” she said “sometimes, but that she had never paid for it”. When asked if she had consumed other illicit drugs she said “no”.
During cross-examination by counsel for the Independent Children’s Lawyer the following exchange took place.
“…
You admitted in evidence that you took drugs whilst you were pregnant with [J]?---Yes.
At least on one occasion anyway?---Yes.
Was it more than once?---It was just once.
And that was methylamphetamine?---Yes.
Had you bought that yourself?---No, I just licked a bag of someone else's.
How long is it since you last used methylamphetamine?---Months, a long time.
Does [Mr O] use that drug?---He has, yes.
Does he drink alcohol?---No.
Not at all, or not often?---Not often.
Have you had difficulty with the court orders that prevented you from having drugs or drinking when you've had the children with you?---No.
So do you say it has not been difficult to not have alcohol at all for days in a row?---No.
That's okay?---Yes.
In terms of drugs, do you just use them on a party basis?---Yes.
Do you intend to still keep using methylamphetamine in the future?---No.
What's making you stop?---I don't know. I don't like it that much.
You had it a couple of months ago?---Yes.
What were the circumstances of you having methylamphetamine a couple of months ago?---Just with friends while we were drinking.
And that was being poured into alcohol, was it?---Just mouth.
In what form? In a powder or a gel or - - -?---Powder.
And then, what, washed down with a drink of something?---Yes.
Why did you take that?---Don't know.
Because everybody else was doing it?---I guess so.
Was it provided free?---Yes.
And is that another reason to take it?---Yes.
Are you aware of the dangers of taking those sort of drugs?---Yes.
And of really not knowing what's in them?---Yes.
When they're made, they can be made with all sorts of nasty chemicals?---Yes.
And they can be cut down with even worse things to make them go further around?---Yes.
Do you think that might say something to her Honour about your current level of maturity?---Yes.
Do you think that it might be a good idea not to have drugs like methylamphetamine in the future?---Yes.
Do you think the same goes for drugs like ecstasy and so on?---Yes.
Have you tried ecstasy?---Yes, I have.
When was the last time you had ecstasy?---I don't even remember when. Out one night.
Have you ever avoided urinalysis or the drug tests because you were scared that drugs or alcohol would show up?---No.
And you say you missed those two tests simply because you couldn't get doctors' appointments?---Yes, I didn't realise about the one free here in the city. No-one had told me.
But you now know about that one?---Yes.
Do you have any particular rule in your house about [Mr O] bringing drugs into the house?---Yes.
What's that?---Well, not really at all.
What do you mean by "not really at all"?---I don't have a rule about it, but we don't have drugs at my house.
So if [Mr O] has drugs, where does he have them[Mr O] came around and he'd had drugs himself?---No.
No? Why not?---Well, yes, but he doesn't do it much.”
When Mr O was cross-examined by counsel for the father he was asked whether he used any illicit substances and he replied “absolutely not”. He was unable to adequately explain why the mother had said that he did use illicit drugs.
The evidence of the mother raises serious concerns about her commitment and ability to refrain from using dangerous illicit substances. In particular, her oral evidence was inconsistent. Her evidence about her past drug use and the inconsistency in relation to the evidence of herself and Mr O about his drug use raise concerns about the mother’s ability to provide a safe, nurturing environment for the children.
The father admitted past abuse of alcohol and past use of illicit substances. He did not readily acknowledge that his admission to hospital in 2003 related to alcohol abuse. I accept that the father genuinely believed his excessive use of alcohol or addiction to alcohol was at the time related to the accidental death of his brother.

Whilst not accepting that the father has given a full and complete disclosure of all his illicit drug use and alcohol abuse I accept the evidence of the father’s mother that she has not observed him drinking to excess since the separation of the parties in January 2007.

Violence
Both the mother and father made allegations against the other of violent behaviour. The father alleged that the mother would frequently drink to excess and when she was drunk would become verbally and physically aggressive towards him. The mother denied any aggression towards the father.
The father accused the mother of assaulting him by hitting him over the back, head, shoulders and neck with a steering wheel lock towards the end of 2002. He said:
“I turned to try and take the lock off of her and in doing so our heads collided. This was an accident but it did cause the mother an injury by splitting her eyebrow. Other than this I say that I have not physically hurt the mother over the course of the relationship.” (Paragraph 31 of the father’s affidavit filed on the 17 March 2009).
When cross-examined by counsel for the mother the father maintained that the collision of their heads was an accident which occurred during the incident. He admitted that he was drunk.
The father’s mother also gave evidence about this incident. During cross-examination by counsel for the mother, the father’s mother said that she had been sitting in the father’s car in the driver seat with a view to preventing him driving because he was drunk. Her evidence about the alleged assault which resulted in the mother having hospital treatment for a split eyebrow was that the father had turned around towards the mother “as if he had been hit”. In the process the mother’s and father’s heads collided. The father’s mother’s evidence was that the mother’s and father’s heads had collided in the process of him turning around after he had been hit. She said she did not see the mother hit the father, but that the mother had told her that she had hit him.
The mother was not a reliable witness when attempting to explain her role in the incident and in particular whether she had hit the father on the back with the steering wheel lock. I prefer the evidence of the father and his mother. I find that on this occasion in 2002 the father had been drinking to excess, was drunk and incapable of driving lawfully. His mother was attempting to prevent him from driving the car. The mother was also present. An incident occurred in which the father’s head collided with the mother’s head causing significant injury to her. The responsibility for the incident should in any event be upon the father who had been drinking to excess and was attempting to drive.
It has however not been established on the appropriate standard of proof that the father deliberately assaulted the mother on this occasion.
The father said this incident occurred after the death of his brother. His brother was killed in a car accident in June 2002.
The mother said the incident occurred in September 2002. She admits that she was holding a steering wheel lock when she was involved in the incident when the father was attempting to drive a car and his mother was trying to prevent him because he was drunk. She denied that it was an accident that their heads collided, but admitted that she had the steering lock wheel in her hands for some reason she could not explain and that the father turned around and grabbed the steering lock from her.
The mother alleged that she had observed the father assault his mother and his father. She says in her affidavit of evidence-in-chief at paragraph 20:
“Before [J] was born the respondent and I moved in with his parents in or around June 2002. On one occasion the respondent drank excessively and beat his parents. I recall observing the respondent kicking and punching his mother while she was on the floor. She was left with multiple bruises on her face and body. I recall at the time the respondent’s father locked himself in his bedroom. The respondent kicked his father’s bedroom door open and I recall observing the respondent slapping his father’s head whilst his father was on his bed.”
In the father’s affidavit he says at paragraph 30:
“On the 16^th June 2002 shortly before the birth of [J] my brother […] died as a result of a car accident. I had a very close relationship with my brother and I was very troubled and upset by his death. It was after this event when my drinking increased and I drank to excess on occasions. On occasions I was inconsolable and I took my feelings of hurt and pain out on my other family members. I recall one incident when I pushed my mother to the ground but I did not otherwise hurt her or assault her.”
During cross-examination by counsel for the mother, the father admitted that he had pushed his mother over, but denied kicking or punching her. He denied any attack upon his father as alleged by the mother.
The father’s mother, the paternal grandmother, was also cross-examined about the allegations made by the mother concerning the father assaulting his mother and father in 2002. The father’s mother admitted that the father had vigorously pushed her in the chest and that she had, as a result, landed on her bottom and back on the floor. She emphatically denied that he had kicked her or punched her whilst she was on the floor. The father’s mother described this incident happening when they were having an argument and she assumed that the father had been drinking.
During cross-examination the father’s mother said that she was not aware of the father assaulting her husband. She said that her husband had never mentioned any break-in to his bedroom or assault. The father’s mother was asked whether she was merely protecting her son and she said that she denied that this was the case.
I accept the evidence of the father’s mother in particular. I am not satisfied that the mother has established that the father assaulted his mother in the manner she suggested. I am satisfied that the evidence establishes that the father assaulted his mother by pushing her, that she fell over and that this occurred when the father was drunk.
The mother alleges that in January 2007 she was raped and assaulted by the father. He denies this. Paragraph 30 and 31 of the mother’s affidavit of evidence-in-chief says as follows:
“30.On the evening of 8 January the respondent and I were drinking together. We finished a bottle of wine and I went for a walk with my friend [W] to buy some more alcohol. While we were out [W] spent time talking to someone. We returned home later than expected at approximately 1.30 am.
31.The respondent was frustrated and accused me of cheating on him. I explained to him that I had been walking with [W]. When the respondent and I went to bed, [W] stayed at the house in another room. The respondent said to me “you have to pay for lying to me” and “you have to pay for what you’ve done”. The respondent then said “you have fucked me up the arse, so I’m going to do the same to you”. Out of fear I let the respondent take off my clothes. I then started crying and yelling asked him to stop and not to do it. The respondent knew [W] was still in the house. He put a sock in my mouth to shut me up and put a pillow over my head. He then knelt on the pillow. I feared for my life. Out of fear I then submitted to the respondent and he penetrated me anally. I did not consent to his actions. After approximately 2 hours the respondent stopped and fell asleep.”
In her oral evidence-in-chief the mother said that on the evening concerned she was out looking for cigarette butts in ash-trays in the Woolworths Car Park near the home in G. In cross-examination the mother said that at the time of this incident the children were in bed and did not wake up. During this cross-examination the mother said that she and her friend W were absent from the house for “a few hours”. She said that Woolworths was about a five minute walk from their home. She also gave evidence that during this time they “went through things left at the Op Shop and spoke to a few people”. She said that the police came and “told us to go away”.
During cross-examination for the father, the mother said that before going to bed that night (the evening of the 8 January morning of the 9 January 2007) the mother referred to the father arguing with her after she returned from collecting cigarette butts at Woolworths and that during the argument he was sharpening a knife and throwing it around. She agreed that he had not threatened her with the knife but said that he was throwing it up and down. She said it was a big pocket-knife which would fold up. She admitted that she had not referred to the knife in the affidavit filed in the Family Court concerning the allegations of rape and assault on that evening.
During cross-examination by counsel for the Independent Children’s Lawyer the following evidence was given:
“You and your friend then went out to Woolworths?---Yes.
And I think you said that you were out there for a couple of hours?---Yes.
Do you know what time it was that you left your home to go to Woolworths?
---No.
Would it have been before midnight?---Yes.
What time do you think you got back?---I think I got back about 1.30, 2 o'clock.
And you then said there was a conversation around the table for a couple of hours?---Yes.
Do you have any idea what time you would have gone to bed that night?---No, not at all.
You have said in affidavit material that the sexual assault took place over two hours?---Yes.
Does that mean that intercourse was taking place for two hours?---No. What happened was we argued and I was screaming and he assaulted me then with a sock and a pillow, and then I pretty much had to let him - and then he stopped and then I kind of got on top of him and cuddled him till he passed out asleep.
Why did you do that?---Because I just wanted him to go to sleep.
Do you think that that behaviour, from your point of view, is inconsistent with just having been raped?---Yes, it sounds like it, yes, but at the time I just wanted him to go to sleep and I wanted to go to sleep myself. It seemed easier.”
In re-examination the mother was asked:
“Ms [Purdy], it was put to you that you didn’t put anything about the father holding a knife and sharpening it and moving it up and down, throwing it, in your affidavit in relation to the night where you said he raped you in January 2007? ---Yes, I should have probably gone more into that, in depth.
Can you explain why it is in your criminal proceedings matter and not in the family one?---I took a really big statement. It was really big. Just everything that happened.
Are you saying in relation to criminal or family?---To the criminal.
Why would that stop you from putting it in the family?---I don't know.”
In his affidavit of evidence-in-chief the father said of the events of the 8 and 9 January 2007 the following:
“37.On or about the evening of the 8^th January 2007 the mother left our home at about 11.45 pm. She had been drinking and informed me that she would be gone for about 15 minutes as she wanted to get cigarette butts out of the ashtrays at Woolworths. I suggested that she use some of the butts in the ashtrays at home but she replied that the “butts were bigger at Woolworths”. The mother left but did not return home until approximately 3.30 am. I had sent her a test message at 1.37 am and in that message I told her not to bother coming home because I could not trust her and that I was sick of all the lies and informed her that our relationship was over. When the mother finally returned home at 3.30 am I asked her where she had been and she told me that she had been talking to the Police for four hours. I did not believe her but I did not want to have an argument as she was drunk and not making any sense. Accordingly I went to bet by myself at 4.00 am. The children were asleep in their own beds.
38.I was woken up a little before dawn as the mother was touching my body and trying to get me to have sexual intercourse with her. I made it clear to her that I did not want to. The mother kept “whinging” at me to have sex and so I reluctantly agreed. It was consensual and there was no violence whatsoever of any sort. I went back to sleep immediately afterwards.
39.When I eventually woke up at approximately 10.00 am the mother was already awake and her friend [W] and [E] were present at our home. I told the mother’s friends that I wanted them to leave. The mother’s friends were always present at our home and we had little time as a family without them being present.
40.I decided to have a bath and the mother came into the bathroom. I asked her to tell me truth (sic) about where she had been the night before and why she had come home so late. I said to her if she could not tell me the truth then there was little point continuing with our relationship. She did not argue with me and she left the bathroom and by the time that I came out of the bath she had left the home leaving the children watching television in the lounge room.”
The police visited the father’s home on the 11 January 2007 when he was informed that the mother had made a complaint to them that he had raped her and assaulted her. He was arrested and charged with endangering life and “aggravated rape” (paragraph 42 of the father’s affidavit filed on the 17 March 2009).
During his oral evidence the father said that that mother left the home at about 11.00 pm saying she was going to get cigarette butts from the Woolworths car park. He said that when she came back around 3.30 am he was asleep on the lounge. The children were both asleep in their bedrooms. He said that the mother on that occasion offered him oral sex which was something she did when she had done something wrong. The father’s evidence was that it was the mother who initiated sexual activity and that he had not forced her in any way.
During cross-examination by counsel for the mother, the father admitted that he had had some drinks that night but said he was not drunk. When asked what time the mother had left the home that evening he said it was 11.00 pm or quarter past eleven. When asked about the difference in time in his earlier affidavit he said that he had not read it through properly. When asked about the alleged rape he said that he was not sure whether he had anal or vaginal sex with the mother that evening on the basis that he was “pretty sure” she had her back to him, but was not sure “where she put it”. He admitted that he was upset with the mother because she had been away so long and he did not believe her excuse. He specifically said that he thought she was lying when she said she had been talking to the police for four hours.
The father consistently denied saying to the mother that evening that he was going to “fuck her up her arse” or anything of that sort. He denied holding the pillow over her head or assaulting or threatening her in any way on that occasion.
When the mother’s evidence about her getting on top of him and hugging him until he fell asleep was put to him, he said that he did not recall that at all. He said he simply went back to sleep. He denied that any incident lasted for hours and said that it was “five or ten minutes, if that”.
The father denied asking the mother to join him in the bath, but admitted that he told her to tell him the truth or she should “piss off”. He continued to deny that he had placed a sock in the mouth of the mother or placed a pillow over her head. He further denied that he had produced a knife on that evening/morning and said that although he owned a pocket-knife with a blade of approximately four centimetres, he used it for fishing. His evidence was that the knife had been in the tackle-box in the shed and that he never carried it on him unless he was going fishing.
After the incident on the 8/9 January 2007 there is further interaction between the mother and father which it is appropriate to consider in the context of the allegations made by the mother about rape and serious assault.
The mother’s affidavit of evidence-in-chief describes the events immediately after the incident on the 8/9 January 2007 as follows:
“33.I immediately went to my grandmother’s house and my grandmother called the police. I provided the police with a full report of the assault and rape. The police took some of my clothes for evidence and then went to the respondent’s house to further investigate.
…
35.As a result of the rape and assault against me the respondent was arrested and charged on 11 January 2007 with endangering life and aggravated rape.”
The mother voluntarily spent time with the father after the events of 8/9 January 2007. The mother’s affidavit said as follows:
“52.I admit attending at the respondent’s house on 24 January 2007. I understand that this breached his bail conditions. I deny apologising for lying or ever informing the respondent that I had lied. At the time I acted out of utter and complete desperation to see my children. I was not coping well being denied contact with my children. I though (sic) it might be a good idea to try and reconcile with the respondent so that I could resume spending time with my children. I regret my actions. I admit that I spoke to the respondent’s mother but deny that this was because the respondent sought her assistance. The respondent asked me to leave after I had spoken to his mother.”
This affidavit was sworn and filed on the 20 March 2009.
The father’s mother’s affidavit of evidence-in-chief says at paragraph 17:
“17.On January 9, 2007 I was driving along my street which is around the corner from [the father] and [the mother’s] house. It was between 10.30 am and 11.00 am. I saw [the mother] walking along the street and I thought she might like a lift and I assumed that she was heading to the shops so I offered her one. [The mother] stood at the side of the car and crossed her arms across her chest and said very firmly that she “wanted to go to her Nans”. She said she was sick of being told what to do. I said I would taker her to “Nans” and she got in the car. [The mother] told me she and her friend [W] had gone to Woolworths the night before however as Woolworths were closed they were collecting cigarette butts out of the ashtrays. She said that they had taken longer than she thought because the Police stopped them and were talking to [W] as she had a warrant out for her arrest. She said that when she got home [the father] accused her of being with another guy and they argued. She didn’t mention any physical violence or a rape but she did say that he had threatened her. I asked her where the children were and she said that they were in the lounge room and that [the father] was in the bath. [The mother] was angry and determined to leave so I dropped her at [her grandparents’].”
The mother admitted that the father’s mother had given her a lift on that day and that she had not told the father’s mother of any rape or assault.
During cross-examination by counsel for the Independent Children’s Lawyer the mother was asked:
“Q:was there a reason, the next day, that you didn’t tell his mother about the assault?
A:       I don’t know why I didn’t. I didn’t want to upset her
Q:       would you have been embarrassed to tell her of anal sex?
A:       Yes.
Q:What about your friend who had stayed there overnight? Was she up when you left the next morning?
A:Yes.
Q:Did you tell her about the assault?
A:No.
Q:Why was that?
A:I didn’t want really anyone to know.
Q:Why?
A:Because I wished it’d never happened I’m embarrassed about it.”
The mother commenced proceedings in the Family Court on the 19 January 2007 seeking orders that the children be delivered up to her. An order was made by Judicial Registrar Forbes on the 12 February 2007 that the father deliver the children to the mother that morning at the W Police Station.

J was born in August 2002. He is now six years and eight months old. A was born in November 2004 and is now aged four years and five months old. At the time Dr Q completed her report, J was six years and three months and A was four.
J is reported to have said to Dr Q:
“39.[J] explained when asked, that he was in the court because “I want to stay with my Mum, now I go there on the weekends, I like it at [G]. I have a play station and almost a thousand games”. [J] reported that he is a “Virgo” and that he is six years. He said that his sister [A] is “a pain sometimes”. He reiterated with pleasure that he has a thousand toys at [G] and that his mother looks after him “the most” and “sometimes I would really like to go back there”. With words that indicated [J’s] understanding of the conflict about with whom he should live, he added “I would have to do the splits if I had to do that”, a comment the writer interpreted to be this small child’s understanding that in order to live with either his father and grandparents, or mother, he would have to live a divided life.
40.[J] explained that his grandfather “Pa is [Mr Gervasis Snr]” and his grandmother “Ma is [Mrs Gervasis Snr] and my Dad is [Mr Gervasis]”. He said that he went to live with his father and then “I did want to stay there sometimes”. [J] continued to explain that “my whole family except for my Mum lives in the house”, and that his grandmother helps with his clothes and “I play with my sister”. He said that his friends at school play with him too and “that’s all”.
41.[J] said “the best thing about my Mum is I love my whole family even my Mum, I love [A] first”. Speaking of Mr. [O] [J] reported that his grandmother and grandfather had told him that Mr. [O] was not “nice” and that [J] could not say that Mr. [O] was “nice” because they (grandparents) said “no, he is actually mean, [and] I was sad for [Mr O] because I would never see him again”.”
J made other positive comments about his mother and Mr O.
As previously indicated in paragraph 62, Dr Q states that:
“Both [J] and [A] appear to enjoy a trusting and loving relationship not only with their mother and father, but with their paternal grandparents and, to a not inconsiderable extent, Mr. [O]”.
I take into account the ages of the children and in particular that they have experienced considerable conflict between their parents and those closest to them since at least January 2007. This reduces the weight which should be given to the views expressed by [J] and [A] to Dr [Q].

(b) The nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child).

As indicated above Dr Q assessed that the children have a good relationship with each of their parents, the grandparents and Mr O.

(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.

Both parents now offer the other regular time, such as two weekends out of three or three weekends out of four with the children, provided that in the father’s case he is assured that the children are in a safe environment.

(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

The evidence of the mother suggested that she was the primary care giver for the children prior to January 2007. The father maintained that he played a significant role and that the mother was not the primary care giver. Neither of the parties were in full time employment prior to the separation. Since the separation of the parties in January 2007 the mother and the children lived at different addresses until settling in about September 2008 in the mother’s care in S. It was shortly after this that the children were retained by the father and have remained in his care, living with him and the paternal grandparents at the property near G. I am satisfied that there would be further disruption to the children, in particular to J, if he were to be removed from the care of his father and the G Primary School.
The children have recently had the benefit of significant time with the paternal grandparents who are a stabilising and beneficial influence. I consider that separation from the paternal grandparents would have a detrimental effect upon the children.

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

I accept the father’s reasonable attitude towards continuing residence on his parents’ property and the desire to continue the children’s attendance at the G Primary School. The mother resides at S. This is a considerable distance from G. Any handover of the children involves a considerable amount of travel. For some time now the parties have conducted the handover with the assistance of others at M.
The mother has given evidence that she would not agree to move to R, a town approximately 18 kilometres from G.
A shared care arrangement is not possible because the distance involved between the parents’ current households would not permit them readily to attend the same school and develop the same circle of friends. The distance however does not prevent the children spending regular weekend time with the other parent provided suitable handover arrangements can be made. The paternal grandparents have indicated a willingness to assist the children by helping with handovers and travel arrangements.

(f) The capacity of:

(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

to provide for the needs of the child, including emotional and intellectual needs;
and

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

I consider these factors together.
Both parents are young. Both have displayed immature behaviour in the past.
The father has abused alcohol to the extent that his grief over the loss of his brother and his alcohol consumption resulted in him spending a brief time in hospital. In 2004 he exhibited immature behaviour when he jumped off a roof as a result of which he broke his heel.
Both parties displayed considerable immaturity when they maintained a relationship notwithstanding the conditions of the father’s bail.
The mother displayed an immature casual attitude towards the consumption of drugs. This immaturity continued to be exhibited by the attitude she had towards her drug consumption when giving oral evidence before this Court. The mother denied that she had spent time in Darwin working as a stripper. Initially she denied telling the father that she had worked as a stripper when in Darwin. Later she admitted that she may have told the father that in order to upset him. As previously discussed the mother showed a lack of understanding of consequences from her behaviour when she contravened the order of this Court requiring that she not permit Mr O to have any contact whatsoever with the children.
The father’s capacity to provide for the needs of the children, including their emotional and intellectual needs is substantially enhanced by the assistance he receives from his parents. The contribution of the father’s parents will also be likely to encourage in the father a good attitude towards the children and to the responsibilities he has as a father to the children.
The mother’s evidence about not telephoning the children to speak to them during the period from September 2008 until February 2009 (namely, that she did not want to speak to either the father or the grandparents) suggest that the mother was unable to place the needs of the children beyond that of her own concerns.

(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 things are relevant.

As previously indicated the maturity of both parents is a significant factor to be taken into account. There appeared to be similarities in lifestyle previously undertaken by the parents. The father’s background is one of greater stability with the paternal grandparents than the difficult childhood experienced by the mother.

(h) if the child is an Aboriginal child or a Torres Strait Islander child.

The factors in criteria (h) are not relevant.

(j)Any family violence involving the child or a member of the child’s family;

The father was violent towards the paternal grandmother on one occasion in 2002. This occurred at a time when he was suffering from depression following his brother’s death. He was also abusing alcohol. I am satisfied that the behaviour of the father towards his mother, at a time before the children were born, does not necessarily play a significant role in his ability to provide appropriately for the children. I take into account the years that have passed since and his mother’s evidence about his recent behaviour.
The incident in which the mother alleges she was “head-butted” by the father has been discussed earlier. I am not satisfied that the evidence establishes that this was a deliberate assault by the father upon the mother, but I am satisfied that the incident occurred only because of the inappropriate behaviour of the father surrounding his consumption of alcohol and stupid decision to try to drive when drunk. Again, I take into account the years which have passed since this incident and the significant improvement in the father’s behaviour since.
I have already found that the evidence does not establish that the father raped or assaulted the mother on the 8/9 January 2007. The evidence does not establish that the children’s welfare is at risk from further family violence if placed in the care of the father, particularly whilst he remains residing at the property of his parents.

(k)Any family violence order that applies to the child or a member of the child’
(i)the order is a final order; or
(ii)the making of the order was contested by a person;

The mother gave oral evidence that she was giving consideration to applying for a Family Violence Order, but had not done so. Based on the evidence that I have heard, I do not accept that the mother is likely to be granted a Family Violence Order against the father, particularly if it is contested. The bail conditions under which the father was placed were of course discharged when the proceedings against him were dismissed in February 2009.

(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

It is preferable in this case for an order to be made which would bring about the end to litigation about these children. The parties, the children and their other significant adults need an opportunity to lead a life which is not hampered by ongoing litigation.
The mother has indicated that she will not agree to move to the G area. The father has indicated that he wishes to continue to reside on his parents’ property. I have given consideration to drafting an order which might apply if the parties were to live closer together (as suggested to say within 50 kilometres of each other) but consider that providing such option involves further uncertainty for the parties, but in particular for the children. This would not secure a stable and settled arrangement which would be in their best interests.

(m) any other fact or circumstance that the court thinks is relevant.

The father and his mother gave evidence indicating that the actions they had taken in relation to Mr O and their concerns for the children’s welfare in his care were based upon genuine fears for the children’s welfare. Whilst I have found that the evidence does not establish an unacceptable risk of abuse by Mr O, I accept nonetheless that the father and his mother will continue to have concerns for the children’s welfare whilst the mother remains in a relationship with Mr O. I also accept the mother’s evidence that she would ensure that Mr O only spends time with the children whilst in the company of herself or some other responsible adult, provided that this condition would not apply to an emergency.
While the children are young it would be in the best interests of the children for the father and grandparents to be assured that when they are with the mother they are protected and safe. The reduction in anxiety for the father and paternal grandparents will increase their capacity to provide the best care for the children.

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The most relevant factor in relation to sub-section (4) is the mother’s failure to spend time with the children or otherwise to communicate with the children in the period September 2008 to February 2009 (save for the one period of time supervised by Mr R and Christmas time supervised by the father’s parents).
I accept that the mother’s evidence was that she was unable to arrange suitable supervisors, however the explanation for failing to telephone the children suggests that the mother lacked insight into her need to maintain her relationship with the children at that time.
Section 60CG specifically requires the Court to ensure that the Court order does not expose a person to an unacceptable risk of family violence to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The evidence before the Court has not established that there is a risk of the children being exposed to family violence in the care of either of the parents. It was not established that the father raped or assaulted the mother in January 2007.
Section 61DA requires the Court to presume that it is in the best interests of the children for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. These exceptions do not apply in this case.
Sub-section (4) provides:
“(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. “
The mother gave evidence that she cannot communicate with the father directly. She passed messages about the children’s health and welfare to the father by informing the paternal grandparents.
The father has given evidence that he cannot communicate directly with the mother. His attitude is understandable and in particular based upon the mother’s maintenance of the charges of rape and endangering life until the charges were dismissed at the commencement of the criminal trial in February 2009.
The relationship between the parents continues to be one of conflict and mistrust. There has been no direct communication or cooperation of any significance between them since September 2008. An order which required them to make joint decisions about the issues that affect the long term welfare of the children is likely to be an order which will maintain conflict and bring about further proceedings in this Court. I consider this not to be in the best interests of the children. The best interests of the children can be served by the parent who has the primary responsibility for the children, keeping the other parent informed about significant issues concerning the children (such as their health and education).
I am satisfied that it is not in the best interest of J and A for the parents to have equal shared parental responsibility for the child.
Notwithstanding the findings I have made about equal shared parental responsibility I nonetheless give consideration to the provisions of section 65DAA which direct the Court to consider equal and substantial and significant time for each parent. The parties live a considerable distance apart. The distance between the S and G homes of the parties and the mother’s unwillingness to consider moving to the G area significantly reduces the practicality of the children spending any school night (other than a Friday night) in the home of the parent who does not have their day to day care.

Conclusion

I have considered carefully all of the relevant factors which relate to the determination of the best interests of J and A. I accept that the parties are both immature and have been irresponsible. I am satisfied however that the father’s recent behaviour and evidence shows more maturity and a better attitude than that of the mother.
The mother has demonstrated that she has little insight into the needs of the children and a lack of understanding of consequences of her own behaviour.
The father’s immaturity is also offset by the significant contribution of his parents towards the stability and protection afforded to the children whilst he resides on the property of his parents.
J has settled at school and has not exhibited inappropriate sexual behaviour at this school. Notwithstanding the mother’s assertion that she had carried out the role of primary care giver to the children prior to January 2007 I am satisfied that the children now have a positive established relationship with the father and his parents, which it will not be in their best interests to disrupt.
I conclude therefore that it is in the best interests of J and A that they continue to live with the father provided he resides with the children on the property where his parents also reside. It is in the children’s best interests that they continue to spend time with their mother. The distance between the households prevents the time spent being other than on weekends and school holidays.
I give consideration to the proposals that such time spent be either three out of four weekends or two out of three weekends. It is in the children’s best interests for the father to participate in some weekend activities with the children. The children would also benefit if they are able to maintain a connection with the social activities of the area in which they reside and the school that they attend. I consider it in the best interests of the children that they spend two out of every three weekends and half the school holidays with the mother.
To overcome any anxiety of the father and grandparents about Mr O it is appropriate to ensure that the mother supervises the children’s time with him except in case of an emergency.

The conditions about the father remaining resident on the same property as his parents and the condition about the mother supervising the time with Mr O are both orders which may cease to be necessary or suitable with the passage of time. I consider it therefore to be in the best interests of the children that these conditions only apply for five years.
For the above reasons I therefore consider it is in the best interests of the children that the orders contained in this judgment be made.

I certify that the preceding two hundred and ninety three (293) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe.

Date: 15 May 2009

[2009] FamCA 388

15 May 2009

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Natural Justice

Procedural Fairness

Injunction

Remedies